The general rule is that where the state relies solely on circumstantial evidence, it is reversible error to fail to charge on circumstantial evidence; however it is not error to fail to charge on circumstantial evidence where there is some direct evidence. Johnson v. State, 235 Ga. 486, 491-92 ( 220 S.E.2d 448) (1975). But if the only direct evidence comes from a witness who has been impeached, it is reversible error to fail to charge on circumstantial evidence upon request.
Lester argues that, to overcome the presumption of harm, the State was required to prove that the alternate juror did not participate in deliberations, even if the evidence shows that the jury's verdict was not influenced as a result. Lester insists that under Johnson v. State , 235 Ga. 486, 494-495, 220 S.E.2d 448 (1975), the State falls short of meeting its burden if it fails to present affirmative evidence that the alternate juror did not participate in deliberations and that the jury was not influenced by the alternate juror's presence. But we do not read Johnson as effectively establishing a mandatory presumption of harm whenever the alternate juror merely "participates" in deliberations.
Further, the jury was instructed "that you should not be in any way influenced by her presence or anything that she might have said or done while she's been out in the jury room with you as a juror after you began your deliberations ... I will instruct you to return to the jury room and continue your deliberations and entirely disregard and remove from your minds insofar as humanly possible any actions, conduct, deliberations or any part whatever that the alternate juror has played in your presence or in the deliberation of the case up to this point, and you can return to the jury room for your final deliberations in the case." The Supreme Court of Georgia has said in Johnson v. State, 235 Ga. 486, 493 (6) ( 220 S.E.2d 448), that "[t]he alternate juror, when he entered the jury room at the time the jury began to deliberate, became, like any third party, a stranger to the jury," citing United States v. Beasley, 464 F.2d 468 (10th Cir. 1972). However, in Johnson v. State, 235 Ga. 486, 493, 494 (6), supra, it was held that "[w]henever such jury misconduct is shown, a presumption of injury to the defendant is raised, which the state must overcome by a showing of harmlessness."
"If an alternate juror does, in fact, sit in on the jury’s deliberations over the defendant’s objections," then "there is a presumption of harm to the defendant that the State must overcome by presenting affirmative evidence that the alternate juror did not participate in deliberations and that the jury was not influenced by the alternate juror’s presence." London v. State , 260 Ga. App. 780, 781, 580 S.E.2d 686 (2003) (citing State v. Newsome , 259 Ga. 187, 188, 378 S.E.2d 125 (1989) and Johnson v. State , 235 Ga. 486, 494–495, 220 S.E.2d 448 (1975) ). The State showed harmlessness at the motion for new trial hearing by submitting affidavits from all 12 jurors and both alternates.
See, e.g., State v. Rocco, 579 P.2d 65, 66-67 (Ariz. Ct. App. 1978); People v. Boulies, 690 P.2d 1253, 1255-56 (Colo. 1984); State v. Murray, 757 A.2d 578, 581 (Conn. 2000); Berry v. State, 298 So.2d 491, 493 (Fla. Dist. Ct. App. 1974); Johnson v. State, 220 S.E.2d 448, 454 (Ga. 1975); Commonwealth v. Smith, 531 N.E.2d 556, 558-61 (Mass. 1988); Luster v. State, 515 So.2d 1177, 1180 (Miss. 1987); State v. Crandall, 452 N.W.2d 708, 709-11 (Minn. Ct. App. 1990); State v. Scrivner, 676 S.W.2d 12, 14 (Mo. Ct. App. 1984); State Highway Comm'n v. Dunks, 531 P.2d 1316, 1317-18 (Mont. 1975); State v. Coulter, 652 P.2d 1219, 1221 (N.M. Ct. App. 1982); State v. Bindyke, 220 S.E.2d 521, 531 (N.C. 1975); Yancey v. State, 640 P.2d 970, 971 (Okla. Crim. App. 1982); Commonwealth v. Krick, 67 A.2d 746, 749 ( Pa. Super. 1949); Patten v. State, 426 S.W.2d 503, 506-07 (Tenn. 1968); State v. Cuzick, 530 P.2d 288, 289-90 (Wash. 1975); State v. Lightner, 520 S.E.2d 654, 659 (W.Va. 1999). Contra People v. Valles, 593 P.2d 240, 243 (Cal. 1979) (alternate may remain in jury room if defendant so stipulates); Wilcoxen v. State, 619 N.E.2d 574, 577 (Ind. 1993) (alternate jurors may attend deliberations as long as they are instructed not to participate); State v. Grant, 717 P.2d 562, 566-68 (Mo
It is not error to refuse to charge where the request is argumentative, summing up facts favorable to the defendant's theory of innocence. [Cit.]" Johnson v. State, 235 Ga. 486, 490 (1) ( 220 S.E.2d 448) (1975). "It is not error to refuse to give a requested charge which is argumentative or favors one party's position by applying facts as legal principles. [Cit.
"Where the trial court receives evidence that is conflicting as to irregularities in the conduct of the jury, the appellate court will not reverse unless the trial court has abused its discretion." Johnson v. State, 235 Ga. 486, 495 ( 220 S.E.2d 448) (1975). The trial court could reasonably find that no improper source influenced the jury's verdict.
In light of the affidavits of the 11 remaining jurors who heard the evidence in this case, we have no basis to assume that the jury was responding to anything other than the evidence presented in assessing damages. See Johnson v. State, 235 Ga. 486 (6) ( 220 S.E.2d 448) (1975); CSX v. Darling, supra. [A]ppellant's contention that the trial court erred in considering the affidavits of the [eleven] jurors who heard this case is not meritorious where the affiants state that each did not consider [an improper factor] in reaching his verdict and was guided only by the evidence in the case and the court's charge thereon.
Accordingly, the presence of the alternate juror was harmless error. Johnson v. State, 235 Ga. 486, 493-5 ( 220 S.E.2d 448) (1975). Judgment reversed. All the Justices concur, except Smith, J., who dissents.
The court did not err by denying the motion for mistrial. Lonchar v. State, 258 Ga. 447 (5) ( 369 S.E.2d 749) (1988); Johnson v. State, 235 Ga. 486 (6) ( 220 S.E.2d 448) (1975). 7. Jarrells' constitutional attacks on the Unified Appeal Procedure and Georgia death penalty statutes are without merit.