The trial judge's ruling that this affidavit was insufficient merely because it contained "conclusions" may itself, in the circumstances of this case, "`give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.'" Jones v. State, 247 Ga. 268, 271 (4) ( 275 S.E.2d 67); Stephens, supra. Butler's recusal affidavit raises genuine questions of fact involving the trial judge's own actions, and this trial judge could not sit as trier of fact on allegations concerning his own actions. The judge's duty on a motion to recuse is to determine the timeliness and legal sufficiency of the movant's affidavit and to determine whether the facts alleged, if true, would warrant recusal.
See in this connection Ladson v. State, 248 Ga. 470, 478 (12) ( 285 S.E.2d 508); Bowman v. Bowman, 230 Ga. 395 (1), 396 ( 197 S.E.2d 372). In the recent case of Jones v. State, 247 Ga. 268, 269-270 (2) ( 275 S.E.2d 67), it was held that there was no abuse of discretion by the trial court in a ruling on alleged juror misconduct during voir dire. The Supreme Court quoted from the case of United States v. Mulligan, 573 F.2d 775, 777-778, that "every incorrect answer given on voir dire [does not require] a new trial ... If the answer was given in good faith with no deliberate intent to mislead, the trial court may well find that no prejudice resulted, even though the lack of disclosure might have impaired defendant's right to exercise a knowledgeable peremptory challenge."
It is alleged the defendant was denied his constitutional right "to a trial by an impartial jury..." "`A defendant is entitled to be tried by a fair and impartial jury [cit.] and to exercise knowledgeable challenges in the pursuit of this judicial ideal.'" Jones v. State, 247 Ga. 268, 270 ( 275 S.E.2d 67). Counsel have a statutory right to examine potential petit jurors on any matter or thing which would illustrate any interest of the juror in the cause, including any opinion as to which party ought to prevail, the relationship or acquaintance of the jury with the parties or counsel therefor, and any fact or circumstances indicating any inclination, leaning or bias which the jury might have respecting the subject-matter of the suit, or counsel or parties thereto, and the religious, social and fraternal connections of the juror. Code Ann. § 59-705 (Code § 59-705, as amended through Ga. L. 1951, pp. 214, 215). If the defendant in a felony trial has to exhaust his peremptory strikes to excuse a juror who should have been excused for cause, the error is harmful.
Certainly, a defendant has the right to trial by a fair and impartial jury, and in pursuit of that end is entitled to exercise knowledgeable challenges; however, an incorrect response given by a potential juror on voir dire does not necessarily call for a new trial. Jones v. State, 247 Ga. 268, 270(2)(b), 275 S.E.2d 67 (1981). The determinative question is whether there exists bias on the part of the juror which results in prejudice to the defendant.
(Citations and punctuation omitted.) Jones v. State, 247 Ga. 268, 271 (4) ( 275 SE2d 67) (1981). To be disqualifying, the alleged bias must "`stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.' [Cit.
We believe these actions certainly raised reasonable questions concerning the judge's partiality and bias. Furthermore, the actions were "of such a nature and intensity to prevent the defendant . . . from obtaining a (trial) uninfluenced by the court's prejudgment . . . [and] give fair support to the charge of a bent of mind that may prevent or impede [the] impartiality of [justice]."Birt v. State, 256 Ga. 483, 486 ( 350 SE2d 241) (1986), quoting Jones v. State, 247 Ga. 268, 271 ( 275 SE2d 67) (1981). Because the trial judge's impartiality was questionable, it was error for him to deny appellant's motion for recusal. Because we cannot say it is likely that the incidents discussed above had no impact on the jury's disposition of this matter, we must reverse the judgments of conviction.Judgment reversed.
See Carter v. State, 246 Ga. 328, 329 ( 271 S.E.2d 475) (1980).Birt, 256 Ga. at 486, quoting Jones v. State, 247 Ga. 268, 271 ( 275 S.E.2d 67) (1981). Having reviewed the record in this matter, we are satisfied that the trial judge's post-sentencing statements were based entirely upon what she learned of appellant and his crimes during the course of trial.
Based on the record, the trial court did not abuse its discretion in concluding that Brundage was not prejudiced and in denying his request for the relief sought. See Jones v. State, 247 Ga. 268 (2) ( 275 S.E.2d 67) (1981); McLamb, supra; Harbin, supra. 3. Brundage claims that he was deprived of his right to effective assistance of trial counsel because counsel failed to object to the introduction of a photograph of the defendant wearing a tee-shirt with a marijuana plant decal.
Hanifa v. State, 269 Ga. 797, 807(6) ( 505 S.E.2d 731) (1998). Moreover, even where the presumption of prejudice does arise in the context of such communication, it is rebuttable. Jones v. State, 247 Ga. 268, 270(2)(a) ( 275 S.E.2d 67) (1981). Its effect is to place the burden of showing a lack of harm on the State. Jones v. State, 258 Ga. 96 ( 366 S.E.2d 144) (1988).
Thus, where a detective states that he has no first hand knowledge of the results of crime lab tests, he cannot testify about them. Jones v. State, 247 Ga. 268, 272 (9) ( 275 S.E.2d 67) (1981). Of course, an expert can base his opinion on facts which he did not personally observe. OCGA § 24-9-67.