Opinion
A95A0856.
DECIDED APRIL 13, 1995.
Armed robbery, etc. DeKalb Superior Court. Before Judge Hunter.
John O. Ellis, Jr., for appellant.
J. Tom Morgan, District Attorney, Barbara B. Conroy, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.
In a bifurcated trial conducted under the procedure established in Head v. State, 253 Ga. 429, 431-432 (3) (a) ( 322 S.E.2d 228) (1984), James Arthur Bowens was found guilty by a jury of armed robbery and aggravated assault, then tried and likewise found guilty by the jury of possession of a firearm by a convicted felon. Bowens was convicted on all three counts, but his conviction on the aggravated assault verdict was later vacated since the armed robbery and aggravated assault counts merged as a matter of fact. See, e.g., Hambrick v. State, 256 Ga. 148, 150-151 (4) ( 344 S.E.2d 639) (1986). Bowens appeals following the denial of his motion for new trial.
In his sole enumeration of error, Bowens contends "the trial court erred by failing to voir dire the jurors after the defense brought possible juror misconduct to the court's attention." The transcript of the first phase of the trial reflects that Bowens informed his defense counsel that the charges against him, including the possession of firearm charge, were posted in the hallway outside the courtroom. Defense counsel related to the court that "[Bowens'] family was here yesterday in the hallway. And the way that it came to their attention, my understanding is that one of the white female jurors said, look at what all they got him charged with. He is not clear on which juror it is. The only description was one of the white female jurors."
The record reflects the trial court had the unredacted calendar information removed from the hallway as soon as the problem came to the court's attention. We cannot overstate the wisdom of this decision, nor can we over emphasize the soundness of the court's pronouncement that "we're not going to post any more calendars." As this case illustrates, it cannot merely be assumed that an unedited court calendar contains no extrajudicial information of a nature potentially prejudicial to a criminal defendant.
This is essentially defense counsel's account of Bowens' account of his missing and otherwise unidentified family member's account of what that person believed he saw a juror do, a juror described only as a "white female." Based on this somewhat less than rock-solid premise, Bowens argues that not only should the trial court have questioned the jurors on the matter, but that the court should have done so after the verdict was rendered. We disagree. The trial court correctly concluded the "evidence" presented was insufficient to afford a basis for inquiring into the alleged misconduct. Moreover, neither Bowens nor his counsel moved for a continuance nor in any other way suggested that Bowens' "family member" might be available to identify the offending juror so that the alternate juror (who happened to be a black female and therefore did not fit the profile of the offending juror) could be substituted.
The time to investigate and remedy suspected juror misconduct brought to the parties' attention during the trial is before the jury reaches its verdict and not after. See Monroe v. Kersey, 207 Ga. App. 108, 109 (6) ( 427 S.E.2d 80) (1993); Hand v. State, 205 Ga. App. 467, 468 (1) ( 422 S.E.2d 316) (1992); Wood v. Food Giant, 183 Ga. App. 604, 605 (3) ( 359 S.E.2d 410) (1987); Maloy v. Dixon, 127 Ga. App. 151, 163 (4) ( 193 S.E.2d 19) (1972). "In short, one cannot, in the hope or expectation of obtaining a verdict in his own favor, follow a trial tactic which he may believe to be advantageous but which results in a waiver and, when a verdict is returned which he now seeks to overturn, enumerate the error as a ground for setting it aside." Id.
Even if this were not so, we note that the evidence against Bowens was overwhelming, which suggests that if the trial court had failed entirely to sever the possession of firearm charge from the more serious charges as mandated under Head, supra, the omission likely would not have affected the verdict on the armed robbery charge. See Meredith v. State, 211 Ga. App. 213, 214 (1) ( 438 S.E.2d 644) (1993). We find no harmful error preserved for our review.
Judgment affirmed. Birdsong, P. J., and Johnson, J., concur.