Opinion
45493.
DECIDED MARCH 16, 1988.
Certiorari to the Court of Appeals of Georgia — 185 Ga. App. 649.
Timothy P. Healy, for appellant.
Michael H. Crawford, District Attorney, for appellee.
We granted the application for writ of certiorari in the present case. Jones v. State, 185 Ga. App. 649 ( 366 S.E.2d 144) (1988). We disapprove the Court of Appeals' holding in Div. 3 of its opinion that where an unauthorized communication to a juror occurs in a criminal case, the burden is on the defense to show actual prejudice. The rule in this State is that where such an improper communication occurs, there is a presumption of harm and the burden is on the State to show the lack thereof. E.g., Whitlock v. State, 230 Ga. 700 (1) ( 198 S.E.2d 865) (1973); Dudley v. State, 179 Ga. App. 252 (3) ( 345 S.E.2d 888) (1986). However, where the substance of the communication is established without contradiction, the facts themselves may establish the lack of prejudice or harm to the defendant. See Whitlock v. State, supra. In our opinion, such is the situation here. Consequently, we summarily affirm, since, under the facts in this case as set out in Div. 3 of the Court of Appeals' opinion, the previously cited disapproved holding is not outcome determinative. As to the summary affirmance, see Georgia Supreme Court Rule No. 49 (2).
Judgment affirmed. All the Justices concur.