A Fulton County jury found Jeffrey Dunn guilty beyond a reasonable doubt of statutory rape, OCGA § 16-6-3 a; solicitation of sodomy involving a person under the age of 18, OCGA § 16-6-15 a, b; and pandering, OCGA § 16-6-12. Dunn appeals from the denial of his motion for new trial, contending that the trial court abused its discretion in dismissing a juror and that it violated his constitutional right to be present during a critical stage of the proceedings. He also claims that he received ineffective assistance of counsel and that his convictions for solicitation of sodomy and pandering should have merged. For the following reasons, we reverse the judgment of conviction and remand this case for retrial. 1. Dunn contends that the trial court abused its discretion when it dismissed a juror during trial without conducting a hearing in his presence and without a sound legal basis for the dismissal.
The trial transcript shows that, at the beginning of the third day of trial and after the jurors were seated in the courtroom, Dunn’s counsel asked the trial court judge, “May we briefly approach” The judge, the prosecutor, and defense counsel participated in a bench conference outside the hearing of the jury and the court reporter. After the bench conference was concluded, the judge made the following statement to the jury: You know, the lawyers are great. . . . They are showing me up in places that I am weak. That takes a lot many times. They reminded me this morning that I should remind you-all, parts of trials are boring, okay. Sometimes they are boring. Sometimes they can make you sleepy, okay. If you get so sleepy that you are . . . unable to hold your head up, we need to stop and give you-all a break, okay. No one in this courtroom can afford the consequence of a juror going to sleep. It’s too important. So, if you can’t keep your attention or whatever, okay, you let me know, and I will take breaks every 15 minutes because your attention is that important. So, let’s stay up. And if you need a break, you call on me, and . . . we will put some caffeine in your ear or something. All right. The State, call your next witness. An hour later, following the testimony of three witnesses, a bench conference was conducted, after which the judge stated that, “The lawyers have let me know that this next witness could take a little while, so we will take a ten-minute break.”
