James C. Thompson was tried before a jury in a bifurcated proceeding for trafficking in cocaine and two counts of possession of a firearm by a convicted felon. On the second day of jury deliberations, Juror John Reid informed the other jurors and then the trial court that someone who knew that the jury was split eleven to one contacted him at home the previous night and offered him money if he would change his vote to not guilty. The trial court ordered that no one leave their seats or stand up, and proceeded to swear in and question the jury foreman, Reid, Juror Victoria Cannon, Alternate Juror Tammy Hagines, and several spectators in the courtroom. As a result of that testimony and its own observations, the trial court concluded that Ms. Hagines and Ms. Cannon were not credible witnesses, and that Ms. Hagines, who did not disclose her prior knowledge of Thompson, had talked extensively the previous day with her friend Artavious Williams, a spectator and supporter of Thompson’s, conversed privately with Ms. Cannon, and had to be separated from her by the bailiff. The trial court dismissed Ms. Hagines and, over defense counsel’s objection and motion for mistrial, replaced Ms. Cannon with another alternate juror. After the jury resumed deliberations and returned a guilty verdict, Thompson’s attorney renewed his motion for mistrial and moved to set aside the verdict, arguing in part for the first time that the trial court failed to inquire of Reid whether he could remain fair and impartial and that the entire jury panel was tainted. The trial court denied relief, proceeded to the second portion of the trial, entered judgments of conviction and sentences on the jury’s verdicts, and subsequently denied a motion for new trial. Thompson’s trial attorney also represented him on appeal, and the Court of Appeals affirmed, finding in part that he could not complain of the trial court’s failure to remove Reid or to give curative instructions because he did not request those particular actions. Thompson v. State , 260 Ga. App. 253, 256-257 3 581 SE2d 596 2003. The Court of Appeals also concluded that communication of the bribery attempt to the whole jury did not constitute such a fundamental violation of Thompson’s right to a fair and impartial jury that the only available remedy is a mistrial. Thompson v. State , supra at 257 3. The Court of Appeals further held that the trial court did not abuse its discretion in removing Ms. Cannon from the jury. Thompson v. State , supra at 257 5. Thompson subsequently filed a petition for writ of habeas corpus. After a hearing, the habeas court granted relief, and the Warden appeals.
The habeas court concluded that defense counsel was ineffective for failing to move for a hearing pursuant to Remmer v. United States , 347 U. S. 227 74 SC 450, 98 LE2d 654 1954, or to move for a mistrial for the failure to grant such a hearing. To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must show both that his trial attorney’s performance was deficient and that the deficient performance was prejudicial to his defense. Cits. Strickland v. Washington , 466 U. S. 668 104 SC 2052, 80 LE2d 674 1984; cit.. . . . We must affirm the habeas court’s determination of this claim unless “its ‘factual findings are clearly erroneous or are legally insufficient to show ineffective assistance of counsel. Cit.’ Cit.” Cit. Turpin v. Curtis , 278 Ga. 698, 699 1 606 SE2d 244 2004. The habeas court relied on the holding in Remmer and in Smith v. Phillips , 455 U. S. 209 102 S. Ct. 940, 71 L. Ed. 2d 78 1982 that, where improper jury contacts are allegedly made in an attempt to influence jurors, the trial court must hold a hearing in which all interested parties are permitted to participate. However, examination of those cases reveals that they are not applicable here.
