Following a bar fight in which Timothy London shot two men, a Muscogee County jury convicted London of two counts of aggravated assault, OCGA § 16-5-21 a; possession of a firearm during the commission of a crime, OCGA § 16-11-106; reckless conduct, OCGA § 16-5-60 b; and possession of a firearm by a convicted felon, OCGA § 16-11-131, London appeals from the denial of his amended motion for new trial, contending the trial court erred in allowing the alternate juror to witness jury deliberations. London also claims he was denied the effective assistance of counsel. For the following reasons, we affirm. 1. London argues that the trial court erred in allowing an alternate juror to go out with the jury to the jury room and to witness deliberations in violation of OCGA § 15-12-171. Under this statute, the alternate juror is prohibited from witnessing the jury’s deliberations. Instead, the trial court may either discharge the alternate juror or direct that the juror be retained and kept in the custody of the sheriff until the jury has reached a verdict. Id.; see also OCGA § 15-12-172 delineating the circumstances under which an alternate juror may replace an incapacitated juror. If an alternate juror does, in fact, sit in on the jury’s deliberations over the defendant’s objections, there is a presumption of harm to the defendant that the State must overcome by presenting affirmative evidence that the alternate juror did not participate in deliberations and that the jury was not influenced by the alternate juror’s presence. Johnson v. State , 235 Ga. 486, 494-495 6 220 SE2d 448 1975 finding harmless error after the State presented the affidavits of all 12 jurors and the alternate juror which demonstrated that the alternate did not vote on the verdict; Newsome v. State , 259 Ga. 187, 188 2 378 SE2d 125 1989 finding harmless error after affidavits of all 12 jurors showed alternate juror did not affect any juror or the jury’s verdict; Bullock v. State , 150 Ga. App. 824, 826 2 258 SE2d 610 1979 conviction reversed after the defendant made “vociferous objections” to the alternate juror’s presence in the jury room, and the State failed to demonstrate that alternate juror’s presence was harmless.
In this case, during jury instructions, the trial court conducted an unrecorded bench conference. It is undisputed that, during this conference, the court expressed its intention to allow the alternate juror to witness the jury’s deliberations so that the alternate would be privy to the discussion in case a juror had to be excused, thereby avoiding the need to start deliberations anew with the alternate. London’s counsel consented to the arrangement. See Division 2, infra. Following the bench conference, the trial court addressed the alternate juror and instructed the jury as follows: The alternate juror will be allowed to go into the jury room and sit through the deliberations but she can’t participate . . . in the arguments; she has to sit off and bite her tongue and fold her arms and not participate. So I’m instructing all the other jurors that the alternate juror is not to participate, she’s an alternate just in case something happens to one of you then she steps in so we won’t have to begin the process over again because she will have sat through the discussions with all of you. So, once you are out, you will choose your foreperson and twelve of you will deliberate, the alternate juror can sit and watch and then you will sign and return your verdict as I’ve indicated. Following their deliberations, the jurors returned a guilty verdict on all counts. The trial court polled the jurors about their verdict, but did not ask about whether they were influenced by the alternate juror’s presence during deliberations. At the hearing on London’s motion for new trial, the State presented no evidence that the alternate juror did not participate in deliberations or otherwise influence the jury’s verdict.
