Sherry Bailey was indicted for the murder of her husband, Gary Harbuck. Her first trial resulted in a mistrial, and she was retried and convicted of voluntary manslaughter. Bailey appeals, and, finding no error, we affirm. On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. Paul v. State , 257 Ga. App. 86 570 SE2d 399 2002. So viewed, the evidence shows that Bailey killed Harbuck on Tuesday morning, July 20, 1999. According to her testimony, Bailey decided to kill Harbuck with an ax the preceding Saturday, but she could not find the ax and so decided to use Harbuck’s rifle to kill him. Around 3:00 a.m. on Tuesday morning, Bailey located the bullets to Harbuck’s rifle in a box in the basement, loaded the rifle, and then went back to bed. When she woke up she got the rifle from the gun cabinet and shot Harbuck in the back of the head while he was asleep. Bailey, who is a deaf mute and was eight months pregnant at the time of the shooting, presented a defense of justification. She testified that Harbuck had previously beaten her and threatened her unborn child; that on the night before she shot Harbuck he had raped and beaten her; and that she feared he would rape her again and kill her.
1. Bailey claims that the trial court erred by refusing her request to accept a 10-person verdict from the jury at her first trial. We disagree. The original jury was deadlocked at 10-2 and defense counsel asked the court to accept a 10-person verdict in lieu of declaring a mistrial. The prosecutor did not consent and the trial court declared a mistrial. A defendant may waive a right to a unanimous verdict, but only if the prosecuting attorney agrees to the waiver and the trial court sanctions it. Glass v. State , 250 Ga. 736, 738 1 300 SE2d 812 1983; Blount v. State , 169 Ga. App. 215, 216 1 312 SE2d 197 1983. Because the state refused to consent, the trial court did not err in refusing to accept the verdict.
