In 2022, an automobile accident victim brought a negligence relating to a three-car motor vehicle collision. The case proceeded to trial in the State Court of Bibb County, resulting in a verdict for the defense. The plaintiff appealed, arguing that the trial court erred in failing to grant a mistrial after allowing an alternate juror to participate in deliberations.
Background
The jury reached its verdict in “less than ten minutes,” as calculated by the trial court. After receiving word that the jury had made its decision, the trial court asked the parties whether they had anything to discuss before the verdict was announced. The parties said no, at which point the trial court stated:
Okay, so I got one thing. We had a jury of 13 back there. The alternate is back in there with them. So that’s my mistake. I didn’t pull the alternate out. Apparently, they have a unanimous verdict anyway. So not knowing what the verdict is, what do y’all want to do?
The defendants said they had no objection to the situation. But the plaintiff objected and moved for a mistrial. After a brief discussion, the trial court denied the motion, explaining:
I’m going to deny the motion for mistrial. We can take the verdict and you may have some other form of relief post-verdict if you want to address it. … I can see a scenario where, depending on what the verdict is, there may be an argument that her presence in there or not in there didn’t matter one way or the other. But we don’t know what that is right now. So I apologize Mr. The plaintiff. Again, I don’t have any excuse. I should have remembered to get the alternate out. So and again, I don’t know what the outcome is right now. But we’re bringing the jury in with a motion for mistrial denied.
After the plaintiff renewed his objection to the jury, the defense verdict was published in court. Rather than filing a motion for new trial, the plaintiff moved for reconsideration of the denial of his motion for mistrial, asserting that, under Georgia law, alternate jurors must be kept separate and apart from regular jurors during deliberations.
The trial court held a hearing on the motion, at which the defendants offered testimony from the alternate juror. The alternate testified:
- She didn’t say anything while she was in the jury room during deliberations;
- She didn’t take part in the discussion;
- She was “quiet as a mouse”;
- She wasn’t paying much attention because she knew she was the alternate; and
- She didn’t participate when the other jurors voted on the foreperson and the verdict.
She also testified that no one questioned why 13 people were in the jury room or indicated that her presence influenced the jury. Plus, the defendants offered sworn statements from seven jurors, who said the jury wasn’t influenced by the alternate juror’s presence. The plaintiff objected to the admission of these sworn statements, asserting that they weren’t timely produced, hadn’t been notarized, and constituted hearsay.
The trial court ultimately denied the motion for reconsideration. In doing so, it refused to consider the “sworn statements” offered by the defense, finding them to be untimely and inadmissible hearsay. The court also determined that it had erred by failing to remove the alternate juror from the jury room during deliberations. It found, however, that the error was harmless:
Based on the observation of [the alternate], her testimony, and the fact that the jury took less than ten minutes to select a foreperson and reach a verdict, the [c]ourt concludes that [the alternate’s] presence during deliberations did not influence the principal jurors and that the [c]ourt’s oversight in failing to remove her before deliberations was harmless error.
Court of Appeals Affirms
Chief Judge Amanda H. Mercier wrote that as an initial matter, the Court questioned whether the plaintiff presented a cognizable claim for review. The trial court initially denied the motion for mistrial because, at the time, the parties and the court didn’t know what the verdict was and/or whether the alternate’s presence “matter[ed] one way or the other.” In making that ruling, the trial court noted that the plaintiff could pursue the issue in a post-trial motion if he chose to do so. Although The plaintiff renewed his objection to the jury, he didn’t object to the trial court’s procedure. Moreover, Judge Mercier said that he didn’t argue or demonstrate on appeal that the trial court abused its discretion in determining that post-trial proceedings—rather than a motion for mistrial made when the jury’s verdict was unknown—was the best avenue for addressing the alternate juror issue.
Instead, the plaintiff’s appeal focused on the denial of his post-trial motion for reconsideration. In that motion, the plaintiff requested that the trial court declare a mistrial due to the fact that there were 13 persons on the jury who deliberated in the case.
The Chief Judge explained that a mistrial can only be granted before the verdict is rendered—once the jury returns its verdict, the trial has ended, and the time for granting a mistrial has passed. As such, a purported mistrial granted after the jury has returned its verdict results in a void order.
The proper vehicle for the plaintiff’s alternate-juror claim was a motion for new trial, not a motion for reconsideration seeking a post-trial declaration of a mistrial. The plaintiff failed to file a motion for new trial. And the relief he sought—the grant of a mistrial after the jury returned its verdict — would be void.
But even if the procedure the plaintiff used could be construed as valid, he still wasn’t entitled to relief, the judge concluded. The Georgia Constitution requires that “a trial jury … consist of 12 persons,” except under specified circumstances, when the General Assembly can provide for a different number of jurors. As to civil cases in state courts, the legislature generally authorizes a jury of six persons. When the claimed damages exceed a certain level, however, a party may demand — as the defendant did in this case — a jury of 12.
Although nothing in O.C.G.A. § 15-12-122 authorizes a 13-person jury, the Civil Practice Act permits a court to impanel one or two alternate jurors who can “replace jurors who become or are found to be unable or disqualified to perform their duties.” An alternate who hasn’t replaced a regular juror may be discharged prior to deliberations or, if not discharged, must be kept “separate and apart from the regular jurors until the jury has agreed upon a verdict.” As the trial court recognized, it failed to follow the proper procedure here. The question was whether that error resulted in harm.
Was There Harm in Including the Alternate Juror?
Judge Mercier wrote that Georgia case law hasn’t addressed this alternate juror issue in the civil context. The issue has, however, arisen in criminal cases. Similar to O.C.G.A. § 9-11-47(b), O.C.G.A. § 15-12-171 provides that, during felony jury trials, once a case is submitted to the jury for deliberation, alternates who haven’t been discharged shall be kept “separate and apart from the regular jurors, until the jury has agreed upon a verdict.” Construing this provision, the Georgia Supreme Court has determined that “there is a rebuttable presumption of harm to the defendant if an alternate juror sits in on the jury’s deliberations over the defendant’s objections.” To rebut this presumption, the State must demonstrate that the alternate’s presence in the jury room didn’t influence the verdict. The “ultimate question of influence on the verdict may be answered if a trial court finds that the State met its burden of showing that no juror was influenced by an alternate juror’s presence and the record supports that the finding is not clearly erroneous.”
The operative language in the criminal and civil statutory provisions governing alternate jurors is almost identical. And in both the criminal and civil context, an alternate juror who improperly enters the jury room is a “third party or a stranger to the jury.” The Court saw no reason to apply a different analysis when addressing a violation of O.C.G.A. § 9-11-47(b). The trial court’s error in allowing the alternate juror to join the jury during deliberations created a rebuttable presumption of harm to the plaintiff, who objected to the presence of 13 individuals in the jury room. To rebut this presumption, the defendants offered the testimony of the alternate, who asserted that she took no part in the proceedings, cast no vote, didn’t speak, and wasn’t questioned about her presence. The trial court explicitly found the alternate’s testimony credible. It further determined, based on the alternate’s testimony and reserved demeanor, as well as the speed at which the jury reached its verdict, that she didn’t influence the jurors, rendering her presence harmless.
On appeal, the plaintiff urged the Court of Appeals to reverse because the defendants failed to present admissible evidence from the 12 regular jurors as to whether the alternate juror influenced their verdict. Judge Mercier reasoned that evidence from these jurors certainly might have aided the trial court. But this wasn’t a case in which the only information about the alternate’s participation came from one member of the jury, who may not have known whether the alternate interacted with other members. On the contrary, the alternate testified that she didn’t engage with anyone during deliberations, participate in the discussion, or cast a vote… and she said she remained “quiet as a mouse” during the proceedings. Moreover, as the trial court noted, the jury selected a foreman and reached a verdict in less than ten minutes, restricting any opportunity the alternate might have had to influence the jurors.
Given these circumstances, the Court of Appeals could not find that the trial court clearly erred in deeming the alternate’s presence in the jury room harmless. The judgment was affirmed. Carter v. Davis, 2025 Ga. App. LEXIS 341, 2025 LX 372169, 2025 WL 2398139 (Ga. App. August 19, 2025).
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