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Desantos v. State

Court of Appeals of Georgia, Fifth Division

April 24, 2018

DESANTOS
v.
THE STATE.

          MCFADDEN, P. J., RAY and RICKMAN, JJ.

          Ray, Judge.

         After a jury convicted Jorge DeSantos of two counts of aggravated child molestation and one count of child molestation, DeSantos filed this appeal from the denial of his amended motion for new trial. He contends that the trial court erred by failing to excuse Juror No. 22 for cause and by allowing the State to ask improper questions of witnesses. For the reasons that follow, we reverse and remand the case for a new trial.

         Viewing the evidence in the light most favorable to the jury's verdict, [1] the evidence shows that DeSantos befriended the victim, an 11-year-old boy, by giving him numerous gifts, taking him shopping, and offering to take him on vacation. During this time, DeSantos molested the victim on two occasions at DeSantos's residence and once in a retail store dressing room. At trial, DeSantos presented as a defense the theory that the victim's grandmother had coached the child to make up the molestation as an act of revenge because DeSantos had refused to marry the victim's mother, which would have provided her an avenue to citizenship. DeSantos presented numerous character witnesses, as well as a witness intended to impeach the testimony of the victim's grandmother. The jury rejected this theory and found DeSantos guilty on all counts.

         1. DeSantos argues that the trial court erred by not excusing Juror No. 22 for cause. It is certainly true that "[w]hether to strike a juror for cause is within the discretion of the trial court and the trial court's rulings are proper absent some manifest abuse of discretion." (Punctuation and footnote omitted.) Lewis v. State, 279 Ga. 756, 760 (3) (a) (620 S.E.2d 778) (2005). Further, for a juror to be stricken for cause, it must be established that the juror holds an opinion on guilt or innocence that is so fixed that the juror will be unable to set that opinion aside and decide the case based on the evidence or the trial court's charge at trial. Menefee v. State, 270 Ga. 540, 542 (2) (512 S.E.2d 275) (1999). However, DeSantos argues that because Juror No. 22 expressed bias and prejudgment, and was never rehabilitated, the trial court erred in refusing to remove the juror. We agree.

         During voir dire, prospective jurors were told that the case involved allegations that the defendant had molested an 11-year-old boy three times between November 1, 2013, and January 31, 2014. The following exchange took place during individual voir dire after Juror No. 22 revealed that he had 8- and 12-year-old brothers, who were similar in age to the victim.

State: And, [Juror No. 22], is there anything that you can think of that would prevent you from being fair and impartial in this case?
Juror: Well, kind of just having my younger brothers, like how close to them [sic]. I feel like that's kind of just like something that like hits home, I guess.
State: Okay. So you - the fact that you have younger brothers that are kind of around the same age as the potential victim, you think would make it a little hard to listen - to kind of hear what some of the facts are?
Juror: Yeah.
State: But you would agree with me that every situation's different, right? And that people are different.
Juror: Yeah, I guess.
State: [ . . . ] But what we - what we want to know if you can do is if you can listen to the evidence as it's presented in the courtroom and make a decision based on that evidence that you hear from the witness stand and then apply [it] to the law the judge gives you. Is that something you feel like you could do?
Juror: I mean, I feel like I'd still be a little biased towards ...

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