SIBLEY v. DIAL (2012)

Court of Appeals of Georgia.

SIBLEY v. DIAL.

No. A11A1700.

Decided: January 06, 2012

William J. McKenney, for Appellant. Jonathan Myles Adelman, for Appellee.

Michael Sibley sued James Dial after the two were involved in a motor vehicle collision. Dial admitted negligence, but contested Sibley's claim that the collision was the proximate cause of his injuries. A Fulton County jury rendered a verdict in favor of Dial. In his sole enumeration of error on appeal, Sibley argues that the trial court erred when it asked the Clerk of Court to send to the courtroom for jury selection only those jurors who claimed, in the jury room, to have no relationship with State Farm Insurance Company, Dial's automobile insurance carrier. According to Sibley, the entire trial must be reversed because this pre-qualification question was asked before the prospective jurors were given the statutory oath mandated by OCGA § 15–12–132.¹ Because Sibley waived this argument, we affirm the judgment entered on the jury's verdict.

We first note that neither the jury room questioning nor voir dire were transcribed in this case, so Sibley attempted to perfect the record by submitting an affidavit from his lawyer, attesting to the trial court's procedure for qualifying the jurors about their relationship with State Farm.² This action does not comply with the procedures governing the preparation of the record for appeal. See OCGA § 5–6–41. That statute authorizes the submission of a transcript by recollection and provides other alternate procedures for circumstances where a transcript is unavailable, see OCGA § 5–6–41(g), but none of the statutorily authorized procedures was used in this case. The burden is on an appellant to show error by the record, and, as we have said before, “[a]ppellate courts are guided by the record and cannot rely on extrajudicial statements ․ Where the record, as here, does not fully disclose what transpired at trial, there is nothing for the appellate court to review.” Womack v. State, 223 Ga.App. 82, 82–83(1) (476 S.E.2d 767) (1996) (court cannot rely on trial counsel's affidavit as to what took place during the hearing) (citations and punctuation omitted). Accordingly, although Dial did not object to the introduction of Sibley's lawyer's affidavit attesting to the trial court's voir dire procedures, the methods of preparing a transcript by recollection as set out in OCGA § 5–6–41 were not followed, and we cannot consider the lawyer's unilateral attempt to provide a potentially biased account of what transpired in the court below. See Parker v. State, 154 Ga.App. 668, 668–669(1) (269 S.E.2d 518) (1980) (a statement of the testimony at trial submitted by defense counsel and approved by neither opposing counsel nor the trial court may not be considered by this court).

Pretermitting the lack of evidence, however, the parties and the trial court apparently agree on the procedure employed in this case to pre-qualify the prospective jurors, so we have considered Sibley's argument and find that he waived it. Sibley correctly cites Arp v. Payne, 230 Ga.App. 840, 840–841 (497 S.E.2d 810) (1998), for the proposition that upon a proper request, as we had in this case, a jury panel must be qualified as to any relationship to the parties in open court, including any relationship to relevant insurance companies. It is not disputed in this case that the jurors were pre-qualified as to their relationship with State Farm, although this was not done in open court, as it should have been. And it is not disputed that the jurors were given the oath required by OCGA § 15–12–132 in open court, albeit after they were pre-qualified as to their relationship with State Farm. In fact, Sibley's lawyer admits in his affidavit that he was aware before the start of trial that the Clerk of the Court pre-qualified the jurors for any relationship to State Farm in the juror room. He specifically states, “[j]ust before the panel entered the Courtroom, the Court informed counsel representing the parties that the prospective juror panel had been pre-qualified as to their relationship with State Farm Insurance Company but the Court intended to ask the other pre-qualification questions.” And he does not deny being present for the entirety of the voir dire, in which all the other qualifying questions were asked. While Sibley's lawyer claims to have believed the jurors were under oath when they were pre-qualified for any prohibited relationship with State Farm, he does not point to any ruling, order, or other court action that would form the basis for this belief. He also does not claim that he was prohibited from himself reconfirming the lack of relationship, and he never asked the court to do so. Moreover, nothing in Sibley's appellate brief reveals whether counsel considered why the jurors would be placed under oath in the courtroom if they had already been placed under oath in the jury room.

“A defendant may waive error in the giving of such oath by failing to timely object. The reason for this rule is clear: if the defendant has an objection, there is an obligation to call the matter to the court's attention so the trial judge will have an opportunity to remedy the situation.” Hill v. State, 268 Ga.App. 642, 644(2) (602 S.E.2d 348) (2004) (citations and punctuation omitted). And this is not a case where an objection would have been futile due to the lack of any remedy. See Dunn v. State, 308 Ga.App. 103, 110(1)(b) (706 S.E.2d 596) (2011) (trial court had already dismissed juror, so any objection would be futile). Here, Sibley knew the prospective jurors were being pre-qualified as to their relationship with State Farm prior to entering the courtroom, yet he made no inquiry into whether the jurors were under oath when they were pre-qualified, and he made no timely objection to the pre-qualifying procedure, which would have allowed the court an opportunity to correct any error. If Sibley was not content to have the jurors pre-qualified as to their relationship with State Farm outside his presence, or if he was worried that the oath had not been given to them before they were asked about any relationship with State Farm, he had a duty to object to the procedure used by the trial court and give the trial court an opportunity to correct the alleged error. He certainly was not permitted to take his chances with the jury, lose at trial, and then appeal, raising the contention that he is entitled to a new trial because the jurors were not properly qualified as to their relationship with State Farm .³ We find he has waived his objection to the court's failure to put the jurors under oath when pre-qualifying them as to any prohibited relationship with State Farm.

Judgment affirmed.

FOOTNOTES

1.  According to this Code section, the trial court must give jurors the following oath prior to voir dire: “You shall give true answers to all questions as may be asked by the court or its authority, including all questions asked by the parties or their attorneys, concerning your qualifications as jurors ․”

2.  The affidavit states in paragraph 2: “This affidavit is being provided in order to supplement the record in this matter.”

3.  This is especially true given the fact that Sibley has not shown that any of the jurors even had a relationship with State Farm. Harm is not presumed from the failure to administer a proper voir dire oath. See Gober v. State, 247 Ga. 652, 655(2) (278 S.E.2d 386) (1981). In fact, the Georgia Supreme Court has specifically stated that a new trial is not warranted as to claimed error on voir dire unless the movant can show that a juror failed to answer (or to answer honestly) a material question on voir dire and then can further demonstrate that a correct response would have established a valid basis for a challenge for cause. See Gainesville Radiology Group v. Hummel, 263 Ga. 91, 94 (428 S.E.2d 786) (1993). Here, there is nothing in the record to show that any answers given during voir dire were false or that Sibley suffered any harm.

BLACKWELL, Judge.

BARNES, P.J., and ADAMS, J., concur.