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Unofficial Opinion 93-3

Unofficial Opinion 93-3

April 1, 1993
To: 

Judge,

Superior Court

Re: 

In selecting alternate jurors under O.C.G.A. § 15-12-169, the parties are not entitled to utilize unused O.C.G.A. § 15-12-165 peremptory challenges as additional peremptory challenges to the alternate jurors.

This is in response to your request for an opinion concerning O.C.G.A. § 15-12-169, which provides that each side's peremptory challenges to alternate jurors "shall be in addition to the regular number of peremptory challenges allowed." Specifically, you inquire whether, in striking the alternate jurors, each side is allowed the peremptory challenges to alternate jurors provided to that side by O.C.G.A. § 15-12-169 plus any peremptory challenges allotted to that side by O.C.G.A. § 15-12-165 which remain unused after the jury is impaneled.

Under O.C.G.A. § 15-12-165, "[A defendant] may peremptorily challenge 12 of the jurors empaneled to try him. The state [is] allowed one-half the number of peremptory challenges allowed to the accused." (Emphasis [*2]  added.) Further, in felony trials which are likely to be protracted, the judge has discretion to direct the calling of one or more additional jurors, known as "alternate jurors," immediately after the jury has been empaneled and sworn.  O.C.G.A. § 15-12-168.  The method of choosing these alternate jurors is governed by O.C.G.A. § 15-12-169, which provides, in pertinent part:

The state shall be entitled to as many peremptory challenges to alternate jurors as there are alternate jurors called.  The defendant shall be entitled to additional peremptory challenges in an amount twice greater than the additional peremptory challenges of the state.  The peremptory challenges allowed to the state and to the defendant in such event shall be in addition to the regular number of peremptory challenges allowed in criminal cases to the defendant and to the state as provided by law.

The "regular number of peremptory challenges" allowed to the defendant and the state in O.C.G.A. § 15-12-165 are allotted for the specific purpose of challenging "the jurors impaneled to try [the defendant]." This language is unambiguous and does not provide for the use of these peremptory challenges for the purpose [*3]  of challenging alternate jurors.

The O.C.G.A. § 15-12-169 peremptory challenges are stated to be "in addition to the regular number of peremptory challenges" to emphasize that the parties are not required to use their O.C.G.A. § 15-12-165 challenges to strike the alternate jurors. It is in this sense that the peremptory challenges to alternate jurors provided by O.C.G.A. § 15-12-169 are allowed "in addition to the regular number of peremptory challenges."

The Supreme Court of Georgia has confirmed this reading of O.C.G.A. § 15-12-169.  In the context of examining the effect of unused peremptory challenges on a defendant's Witherspoon claim, the Court intimated the meaning of the language in O.C.G.A. § 15-12-169 which refers to peremptory challenges to alternate jurors as "in addition to the regular number of peremptory challenges allowed." In Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (1978) (overruled on other grounds in Blankenship v. State, 247 Ga. 590, 277 S.E.2d 505 (1981)), the state had exercised seven of its ten peremptory challenges when the jury was impaneled. The Court concluded that the state was left with three unused peremptory challenges [*4]  to the jury panel.  Two alternate jurors were also called.  Citing O.C.G.A. § 15-12-169, the Court stated, "In the selection of two alternate jurors the state was entitled to two peremptory challenges, the defendant four." Alderman, 241 Ga. at 500, n.1.

As evidenced by this statement, the Court did not conclude that the language of O.C.G.A. § 15-12-169, referring to the peremptory challenges to alternate jurors as "in addition to the regular number of peremptory challenges allowed," meant that the state in that case had five available peremptory challenges to alternate jurors, two as a result of two alternate jurors being called plus the unused peremptory challenges from O.C.G.A. § 15-12-165.  Rather, the Court interpreted this language to mean that the peremptory challenges to alternate jurors to which the state was entitled were in addition to and entirely separate from the peremptory challenges provided to the state in O.C.G.A. § 15-12-165.  In other words, under O.C.G.A. § 15-12-169, the state is entitled to only as many peremptory challenges to alternate jurors as there are alternate jurors called, and the defendant is entitled to only twice as many peremptory [*5]  challenges to alternate jurors as there are alternate jurors called.

It is therefore my unofficial opinion that in selecting alternate jurors under O.C.G.A. § 15-12-169, the parties are not entitled to utilize unused O.C.G.A. § 15-12-165 peremptory challenges as additional peremptory challenges to the alternate jurors.

Issued this 1st day of April, 1993.

Prepared by:

M. REESE,

Staff Attorney