by David M. Reutter

The Supreme Court of Georgia ­vacated the denial of a motion for new trial and remanded for further proceedings, holding that a trial court errs when it concludes a defendant waived an objection to an ineligible juror based solely on the failure to object at trial, without also determining whether the defendant knew of the juror’s ineligibility or could have discovered it through the timely exercise of ordinary diligence. The Court instructed that implied waiver of an ineligible-juror claim requires satisfaction of both components of the governing standard, and applying an incomplete legal standard constitutes an abuse of discretion.

Background

Michael Eric Simms was convicted of felony murder and other crimes in connection with the shooting death of Seadee Karram Jones. One of the jurors who sat on Simms’ case, identified as F.S., was not a United States citizen, a fact that became known only after trial when an attorney representing F.S. in an unrelated matter informed Simms’ trial counsel.

During voir dire, F.S. disclosed that he had lived in Fulton County for 11 years and that he was originally from Mexico. The prosecutor immediately turned questioning over to the defense, and defense counsel did not inquire about F.S.’s citizenship. F.S. was seated on the jury.

At the motion-for-new-trial hearing, F.S. testified that he had received a jury summons and questionnaire asking whether he was a U.S. citizen. He filled out the questionnaire online, responding truthfully that he was not a citizen. When F.S. called the jury-services division to ask about his service, he was told that he “still need[ed] to come” despite his non-citizen status.

Simms’ trial counsel testified at the hearing that the juror bios provided to counsel at the time of trial did not include as much information as later became standard practice. Counsel stated that she did not receive all information from the jurors’ questionnaires and that the citizenship question was “not on our sheet that we get.”

The trial court denied Simms’ motion for new trial on this ground, finding that Simms had not preserved the claim because “no objection was made at trial.”

Analysis

By statute, jurors in Georgia must be U.S. citizens. See OCGA § 15-12-40.1(b). The Court observed that its precedent “raises a serious question whether a verdict from a jury that includes a juror who is not a United States citizen – like the verdict in Simms’s case – requires automatic reversal.” The Court noted that automatic reversal may be required when the jury selection process involves a violation of an “essential and substantial” provision of a jury selection statute and the violation had a “discernible impact on the composition of the grand or petit jury.” Sinkfield v. State, 858 S.E.2d 703 (Ga. 2021). Service on a jury by an ineligible juror renders any verdict decided by that jury voidable. State v. Embert, 917 S.E.2d 56 (Ga. 2025).

While trial by a jury that includes an ineligible juror is a defect that may be waived, the Court clarified that waiver in this context may be express or implied. Implied waiver occurs only if a party “either knew of the [juror’s ineligibility] or could have discovered it by the timely exercise of ordinary diligence, and remained silent.” Lewis v. State, 731 S.E.2d 51 (Ga. 2012). The Court also cited Williams v. State, 55 S.E.2d 589 (Ga. 1949), which held that “the mere fact that the juror was disqualified, standing alone, is not sufficient to require the grant of a new trial. The accused must go further and show that neither he nor his counsel had knowledge of such disqualification.”

The Court explained that a court considering whether a party has impliedly waived an objection to an ineligible juror “must determine not only whether the party failed to object, but also whether the party knew that the juror was ineligible, and if not, whether the party could have learned of the juror’s ineligibility through the exercise of ordinary diligence.”

The Court found no indication that the trial court applied the complete standard. The trial court concluded that Simms had waived his ineligible-juror claim merely because he did not object at trial, i.e., because Simms “remained silent.” However, the trial court “neither made any findings about nor otherwise addressed whether Simms or his counsel knew that F.S. was not a citizen, or whether they could have discovered that fact through the ‘timely exercise of ordinary diligence.’” Thus, the Court ruled that because the trial court failed to address that required inquiry, it did not apply the complete legal standard, and “applying the wrong legal standard is an abuse of a trial court’s discretion.” State v. Brinkley, 889 S.E.2d 787 (Ga. 2023).

Conclusion

Accordingly, the Court vacated the judgment denying a new trial and remanded for the trial court to determine in the first instance whether Simms or his counsel knew that F.S. was not a citizen or could have learned about it through ordinary diligence and thus whether Simms waived his juror-ineligibility claim. If, after applying the proper standard, the trial court determines the claim is preserved, it should address the claim on the merits. See: Simms v. State, 2026 Ga. LEXIS 101 (2026).

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