CourtListener 10845985

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In the Supreme Court of Georgia

Decided: March 17, 2026

S26A0086. SIMMS v. THE STATE.

PINSON, Justice.

Michael Eric Simms was convicted of felony murder and other

crimes in connection with the shooting death of Seadee Karram

Jones. 1 One of Simms’s contentions on appeal is that his conviction

1 Jones was killed on July 20, 2015. On November 20, 2015, a Fulton

County grand jury indicted Simms for malice murder (Count 1), felony murder
predicated on aggravated assault (Count 2), felony murder predicated on pos-
session of a firearm by a convicted felon (Count 3), aggravated assault (Count
4), possession of a firearm during the commission of a felony (Count 5), cruelty
to children in the third degree (Count 6), and possession of a firearm by a con-
victed felon (Count 7). Simms was tried by a jury from February 13 to 16, 2017.
The jury found Simms guilty on all counts. The trial court sentenced Simms to
life in prison without the possibility of parole for Count 2, five years in prison
for Count 5, five years of probation for Count 7, and one year of probation for
Count 6, all to be served consecutively. The remaining counts merged for sen-
tencing or were vacated by operation of law. Given the disposition of this ap-
peal, we express no opinion about whether the trial court erred by sentencing
Simms on the felony murder count and purporting to have the malice murder
count vacated by operation of law. See, e.g., Lucky v. State, 286 Ga. 478, 480
(2010) (“When the jury returns guilty verdicts on both felony murder and mal-
ice murder charges in connection with the death of one person, it is the felony
must be reversed because one of the jurors, F.S., was not a citizen of

the United States. The trial court denied Simms’s motion for new

trial on that ground, based on its finding that Simms had not pre-

served the claim because “no objection was made at trial.” But fail-

ing to object to an ineligible juror does not mean that issue is not

preserved unless the party also “knew of the [juror’s ineligibility] or

could have discovered it by the timely exercise of ordinary diligence,

and remained silent.” Lewis v. State, 291 Ga. 273, 275 (2012) (cita-

tion omitted). Because the trial court did not apply that standard in

concluding that this claim was not preserved, the judgment is va-

cated and the case remanded for the trial court to apply the proper

standard in the first instance.

murder conviction, not the malice murder conviction[,] that is simply surplus-
age, and stands vacated by operation of law.” (cleaned up)).
Simms filed a timely motion for new trial on February 24, 2017, which
he amended three times through new counsel on July 28, 2019, November 17,
2019, and June 9, 2020, and then amended three more times through different
appellate counsel on January 23, 2023, March 3, 2023, and May 26, 2023. The
trial court held two evidentiary hearings and then denied the motion, as
amended, on August 11, 2023. Simms filed a timely notice of appeal. More than
two years later, the trial record was transmitted to this Court. The case was
then docketed to the term of this Court beginning in December 2025 and sub-
mitted for a decision on the briefs.
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1. The record shows the following circumstances relevant to

Simms’s claim about the non-citizen juror.

F.S.’s citizenship was not discussed at trial. During voir dire,

F.S. told the prosecutor that he had lived in Fulton County for 11

years and that he had moved there because “[m]y daddy was here.”

The prosecutor asked where F.S. was from originally, and F.S. an-

swered, “Mexico.” The prosecutor then immediately turned the ques-

tioning over to the defense. Defense counsel did not ask about F.S.’s

citizenship. F.S. was ultimately seated on the jury.

A few months after trial, Simms’s trial counsel got a call from

another attorney who was representing F.S. in an unrelated matter.

As trial counsel testified at the motion-for-new-trial hearing, F.S.

had told that other attorney that he had served on a jury, and so

that other attorney, who knew that F.S. was not a United States

citizen, relayed the information to trial counsel. Simms’s appellate

counsel then included a claim about a non-citizen juror in Simms’s

amended motion for new trial.

At the motion-for-new-trial hearing, F.S. testified that he had

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received a jury summons and questionnaire that asked, among other

things, whether he was a United States citizen. F.S. filled out and

submitted the questionnaire online, responding truthfully that he

was not a United States citizen. Later, F.S. called the jury-services

division at the court to ask about his jury service. He was told that

he “still need[ed] to come” even though he was not a citizen.

Other witnesses at the motion-for-new-trial hearing shed more

light on F.S.’s jury service. The court’s jury clerk testified about

some of the general practices of her office. According to the clerk,

when Fulton County residents fill out the online juror questionnaire,

that information is sent to a third-party vendor, which then compiles

the information for the court. On the day of jury service, when pro-

spective jurors are selected from the pool and sent to the courtroom,

the jury clerk’s office also sends to the court a hard-copy “bio” for

each prospective juror that includes the questionnaire information.

The juror bios are typically given to court staff or a deputy “for dis-

tribution.” The jury clerk was clear, however, that she did not know

what happened in Simms’s specific case. Simms’s trial happened

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roughly 20 months before the jury clerk started in her position in

October 2018. And the specific juror bios from Simms’s trial are not

in the record.

Simms’s trial counsel also testified. Trial counsel said that ju-

ror bios at the time of Simms’s trial (in February 2017) did not in-

clude as much information as they did “today” (counsel was testify-

ing in May 2023). She testified that counsel received “very little back

then” and “a lot more now.” And counsel said that at Simms’s trial

she did not receive all the information from the jurors’ question-

naires. She testified that the citizenship question was “not on our

sheet that we get.”

2. By statute, jurors in Georgia must be United States citizens.

See OCGA § 15-12-40.1(b) (providing that when the Department of

Driver Services sends to the Council of Superior Court Clerks a list

of all Georgia residents who are at least 18 years old and have a

driver’s license or state identification card, for purposes of compiling

the state-wide master jury list, the Department “shall exclude per-

sons … who have been identified as not being citizens of the United

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States”).2 We have held that “automatic reversal” of a verdict 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, 311 Ga. 524, 528 (2021) (quo-

tation marks and emphasis omitted). And we have said that an “es-

sential and substantial” provision of a jury selection statute is vio-

lated when the violation “impacted who was chosen for the array—

that is, in every case in which there was good reason to doubt that a

particular juror would have been selected for the array without the

violation....” State v. Towns, 307 Ga. 351, 355 (2019) (quotation

marks and emphasis omitted). In short, our precedent raises a seri-

ous 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. See State v. Embert, 322 Ga. 199, 208

(2025) (service on a jury by an ineligible juror renders any verdict

2 Although this Code Section refers only to the “council,” the definition

section of this Chapter makes clear that any reference to “council” in the Chap-
ter means the “Council of Superior Court Clerks of Georgia.” OCGA § 15-2-1(4).
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decided by the jury voidable).

All of that said, a trial by a jury that includes an ineligible juror

is a defect that may be “waived” by the parties. Id. at 207. In this

context, that waiver may be express, or, relevant here, it may be

implied, 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, 291 Ga. at 275 (citation omitted). See

also Williams v. State, 206 Ga. 107, 109 (1949) (“[T]he 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.”).

So 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.

There is no indication here that the trial court applied that

standard. The court concluded that Simms had waived his ineligible-

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juror claim merely because Simms did not object at trial — that is,

because Simms “remained silent.” See Lewis, 291 Ga. at 275. But

the 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.” See id. Because the trial court failed

to address that required inquiry, it did not apply the complete legal

standard in concluding that Simms failed to preserve this juror

claim for review. And applying the wrong legal standard is an abuse

of a trial court’s discretion. See State v. Brinkley, 316 Ga. 689, 690

(2023).

The court’s judgment denying a new trial on this claim is there-

fore vacated. And because we are generally a court of review, not of

first view, see, e.g., Ga. Const. of 1983, Art. VI, Sec. VI, Para. II (“The

Supreme Court shall be a court of review….”); Drennon v. State, 314

Ga. 854, 871 (2022) (remanding case for fact-finding on one of de-

fendant’s claims on appeal), we leave it to the trial court to deter-

mine in the first instance whether Simms or his counsel knew that

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F.S. was not a citizen or could have learned about it through the

exercise of ordinary diligence, and thus whether Simms waived his

juror-ineligibility claim. See State v. Sims, 322 Ga. 769, 778 (2025)

(vacating trial court’s judgment and remanding for proceedings

when the trial court did not apply the proper legal standard when

excluding evidence under OCGA § 24-4-403); State v. Mickel, 321

Ga. 751, 759 (2025) (vacating portions of trial court’s order conclud-

ing that police officers lacked probable cause to arrest defendant and

remanding for additional fact-finding and analysis). If, after apply-

ing the standard discussed above, the trial court determines that the

claim is preserved, the court should address the claim on the mer-

its. 3

Judgment vacated and case remanded. All the Justices concur,
except LaGrua, J., disqualified.

3 In light of this disposition, we do not reach Simms’s other claims on

appeal.
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