Bradham v. State

• Decision Date: 29 May 1979
• Docket Number: No. 34517,34517
• Citation: 243 Ga. 638,256 S.E.2d 331
• Parties: BRADHAM v. The STATE.
• Court: Georgia Supreme Court

Page 331

256 S.E.2d 331

243 Ga. 638

BRADHAM v. The STATE.

No. 34517.

Supreme Court of Georgia.

Submitted March 2, 1979.

Decided April 24, 1979.

Rehearing Denied May 29, 1979.

Larsen & Lewis, William Washington Larsen, Jr., H. G. Bozeman, Dublin, Robert H. Cofer, II, Thomson, for appellant.

B. B. Hayes, Dist. Atty., for appellee.

PER CURIAM.

We granted certiorari to review Divisions 2, 3, 4, 5 and 6 of the Court of Appeals opinion issued in Bradham v. State, 148 Ga.App. 89, 250 S.E.2d 801 (1978). We affirm Divisions 4 and 6. For the reasons set forth, ante, we also affirm Divisions 2 and 5 but reverse as to Division 3 1. Division 2 treats a challenge to a charge on justification on grounds that it was confusing. The Court of Appeals resolved this issue against appellant's contention by finding that the charge as a whole was clear and not likely to confuse the jury. We agree; however, we also conclude the remaining language in this division is obiter dicta. See White v. State, 243 Ga. 250, 253 S.E.2d 694 (1979), reversing Sims v. State, 234 Ga. 177, 214 S.E.2d 902 (1975). Gaither v. State, 234 Ga. 465, 216 S.E.2d 324 (1975).

2. Division 5 applied the discretionary rule in holding the trial court did not err in permitting the prosecution, over objection, to waive its right to open closing argument to the jury, and then, subsequent to defendant's closing argument, fully present its final argument. Appellant complains this sequence prevented her from any rebuttal of the state's case, while the state was not so limited. After the close of the evidence, the trial court, in its discretion, may permit the party having the opening and concluding argument to waive the opening statement and make a full presentation regarding the legal and factual facets of his case to the jury following the final argument of the adverse party. Code Ann. § 27-2201. See Berryhill v. State, 235 Ga. 549, 550(3), 221 S.E.2d 185 (1975).

3. Division 3 assumes arguendo that the trial court erred in refusing to excuse a juror challenged for bias because he stated he had three sons who were law enforcement officers in another county and he would be inclined to give more credence to a police officer's testimony than a nonpolice witness. The appellant struck the juror peremptorily. The Court of Appeals held the juror had not served and it was "not shown that such possible error" was harmful; that the record reflects appellant was tried by twelve impartial jurors. Appellant complains he was erroneously forced to use one of his peremptory strikes; that he used all of his peremptory strikes before the jury was selected; and that he was compelled to accept the last two jurors without the benefit of peremptory strikes. We reverse. As early as 1879 this court held that being required to exhaust four strikes on disqualified jurors was erroneous and harmful. It was said, "A big part of the battle is the selection of the jury, and an impartial jury is the cornerstone of the fairness of trial by jury." Melson v. Dickson, 63 Ga. 682, 686 (1879). As late as 1978 this court stated, "Thus, if a challenge is made and improperly overruled by the court, but the juror so challenged for cause does not serve because subsequently struck by the complaining party, such ruling by the court is not error Unless it appears that the party had to exhaust his peremptory challenges in order to strike that juror." (Emphasis supplied.) Foster v. State, 240 Ga. 858, 859, 242 S.E.2d 600, 602 (1978). In our opinion it is well established in Georgia that peremptory strikes are invaluable. When a defendant in a felony trial has to exhaust his peremptory strikes to excuse a juror who should have been excused for cause the error is harmful. Kemp v. State, 226 Ga. 506, 507(2), 175 S.E.2d 869 (1970) and Patterson v. State, 239 Ga. 409, 411(1), 238 S.E.2d 2 (1977) will not be followed.

Judgment affirmed in part and reversed in part.

All the Justices concur, except UNDERCOFLER, P. J., and JORDAN and HALL, JJ., who dissent as to Division 3.

UNDERCOFLER, Presiding Justice, dissenting as to Division 3.

In Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869, 870 (1976), it was stated, "A review of past decisions demonstrates a lack of explicit standards for weighing nonconstitutional errors in criminal cases. If the error is relevant to the issues in dispute, not cumulative of other evidence, not beneficial to the defendant and uncorrected by the trial court, then there is perhaps no reason for saying it is harmless, but it may nevertheless be harmless in the context of the entire case. This is the point where a standard for weighing the error is important.

"The standard we adopt is what is known as the 'highly probable test,' i. e., that it is 'highly probable that the error did not contribute to the judgment.' Traynor, What Makes Error Harmless, The Riddle of Harmless Error (1970). 'The Highly probable test avoids the evils of inadequate or excessive stringency by making affirmance conditional on high probability that error did not affect the judgment. The test compels a judge to go beyond a first glance for affirmance or a fleeting glimpse for reversal. It compels him to exercise his mind in the exercise of his discretion, to go beyond the appearances of the result to an examination of what causal links there may be between error and the judgment. It keeps judicial discretion within the ample bounds of reason. It can greatly improve the net worth of the judicial process as it thus holds down excesses either of affirmance that recklessly dampens assurance of a fair day in court or of reversal that needlessly calls for still another fair day at the expense of litigants who are still awaiting their first day in court.' Id. at pp. 50-51."

In my opinion that rule should apply here. At the time appellant complains of having to strike...