Collier v. Francis, 39670

• Decision Date: 04 October 1983
• Docket Number: No. 39670,39670
• Parties: Robert Lewis COLLIER v. Robert FRANCIS, Warden.
• Court: Georgia Supreme Court

Page 485

307 S.E.2d 485

251 Ga. 512

Robert Lewis COLLIER v. Robert FRANCIS, Warden.

No. 39670.

Supreme Court of Georgia.

Oct. 4, 1983.

Jay D. Bennett, Alston & Bird, Atlanta, J. Donald Bennett, Rossville, for Robert Lewis Collier.

Michael J. Bowers, Atty. Gen., Nicholas G. Dumich, Asst. Atty. Gen., David L. Lomenick, Jr., Dist. Atty., LaFayette, for Robert Francis, Warden.

GREGORY, Justice.

Robert Lewis Collier was convicted of the offense of murder ¹ arising out of the shooting death of a deputy sheriff attempting to arrest him following an armed robbery. His sentence of death was affirmed by this court. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1346, 63 L.Ed.2d 781 (1980). Collier sought habeas corpus relief in Federal District Court. His application was dismissed without prejudice for failure to exhaust state remedies. This state habeas corpus petition was then filed in Butts Superior Court. The habeas court denied relief. We granted Collier's application for a certificate of probable cause to appeal. We affirm.

1. Collier contends the habeas court erred in failing to grant habeas relief on the ground the trial court refused to allow defense counsel to ask prospective jurors questions regarding bias or prejudice in favor of the death penalty. This issue is referred to as the reverse of the issue in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The habeas court found error had been committed by the trial court but held the error to be harmless in that it related to a single juror. The direct Witherspoon issue was raised by defendant on appeal to this court. Collier, supra, 244 Ga. at 570, 261 S.E.2d 364. The reverse Witherspoon issue was not raised on appeal. Examination of the trial transcript reveals that the defendant undertook to raise this issue before the trial court with regard to two prospective jurors. One of these prospective jurors was later excused for cause by the court on an unrelated ground. In questioning Brown, the other prospective juror, Collier abandoned pursuit of the issue without eliciting a ruling by the trial court. Perhaps this accounts for his failure to present this issue on direct appeal. There must be a contemporaneous objection at trial in order for this court to review an issue on appeal. Gilreath v. State, 247 Ga. 814, 824(4), 279 S.E.2d 650 (1981). In order to make an issue the basis for review, counsel must, at the time it arises "... invoke some ruling ... respecting it.... A party cannot, during the trial, ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later." Joyner v. State, 208 Ga. 435, 438, 67 S.E.2d 221 (1951). The trial transcript shows the following transpired with regard to Collier's questioning of the prospective juror on the subject of bias in favor of the death penalty.

"MR. BENNETT: And I assume from your previous answers that you have not had an occasion to form an opinion in this case?

MR. BROWN: No, sir.

MR. BENNETT: Do you see--do you feel that you can fairly and impartially set (sic) in judgment of this defendant?

MR. BROWN: I feel that I can, yes, sir.

MR. BENNETT: Do you feel that in every case where a person has been killed that the person who did the killing should be punished by death?

MR. BROWN: Would you--

MR. BENNETT: (Interposing) Did you understand my question?

MR. BROWN: No, sir, I did not.

MR. BENNETT: It's directed to the old eye for an eye theory, do you believe that because one person kills another one, that he of necessity should be put to death?

MR. BROWN: Not of necessity.

MR. BENNETT: Do you believe in every case of murder, if the evidence should show that it is murder, that the punishment should be death?

THE COURT: Are you asking him to prejudge the case on his own qualifications, aren't you asking him really basically technical questions of law which would be difficult for a layman to answer without a proper charge of the Court as to the law in a particular case, aren't you doing that?

MR. BENNETT: Well, let me attempt to rephrase it, Your Honor, I am sorry.

THE COURT: All right, sir.

MR. BENNETT: Do you feel that you would be able to follow the Court's charge, and of course, I am not--you are to get the charge from the Court, not what I say here now, but if the Court should charge you to the effect that in order to find--in order to sentence a man to the electric chair, it would be necessary for you to find a certain aggravating circumstances, would you follow the Court's instructions in this regard, and unless you found those aggravating circumstances, impose some lesser sentence, does that sound--

THE COURT: (Interposin...