Collins v. State

• Decision Date: 18 October 1977
• Docket Number: No. 54722,No. 3,54722,3
• Citation: 239 S.E.2d 232,143 Ga.App. 583
• Parties: Eddie COLLINS v. The STATE
• Court: Georgia Court of Appeals

Page 232

239 S.E.2d 232

143 Ga.App. 583

Eddie COLLINS v. The STATE.

No. 54722.

Court of Appeals of Georgia, Division No. 3.

Oct. 18, 1977.

Rice & Lawrence, George D. Lawrence, Jr., Eatonton, for appellant.

Joseph H. Briley, Dist. Atty., Sallie Rich Jocoy, Asst. Dist. Atty., Gray, for appellee.

WEBB, Judge.

Eddie Collins was indicted and convicted of the crimes of kidnapping, for which he was sentenced twenty years, rape, for which his sentence was life, and armed robbery for which he received a life sentence, all sentences to run consecutively. The crimes occurred May 21, 1976, and ten days later the grand jury returned the three-count indictment. Eleven days thereafter June 11, the trial court determined Collins to be indigent and appointed counsel. A Brady motion for an in camera inspection of the State's files was granted on or about June 15, and the trial was on June 23 and 24. Only 33 days from the date of the offenses transpired before trial, but it was not until April 27, 1977 that the motion for new trial was heard and overruled, presumably delayed for preparation of the transcript.

Collins' appeal, transferred to this court by order of the Supreme Court, charges (1) that the indictment, trial and conviction are null and void because both Negroes and women were systematically excluded from the grand jury and the trial jury, contrary to the federal and state Constitutions; (2) that the trial court erred in refusing to order the district attorney to insert his file into the record of this case on appeal; (3) that the trial judge erred in expressing his opinion as to guilt of the accused; and (4) the general grounds for a new trial. Both the accused and the victim are Negroes. ¹

1. Collins charges in his appeal that both Negroes and women were systematically excluded from the grand jury and the trial jury, contrary to the federal and the state Constitutions, and that consequently the indictment, trial and conviction are null and void.

If the allegations are correct, and Negroes and women "were systematically excluded from his grand and petit juries, then he was indicted and convicted by tribunals that fail to satisfy the elementary requirements of due process, and neither the indictment nor the conviction can stand." Peters v. Kiff, 407 U.S. 493, 505, 92 S.Ct. 2163, 2170, 33 L.Ed.2d 83 (1972).

"(A) conviction cannot stand if it is based on an indictment of a grand jury or the verdict of a petit jury from which Negroes were excluded by reason of their race. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); see also Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939). There is no controversy as to the constitutional principle the question involved is its application to the facts disclosed in this record." Whitus v. Georgia, 385 U.S. 545, 549, 87 S.Ct. 643, 646, 17 L.Ed.2d 599 (1967).

The record reveals that appellant voiced his objection to the composition of the grand and petit juries for the first time in his motion for a new trial, filed five days before the hearing and some ten months after the trial. It has long been the requirement in this state that a criminal defendant must raise any challenge that he has to the jury lists at the time the jury is "put upon him" or else he waives his right to object. Young v. State, 232 Ga. 285, 286, 206 S.E.2d 439 (1974). "Objection to the composition of a grand jury must be raised, if at all, by challenge to the array duly presented before the indictment is returned or by a plea in abatement filed before arraignment. A like objection to the traverse jury 'put upon' the accused in a criminal case must be raised by challenge to the array at the earliest opportunity the defendant has to avail himself of that right.

"Ordinarily the issue as to whether a particular segment of citizens eligible for jury duty has been systematically excluded from the jury box of the county can not be raised for the first time after the trial, verdict of guilty and imposition of sentence by motion for new trial." Cobb v. State, 218 Ga. 10, 21(3), 126 S.E.2d 231, 239 (1962); Elevins v. State, 220 Ga. 720, 724, 141 S.E.2d 426 (1965).

Here appellant had counsel at a preliminary hearing and prior to his indictment, according to his brief, and he had at trial eminently able counsel well aware of the foregoing authorities. We are bound by those decisions of the Supreme Court of this state and hold that the objection to the composition of the juries was not timely raised.

2. Collins' second alleged error is the refusal of the trial court to order the district attorney to insert his file into the record of this case on appeal. Prior to trial Collins moved, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that the court make an in camera inspection of the district attorney's file and reveal to Collins all exculpatory, favorable or arguably favorable material. Collins says that presumably the trial court made such an inspection and found no arguably favorable information since none was furnished to him. He claims that at trial there was testimony that the file might well have contained "arguably favorable" information, and that the only meaningful way of obtaining review of the trial court's inspection is to have the district attorney's file inserted into the record.

Brady does not require the prosecution to open its files for general inspection or for pre-trial discovery. There is no Georgia statute or rule of practice which requires discovery in criminal cases. Pass v. State, 227 Ga. 730, 737(12), 182 S.E.2d 779 (1971). The trial court pursuant to defense motion held an in camera inspection of the district attorney's file, and there appears to have been a compliance with Brady. Fleming v. State, 236 Ga. 434, 438, 224 S.E.2d 15 (1976). "Even considering the concepts of a fair trial, appellant has not met his burden of showing how his case has been materially prejudiced by the lack of access to the prosecutor's file." David v. State, 137 Ga.App. 425, 426(2), 224 S.E.2d 83, 84 (1976); Street v. State, 237 Ga. 307, 316(9), 227 S.E.2d 750 (1976); Watts v. State, 141 Ga.App. 127, 128(2), 232 S.E.2d 590 (1977).

3. Collins next argues that the trial court erred by expressing its opinion as to the guilt of the accused.

The first witness was Deputy Snipes who testified about his initial interview with the victim, without identifying her, with particular reference to her...