Lawton v. State , 191 Ga. App. 116 ( 1989 )

McMurray, Presiding Judge.

Defendant appeals his conviction of the offenses of attempted armed robbery (criminal attempt to commit armed robbery), aggravated assault, and possession of a firearm during the commission of a crime. Held:

During voir dire defense counsel identified himself as a legislator and asked the panel whether any position he may have taken or statement he may have made in his role as a legislator had so offended one of them as to prevent that potential juror from giving the case sub judice his or her fair and undivided attention. There is no indication on the record that any member of the panel responded in the affirmative to this inquiry. Subsequently, during the voir dire of a prospective juror who was an assistant principal of a school, the trial court would not permit a response to defense counsel’s inquiry as to whether the potential juror would “hold it against” him because he was opposed to a school bond referendum.

Defendant’s motion for mistrial was stated as follows: “We’ve got two matters, Your Honor. The first matter, I’d like to move at this time that Defendant’s motion for a mistrial [be] based on the following grounds. The Court has severely restricted me in my voir dire. The essence of this case is going to rest on identification testimony with the showing of photo spreads. In addition to limiting my voir dire, it’s also a point that I readily realize that this is a court of law and not a political arena, but the purpose of voir dire is to allow for the selection of jurors who can decide a case fair and impartially. My question being posed about the bond referendum is because it’s a very well known in this community . . . one of the hottest issues at the present time. I’ve made my position known. A public rebuke by the Court for posing that question so embarrassed me in front of the Jury that I don’t think Mr. Lawton can now get a fair trial, based on the position ... of the jurors have for his counsel. Therefore, I move for a mistrial.”

On appeal defense counsel contends that the trial court improperly limited voir dire by depriving him of his rights to ascertain whether a juror, an assistant principal of a local school, “[held] it against him” because he took a “very public position” against a local school bond referendum issue. However, there is nothing in defendant’s motion for mistrial raising this issue which is now argued on appeal by defendant for the first time.

Defendant’s motion for mistrial, as quoted above, raises two issues. the first issue is the restriction of voir dire in connection with the issue of identification. This first issue obviously arises for the trial court’s sustaining the State’s objection during voir dire, anticipating defense counsel “asking that the jury prejudge this case and any identification [evidence] and credibility of the witness.” The second issue presented involves an alleged public rebuke by the trial court for posing the question concerning the school bond referendum. There is no issue raised as to restricting voir dire in regard to the school bond referendum.

“Grounds which may be considered on motion for new trial or on appeal are limited to those which were raised at trial. Pulliam v. State, 236 Ga. 460, 465 (224 SE2d 8); Fowler v. State, 155 Ga. App. 76 (2) (270 SE2d 297). As the issue argued on appeal was not raised before the trial court, this enumeration of error presents no question for consideration on appeal.” Proffitt v. State, 181 Ga. App. 564, 566 (2) (353 SE2d 61).

Even if defendant’s motion for mistrial is viewed as sufficient to preserve the issue presented on appeal, there was no error in the denial of defendant’s motion. Defense counsel inquired as to whether a potential juror might have a bias respecting him, arising from his actions or statements in his capacity as a state legislator. Thus, the subsequent inquiry by defense counsel regarding whether bias arose from his position on a specific issue, the school bond referendum, was repetitive. While a defendant in a criminal case has an absolute right to have prospective jurors questioned as to those matters specified in OCGA § 15-12-133, control of voir dire examination is within the sound legal discretion of the trial court, and the appellate courts should not interfere unless it is shown to have been manifestly abused. Whitlock v. State, 230 Ga. 700, 705 (5) (198 SE2d 865); Messer v. State, 247 Ga. 316, 323 (276 SE2d 15). In the case sub judice, the trial court did not abuse its discretion in preventing repetitive inquiries. Quick v. State, 166 Ga. App. 492, 497 (8) (304 SE2d 916).

Judgment affirmed.

Carley, C. J., and Sognier, J., concur. Deen, P. J., and Beasley, J., concur and also concur specially. Banke, P. J., Birdsong, Pope and Benham, JJ., dissent.