Adams v. State , 180 Ga. App. 546 ( 1986 )

Beasley, Judge,

concurring specially.

I concur but believe that, with respect to Division 2, more should be said regarding the eligibility of the police chiefs wife.

Decided October 14, 1986. Harry Jay Altman II, Joseph T. McGraw, for appellant. James E. Hardy, District Attorney, for appellee.

During the voir dire, it was merely established that she had been married to the city’s police chief for twenty-five years and that he had been chief for eleven years. On that basis defendant sought to remove her for cause, without any further questioning related to her ability to serve as an impartial juror. She had earlier remained silent when the statutory questions were asked of the panel, whether anyone had formed any opinion, harbored any prejudice or bias, or was not impartial between state and defendant. OCGA § 15-12-164.

The legislature in 1984 re-wrote the law regarding jury exemptions. OCGA § 15-12-1. Although it greatly broadened eligibility to serve, so as to produce a truer cross-section of the community on juries, Riley v. State, 174 Ga. App. 607 (1) (330 SE2d 808) (1985), it did not diminish the due process concerns voiced by the Supreme Court of Georgia in Hutcheson v. State, 246 Ga. 13 (268 SE2d 643) (1980). We recognized this in King v. State, 173 Ga. App. 838 (328 SE2d 740) (1985), which held that a full-time police officer was required to be excused when challenged for cause in a criminal case, because of the inherent doubt of impartiality arising from the employment per se.

I would agree that this same type of per se disqualification should not apply to the spouse of a police officer. More would have to be elicited by further questioning, to cast a doubt on impartiality. Although defendant did not expressly invoke OCGA § 15-12-135 regarding the disqualification for kinship to “any party interested in the result of the case,” I do not believe this law or the federal constitutional mandate was violated here.