Sanders v. State , 204 Ga. App. 37 ( 1992 )

Birdsong, Presiding Judge,

concurring specially.

1. I concur with the majority opinion, except as to Division 1 as to which I concur specially.

2. Appellant asserts the trial court erred in prohibiting defense counsel from questioning the jurors about possible bias against defense attorneys.

During voir dire appellant’s counsel expressed his understanding to the prospective jurors that none of the jurors knew “any of’ the counsel involved in the trial. Further, the jurors did not express any reason, when asked, why they could not be fair and impartial jurors in this case after hearing all the testimony. The trial transcript subsequently reflects the following pertinent colloquy: “[DEFENSE COUNSEL]: . . . I’m a criminal defense attorney, and I’m sure that some of you have some preconceptions in your mind of the role that a defense lawyer plays. I’ll be interested in hearing those. Is there anyone here, for whatever reason, thinks that I would trick you or try to trick you just because I’m a criminal defense lawyer. [PROSECUTOR]: I object to this question. It’s not relevant as to whether or not the jurors have any bias sitting as a juror on this case. [DEFENSE COUNSEL]: I submit it has direct relevance to bias and prejudice if they would be disinclined to believe a defense lawyer or simply by virtue of the fact it would show that they are directly biased or prejudiced against the defense. [TRIAL COURT]: I don’t expect you to testify in this case, though. [DEFENSE COUNSEL]: No sir, your honor. I think I’m entitled to go into whether, because of the fact that this is a criminal case and I’m a defense attorney, that because of the role that we play in society that some people may not give us a fair shake. So I would ask to be permitted to question on that. [TRIAL COURT]: I sustain the objection. Ladies and gentlemen, the defense counsel will not be testifying usually in a case. You won’t have an occasion to believe or disbelieve him about this matter. You should be controlled by the evidence in this case, if there’s any presented to you.” (Emphasis supplied.)

In criminal cases, the right to examine each prospective juror in order to secure an impartial jury is set out in OCGA § 15-12-133. This statute expressly establishes, inter alia, a right of counsel to make certain inquiries of the individual jurors regarding any matter or thing which would illustrate any interest of the juror in the case, including “any inclination, leaning, or bias which the juror might have respecting . . . the counsel or parties thereto . . . .” OCGA § 15-12-133. As a general rule, “[ajlthough control of voir dire examination is normally within the discretion of the trial court, it has been held that the defendant in a criminal case has an absolute right to have his prospective jurors questioned as to those matters specified in OCGA § 15-12-133. [Cit.] ‘Hence, it (is) reversible error for the trial court to refuse permission to appellant’s counsel to ask such questions of each juror, for such ruling denie(s) appellant a substantial right granted him by statute. (Cits.)’ [Cit.] It has also been held that OCGA § 15-12-133 encompasses questions regarding possible racial prejudice and bias, even when such questioning would not be constitutionally required. [Cit.]” Mitchell v. State, 176 Ga. App. 32, 34 (3) (335 SE2d 150).

At the onset it is noted that the question in issue is a preparatory question — one which is indirectly probative of counsel bias. As such, this question is within that broad class of questions falling within the permissive parameters of OCGA § 15-12-133. Compare Lawton v. State, 191 Ga. App. 116 (381 SE2d 106) (majority, specially concurring, and dissenting opinions). “Accordingly . . . appellant had a statutory right to ask the question disallowed in the instant case, as it related to the subject of ‘bias which the juror(s) might have respecting’ him. OCGA § 15-12-133.” Mitchell, supra at 34 (3). However, this does not end our judicial inquiry. Contrary to the scope of the enumerated error (compare Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522) and Rigenstrup v. State, 197 Ga. App. 176, 179 (2) (398 SE2d 25)) that the trial court prohibited “defense counsel from questioning the jurors about possible bias against defense attorneys,” the record reflects that the trial court merely sustained the State’s objection to the question actually posed by defense counsel. Thus, the ruling of the trial court did not prevent appellant’s defense counsel from making further inquiry of the jury individually as to whether they had any bias towards him, or prevent counsel from rewording and repositing his original question to the jury either before or after asking other questions regarding the jury’s possible bias toward the defense attorney. Moreover, the record shows that after the ruling was made and the curative-type instruction given, defense counsel abandoned any further reasonable attempts to inquire as to the potential bias of individual jurors toward criminal defense lawyers in general or toward himself in particular. The record in its current posture establishes that appellant was not, as specifically enumerated, prohibited from any inquiry into individual juror’s bias toward defense counsel, but was at most, precluded from asking one particularly worded question; a question which, as framed, was only indirectly probative of the bias question, and which even if answered in the affirmative by all jurors would not per se establish a disqualifying bias. Thus, if counsel reasonably expected to establish bias on the part of an individual juror he should have asked follow-up, probative questions, at least until he was definitively prohibited from conducting an effective inquiry into the area by the trial court. “The failure to timely exercise due diligence in the voir dire waived the right to assert this allegation of error.” Thurmond v. Bd. of Commrs. of Hall County, 174 Ga. App. 570, 571 (2) (330 SE2d 787). Moreover, the conduct and trial tactics of appellant’s counsel in failing to pursue the bias inquiry following the court’s sustaining of the State’s objection and its giving of a curative-type instruction, aided in the restriction of appellant’s voir dire inquiry as to counsel bias (see generally Wilburn v. State, 199 Ga. App. 667, 669 (2) (405 SE2d 889)), and in this particular instance is also tantamount to acquiescence by conduct (cf. Tatum v. State, 259 Ga. 284, 287 (3) (380 SE2d 253)).

Decided April 3, 1992 Reconsideration denied April 22, 1992. Maria T. Gonzalez, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Henry M. Newkirk, Carl P. Greenberg, Assistant District Attorneys, for appellee.

On Motion for Reconsideration.

On motion for reconsideration, defendant argues that a panel of this court does not have authority to overrule the earlier opinion issued in this case by the whole court. The original opinion in this case has been vacated and withdrawn with the permission of the whole court. The original dissent has been withdrawn making it unnecessary for the whole court to consider the motions for reconsideration filed by the parties. Defendant’s remaining contentions on motion for reconsideration are without merit.

Motion for reconsideration denied.