Bradham v. State

256 S.E.2d 331, 243 Ga. 638, 1979 Ga. LEXIS 1017

• Court: Supreme Court of Georgia
• Decided: April 24, 1979
• Docket: 34517
• Status: Published

Opinions

Per curiam.

We granted certiorari to review Divisions 2, 3, 4, 5 and 6 of the Court of Appeals opinion issued in Bradham v. State, 148 Ga. App. 89 (250 SE2d 801) (1978). We affirm Divisions 4 and 6. For the reasons set forth, ante, we also affirm Divisions 2 and 5 but reverse as to Division 3.

1. Division 2 treats a challenge to a charge on justification on grounds that it was confusing. The Court of Appeals resolved this issue against appellant’s contention by finding that the charge as a whole was clear and not likely to confuse the jury. We agree; however, we also conclude the remaining language in this Division is obiter dicta. See White v. State, 243 Ga. 250 (253 SE2d 694) (1979), reversing Sims v. State, 234 Ga. 177 (214 SE2d 902) (1975). Gaither v. State, 234 Ga. 465 (216 SE2d 324) (1975).

2. Division 5 applied the discretionary rule in holding the trial court did not err in permitting the prosecution, over objection, to waive its right to open closing argument to the jury, and then, subsequent to defendant’s closing argument, fully present its final argument. Appellant complains this sequence prevented her from any rebuttal of the state’s case, while the state was not so limited. After the close of the evidence, the trial court, in its discretion, may permit the party having the opening and concluding argument to waive the opening statement and make a full presentation regarding the legal and factual facets of his case to the jury following the final argument of the adverse party. Code Ann. § 27-2201. See Berryhill v. State, 235 Ga. 549, 550 (3) (221 SE2d 185) (1975).

3. Division 3 assumes arguendo that the trial court erred in refusing to excuse a juror challenged for bias because he stated he had three sons who were law enforcement officers in another county and he would be inclined to give more credence to a police officer’s testimony than a nonpolice witness. The appellant struck the juror peremptorily. The Court of Appeals held the juror had not served and it was "not shown that such possible error” was harmful; that the record reflects appellant was tried by twelve impartial jurors. Appellant complains he was erroneously forced to use one of his peremptory strikes; that he used all of his peremptory strikes before the jury was selected; and that he was compelled to accept the last two jurors without the benefit of peremptory strikes. We reverse. As early as 1879 this court held that being required to exhaust four strikes on disqualified jurors was erroneous and harmful. It was said, "A big part of the battle is the selection of the jury, and an impartial jury is the cornerstone of the fairness of trial by jury.” Melson v. Dickson, 63 Ga. 682, 686 (1879). As late as 1978 this court stated, "Thus, if a challenge is made and improperly overruled by the court, but the juror so challenged for cause does not serve because subsequently struck by the complaining party, such ruling by the court is not error unless it appears that the party had to exhaust his peremptory challenges in order to strike that juror” (Emphasis supplied.) Foster v. State, 240 Ga. 858, 859 (242 SE2d 600) (1978). In our opinion it is well established in Georgia that peremptory strikes are invaluable. When a defendant in a felony trial has to exhaust his peremptory strikes to excuse a juror who should have been excused for cause the error is harmful. Kemp v. State, 226 Ga. 506, 507 (2) (175 SE2d 869) (1970) and Patterson v. State, 239 Ga. 409, 411 (1) (238 SE2d 2) (1977) will not be followed.

Submitted March 2, 1979 Decided April 24, 1979 Rehearing denied May 29, 1979. Larsen & Lewis, William Washington Larsen, Jr., H. G. Bozeman, Robert H. Cofer, II, for appellant. B.B. Hayes, District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

All the Justices concur, except Undercofler, P. J., Jordan and Hall, JJ., who dissent as to Division 3.