Roulain v. Martin

466 S.E.2d 837, 266 Ga. 353, 96 Fulton County D. Rep. 609, 1996 Ga. LEXIS 69

• Court: Supreme Court of Georgia
• Decided: February 12, 1996
• Docket: S95A1427
• Status: Published

Opinions

Carley, Justice.

After a jury trial, James Edward Martin was found guilty of felony murder and his conviction was affirmed on appeal. Martin v. State, 262 Ga. 312 (418 SE2d 12) (1992). He then filed a petition for a writ of habeas corpus, contending that the trial court gave a sequential charge which had been disapproved in Edge v. State, 261 Ga. 865 (414 SE2d 463) (1992). After conducting a hearing, the habeas court granted the writ and Warden Roulain appeals.

1. As a general rule, state habeas corpus relief cannot be granted unless the petitioner can demonstrate compliance with the applicable “Georgia procedural rules at trial and on appeal. . . .” OCGA § 9-14-48 (d). Under Georgia procedure, the right to urge error in the trial court’s charge can be waived. White v. State, 243 Ga. 250 (253 SE2d 694) (1979). “Where objections are requested, the failure to either object or to reserve the right to later object amounts to a procedural default. . . .” Rivers v. State, 250 Ga. 303, 309 (7) (298 SE2d 1) (1982). The procedures for securing review of a trial court’s charge are no less applicable to those sequential charges which were disapproved in Edge than to charges dealing with any other issue. Grady v. State, 262 Ga. 682 (2) (424 SE2d 781) (1993); Lee v. State, 262 Ga. 593, 595 (5) (423 SE2d 249) (1992); Taylor v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992).

Martin’s right to urge error as to the giving of a sequential charge was raised and resolved in his direct appeal.

Although the sequential murder charge was disapproved in Edge, supra, no contemporaneous objection to the charge was made at trial. The issue was not preserved for appeal. Rivers v. State, [supra].

Martin v. State, supra at 313 (2). Since this issue was raised and resolved in Martin’s direct appeal, it should not have been readdressed by the habeas court. “[0]ne who had an issue decided adversely to him on direct appeal is precluded from relitigating that issue on habeas corpus, [cit.]. . . .” Davis v. Thomas, 261 Ga. 687, 689 (2) (410 SE2d 110) (1991).

It is immaterial that the habeas court opined that this Court erred in determining that Martin had failed to preserve the sequential charge issue for review. The habeas court had no authority to consider whether this Court erred in its disposition of Martin’s appeal. To the contrary, the habeas court was bound by this Court’s ruling that the sequential charge issue had not been preserved. The “law of the case” doctrine is not confined to civil cases, but applies also to rulings made by appellate courts in criminal cases. Bryant v. State, 197 Ga. 641, 645 (1) (30 SE2d 259) (1944). Thus, in this civil action, the habeas court, as well as this Court, would certainly be bound by the ruling in Martin v. State, supra at 313 (2), regardless of whether that ruling may be erroneous. See Northwestern Mut. Life Ins. Co. v. Suttles, 201 Ga. 84, 97 (1) (38 SE2d 786) (1946); Southern Bell Tel. &c. Co. v. Glawson, 140 Ga. 507, 508 (1) (79 SE 136) (1913). Martin’s contention that this Court erred in its ruling in Martin v. State, supra at 313 (2), should have been raised in a timely filed motion for reconsideration, rather than in a subsequent habeas corpus petition filed in a lower court.

2. Moreover, Martin himself requested a sequential charge which was similar to that disapproved in Edge. Accordingly, even if there had been no general waiver of the right to urge error in any of the trial court’s charges pursuant to Rivers, supra, Martin nevertheless specifically waived his right to urge error in the giving of the sequential charge. Wynn v. State, 262 Ga. 839, 840 (2) (426 SE2d 157) (1993). He is estopped to contend that the trial court erred in giving any charge which was in accordance with his own request. Williams v. State, 255 Ga. 21, 23 (6) (334 SE2d 691) (1985).

Although Martin’s trial preceded Edge, “a defendant will not be allowed to induce an asserted error, sit silently hoping for acquittal, and obtain a new trial when that tactic fails. [Cits.]” Jackson v. State, 234 Ga. 549, 553 (216 SE2d 834) (1975). Thus, a defendant will not be allowed to take inconsistent positions, originally urging in the trial court that a charge is not error, but subsequently urging on appeal that the charge is error. Therefore, we have consistently required that all defendants, even those whose trials preceded Edge, show that they preserved in the trial court the right to enumerate error as to the giving of a sequential charge. Grady v. State, supra; Lee v. State, supra; Taylor v. State, supra. If those defendants, who did not request a sequential charge, must show that they preserved their right to enumerate the giving of such a charge as error on appeal, then Martin, who actually requested a sequential charge, certainly cannot be allowed to complain that such a charge was given. Regardless of when Edge was decided, no defendant can subsequently contend that it was error to give a sequential charge if he previously failed to comply with the applicable procedures for securing review of that issue. By making a request for sequential charge, Martin estopped himself from subsequently urging that it was error to give that charge.

Judgment reversed.

All the Justices concur, except Fletcher, P. J., and Sears, J., who dissent.