Lead Opinion
A jury found Lester Collier guilty of the malice murder of Ben Sullen, Jr. The trial court entered judgment of conviction on the guilty verdict and sentenced Collier to life imprisonment. A motion for new trial was denied, and Collier appeals.
1. Construed most strongly in support of the verdict, the evidence, including eyewitness testimony, shows that Collier threatened to defend himself by using a pipe against the victim. On the following day, Collier argued with the intoxicated victim in the street and struck him more than once with a metal pole or pipe as the victim started to walk away. Appellant fled, and a three or four-foot long, blood-stained pipe was found leaning against his mailbox. The victim died of blunt force trauma to the head and chest. The evidence was sufficient to authorize a rational trier of fact to find Collier guilty of malice murder beyond a reasonable doubt. Jackson v. Virginia,
2. Collier contends that the trial court erred by excluding evidence of the victim’s propensity for violence when intoxicated and his reputation for carrying dangerous weapons.
It has long been established that the victim’s general reputation for violence, including his carrying of dangerous weapons, is inadmissible in a murder trial unless the defendant makes a prima facie showing that the victim was the aggressor, that the victim assaulted the defendant, and that the defendant was honestly attempting to defend himself. Alexander v. State,
Standing alone, this testimony fails to show that Collier was honestly seeking to defend himself either time that he struck the victim with the pipe. See Cooper v. State, supra. Under that testimony, Collier had already disarmed the victim before striking him the first time and, after that first blow by Collier with the metal pipe, the victim neither committed nor demonstrated the ability to commit any further assault against Collier. “Justification can not be based on a deadly assault which has been completely ended, unless the assailant has some further apparent ability to continue it.” Cochran v. State,
Collier also complains that the three-pronged test should not be used to determine whether the victim’s reputation for violence is admissible, because it is not used to determine whether the jury should be charged on justification. As already indicated, however, that three-pronged test is an essential and long-standing prerequisite to application of the reputation exception to the venerable rule that evidence of a victim’s character is inadmissible. We reaffirm the three-pronged test in this context regardless of whether it has a role to play in determining the applicability of instructions on justification. Compare Buice v. State,
3. Collier urges that the trial court violated OCGA § 24-9-84.1 by admitting into evidence his 1996 convictions for two drug offenses and by failing to enter express findings in the record.
The trial court had no duty to conduct the applicable balancing test in OCGA § 24-9-84.1 absent an objection. Thomas v. State,
Collier asserts that trial counsel’s failure to preserve this issue constitutes ineffective assistance of counsel. However, this claim is waived because it was not raised either in the motion for new trial as amended or at the hearing thereon by appellate counsel who had been appointed following Collier’s conviction. Allen v. State,
4. The following jury charge is enumerated as error:
To impeach a witness is to prove that the witness is unworthy of belief. A witness may be impeached by disproving the facts to which the witness testified or proof that the defendant has been convicted of the offenses of Violation of the Georgia Controlled Substances Act.
Collier contends that, by this charge, the trial court invaded the province of the jury, expressed an opinion, and gave contradictory and confusing instructions on impeachment and credibility of a witness, specifically of Collier. Because Collier “was tried after the effective date of the 2007 amendment to OCGA § 17-8-58 and ‘did not specifically object to (this) charge ... at the conclusion of the jury
Moreover, we find no reversible error, much less any “plain error” pursuant to OCGA § 17-8-58 (b), assuming that analysis under that provision is proper in this case. Contrary to Collier’s argument that the charge essentially directed the jury that he is unworthy of belief since he was convicted of drug offenses, the charge states that a witness “may be” impeached, not that he “is” impeached, by proof of drug convictions. See Jones v. State,
Furthermore, because no reversible error occurred with respect to the jury instruction on impeachment, Collier cannot succeed on his alternative claim that trial counsel rendered ineffective assistance in failing to object to that instruction. Jennings v. State,
Judgment affirmed.
Notes
The crimes occurred on September 2, 2005, and the grand jury returned an indictment on December 6, 2005. The jury found Collier guilty on February 8, 2008 and, on that same day, the trial court entered the judgment of conviction and sentence. The motion for new trial was filed on February 29, 2008, amended on March 24 and 25, 2009, and denied on July 20, 2010. Collier filed the notice of appeal on August 11, 2010. The case was docketed in this Court for the January 2011 term and submitted for decision on the briefs.
Concurrence Opinion
specially concurring.
I concur in the result of the majority opinion and join all of it except the portion of Division 4 which holds, with respect to Collier’s enumerated error regarding the jury charge on witness credibility, that
*759 [b]ecause Collier “was tried after the effective date of the 2007 amendment to OCGA § 17-8-58 and ‘did not specifically object to (this) charge ... at the conclusion of the jury charge, he has waived his right to urge error on appeal.’ [Cit.]”
1. Plain Error Appellate Review Under OCGA § 17-8-58
(a) The Plain Language of the 2007 Statute
OCGA § 17-8-58 was added to the Criminal Code in May 2007 and applies to all trials that occur on or after July 1, 2007. The statute speaks in clear terms:
(a) Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Such objections shall be done outside of the jury’s hearing and presence.
(b) Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court’s attention as provided in subsection (a) of this Code section.
(Emphasis added.)
Subsection (a) of the new statute changed the previous rule that this Court had recognized, which allowed defense counsel in criminal cases to preserve objections to jury charges for full appellate review merely by announcing at the end of the charges that the defendant
Subsection (b) of OCGA § 17-8-58 begins by stating the cost of failure to make such a timely and specific objection: “precluding] appellate review” of the jury charge — review that is normally de novo. Accurate jury charges are, however, important to the reliability of criminal trials. See Brodes v. State,
(b) Our Plain Error Jurisprudence
There is no reason not to give effect to this statutory command. It is true that, unlike the federal system, see Fed. R. Crim. E 52,
That said, the two areas where this Court applied plain error review before the enactment of OCGA § 17-8-58 were where statutes charged us with that duty. Thus, even absent proper objection, we
Even more analogous to OCGA § 17-8-58 is the immediately preceding section of the criminal procedure code, OCGA § 17-8-57, which prohibits judges in criminal cases from “intimating [an] opinion as to what has or has not been proved or as to the guilt of the accused.” That statute then provides that, “[s]hould any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed.” Id. (emphasis added). In accordance with that clear text, we have applied a sort of super-plain error review, holding not only that no objection at trial is required to assert a violation of OCGA § 17-8-57 on appeal, but also that if a violation is found, the conviction will be reversed without further consideration of the effect of the error on the defendant’s substantial rights or the fairness and integrity of the proceeding. See State v. Gardner,
(c) Application of OCGA § 17-8-58 to This Case
In light of this background law and the clear text of OCGA § 17-8-58, I agree with the majority that Collier’s failure to object to the jury charge on witness credibility before the jury began its deliberations precludes appellate review of that enumerated error under the usual de novo standard. See Maj. Op. at 759.1 also agree with the majority’s alternative conclusion that, applying de novo review, there was no reversible error, see id. at 759, and it follows that there could be no plain error either (since plain error does not exist in the absence of reversible error). Thus, the majority reaches the right result in Division 4.
However, the majority’s approach, which only “assum[es] that analysis under [OCGA § 17-8-58 (b)’s plain error] provision is proper in this case,” id. at 759, mistakenly suggests that plain error review is not required — a mistake that traces back to Metz and has led to other decisions by this Court and the Court of Appeals in which
2. Our OCGA § 17-8-58 Case Law
(a) Metz and Its Progeny
Metz was this Court’s first case applying OCGA § 17-8-58. In addressing the jury charge error presented on appeal, the Court first explained accurately that, “[ujnder subsection (a) of that Code section, a criminal defendant is required to ‘inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.’ ”
In reaching that conclusion, and despite quoting the first part of the statute, the Metz Court did not quote or address the remainder of subsection (b) — the portion that says “. . . unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court’s attention as provided in subsection (a) of this Code section.” The Court did not explain this omission, nor does the majority today, and I am unaware of any reason to disregard that portion of the Georgia Code.
In subsequent cases — which I joined without spotting this problem — jury charge issues were similarly deemed waived, citing Metz, without discussion of plain error or the merits of the issue. See Thompson v. State,
(b) Cases Correctly Applying OCGA § 17-8-58
The case law, however, is not consistent. In at least five other cases — including our two most recent decisions involving OCGA § 17-8-58 — this Court has correctly applied the statute, holding that normal appellate review was waived for the enumerated jury charge error (sometimes citing Metz for this point) but also addressing plain error. See Crawford v. State,
(c) Reconciling Our Precedents
The time has come to reconcile these two conflicting lines of precedent, as more and more criminal cases tried after the effective date of OCGA § 17-8-58 (b) reach the appellate courts and present this issue. We may resolve the issue in State v. Kelly, Case No. S11A0734, because the questions we posed in granting the application to appeal in that case focus specifically on the OCGA § 17-8-58 (b) plain error issue. But Kelly is an April Term case that may not be decided until this fall. In the meantime, the majority opinion strains to avoid resolving the issue — and I emphasize that the majority opinion should not be read as expressing the Court’s ultimate position. Two other opinions released today take the same avoid-the-question approach. See Howard v. State,
I see no reason to wait, because it is clear that we must follow the cases that give effect to the unambiguous text of OCGA § 17-8-58 (b), rather than the decisions that ignore that directive. To the extent that Metz and other cases hold or suggest that the failure to object properly under OCGA § 17-8-58 (a) waives all appellate review, even review limited to plain error under OCGA § 17-8-58 (b), those cases should be overruled without further delay.
For these reasons, I cannot join all of Division 4 of the majority opinion.
The United States Supreme Court has explained that
so-called “plain-error review”... involves four steps, or prongs. First, there must be an error or defect - some sort of “[deviation from a legal rule” - that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the district court proceedings.” Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error - discretion which ought to be exercised only if the error “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Meeting all four prongs is difficult, “as it should be.”
Puckett v. United States,
Because OCGA § 17-8-58 (b) now mandates plain error review, we need not decide whether similar review was already available. Some cases involving pre-July 2007 trials simply apply waiver to jury charge issues not properly objected to at trial. See, e.g., Moon v. State,
Rule 51 (b) of the Federal Rules of Criminal Procedure requires parties to preserve a claim of error by properly objecting at trial. Rule 52 (b) provides, however, that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”
As reflected in Madrigal’s alternative holding, putting aside OCGA § 17-8-58 (b)’s limitations on appellate review based on failure to comply with OCGA § 17-8-58 (a), other waiver doctrines may still apply to limit or preclude appellate review, such as invited error or the failure to enumerate the jury charge as error in the appellant’s brief or to support the enumerated error by argument and citation to authority, see Supreme Court Rules 19 and 22. However, the appellant’s explicit or implicit argument that an unobjected-to jury charge issue
See, e.g., Boring v. State,