Defendant appeals his burglary conviction on federal constitutional grounds. Although in his enumeration of errors he charges also that the “Laws of the State of Georgia” were violated, he fails to point to any particular law in his enumeration or in his argument, and so we will consider that ground abandoned.
Green v. State,
We make note that appellant has failed to raise any state constitutional claim, thus either ignoring the principles of federalism which would compel consideration of its application first 1 or believing that there are no provisions of the Constitution of Georgia which have been contravened by the errors complained of.
If both constitutions are properly raised,
Tenant v. State,
As Justice Stevens chided the Supreme Judicial Court of Massachusetts in his concurring opinion in Massachusetts v. Upton, __ U. S. __ (104 SC 2085, 80 LE2d 721) (1984) (52 LW 3822, 3824): *699 “The States in our federal system . . . remain the primary guardian of the liberty of the people. The Massachusetts court, I believe, ignored this fundamental premise of our constitutional system of government. In doing so, it made an ill-advised entry into the federal domain (by resting its decision on the federal constitution without stating whether the action complained of was valid as a matter of Massachusetts law).”
But we do not do so here because there is no call by appellant for it at all. And because our function as a court of review wisely precludes our sua sponte raising new grounds, we of course will not enlarge that function.
Velkey v. Grimes,
We deal here, then, solely with a federal constitutional claim and wish to plainly say so as we should do. See
Michigan v. Long,
1. It is urged that defendant was prosecuted for a vindictive and retaliatory purpose. Originally, defendant contends, the state determined not to prosecute defendant and another suspect Powell. Defendant filed a civil lawsuit against the investigating officer who thereafter spoke with the assistant district attorney in charge of determining whether to seek an indictment. The prosecutor re-evaluated the situation and presented the matter to the grand jury which returned indictments against defendant and Powell. Just prior to trial, the cases against defendant and Powell were severed. The state had agreed for Powell to take a polygraph test and to stipulate the results. The state would not agree to that same arrangement with defendant. Powell passed the test and charges against him were dropped after appellant’s trial. Defendant was tried and the jury found him guilty.
The record is devoid of any evidence or inference that the state entered into any agreement not to prosecute the defendant or did anything amounting to waiver. At most, there was an initial indication that the state would not prosecute. The defendant argues that the decision to prosecute was motivated solely by the action for damages he brought against the investigating officer.
On the hearing of the motion for new trial, the assistant district attorney testified for the state that, although the officer who investigated the case told him that the defendant had filed suit, this was not *700 a consideration in his decision to prosecute. His eventual determination was based on other factors such as the reliability and credibility of the sole eyewitness who was the principal witness for the state. The assistant district attorney also testified that the decision not to prosecute Powell was based on the fact that he had an alibi, 2 which led to the state’s agreeing to stipulate to the results of a polygraph; then when Powell passed the test, charges against him were dismissed.
Whether to prosecute and what charge to bring before a grand jury are decisions that generally rest in the prosecutor’s discretion. Nevertheless, selectivity in the enforcement of criminal laws is subject to constitutional constraints, the equal protection clause of the Fourteenth Amendment
(United States v. Batchelder,
United States v. Goodwin,
Applying these principles, there was no presumption that the prosecution of defendant was undertaken for a retaliatory purpose. The trial court was authorized in finding that the district attorney *701 exercised lawful discretion in selecting the defendant for prosecution.
2. On cross-examination defense counsel asked the officer who investigated the crime about the civil law suit filed against him and introduced a copy into evidence. State’s attorney, on redirect, inquired of the investigator “you have immunity from such frivolous suits of this sort?” and received an affirmative answer. Objection was interposed and sustained. No further corrective action was requested.
Defendant now contends this statement, without factual basis, was prejudicial.
“A mere objection which is sustained does not constitute a motion for mistrial.”
Johnson v. State,
3. It is argued that the prosecution wilfully withheld exculpatory information, i.e., that Powell had a documented alibi as to his presence elsewhere, which cast a shadow on the credibility of the state’s eyewitness who had identified both defendant and Powell.
Appellant had this information and presented it during the trial in his defense. Powell testified he was not at the scene and did not see appellant that day. Moreover, appellant filed no pre-trial discovery motions pursuant to
Brady v. Maryland,
4. Insofar as defendant raises an issue regarding the cumulative effect of claimed individual errors (not reversible in their own right), there is no merit to such ground.
Haas v. State,
Judgment affirmed.
Notes
See Linde, “First Things First: Rediscovering the States’ Bills of Rights,” 9 University of Baltimore L. Rev. 379 (1980); Carson, “ ‘Last Things Last:’ A Methodological Approach to Legal Argument in State Courts,” 19 Willamette L. Rev. 641 (1983).
Both defendant and Powell were couriers for Pony Express. The defendant’s route included the burglarized building, and his duties placed him at the building at the approximate time of the crime. Powell, who had previously trained under defendant on that same route, had a different route by the day of the offense and his time chart showed him to be at another location at the crucial time.