THOMAS v. THE STATE
30013
Supreme Court of Georgia
DECIDED JUNE 17, 1975
234 Ga. 615 | 216 S.E.2d 859
SUBMITTED MAY 23, 1975; SUBMITTED JUNE 11, 1975
William H. Ison, District Attorney, Douglas N. Peters, Assistant District Attorney, Arthur K. Bolton, Attorney General, Kirby G. Atkinson, for appellee.
30013. THOMAS v. THE STATE.
HILL, Justice.
The Court of Appeals (in Case No. 50142) certified the following question:
“1. Defendant was tried and convicted for a criminal offense. He made no statement and gave no testimony. The trial judge commented on his failure to testify in his charge to the jury. At the conclusion of the charge, counsel for the state and defendant were asked by the court if they had any ‘exceptions’ to the charge; counsel for the state and defendant stated that each had no exceptions.
“2.
Code Ann. § 38-415 prohibits any comment on the failure of a defendant to testify in a criminal case; and McCann v. State, 108 Ga. App. 316 (132 SE2d 813), by Judges Nichols, Jordan and Frankum, holds that this inhibition applies to both solicitor and judge. Linder v. State, 132 Ga. App. 624 (3) (208 SE2d 630).“3.
Code Ann. § 70-207 (a) provides for objections by counsel to the judge‘s charge to the jury in civil cases, but the last sentence of subsection (a), ‘The provisions in this section shall not apply in criminal cases.’“Question submitted: As this was a criminal case and not a civil case, did the judge‘s question as to whether counsel had exceptions to the charge, and their reply that they had none, waive the right of defendant‘s counsel to enumerate error as to the trial judge‘s comment to the jury, during his charge, on the failure of defendant to testify? See Tiller v. State, 224 Ga. 645 (164 SE2d 137) vis-a-vis Roberts v. State, 231 Ga. 395 (1) (202 SE2d 43).”
The foregoing question was certified on April 16,
In reaching the decision in Sims v. State, supra, the history of
Other factors were also considered, including the following: (1) If the principle of express waiver were held applicable, then implied waiver (waiver by failure to object to the charge of the court) should, in logic, be equally applicable, except that application of the principle of implied waiver clearly would be contrary to the express provisions of
(2) If the principle of express waiver were held applicable, in response to the trial court‘s inquiry, “Are there any objections to the charge,” defense counsel could and should reply, “Your honor, in the best interest of representing my client, I must respectfully rely upon his rights under
(3) If the principle of express waiver were held applicable, the making of such waiver could be made the basis of a claim of ineffective representation by counsel on a subsequent petition for habeas corpus.
Although a majority of this court might prefer the 1966 amendment to
We find nothing contrary to Sims v. State in the two decisions of this court cited in the question certified by the Court of Appeals. Tiller v. State, 224 Ga. 645, supra, involved subsection (c) of
We acknowledge that both Roberts and the case before us involve comment by the trial court upon the failure of the accused to testify. In Roberts, the comment was not part of the charge of the court and the principle of implied waiver (failure to object) was held applicable. In this case, however, the comment was a part of the charge of the court and the principle of express waiver is held inapplicable. The difference between the two decisions is that the negative command of
The fact that the result in this case is contrary to the result in Roberts, supra, and the further fact that such contrary results cannot be reconciled by logic, is attributable to the negative command of
The district attorney cites McCorquodale v. State, 233 Ga. 369 (2) (211 SE2d 577), for authority that the principle of waiver is applicable to failure to object to the charge of the court. McCorquodale held that in the absence of request to charge or objection to the court‘s omission to charge, it was not error for the trial court not to instruct the jury on the voluntariness of the defendant‘s confession. See also Thomas v. State, 233 Ga. 237 (4) (210 SE2d 675), involving a 1973 murder and robbery, where it was also held that in the absence of request to charge, it was not error for the court to fail to charge the jury on the voluntariness of the defendant‘s confession.
In Tanner v. State, 228 Ga. 829 (8) (188 SE2d 512), involving a 1971 robbery, it was held that in the absence of request it was not error for the court to fail to charge the jury on impeachment of witnesses.
In Spear v. State, 230 Ga. 74 (1) (195 SE2d 397), it was held that in the absence of request it was not error to fail to charge on good character as a defense. In Spear this court said: “While present law exempts the defendant in a criminal case from the strict requirements imposed on litigants in civil cases to preserve an issue on the giving of or the failure to give instructions to the jury (Ga. L. 1968, pp. 1072, 1078;
Thus, it appears from McCorquodale, Thomas, Tanner and Spear, supra, that where a criminal defendant fails to request a charge, or fails to object to the trial court‘s omission to charge, such failure to request or object has been decisive against him.
We have however found no decision of this court, since the 1968 amendment to
There is a distinction between failure to request a charge on some collateral issue in the case and failure to object to omission thereof from the charge, on the one hand, and failure to object to the charge of the court as given on the other hand. McCorquodale noted that distinction. However, that distinction is not presented by the question certified. The question here involves the charge of the court as given.
In view of Sims v. State, supra, the certified question is answered in the negative.
Certified question answered in the negative. All the
ARGUED JUNE 11, 1975 — DECIDED JUNE 17, 1975.
Al Bridges, for appellant.
Richard Bell, District Attorney, Edward H. Kellogg, Jr., Assistant District Attorney, for appellee.
HALL, Justice, dissenting.
I dissent for the reasons stated in my dissents to Sims v. State, 234 Ga. 177; Gaither v. State, 234 Ga. 465 and Leach v. State, 234 Ga. 467.
My reading of
1. The Code section as a whole or in pertinent part is presently limited to civil cases. In 1968, the former section was superseded in its entirety “making this section apply only to civil cases, and not criminal.” Editorial Note,
2. There being no statutory procedure on the subject in criminal cases, this court has the inherent power to promulgate a rule to fill the vacuum. I would adopt the rule found in the American Bar Standards, Jury Instructions 4.6, pp. 329-330, which is similar to that found in the federal courts (
3. Even if the first two conclusions are rejected, I am of the opinion that there has been an express waiver under the facts stated in the certified question before us where the trial court turns to the defendant‘s effective counsel and inquires if there is anything wrong in the charge as given, and is told there is not. As officers of the