STATE v. WILLIAMSON

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Docket Number

37210.

Attorney(S)

Herbert A. Rivers, Solicitor, Robert F. Webb, for appellant. Jean E. Johnson, Jr., F. Gentry Shelnutt, Jr., David Cook, for appellee.

Judges

GREGORY, Justice.

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Smart Summary

Factual and Procedural Background

The case concerns Williamson's conviction for simple battery, which was reversed by the Court of Appeals of Georgia. The Supreme Court of Georgia granted certiorari to review that decision. During the trial, after jury selection and swearing but before opening statements, the trial court instructed the jury on trial procedures, including permitting jurors to ask questions of witnesses if they raised their hands and the inquiry was deemed proper. After opening statements and a recess, several jurors did ask questions during the presentation of evidence. Defendant's attorney did not object to this procedure or to any individual question until after conviction, when a motion for new trial was filed.

Legal Issues Presented

Whether the trial court's procedure permitting jurors to directly question witnesses, which is not allowed in Georgia, constitutes reversible error when no timely objection is made.
Whether failure to object to the juror questioning procedure prior to or during trial constitutes waiver of the right to challenge the procedure on appeal.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Williamson v. State, 156 Ga. App. 856 (276 S.E.2d 60) (1980)	Decision of the Court of Appeals reversing conviction.	Reviewed and reversed by the Supreme Court.
Stinson v. State, 151 Ga. App. 533 (260 S.E.2d 407) (1979)	Discussed caution in allowing jurors to question witnesses and the difficult position of counsel in objecting.	Supported the view that failure to object may be excusable but emphasized caution.
Hall v. State, 241 Ga. 252 (244 S.E.2d 833) (1978)	Georgia does not permit jurors to directly question witnesses.	Confirmed that the practice is prohibited in Georgia.
Morris v. State, 200 Ga. 471 (37 S.E.2d 345) (1946)	Objections to irregularities must be made timely or are waived.	Applied to hold that failure to object to juror questioning waived the right to complain.
Johnson v. Zerbst, 304 U.S. 458 (58 S.C. 1019, 82 LE 1461) (1938)	Right to personal waiver by defendant of certain constitutional rights.	Distinguished from the case, as the right here was not of the same fundamental nature requiring personal waiver.
Simmons v. State, 246 Ga. 390 (271 S.E.2d 468) (1980)	Constitutional rights so fundamental may be raised for the first time on appeal.	Distinguished because the right to object to juror questioning is not of that fundamental nature.
Estelle v. Williams, 425 U.S. 501 (96 S.C. 1691, 48 L.Ed.2d 126) (1976)	Fundamental constitutional rights requiring personal waiver.	Referenced to illustrate the nature of rights that must be personally waived.

Court's Reasoning and Analysis

The court acknowledged that allowing jurors to directly question witnesses is a dangerous practice and prohibited in Georgia. Nevertheless, it emphasized that objections to procedural irregularities must be made timely to allow remedy; otherwise, they are waived. In this case, the trial court clearly announced its intention to permit juror questioning before evidence presentation and afforded counsel a recess to object outside the jury's presence. Defendant's counsel did not object at that time or later until after conviction. The court concluded that the failure to timely object constituted approval of the procedure, thus waiving the right to challenge it on appeal. The court also distinguished the issue from fundamental constitutional rights that require personal waiver or may be raised for the first time on appeal, holding that this procedural objection did not fall into those categories.

Holding and Implications

Judgment reversed.

The Supreme Court reversed the decision of the Court of Appeals, reinstating the conviction. The direct questioning of witnesses by jurors, though prohibited in Georgia, was deemed not reversible error because the defendant's counsel failed to timely object despite having opportunity. This decision underscores the importance of timely objections to preserve issues for appeal and clarifies that certain procedural rights are waived if not asserted promptly. No new constitutional precedent was established; the ruling applies the existing waiver doctrine to the facts of this case.

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THE STATE v. WILLIAMSON.

GREGORY, Justice.

We granted certiorari to review the decision of the Court of Appeals reversing Williamson's conviction of simple battery. See Williamson v. State, 156 Ga. App. 856 ( 276 S.E.2d 60) (1980).

After the jury had been selected and sworn and the witnesses sequestered, but prior to the presentation of opening statements, the trial court instructed the jury as to the procedures that would be followed during the trial. During this orientation, the court informed the jury that should any of them be confused during the proceedings, or have any questions of the witnesses or the court, then that juror should raise his hand. The court would, if the inquiry was proper, clear up the confusion or see that the witness answered the question. After the opening statements were made, the court took a twenty minute recess. After the resumption of the case, and during the presentation of the evidence, several jurors were in fact permitted to ask questions of witnesses. Defendant's attorney, however, made no objection either to the procedure or to any individual question until a motion for new trial was made subsequent to defendant's conviction.

The practice of permitting jurors to directly question witnesses is a dangerous one. Jurors are not schooled in the rules of evidence which govern the posing of questions in a trial and are likely to be personally offended if their questions are objected to. Even those jurisdictions which allow the practice urge that it be exercised with caution. Stinson v. State, 151 Ga. App. 533 ( 260 S.E.2d 407) (1979). In Georgia, the practice is not permitted. Hall v. State, 241 Ga. 252 ( 244 S.E.2d 833) (1978).

However, it is also the rule in Georgia, as elsewhere, that objections to irregularities must ordinarily be made at a time when they may be remedied, or they are waived. See Morris v. State, 200 Ga. 471 (1) ( 37 S.E.2d 345) (1946). A failure to object may be excusable in some cases. Stinson, supra, noted the untenable position in which an attorney is placed if he is forced to object to an improper question from a juror. In this case, the trial court expressed his intention to allow jurors to ask questions during the jury orientation prior to the presentation of any evidence and prior to any juror requesting permission to question a witness. This expression of intent was followed by a twenty minute recess, affording counsel the opportunity to object to the procedure outside the presence of the jury under circumstances which would preclude the jury's knowledge of his objection. The failure to object then, or at other times when opportunities existed to object outside the presence of the jury, as well as the failure to object to any specific question, virtually compels the conclusion that defendant's counsel approved the procedure.

We are not here dealing with the type of right which must be personally waived by the defendant himself according to the standards of Johnson v. Zerbst, 304 U.S. 458 ( 58 S.C. 1019, 82 LE 1461) (1938). Nor are we dealing with a constitutional right so fundamental that it may be raised for the first time on appeal. See Simmons v. State, 246 Ga. 390 ( 271 S.E.2d 468) (1980). Compare Estelle v. Williams, 425 U.S. 501 ( 96 S.C. 1691, 48 L.Ed.2d 126) (1976). Cf. Hill, The Forfeiture of Constitutional Rights in Criminal Cases, 78 Colum. L. Rev. 1050 (1978) and Westen, Away From Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich. L. Rev. 1214 (1977).

We hold that the defendant's procedural objections were not timely made and reverse the decision of the Court of Appeals.

Judgment reversed. All the Justices concur, except Clarke, J., who dissents and Smith, J., who is disqualified.