dissenting.
The majority find it difficult in a death case to overrule an enumeration of error solely because defendant’s counsel failed to object at trial. So, regarding the GBI agent’s testimony that the defendant exercised his right to an attorney and to remain silent, the majority first say that defendant’s failure to object at trial precludes consideration of the Doyle issue on appeal.
Because the majority find it diffcult to dismiss this enumeration without considering it on its merits (and perhaps also because the defendant urges on appeal that the failure of his trial attorney to make an objection based on Doyle shows ineffective assistance of counsel), after saying that consideration of the Doyle issue is precluded, they nevertheless say that even if the Doyle issue were considered on its merits, it would be without merit.
After finding the Doyle issue to be without merit, the majority go further and conclude that even if there were a violation of Doyle, the error was harmless beyond a reasonable doubt. It seems to me that the majority is unsure of its basis for affirming this death penalty case.
First, as to the merits, the majority attempt to distinguish Doyle by saying it held that the use of the defendant’s post-arrest, post-Miranda silence for impeachment purposes violates due process, but that here the defendant was not under arrest "when his interview with the GBI agent began,” the facts do not show a custodial interrogation and the GBI agent’s testimony was elicited by the state upon direct examination and not for impeachment purposes.
It is true that the defendant was not under arrest when the interview began, but he was under arrest when it ended. At some point the "interview” becamé "interrogation,” because the defendant became frustrated with the nature of the questions being asked him. The GBI agent did not say when the interrogation began or when the Miranda warning was given. In its effort to distinguish Doyle, the majority therefore infer that the defendant here chose to exercise his right to remain silent and consult an attorney before he was arrested and before he was given his Miranda warning. That effort to *515distinguish Doyle is based upon surmise rather than the record.
The emphasis on impeachment in Doyle v. Ohio, 426 U. S. 610 (96 SC 2240, 49 LE2d 91) (1976), was because no one contended that evidence as to the defendant’s silence was admissible during the state’s case in chief, because under Miranda such evidence was admissible, if at all, only for purposes of impeachment as in Oregon v. Hass, 420 U. S. 714 (95 SC 1215, 43 LE2d 570) (1975). The majority’s attempt to distinguish Doyle as an impeachment case completely overlooks Miranda v. Arizona, 384 U. S. 436, 468 (n. 37) (86 SC 1602, 16 LE2d 694) (1966), where the court ruled: "In accord with our decision today, it is impermissible to penalize an individual for exercising the Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf. Griffin v. California, 380 U. S. 609 (1965)...”
In the case before us the testimony elicited by the state from a state law enforcement officer during the state’s case in chief (and before the defendant testified) was probative only as to guilt; it was premature for impeachment purposes. To me it matters not that the state did not stress it, or that the jury was not told that the defendant’s silence could be used as evidence of guilt. The prosecution used at trial the fact that the defendant claimed his privilege and that violated the defendant’s right to remain silent as well as his right to counsel.
Thus, in my opinion we cannot say that defendant’s enumeration of error based on Doyle v. Ohio is without merit. That leaves us with the failure to object at trial, with its follow-up criticism of trial counsel, and harmless error. Although plenary appellate review in criminal cases is being advocated, it is not being granted even in this death case. Cf. Code Ann. § 27-2537(i). Moreover, in my view we should not retreat to the contemporaneous objection rule unless we ourselves are willing to stand upon it, and it alone, in a death case.
Under our statute (Code Ann. § 50-127 (1)), it is clear that there has been no showing of waiver and the *516defendant could have raised the Doyle issue on habeas corpus notwithstanding the absence of a contemporaneous objection. Morgan v. Kiff, 230 Ga. 277, 279 (196 SE2d 445) (1973); Jacobs v. Hopper, 238 Ga. 461 (1) (2) (233 SE2d 169) (1977); Clark v. Smith, 224 Ga. 766 (5) (164 SE2d 790) (1968), revd. 403 U. S. 946; Wilkes, Postconviction Habeas Corpus Relief in Georgia, 12 Ga. L. Rev. 249, 260 (n. 84), 272 (n. 144). It makes little sense to me to affirm a death sentence on appeal by invoking the contemporaneous objection requirement, where that requirement would not be applicable on habeas corpus.1 The court’s invocation of the contemporaneous objection rule in this case will suggest to defense counsel that they save their constitutional enumerations of error (excepting jury composition challenges, Code Ann. § 50-127(1), and Fourth Amendment violations, Jacobs v. Hopper, supra) for habeas corpus lest it be said on appeal that there was no contemporaneous objection or that the objection at trial was inadequate. Cf. Shaw v. State, 241 Ga. 308, 310 (1978). This court does not improve the operation of the criminal justice system by making habeas corpus more attractive than the normal appellate process. See Moore v. State, 141 Ga. App. 245, 248 (233 SE2d 236) (1977) (the state does not here urge the need for a hearing on waiver).
As for harmless error, I cannot agree with the majority and say that I find this error to be harmless beyond a reasonable doubt in this death penalty case. I therefore dissent as to the entirety of Division 3 of the majority opinion.
I also dissent to the first division where the majority, without using that phrase, finds harmless error in *517excusing for cause three prospective jurors in conceded violation of Witherspoon v. Illinois, 391 U. S. 510 (1968). The majority say that the impact of the state’s having unexercised peremptory challenges equal to the number of Witherspoon violations is an open question. I disagree.
In Davis v. Georgia, 429 U. S. 122, 123 (97 SC 399, 50 LE2d 339) (1976), the court said in a per curiam opinion: "Unless a venireman is 'irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings’ (391 U. S. at 522 n. 21), he cannot be excluded; if a venireman is improperly excluded even though not so committed, any subsequently imposed death penalty cannot stand.” In reaching this conclusion the court cited Harris v. Texas, 403 U. S. 947 (1971), which reversed the death penalty affirmed in Harris v. State, 457 SW2d 903 (Tex. Crim. App.) (1970). In Harris one juror was improperly excluded; the state had 4 unused peremptory strikes (Tex. Code Crim. P. (Vernon’s Ann.) art. 35.15); the death penalty was set aside. Harris v. Texas, supra.
In its analysis of Witherspoon, the Supreme Court of California in In re Anderson, 73 Cal. Rptr. 21 (447 P2d 117, 122) (1968), cert. den. 406 U. S. 971 (1972), used language similar to that quoted above from Davis v. Georgia. There the California court held that the defendant was entitled to have his death penalty set aside because jurors were improperly excluded for cause in violation of Witherspoon, notwithstanding the fact that the state had sufficient unused peremptory strikes to have removed such jurors.
As I read Davis v. Georgia, supra, the Supreme Court has approved In re Anderson, supra. As the dissent in Davis pointed out, the majority adopted a per se rule which precludes a finding of harmless error. 429 U. S. at 123-124. Additionally, the dissent urged that the state may have had an unused peremptory challenge in Davis. Notwithstanding the dissenter’s charge that it was excluding consideration of harmless error, the majority of that court, citing Harris v. Texas, supra, adhered to its holdings: ". . . if a venireman is improperly excluded . . . any subsequently imposed death penalty cannot stand.” *518Id. at 123. The majority in this case have decided not to apply that statement as it is written. I therefore dissent.
By using the contemporaneous objection rule as one basis for affirmance and "distinguishing” Doyle v. Ohio, supra, as an alternative basis, the majority may deter federal review of this conviction in deference to the first basis (see Williams v. Georgia, 349 U.S. 375, 211 Ga. 763), yet be able to say on state habeas corpus that we previously decided the constitutional (Doyle) question on its merits.