Moon v. State

• Citation: 154 Ga.App. 312,268 S.E.2d 366
• Decision Date: 07 May 1980
• Docket Number: No. 59550,59550
• Parties: MOON v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 366

268 S.E.2d 366

154 Ga.App. 312

MOON v. The STATE.

No. 59550.

Court of Appeals of Georgia.

Argued March 3, 1980.

Decided April 10, 1980.

Certiorari Denied May 7, 1980.

David R. Montgomery, Athens, for appellant.

Harry N. Gordon, Dist. Atty., B. Thomas Cook, Jr., Asst. Dist. Atty., for appellee.

QUILLIAN, Presiding Judge.

The defendant appeals his conviction of aggravated assault. Held :

1. Admission in evidence of a witness' first offender conviction for violation of the Georgia Controlled Substances Act for impeachment purposes, is not error. Favors v. State, 234 Ga. 80(3), 214 S.E.2d 645.

2. After the close of all evidence, but before argument counsel for the defendant stated: "I have obtained information which has lead me to believe that fraud, a possible fraud, has been perpetrated in this case. I can't say more than that . . ." Counsel then requested permission to withdraw and was refused. Thereafter, he refused to present argument on behalf of the defendant. He was directed to do so by the court and reluctantly complied after consultation with his client. On appeal, different counsel argues that the court erred in denying the trial defense counsel's motion to withdraw.

We find no error. The question before us is not whether counsel took the proper action as a member of the bar, but whether the action he took deprived his client of the effective assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, exposited the constitutional right of a defendant to the services of an attorney at every stage of a criminal trial. However, Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, also established that counsel for a criminal defendant could not withdraw without consent of the court. The general rule is well stated in Corpus Juris Secundum, that "(a)n attorney may not, in the absence of the client's consent, or compelling circumstances, withdraw from a case without justifiable cause; and then only after proper notice to his client, and on leave of the court." 7A C.J.S. Attorney & Client § 221, p. 393; See also: State Bar of Georgia, Handbook 1979-80, Ethical Consideration 2-32; Directory Rule 2-110; and Standard 22.

The Commentary in the ABA Standards for Criminal Justice, The Defense Function (Tentative Draft) 173, states: ". . . it is a part of counsel's obligation of fidelity to his client that in his role as advocate, his conduct of the case not be governed by his personal views of right or justice but by the task he has assumed of furthering his client's interest to the fullest extent that the law and the standards of professional conduct permit." See DR 7-102 Canon 7; EC 7-26; DR 7-102 and DR 7-106. Where counsel is aware before trial, that perjured testimony may be used during trial, he should withdraw from the case but if discovery occurs during the trial and "withdrawal from the case is not feasible or is not permitted by the court . . . the lawyer may not lend his aid to the perjury." ABA Standards for Criminal Justice, The Defense Function (Tentative Draft) 275; § 7.7(c). Here, counsel reported the matter to the court and the court determined that withdrawal was not feasible.

A trial judge has considerable discretionary power in matters concerning the conduct of a criminal trial (Wheeless v. State, 135 Ga.App. 406, 408, 218 S.E.2d 88), including excusal and substitution of defense counsel. People v. Dolgin, 114 N.E.2d 389, 396, 415 Ill. 434. The trial court did not abuse its discretion in failing to permit withdrawal of counsel at this stage of the proceeding. United States v. Young, 482 F.2d 993(7) (5th Cir. 1973). This is particularly true when the defendant does not join in the request (Jackson v. State, 135 A.2d 638, 641, 214 Md. 454, cert. den. 356 U.S. 940, 78 S.Ct. 784, 2 L.Ed.2d 816) and prejudice to the defendant has not been demonstrated. See State v. Truman, 204 A.2d 93, 98, 124 Vt. 285. This enumeration is without merit.

3. Defendant moved for a mistrial on the basis that his counsel's "argument (was) going to be so severely limited that whatever opportunity or chance that he may have had to have an effective advocate to sway a borderline juror (was) not going to be there." First, "(t)he burden is on him who asserts error to show it affirmatively by the record." Kemp v. State, 226 Ga. 506, 507, 175 S.E.2d 869, 871; Marshall v. State, 239 Ga. 101(2), 236 S.E.2d 58. Secondly, "(a)ppellant must demonstrate error which has harmed him." Collier v. State, 244 Ga. 553, 559, 261 S.E.2d 364, 371. The record does not demonstrate harm to the defendant. We can sympathize with counsel who is placed in such a predicament, but his position was not the fault of the state or the court. And that which was revealed by defendant's counsel was insufficient to require withdrawal of counsel, and our examination of argument of counsel passes muster under the criteria of Pitts v. Glass, 231 Ga. 638, 639, 203 S.E.2d 515, in which our Supreme Court "adopted the standard for determining the effectiveness of counsel as . . . the constitutional right to assistance of counsel (means) 'not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.' " Alderman v. State, 241 Ga. 496, 511, 246 S.E.2d 642, 651. Thus, not only does the defendant not show prejudicial error in the record, or harm, but conversely the record evinces effective assistance of counsel. The trial court did not err in denying defendant's motion for mistrial.

4. Defendant argues that the trial court erred "in failing, sua sponte, to disqualify itself from imposing sentence upon defendant." After verdict the jury was excused and before imposing sentence the judge stated: ". . . the jury has by its verdict found that the defendant was not truthful, guilty of perjury to be brutally frank, in the account he gave to the jury under oath as to the circumstances of the case." Defendant now contends that this shows "(t)he fact of perjury weighed heavily on the mind of the Trial Court at the time of imposing sentence."

Counsel has cited no authority for requiring a trial judge in a criminal case to recuse himself, sua sponte, for a remark unobjected to, which might later be found offensive to defendant's appellate counsel. "Alleged prejudice or bias of a trial judge which is not based on an interest either pecuniary or relationship to a party within a prohibited degree (Code Ann. § 24-102) affords no legal ground of disqualification." Jones v. State, 219 Ga. 848(1), 136 S.E.2d 358, 360. "The statutory grounds of disqualification contained in this section are exhaustive." Id. at 849, 136 S.E.2d at 360. Statements of a trial judge which indicate he believes the defendant guilty when not made before the jury, will not require recusal. Clenney v. State, 229 Ga. 561, 562, 192 S.E.2d 907; Harrison v. State, 20 Ga.App. 157, 158, 92 S.E. 970; Plummer v. State, 27 Ga.App. 185(2), 108 S.E. 128; Mitchell v. State, 136 Ga.App. 658(3), 222 S.E.2d 160. "Prejudice, bias or prejudgment or even an exhibition of partisan feeling, when not arising from (the statutory) grounds, is ordinarily not assignable as a ground of disqualification." Robinson v. State, 86 Ga.App. 375, 378, 71 S.E.2d 677, 680; Garland v. State, 110 Ga.App. 756, 760 (concurring opinion), 140 S.E.2d 46; see also Cason v. State, 16 Ga. App. 820, 827, 86 S.E. 644.

Furthermore, waiver of disqualification of a trial judge may be effected expressly by agreement, or impliedly by proceeding without objection with the trial when the fact asserted as disqualifying is known to the defendant. J. B. v. State, 139 Ga.App. 545(2), 228 S.E.2d 712; Jackson v. State, 146 Ga.App. 736(2), 247 S.E.2d 512; Nix v. State, 236 Ga. 110(1), 223 S.E.2d 81. The issue of disqualification of the trial judge cannot be raised for the first time in the appellate court. Hester v. Mathis, 147 Ga.App. 257(1), 248 S.E.2d 538; see also Knight v. State, 143 Ga. 678, 683(8), 85 S.E. 915. The trial defense counsel raised no objection during trial to the remark now found offensive by appellate counsel. No ruling was sought, and we find no obligation of the court to recuse himself sua sponte. However, a judge should avoid the appearance of impropriety (Canon 2, 231 Ga. A2) and should abstain from public expression about a proceeding before his court (Canon 3 A(6), 231 Ga. A4) and should disqualify himself in a proceeding in...