Bailey v. State

• Decision Date: 01 October 1974
• Docket Number: No. 29084,29084
• Citation: 232 Ga. 873,209 S.E.2d 204
• Parties: John Wesley BAILEY v. The STATE.
• Court: Georgia Supreme Court

Page 204

209 S.E.2d 204

232 Ga. 873

John Wesley BAILEY v.The STATE.

No. 29084.

Supreme Court of Georgia.

Oct. 1, 1974.

Crudup & Howell, E. A. Crudup, Jr., Covington, for appellant.

John T. Strauss, Dist. Atty., Covington, Arthur K. Bolton, Atty. Gen., Lois F. Oakley, Atlanta, for appellee.

Syllabus Opinion by the Court

NICHOLS, Presiding Justice.

This is the fourth appeal to reach this court stemming from the appellant's conviction in 1960 for the murder of his father-in-law.SeeBailey v. State, 224 Ga. 48, 159 S.E.2d 286;Bailey v. Smith, 227 Ga. 291, 180 S.E.2d 356;Bailey v. Ault, 229 Ga. 646, 193 S.E.2d 823.On May 9, 1974, the Superior Court of Newton County granted the defendant an out-of-time appeal, appointed counsel to represent him and the present appeal was filed.This out-of-time appeal was granted as a result of the decision of the United States Circuit Court of Appeals, 5th Circuit in Bailey v. Ault, 490 F.2d 71(1974) and the decision of the United States District Court in such case on remand, Bailey v. Ault, (Case No. 17862, U.S. District Court, Northern District of Georgia.)

The decision of the United States District Court providing for an out-of-time appeal in this case and the judgment of the Superior Court of Newton County permitting such appeal to be filed eliminates from consideration the appellant's contentions that a new trial should be granted because he was denied effective assistance of counsel with which to prosecute an appeal immediately upon his conviction and that he was denied effective counsel because he was not given specific advice, immediately upon conviction, as to his right to appeal from the verdict and judgment of the trial court.CompareMcAuliffe v. Rutledge, 231 Ga. 745, 204 S.E.2d 141.

The sole remaining enumeration of error contends that the failure of the trial court to provide appellant with a complete and accurate transcript of the trial proceedings 'as soon as practicable following his conviction,' resulted in a denial of appellant's right to appeal on the merits of his case.

In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, any contention that destitute defendants were not entitled to an adequate appellate review and entitled to a transcript as much as a defendant with money to pay for such a transcript was put to rest.However, such transcript need not be a verbatim report of all that transpired at the defendant's trial from the call of the case to the sentence by the court.As was pointed out in Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372, it is the duty of the state to provide the indigent as adequate and effective an appellate review as that given appellants with funds, and that in terms of a trial record this means that the state must afford the indigent a record of sufficient completeness to permit consideration of his points.It was then pointed out that a record of sufficient completeness does not translate automatically into a complete verbatim transcript.In Draper v. Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 779, 9 L.Ed.2d 899, it was said: 'Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise.A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge's minutes taken during trial or on the court reporter's untranscribed notes, or a bystander's bill of exceptions might all be adequate substitutes, equally as good as a transcript.Moreover, part or all of the stenographic transcript in certain cases will not be germane to consideration of the appeal,...