Baty v. State, 56170

• Decision Date: 25 September 1978
• Docket Number: No. 56170,56170
• Citation: 147 Ga.App. 277,248 S.E.2d 503
• Parties: BATY v. The STATE.
• Court: Georgia Court of Appeals

Page 503

248 S.E.2d 503

147 Ga.App. 277

BATY v. The STATE.

No. 56170.

Court of Appeals of Georgia.

Submitted July 10, 1978.

Decided Sept. 6, 1978.

Rehearing Denied Sept. 25, 1978.

Johnson, Craig & Strauss, John T. Strauss, Covington, for appellant.

J. W. Morgan, Dist. Atty., William S. Sutton, Asst. Dist. Atty., for appellee.

McMURRAY, Judge.

A robbery committed by two individuals occurred in a store in Newton County. The store owner only saw one of the individuals (later identified as defendant Baty), who knocked him down. He felt something against his head, very much like a gun, and the robber told him, "I'll blow your (g d ) brains out." During this incident another employee came in the store, whereupon defendant Leroy Miller, whom he had seen in the store earlier that morning, waved a gun at him and "told me to get behind the counter, get on the floor," and he was made to lie down on the floor. The two robbers proceeded to ransack the store and left, advising the store owner and employee they would blow their brains out if they came out of the store. The robbery was reported with a description given to the police that they had fled on the expressway in a car with a black vinyl top and off-white bottom, being two black males, one big, the other smaller. The car was then chased by Rockdale County police in which shots were fired as soon as they were intercepted. When the chased vehicle left the expressway one of the robbers (later identified as defendant Leroy Miller) jumped from the car, aimed a pistol at the police officer, pulled the trigger and when it misfired he fled. The police officer attempted to shoot at defendant Miller with a shotgun but it misfired. Defendant Miller was later apprehended at a nearby apartment house. The chase continued as to the driver of the car (later identified as defendant Baty) who ran it into a fence and fled. Defendant Baty, as he was fleeing, fired several shots from his pistol at a uniformed state patrolman who in turn fired six shots from his M-1 carbine which then malfunctioned. He was later apprehended. Defendants Leroy Miller and Willie Fred Baty were separately indicted for armed robbery, tried jointly and convicted. We are concerned here with only the appeal of the defendant Baty, who was sentenced to life imprisonment.

During the trial only the defendant Miller took the witness stand and testified. He admitted he had been in the store to "get me a drink," had bought a drink out of the machine on the outside of the store, started walking down the street and hitchhiked a ride with another until they were chased by a police officer on the expressway who started shooting at them. He got "scared," and jumped out of the car, climbed the fence and was stopped by the police officer. His sole defense was that he did not know defendant Baty and was only riding in the car when it was chased by a police car. Held :

1. Initially, both defendants were jointly represented by one lawyer who investigated the case. Approximately three or four days before trial because of the different stories the two defendants were telling, as to the circumstances surrounding the alleged crime, the sole counsel arranged with another attorney who had previously been associated with him to be prepared to act as attorney for defendant Baty if counsel was unable to obtain a severance. Counsel announced to the trial court that because of the possible conflict of interest he could not represent both defendants at the time of trial, that he had discussed this with the two defendants and they understood. Whereupon he proceeded to argue the motion for severance which was denied. Both were convicted.

Thereafter, defendant Baty employed other counsel who filed a motion for a new trial as later amended, contending the trial court had erred in failing to grant the motion for severance and to continue the case because of the unpreparedness of new counsel.

His first enumeration of error is that the trial court erred in not finding that defendant Baty had inadequate assistance of counsel. The law does not interpret the right to counsel to mean errorless counsel and not counsel judged ineffective by hindsight, but is determined by the reasonable effectiveness of counsel at the time services were rendered. Pitts v. Glass, 231 Ga. 638, 639 (203 S.E.2d 515). While the motion for new trial merely argued that the trial court erred in refusing to grant the severance and to continue said case because new counsel had failed to prepare for trial, no motion for continuance was made at the time of trial. New counsel did argue the lack of effectiveness of counsel, and after oral argument and testimony the court denied the motion for new trial.

After examination of the entire case, including the testimony offered at the motion for new trial hearing, we hold the trial court did not err in denying the motion for new trial, nor is there any merit to the charge of ineffective assistance of counsel. As was stated in the recent case of Fortson v. State, 240 Ga. 5, 6, 239 S.E.2d 335, 336, citing Dobbs v. State, 235 Ga. 800, 804, 221 S.E.2d 576: "In light of the nature of the crime and the overwhelming evidence against the defendant in this case, the trial tactics and strategy followed by counsel were as effective as possible under the circumstances." Much argument has been made that counsel was ineffective in failing to have the defendant Baty testify, particularly so after the defendant Miller was contending he did not know defendant Baty, had merely hitchhiked a ride with him and was an innocent person involved by reason of being picked up as a hitchhiker. This witness did not contend that defendant Baty was the guilty party but that he (the witness) did not have a gun. Yet, there was overwhelming evidence that both defendants were firing guns from the car as it fled down the expressway, and two guns were found after each had fled from the locality of the expressway. From the totality of the evidence, there simply is no merit to the charge of ineffectiveness. See Hart v. State, 227 Ga. 171, 177(10), 179 S.E.2d 346; Collins v. State, 144 Ga.App. 102, 103(1), 240 S.E.2d 597.

2. The next enumeration of error argued by defense counsel is that the trial court itself erred in failing to explore the issue of conflict of interest and in failing to...