Bradley v. State

• Decision Date: 02 September 1975
• Docket Number: No. 50769,No. 1,50769,1
• Citation: 219 S.E.2d 451,135 Ga.App. 865
• Parties: Simpson BRADLEY, III v. The STATE
• Court: Georgia Court of Appeals

Page 451

219 S.E.2d 451

135 Ga.App. 865

Simpson BRADLEY, III v. The STATE.

No. 50769.

Court of Appeals of Georgia, Division No. 1.

Sept. 2, 1975.

Rehearing Denied Sept. 29, 1975.

Stanley H. Nylen, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, H. Allen Moye, J. Melvin England, Asst. Dist. Attys., Atlanta, for appellee.

MARSHALL, Judge.

Appellant Bradley was indicted and tried for an offense of robbery by intimidation but found guilty by a jury of the lesser offense of theft by taking. He was sentenced to seven years imprisonment. He appeals from this judgment and sentence. Appellant enumerates six errors. Held:

1. In the first enumeration appellant alleges the trial court erred in refusing to permit him to obtain counsel of his own choosing. The transcript reflects that prior to the calling of a jury, appellant entered a plea of guilty to the offense for which he had been indicted. Appellant answered the calling of his case without objection or motion and was represented by a public defender who had been appointed to represent Bradley about eight weeks before trial. That counsel's familiarity with the facts and law of the case and his professional competense were manifested during the subsequent trial before the jury. After the plea of guilty had been entered, the trial judge correctly and adequately determined the plea was voluntarily and freely entered with full understanding of its effect. The trial court accepted the plea of guilty and after some inquiry as to the appellant's background, imposed a sentence of seven (7) years.

Only at this point did appellant indicate some dissatisfaction with the proceedings and his appointed counsel. As soon as the sentence of seven years was announced, the appointed counsel indicated that appellant wanted to withdraw his guilty plea. The trial court immediately granted that request and proceeded to call for a jury. The appellant them stated: 'Your honor, when he first came-I'm not saying Mr. Calloway not substantial lawyer but believe he's a good lawyer, but I just don't feel he could handle my case the best that he can, because he don't suit me, because this weekend my family sent me some money to acquire me a lawyer. It happen I can financially get one.' Further inquiry disclosed that appellant had received $300.00 over the weekend prior to the Monday trial and if necessary the appellant believed he could obtain additional funds. There was no indication in the transcript that the appellant made any effort to obtain the services of a counsel of his own choosing or requested his appointed attorney to assist him in such an endeavor. In fact, the transcript, reflects appellant willingly proceeded with his appointed counsel through the guilty plea and sentence.

As was made clear in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 and cases subsequent thereto, at the very least, every person charged with a felony has an unconditional and absolute constitutional right to have available the services of an attorney at every stage of the trial. Geiger v. State, 129 Ga.App. 488, 500-501, 199 S.E.2d 861. See also Roberson v. State, 135 Ga. 654, 70 S.E. 175; Smith v. State, 60 Ga. 430; Martin v. State, 51 Ga. 567; Duke v. State, 104 Ga.App. 494, 122 S.E.2d 127.

But just as other constitutional and statutory rights may be waived intelligently by an accused (Jones v. Mills, 216 Ga. 616, 118 S.E.2d 484), so too, we believe the constitutional guarantees of the benefit of counsel of choice may be waived by action or declaration. See Williams v. Gooding, 226 Ga. 549, 179 S.E.2d 64. See also Ford v. State, 227 Ga. 279, 180 S.E.2d 545 and Simmons v. State, 126 Ga.App. 401, 190 S.E.2d 835. 'The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461.

In this case, appellant had ample opportunity to communicate directly to the trial court or to his appointed attorney that he wanted counsel of his own choosing prior to the commencement of the proceedings on the guilty plea. However, such was not done, apparently until appellant had received the unpleasant tidings of seven years imprisonment. Though appellant expressed the feeling that his appointed counsel did not suit him and he could hire another, there was no indication who or where new counsel would be obtained.

We subscribe to the proposition that undue haste in the administration of the criminal law is as much to be condemned as unnecessary delay. Cannady v. State, 190 Ga. 227, 9 S.E.2d 241. As was stated in Harris v. State, 119 Ga. 114, at 116, 45 S.E. 973, 'The true course lies between these two extremes. The law vests the determination to questions relating to the time of trial in the discretion of the trial judges; and this court will not interfere with their rulings on the subject, unless it is manifest that there has been an abuse of discretion.'

In this case the trial court was warranted in its conclusion that appellant's request was ill timed; was more designed to delay than to defend; that appellant had insufficient funds to obtain the services of an attorney of his own choosing and had made no attempt in that direction. We find no abuse of discretion in the trial court's denial of appellant's request, particularly where appellant was represented by a qualified experienced defense attorney who was well prepared to proceed with the defense of appellant's case. Harris v. State, supra; Cannady v. State, supra.

2. In his second enumeration of error, appellant complains the trial court erred in not rebuking counsel for the State when the District Attorney, in his argument to the jury, stated: 'Now let me draw an inference or two about why we're trying this case and I'm not trying in any way to inject anything that is not in evidence. I'm simply drawing conclusions from what you heard and seen. Now, why would the defendant in this case, where they catch him red-handed; no question about his guilt. Why would he ask for a jury trial? The obvious reason I infer from the evidence, just from our common sense, that he's gambling that you'll give him a lower sentence than the judge would. That's what he's gambling.'

Appellant describes that portion of the District Attorney's argument as a statement of belief in appellant's guilt of the crime charged, based upon a personal opinion. Appellant further avers the failure of the trial judge to take the corrective measures prescribed in Code § 81-1009 was error fatal to his conviction. City of Macon v. Smith, 117 Ga.App. 363, 160 S.E.2d 622.

'What the law forbids is the introduction into a case, by way of argument, of facts not in the record, and calculated to prejudice the accused.' Taylor v. State, 121 Ga. 348, 354, 49 S.E. 303, 306. 'While counsel should not be permitted in argument to state facts which are not in evidence, it is permissible to...