Burney v. State

• Decision Date: 17 July 1979
• Docket Number: No. 34749,34749
• Parties: BURNEY v. The STATE.
• Court: Georgia Supreme Court

Page 543

257 S.E.2d 543

244 Ga. 33

BURNEY v. The STATE.

No. 34749.

Supreme Court of Georgia.

Argued April 10, 1979.

Decided July 3, 1979.

Rehearing Denied July 17, 1979.

Joe H. Gailey, Tucker, for appellant.

Lewis R. Slaton, Dist. Atty., H. Allen Moye, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Mary Beth Westmoreland, Atlanta, for appellee.

MARSHALL, Justice.

The appellant, David Burney, Jr., was convicted of the murder of City of Atlanta Police Officer Frank Schlatt and the armed robberies of Ronald Dukes, who was the manager of the Dixie Furniture Store, and George Malcom, who was an employee of the furniture store. These crimes were committed by the appellant and others during their holdup of the Dixie Furniture Store on May 13, 1978. The appellant's trial was held in the Fulton Superior Court in November of 1978, and he was given three consecutive sentences of life imprisonment.

1. In the first enumeration of error, the appellant argues that the trial court erred in denying him the right to counsel of his own choosing during a pretrial hearing on a motion for a continuance.

At appellant's arraignment in June of 1978, he represented to the trial court that he was indigent, and he requested that the trial court appoint counsel to represent him. The trial court appointed the Public Defender to represent the appellant. After arraignment, the appellant became dissatisfied with the Public Defender, and he decided to obtain another attorney, Mr. Joe Gailey, to represent him. In August of 1978, Mr. Gailey filed a notice before the trial court that he would represent the appellant, and he also filed a motion that the court appoint him as the appellant's counsel and, since the appellant was indigent, that the trial court compensate him for his services.

In September of 1978, there was a hearing on a motion for continuance filed by the state. The state was seeking this continuance so that a material witness, one of the appellant's alleged accomplices could be extradited from out of state and appear at trial. Gailey appeared at the hearing and requested the trial court to dismiss the Public Defender as the appellant's attorney. The trial court conducted a hearing on this question, and the court ruled that Gailey would not be allowed to serve as the appellant's leading counsel because of Gailey's lack of experience. (Gailey had never tried a murder case.) The trial court made this ruling despite the appellant's testimony that he was aware of Gailey's lack of experience and wanted Gailey to represent him anyway. The trial court did rule that Gailey could participate in the trial by associating himself with the Public Defender's office or by obtaining another leading counsel with more experience. The trial court did later admit Gailey as co-counsel for the appellant, and Gailey was in fact allowed to serve as leading counsel at trial.

The state's motion for continuance was granted without objection by any of the attorneys present at the hearing. Nonetheless, the appellant argues that if Gailey had been allowed to represent him during the hearing on a motion for continuance, he might have persuaded the trial court to deny the motion. In this manner, the appellant alleges prejudice.

A criminal defendant does have a constitutional right to be defended by counsel of his own selection whenever he is willing and able to employ such counsel. Delk v. State, 100 Ga. 61, 27 S.E. 152 (1896); Long v. State, 119 Ga.App. 82, 166 S.E.2d 365 (1969). However, an indigent criminal defendant does not have an absolute right to discharge one court-appointed counsel and have another substituted in his place. A request of this sort addresses itself to the sound discretion of the trial court. See Crawford v. State, 232 Ga. 71, 205 S.E.2d 276 (1974). See also Williams v. State, 192 Ga. 247, 15 S.E.2d 219 (1941). ¹ We conclude that the trial court did not abuse its discretion in refusing to allow Mr. Gailey to be substituted for the Public Defender as the appellant's leading counsel at the hearing on the motion for a continuance.

This enumeration of error is without merit.

2. In the second enumeration of error, the defendant argues that the trial court deprived him of his constitutional right of self-representation by refusing to allow him to act as co-counsel in his own defense.

The defendant filed a pretrial motion requesting that he be allowed to participate at trial as co-counsel. This motion was asserted orally at the commencement of the trial. The trial court ruled that the defendant had two attorneys representing him and that this was sufficient. Accordingly, the motion was denied by the trial court.

A criminal defendant has a constitutional right of self-representation which derives from the Sixth Amendment. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Under the Sixth Amendment, it has been held that the assertion of the right to be represented by counsel constitutes a waiver of the Sixth Amendment right of self-representation. United States v. Bowdach, 561 F.2d 1160, 1176 (5th Cir. 1977); United States v. Wolfish, 525 F.2d 457, 462 (2nd Cir. 1975), cert. den. 423 U.S. 1059, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976).

However, a criminal defendant has a separate, state constitutional right of self-representation which derives from Art. I, Sec. I, Par. IX of the Georgia Constitution (Code § 2-109). This state constitutional provision guarantees that, "No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this state, in person, by attorney, Or both." (Emphasis supplied.) See Bloomfield v. Liggett & Meyers, Inc., 230 Ga. 484, 198 S.E.2d 144 (1973). ² Thus, under the express terms of the state constitutional guarantee the assertion of the right to be represented by counsel does not constitute a waiver of the right of self-representation. It is axiomatic that this court must follow the Constitution.

The cases have held that the trial court retains the inherent power to regulate, in its discretion, the manner in which the constitutional right of self-representation will be exercised. See Roberts v. State, 14 Ga. 18 (1853); Hiatt v. State, 144 Ga.App. 298(6), 240 S.E.2d 894 (1977); Heard v. State, 126 Ga.App. 62, 65, 189 S.E.2d 895 (1972); Moyers v. State, 61 Ga.App. 324, 328, 6 S.E.2d 438 (1939). As these cases show, the trial court possesses ample authority to ensure that the trial proceeds in an orderly and decorous manner without infringing upon the defendant's constitutional right to represent himself. Where the defendant does have counsel to represent him, the trial court can require the examination and cross examination of witnesses to be conducted by one counsel only. See Code § 24-3388. Roberts v. State, supra; Moyers v. State, Supra. The trial court can require leading counsel to be appointed and leading counsel can be required to conduct other aspects of the case, such as the voir dire examination of prospective jurors. See Hiatt v. State, supra; Heard v. State, Supra. However, the power of the trial court does not extend so far as to cause an absolute deprivation of this constitutional right enjoyed by the defendant. See Jackson v. State, 149 Ga.App. 496, 254 S.E.2d 739 (1979); Loomis v. State, 78 Ga.App. 153, 160, 51 S.E.2d 13 (1948).

We find that in the present case the trial court's absolute denial of the appellant's motion to participate at trial as co-counsel did deprive him of his state constitutional right of self-representation. However, in view of the fact that the evidence of appellant's guilt was overwhelming, in addition to the fact that the appellant was represented by two able counsel who conducted his defense in an extremely competent manner, we hold that denial of the motion constituted harmless error under the facts present here.

Krist v. Caldwell, 230 Ga. 536, 198 S.E.2d 161 (1973) is overruled insofar as it holds that the assertion of the right to be represented by counsel constitutes a waiver of the right to defend pro se.

3. In the third enumeration of error, the appellant argues that the trial court erred in overruling his challenge to the array of the traverse jury on the ground that the traverse jury pool was not composed in accordance with Code § 59-106 (as amended, Ga.L.1978, pp. 1611, 1612, eff. July 1, 1978). Code § 59-106 provides, in pertinent part, that: "At least biennially, or, if the senior judge of the superior court shall direct, at least annually, the board of jury commissioners shall compile and maintain and revise a jury list of intelligent and upright citizens of the county to serve as juries. In composing such list the commissioners shall select a fairly representative cross section of at least 50 per cent. of the intelligent and upright citizens of the county from the official registered voters' list of the county as most recently revised by the county board of registrars or other county election officials." (The emphasized language was added to the statute in the 1978 amendment.)

The evidence presented in support of the appellant's jury challenge showed that as of November 13, 1978, which was the opening day of the appellant's trial, the jury list for Fulton County had not been revised since June 29, 1976. The evidence also showed that the jury list did not contain a number of names equal to 50% Of the registered voters of Fulton County, as is apparently required by the 1978 amendment to Code § 59-106. See Op.Atty.Gen., 78-52.

It has been held that the provisions of Code § 59-106 are directory only and, therefore, the failure to revise the jury list in accordance with the timetable set forth in Code § 59-106 does not invalidate the jury list or deprive the defendant of any right to which he is entitled. See McHan v. State, 232 Ga. 470(3), 207 S.E.2d 457 (1974); Sims v. State, 221 Ga. 190(1c), 144 S.E.2d 103 (1965); Haden v. State, 176 Ga. 304(1), 168 S.E. 272 (1933); ...