Campbell v. State, s. 47741
| Decision Date | 05 February 1973 |
| Docket Number | Nos. 47741,47742,No. 2,s. 47741,2 |
| Citation | 195 S.E.2d 664,128 Ga.App. 74 |
| Parties | Richard L. CAMPBELL v. The STATE. Larry F. CAMPBELL v. The STATE |
| Court | Georgia Court of Appeals |
Weiner & Bazemore, Paul S. Weiner, Jonesboro, for appellants.
Hinson McAuliffe, Sol., James L. Webb, Bernard J. Rapkin, Frank A. Bowers, Atlanta, for appellee.
Syllabus Opinion by the Court
Because many of the facts are duplicated in these two appeals from criminal convictions, we have consolidated them for this opinion. The defendants are brothers. For clarity we will refer to them by their first names, Richard and Larry. The record suggests that on a particular evening they were together in Larry's car and that Richard was driving, presumably because Larry's license had been revoked. The car was halted by policemen. A disagreement arose in which some cursing, pushing and kicking was perpetrated by the brothers upon the policemen. Larry was charged with four misdemeanors: Allowing another to drive while intoxicated; abusive language; escape; and driving without a license on another occasion the previous week. Richard was charged with public drunkenness; driving under the influence; simple battery; and a simple assault on someone else a few weeks previously.
They were tried on the same day, though separately, in the Criminal Court of Fulton County and were both convicted on all charges. They each received sentences which added up to two years imprisonment apiece. Both made motions for a new trial which wer denied following a joint hearing.
1. The primary ground for Larry's motion was denial of the right to counsel. He contends that he was indigent, unrepresented and uninformed of his right to have appointed counsel. The state contends he made an intelligent waiver. At the hearing on his motion, the following facts were developed: that court convened at 9:00 a.m. and that he arrived promptly at that time; that at 8:55 a.m. a deputy clerk made a general announcement, part of which stated the right to court-appointed counsel; that the solicitor asked him, 'Do you anticipate hiring counsel?' and that he was advised 'he had the right to hire an attorney' but declined to do so; and that the solicitor did not explain the possible consequences of either his one guilty plea (driving without a license) or the other three pleas of not guilty, nor did he inform him of other procedural rights. The evidence also showed indigency prima facie. The court did not rule that defendant was ineligible nor that it had found waiver based on any of the above facts. The court stated as its reason for denying the motion that 'the solicitor's office is very meticulous in inquiring of every defendant that's appeared before me about counsel'.
We do not believe this is sufficient to show a knowing and intelligent waiver, an act which can never be lightly presumed. On the contrary, the presumption is against waiver. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Boyd v. Dutton, 405 U.S. 1, 92 S.Ct. 759, 30 L.Ed.2d 755; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. The clerk's announcement here, while perhaps an efficient way to communicate information to a large calendar, is of no value if not actually heard and in any event can only be a preliminary step. The solicitor's inquiries and defendant's responses-according to the solicitor's own testimony-could be easily understood to relate to employed counsel only. Even more critical, there is nothing to indicate that the defendant understood the gravity of the consequences if convicted on these charges. If he had been informed that he could receive as much as four years on the combined charges and that if eligible he could have a court-appointed lawyer, it is more than likely he would have accepted one. If there was a waiver here, it could not be characterized as knowing or intelligent.
It is the responsibility of the trial judge, when the accused is without counsel, to clearly determine whether there has been a proper waiver. Johnson v. Zerbst, supra. . Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 323, 92 L.Ed. 309; Phillips v. Smith, 300 F.Supp. 130.
It is apparent from these Sixth Amendment cases that the standards for determining waiver are of constitutional dimension and are therefore applicable to the states under the Fourteenth Amendment. Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783. It is equally clear that, as a basic minimum, the trial judge must concern himself in the process of...
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