Carter v. State

• Decision Date: 12 February 1976
• Docket Number: No. 51787,No. 3,51787,3
• Citation: 137 Ga.App. 824,225 S.E.2d 73
• Parties: J. B. CARTER v. The STATE
• Court: Georgia Court of Appeals

Page 73

225 S.E.2d 73

137 Ga.App. 824

J. B. CARTER v. The STATE.

No. 51787.

Court of Appeals of Georgia, Division No. 3.

Feb. 12, 1976.

Rehearing Denied March 2, 1976.

Grogan, Jones & Layfield, John C. Swearingen, Jr., Ben B. Philips, Columbus, for appellant.

E. Mullins Whisnant, Dist. Atty., Columbus, for appellee.

WEBB, Judge.

On February 2, 1972, police officers of the City of Columbus went to the home of Johnny B. Carter, also known as Cadillac Fats, and pursuant to two arrest warrants and a search warrant arrested him for two sales of heroin. The Public Defender of Muscogee County was appointed to represent Carter and on November 30 and December 1, 1972, he was tried and convicted of two counts of selling narcotics. The jury fixed sentence at ten years on Count 1 and twenty years on Count 2, whereupon the trial judge sentenced Carter to life imprisonment. A skeleton motion for new trial was filed by the public defender but no further action was taken until January 27, 1975, when Carter retained his present counsel who filed an amended motion for new trial. On April 15, 1975, the trial court amended Carter's sentence to ten years on each count to be served concurrently, but denied the amended motion for new trial. Carter appeals.

1. Enumerations of error 1 through 8 deal with the sufficiency of the evidence. Carter contends that the evidence was circumstantial and did not exclude every hypothesis save the guilt of the defendant. This contention is without merit since there was direct evidence of Carter's complicity.

Larry Wheeler, an undercover agent of the Georgia Department of Investigation, testified that he arranged with Carter to make the heroin sale alleged in Count 1; that Carter sent someone out who returned with a brown paper bag containing 14 or 15 'half loads;' that Wheeler then laid twelve one hundred dollar bills on top of a dresser; and that 'Johnny Bearden Carter picked it up and recounted the twelve one hundred dollar bills and put them in his left front pocket.' In regard to the sale alleged in Count 2 of the indictment, Agent Wheeler testified that Carter handed him five half loads and Wheeler gave the money to another man present. Clearly the evidence was sufficient to show that Carter was a party to the crimes as defined by Code Ann. § 26-801.

2. Carter asserts that he was denied effective assistance of counsel upon his trial in that his appointed attorneys failed to properly investigate the case, to bring in any witnesses, to pursue any line of defense, to properly prepare for trial, to prepare any pre-trial motions, to prepare any trial motions, to perfect a proper record for appeal, to properly perfect a motion for new trial, to insure the preparation of a transcript, or to pursue an appeal; and that many glaring errors were committed during the course of the trial.

The transcript and record reveal, however, that except for the failure to timely perfect the motion for new trial and to pursue an appeal, these charges are entirely without basis. That the post-conviction motions were not acted upon until over two years after Carter's trial, and then only when he retained new counsel, is inexcusable, but it is not grounds for a reversal or a new trial. '(A)n accused who is dissatisfied with the outcome of the trial or the appeal can (not) subsequently free himself from the demands of justice by determining on account thereof that his counsel must have been ineffective because he was convicted. On the contrary, the effectiveness of counsel cannot be fairly measured by the results of a criminal trial or appeal, but upon the reasonable effectiveness of counsel at the time the services were rendered.' Pitts v. Glass, 231 Ga. 638, 639, 203 S.E.2d 515, 517. See also Graddy v. State, 135 Ga.App. 69(1), 217 S.E.2d 393; Dent v. State, 136 Ga.App. 366(4), 221 S.E.2d 228.

While no hearing was held in the court below on the issue of competency, we conclude from the record before us that the representation of Carter's counsel was not so inadequate as to amount to a denial of the effective assistance of counsel. Tamplin v. State, 235 Ga. 20(5),218 S.E.2d 779.

3. The trial court did not err in refusing to allow voir dire examination of each prospective juror out of the presence of the others. 'Code Ann. § 59-705 gives defense counsel the right to examine jurors individually after the usual voir dire questions have been put by the trial court to the jury as a panel. The right does not encompass isolated examination.' Whitlock v. State, 230 Ga. 700(5), 198 S.E.2d 865. Such a request is entirely within the discretion of the trial judge and we find no abuse here. Parham v. State, 135 Ga.App. 315(4), 217 S.E.2d 493 and cits.

4. The State proved venue through the uncontradicted statement of Agent Wheeler that the transactions took place in Muscogee County. 'Evidence of venue, though slight, is sufficient in the absence of conflicting evidence.' Loftin v. State, 230 Ga. 92, 93, 195 S.E.2d 402, 403 5. Carter contends that the instructions to the jury were incomplete, incorrect and a misstatement of the law because the court (a) failed to charge on intent; (b) gave an erroneous definition of 'party to the crime'; (c) commented on the evidence during the charge; (d) failed to charge that the verdict must be unanimous; and (e) gave an incomplete charge on burden of proof. We do not agree.

( a) The trial court is not required to charge intention as defined by Code Ann. § 26-605 in the absence of a timely written request where, as here, it has charged the essential elements of the crime with which the defendant is charged, including the necessity of the intent to commit the crime. Whigham v. State, 131 Ga.App. 261(2), 205 S.E.2d 467.

( b) The court's charge on parties to crime was substantially in the language of Code Ann. § 26-801 and was adjusted to the evidence.

( c) The court did not express an opinion when it stated, after charging the offense of selling narcotics, 'Now, ladies and gentlemen, heroin is a narcotic.' It was still for the jury to determine if the substance bought from Carter was heroin, and since the evidence was uncontradicted that it was in fact heroin there is no cause for reversal. Georgia Power Co. v. Monzingo, 132 Ga.App. 666 (4), 209 S.E.2d 66.

( d) No request was made for the judge to charge that the verdict of the jury must...