Carver v. State, s. A91A1881

• Decision Date: 05 March 1992
• Docket Number: Nos. A91A1881,A92A0221,s. A91A1881
• Citation: 416 S.E.2d 810,203 Ga.App. 197
• Parties: CARVER v. The STATE (two cases).
• Court: Georgia Court of Appeals

Page 810

416 S.E.2d 810

203 Ga.App. 197

CARVER v. The STATE (two cases).

Nos. A91A1881, A92A0221.

Court of Appeals of Georgia.

March 5, 1992.

Certiorari Denied April 30, 1992.

W. Dennis Mullis, Cochran, for appellant.

James L. Wiggins, Dist. Atty., H. Frederick Mullis, Jr., Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

This is the second appearance of these cases. In Carver v. State, 198 Ga.App. 676, 403 S.E.2d 230 (two cases), this Court remanded the appeals and directed the trial court to determine whether defendant fairly waived his right to post-conviction representation. The cases were also remanded to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel. The records from the first appeals were reassembled for consideration of the cases sub judice.

Defendant was charged, via multi-count indictment, with aggravated assault upon a peace officer and four counts of felony obstruction of an officer. Defendant was charged in a separate indictment with two counts of forgery in the first degree. Defendant filed, pro se, demands for speedy trials and pleaded not guilty to the crimes charged in both indictments.

On November 13, 1989, the trial court called "the case ... of State of Georgia v. Jerry Carver" and attorney W.T. Straughan appeared and announced ready for defendant. A panel of 51 prospective jurors was assembled to try defendant on the indictment charging him with aggravated assault upon a peace officer and four counts of felony obstruction of an officer. ¹ The trial court asked the statutory questions and the panel indicated that they could be impartial in reaching a verdict and that they could decide the case based solely on the evidence presented at trial. Voir dire continued and a jury was selected. The following then transpired:

"THE COURT: Mr. Straughan, I do not believe that I would want to select another jury out of this panel and I'm willing to forego the selection of that jury and try the next case[, i.e., the charges in the indictment charging defendant with two counts of forgery in the first degree,] at a later time if the defendant is willing to withdraw his demand [for speedy trial] with respect to that case. You need to ask him about that. MR. STRAUGHAN: Very well, excuse me.... (Mr. Straughan confers with defendant) MR. STRAUGHAN: The defendant desires, I believe, to go ahead and choose the second jury at this time. Is that not correct? [DEFENDANT]: Yes. MR. STRAUGHAN: He desires to go forward in lieu of continuing the second case. THE COURT: Okay. Very well."

During the afternoon of November 13, 1989, the panel that was before defendant on the indictment charging him with aggravated assault upon a peace officer and four counts of felony obstruction of an officer was reassembled. The trial court instructed the panel that defendant was charged with two counts of forgery in the first degree and then qualified the prospective jurors with the statutory questions. The panel indicated that they could be impartial in reaching a verdict and that they could decide the case based solely on the evidence presented at trial. The following then transpired: "All right, gentlemen, the panel appears to be qualified. Mr. [Frederick] Mullis[, the State's attorney,] you may voir dire. MR. MULLIS: Your Honor, I have no further questions. THE COURT: Mr. Straughan. MR. STRAUGHAN: Yes, sir. Thank you. Ladies and gentlemen, a rare occasion when we have two juries in an afternoon or a day but this is a requirement that this defendant desires to have his cases heard and he has filed a demand [for speedy trials] with the Court, and he is saying let me tell my story. This is the reason that we're taking two juries and you have struck--some of you have been struck once, others have not. He is wanting to be tried and to do this we have to go back to you a second time.

"Ms. Frances Gillis, are you also Ms. Lanier Gillis? JUROR: Yes, I am. MR. STRAUGHAN: You are not only a witness in this case, you are a prosecutrix? JUROR: That's true. MR. STRAUGHAN: You would have a feeling already as to the guilt or innocence, would you not? JUROR: I think so. THE COURT: I did not realize she was the prosecutrix. I knew she was possibly a witness, and I do disqualify her. Go ahead." Voir dire continued and a jury was selected to try defendant on the charges that he committed two counts of forgery in the first degree. (Six members of the panel were selected to serve on both juries.) The trial court then directed jurors selected to serve for trial of the charges in the indictment charging defendant with two counts of forgery in the first degree to report for service on the morning of November 15, 1989.

On November 13 and 14, 1989, trial proceeded on the indictment charging defendant with aggravated assault upon a peace officer and four counts of felony obstruction of an officer. The evidence revealed the following: On January 5, 1989, law enforcement officers received a tip that defendant, who was then a fugitive from justice, was hiding out at a dwelling house in Wheeler County, Georgia. At about 6:00 that evening, Deputy Leon Brown of the Wheeler County Sheriff's Department went to the house with two other Wheeler County deputies, a Georgia State Trooper and a local city police officer. Deputy Brown entered a wooded area near the house to prevent defendant's flight. The other officers approached the house directly. Deputy Brown came within view of the house and was there confronted by defendant. The deputy identified himself as a law enforcement officer and defendant "lunged at [the deputy] and ... hit [him] in the face with his fist." Defendant then seized Deputy Brown's flashlight and struck the deputy on the head. Deputy Brown was dazed, but he grabbed defendant and the men fell to the ground. Defendant again struck the deputy on the head with the flashlight. Deputy Brown struggled with defendant, soon regaining his feet and drawing his service revolver. Defendant was then subdued and the men began walking toward the house. As defendant approached one of the other officers, he again fought to escape arrest. However, Deputy Brown and other officers restrained defendant and took him into custody. From this and other evidence adduced at trial, defendant was found guilty of aggravated assault upon a peace officer and felony obstruction of an officer. (Defendant was found not guilty on three counts of felony obstruction of a peace officer.)

On November 15, 1989, defendant was tried on the indictment charging him with two counts of forgery in the first degree. This trial concluded with guilty verdicts on both counts of the indictment. Defendant was then sentenced on both indictments and the trial court informed defendant of his right to appeal and "the right to be represented on appeal by your court appointed attorney...." Defendant refused assistance from his court-appointed trial counsel and later argued, pro se, timely filed motions for new trial. (Defendant raised several grounds for new trials, including an assertion that his court-appointed attorney was ineffective.) The motions for new trial were denied and defendant filed pro se appeals.

After this Court remanded the appeals in Carver v. State, 198 Ga.App. 676, 403 S.E.2d 230, supra, the trial court appointed attorney Dennis Mullis to represent defendant and conducted a hearing to determine whether defendant's trial attorney was ineffective. Attorney Dennis Mullis asserted virtually the same issues argued by defendant at the hearing on the earlier pro se motions for new trial. However, defendant expanded the issues, testifying that he did not receive a fair trial because five of the jurors who served at the trial on the indictment charging him with two counts of forgery in the first degree also served at the trial on the indictment charging him with aggravated assault upon a peace officer and felony obstruction of an officer. More specifically, defendant testified as follows: "[ATTORNEY DENNIS MULLIS]. Now getting off the track of ineffective assistance for a moment let's talk about the forgery case. I believe that--correct me if I'm wrong, there were members of the jury that tried you on the forgery case who were also members of the jury who had just convicted you in the aggravated assault charge? [DEFENDANT]. Yes, sir. Five. Q. Five out of twelve. So tell the Court, or refresh the Court's recollection about how that came to pass. A. I don't think there [were] but 48 prospective jurors to begin with and we picked the first jury for the aggravated assault trial and that left some that, you know, I had to pick from the same bunch. The Court offered me--the Court told me that I could drop a speedy trial issue that I had and it would allow me to pick from a fresh panel in February, the next term, or if I didn't drop the speedy trial issue I would have to pick from what I had. So I chose to pick from what I had because I felt a speedy trial violation was there. Q. Do you feel that the composition of the jury that tried you on the forgery case was affected by this? A. Sure I do. They already felt like I was a liar. They had already convicted me. Q. Same people? A. Same people. Q. All right. So you are raising that as an issue in your motion for new trial on the forgery charge? A. Yes, sir."

The trial court entered an order denying defendant's motions for new trial finding, in pertinent part, as follows: "Finally, the claim that it was error to proceed to trial in Case No. 89R-11[, the charges under the indictment charging defendant with two counts of forgery in the first degree,] because some of the jurors who convicted defendant in Case No. 89R-10[, the charges of the indictment charging defendant with aggravated assault of a peace officer and four counts of felony obstruction of an officer,] were included in the panel from which the jury was selected is without merit. There was no...