Collins v. State, 54557

• Decision Date: 22 November 1977
• Docket Number: No. 54557,No. 2,54557,2
• Citation: 144 Ga.App. 102,240 S.E.2d 597
• Parties: James COLLINS et al. v. The STATE
• Court: Georgia Court of Appeals

Page 597

240 S.E.2d 597

144 Ga.App. 102

James COLLINS et al. v. The STATE.

No. 54557.

Court of Appeals of Georgia, Division No. 2.

Nov. 22, 1977.

J. Greg Wolinski, Waycross, for appellants.

Dewey Hayes, Dist. Atty., C. Dean Strickland, Asst. Dist. Atty., Douglas, for appellee.

BANKE, Judge.

James Collins and Harry Evans were jointly tried and convicted of burglary. They were represented at trial by the same appointed counsel. Collins contended in their joint motion for new trial that this denied him his Sixth Amendment right to effective assistance of counsel. This joint appeal is from the denial of the motion for new trial.

Evans made a taped confession prior to trial in which he implicated Collins. This tape was played before the jury, with the trial judge later giving instructions that the confession was to be considered as evidence against Evans only, not against Collins. Evans testified at trial and denied ever having made the taped statement.

1. Collins' claim of ineffective assistance of counsel is based on the principle, set forth in Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), that a single defense counsel cannot effectively represent multiple defendants with conflicting interests. In this case, a conflict is not readily apparent since both defendants testified that they were together on the night of the burglary and Evans denied having implicated Collins or, indeed, having confessed at all. However, the Fifth Circuit Court of Appeals has held that a conflict is inherent in any case where the same attorney represents two co-defendants, one of whom has made a confession implicating the other. Baker v. Wainwright, 422 F.2d 145 (5th Cir. 1970), cert. den. 399 U.S. 927, 90 S.Ct. 2243, 26 L.Ed.2d 794. Although this decision is not, of course, binding upon this court, it does constitute persuasive authority in the absence of any Georgia cases on the issue.

The reasoning in Baker is based on the rule that evidence of the confession of one co-defendant implicating another cannot be admitted at a joint trial where the confessor does not take the stand and is not available for cross examination. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Reeves v. State, 237 Ga. 1, 226 S.E.2d 567 (1976); Reddish v. State, 238 Ga. 136, 231 S.E.2d 737 (1977). In view of this rule, a defense attorney representing both co-defendants would have it within his power to void the trial as to the nonconfessing defendant by choosing not to allow the confessing defendant to testify. As stated by the court in Baker, "When a defense counsel has it within his power to void a proceeding against his client and, because of his representation of another is not completely free to exercise this power, he most assuredly has a directly conflicting interest." Baker v. Wainwright, supra, at 148. See also Holland v. Henderson, 460 F.2d 978 (5th Cir. 1972).

Although Collins had a right to separate appointed counsel, it was a right he was entitled to waive. See Williams v. Gooding, 226 Ga. 549(1), 176 S.E.2d 64 (1970). Thus, we are presented with the question of whether his failure to object or to request separate counsel amounted to a waiver.

The Fifth Circuit reached this issue in Baker v. Wainwright, supra, and found that the defendant could not have intended a waiver due to the fact that Bruton v. United States, supra, had not been decided at the time of his trial. Thus, he could not have known the effect of his waiver.

In this case, on the other hand, a knowing, intentional, and intelligent waiver does appear. Trial counsel testified at the hearing on the motion for new trial that he explained to Collins that, because of Evans' confession, he (Collins) was "running a risk" by agreeing to a joint trial. He stated that Collins, nevertheless, expressed an "adamant desire" to be tried with Evans. It appears, then, that Collins affirmatively chose to present a unified defense with Evans in the face of warnings that Evans' confession would present a greater problem to him if he did so. Under these circumstances, and in absence of any actual inconsistency in the two defenses at trial, we hold that Collins knowingly, intelligently, and voluntarily waived his right to separate counsel by failing to object or claim the right prior to trial. Accord, United States v. Boudreaux, 502 F.2d 557, 558 (5th Cir. 1974). Accordingly, the first enumeration of error is without merit.

2. The defendants enumerate as error the failure of the trial court to declare a mistrial on its own motion on two occasions when their character was allegedly placed in issue. No motion for mistrial was made; therefore, no error appears. See DeVere v. State, 45 Ga.App. 330(4), 164 S.E. 485 (1932); Mach v. State, 111 Ga.App. 423(2), 142 S.E.2d 87 (1965). Enumerations of error two and five are without merit.

3. The trial court's finding that Evans' confession was offered freely and voluntarily is amply supported by the record of the "Jackson v. Denno " hearing. The testimony of the defendant that he was threatened is directly...