Cox v. State, No. S04A2060

• Decision Date: 14 March 2005
• Docket Number: No. S05A0032., No. S04A2060, No. S05A0033
• Parties: COX v. The STATE. Kellogg v. The State.
• Court: Georgia Supreme Court

610 S.E.2d 521

279 Ga. 223

COX v. The STATE.

Kellogg v. The State.

Nos. S04A2060, S05A0033, S05A0032.

Supreme Court of Georgia.

March 14, 2005.

Reconsideration Denied April 14, 2005.

J. Michael Raffauf, Decatur, for appellant (cases no. S04A2060).

D. Todd Wooten, Atlanta, for appellant (case no. S05A0032).

Jeffrey Cox, Waycross, pro se (case no. S04A0033).

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Anna E. Green, Peggy R. Katz, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Raina J. Nadler, Assistant Attorney General, for appellee.

CARLEY, Justice.

In 2000, the Fulton County Grand Jury indicted Jeffery Cox, his brother Edward Kellogg and Eric Parker for numerous offenses, including malice murder of James Sheridan and possession of a firearm during the commission of that felony. In 2001, only Cox and Parker were tried jointly, because Kellogg could not be located although he was the subject of a Ten Most Wanted Bulletin issued by the Atlanta Police Department. The proceeding against Cox and Parker ended in a mistrial when the jury was unable to reach a verdict.

About the time that Cox's and Parker's trial was ending, Kellogg was arrested in Tennessee on an outstanding warrant for his arrest in connection with the murder of Mr. Sheridan. He was extradited to Georgia in early 2002. Thereafter, Kellogg's defense counsel filed several pre-trial motions, which the trial court denied as untimely. At Cox's and Parker's ensuing retrial, Kellogg was a co-defendant. The jury again could not reach a verdict as to Parker, but it returned guilty verdicts as to Cox and Kellogg on the murder and possession of a firearm counts. The trial court entered judgments of conviction on the guilty verdicts, and imposed life sentences for murder and concurrent five-year terms for the weapons offense. Cox and Kellogg filed separate motions for new trial, which the trial court denied. They then filed separate notices of appeal, initiating companion cases which are hereby consolidated for disposition in this single opinion.¹

CASE NUMBER S05A0033.

1. In this case, Cox, representing himself, appeals from the trial court's refusal to grant a pro se motion to appoint a substitute attorney to replace his present appellate counsel.

Cox moved for the appointment of a substitute only after his attorney had already filed a timely notice of appeal. Under these circumstances, the trial court correctly ruled that it no longer had jurisdiction over the case. Peterson v. State, 274 Ga. 165, 171(6), 549 S.E.2d 387 (2001). Pursuant to the notice of appeal, jurisdiction passed to this Court, and we will not entertain a pro se motion for substitute counsel where, as here, the accused is represented by a lawyer appointed by the trial court. Brooks v. State, 265 Ga. 548, 551(7), 458 S.E.2d 349 (1995); Reid v. State, 235 Ga. 378(1), 219 S.E.2d 740 (1975). Should Cox's appeal prove unsuccessful, he can challenge the effectiveness of his appellate attorney in the context of a habeas corpus proceeding. See generally Phillips v. Williams, 276 Ga. 691, 583 S.E.2d 4 (2003).

CASE NUMBER S04A2060.

2. An eyewitness identified Cox as one of two armed men seen getting out of a van. Two other eyewitnesses testified that they saw Cox fire shots at Mr. Sheridan. The medical evidence showed that the victim died from gunshot wounds to his head and neck. The credibility of the witnesses and the weight to be given to their testimony are matters for the jury, and this Court's concern is limited to whether the evidence, when viewed most favorably to the jurors' determination, is sufficient to authorize the verdict. Mickens v. State, 277 Ga. 627, 593 S.E.2d 350 (2004); Smith v. State, 277 Ga. 213, 214(1), 586 S.E.2d 639 (2003). When construed most strongly in support of the jury's verdicts, the evidence in this case is sufficient to authorize a rational trier of fact to find Cox guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

3. The trial court did not abuse its discretion in granting the jury's request for a view of the crime scene. McDaniel v. State, 248 Ga. 494(2), 283 S.E.2d 862 (1981). Whether the jurors requested the view before or after they began deliberating is immaterial. McDaniel v. State, supra.

4. The trial court recharged the jury on the legal principles applicable to the crime of murder. Cox urges that he was denied the benefit of this clarifying recharge because, after giving it, the trial court accepted the guilty verdicts before giving the jurors the opportunity to retire and redeliberate.

The record shows the following: The jury sent out a note indicating that a question had arisen about the distinction between felony and malice murder. Before the trial court could respond, it received another note stating that the jurors had reached a verdict as to two of the three co-defendants. In response to these two notes, the trial court gave the recharge, and then asked only for the identity of the two co-defendants on whom agreement had been reached. The foreperson stated that the jury had come to a decision as to Cox and Kellogg. At that point, the jurors retired to commence redeliberations. Eventually, the trial court received a note from the jury indicating that it could not reach a verdict as to Parker. Only then did the jurors return to the courtroom and publish the verdicts finding that Cox and Kellogg were guilty.

"`[N]o legal verdict occurs until it is received and published in open court (cit.),' [cit.]...." Daniley v. State, 274 Ga. 474, 475(2), 554 S.E.2d 483 (2001). At the time of the recharge, all that the trial court established was that the jury had come to some unspecified agreement as to Cox's and Kellogg's guilt or innocence. The record clearly shows that the actual guilty verdicts against them were not received and published until after the jurors heard the recharge and then had retired for further deliberations. Moreover, Cox was given the benefit of the clarification of the crime of murder, because the trial court concluded the recharge with the admonition that the jurors should "go back and rethink the two that you have previously decided on, and [determine] if you still have the same decision or if you have a different decision...." Daniley v. State, supra. Accordingly, there was no error either in the recharge or in the reception of the guilty verdicts in this case.

5. Cox contends that the trial court erred in refusing to strike for cause prospective juror Julian Mohr, who acknowledged that he might "lean" towards the State because of his friendship with individuals engaged in prosecutorial activities in another county. The transcript indicates, however, that, during the course of extensive voir dire, Mr. Mohr consistently and repeatedly stated that he could put aside his personal relationships and decide the case fairly and impartially based upon the evidence and the trial court's instructions. A prospective juror's expression of doubt about his or her own bias does not demand excusal for cause. Waldrip v. State, 267 Ga. 739, 745(8)(c), 482 S.E.2d 299 (1997). Only one who holds a fixed and implacable opinion as to the accused's guilt and who cannot decide the case based upon the evidence and the trial court's charge is subject to being struck. McClain v. State, 267 Ga. 378, 380(1)(a), 477 S.E.2d 814 (1996). Because a determination of bias vel non rests upon an assessment of the juror's demeanor and credibility, the trial court's conclusion must be given great deference. Kirkland v. State, 271 Ga. 217, 219(2), 518 S.E.2d 687 (1999). The trial court in this case did not abuse its discretion by refusing to strike Mr. Mohr for cause. Corza v. State, 273 Ga. 164, 166(3), 539 S.E.2d 149 (2000).

6. Cox retained counsel to represent him. Shortly after the trial began, however, another attorney took over the defense of the case. Cox asserts that he neither requested nor approved of this change of lawyers, and that, as a consequence of the unauthorized substitution, he was denied his constitutional right to counsel.

The transcript shows that, at the outset of the trial, the original retained attorney stated the following for the record:

I started having medical problems last week. I've been to the doctor. I'm on medication and I'm on some tests, awaiting some results of some tests. I'm having a hard time this morning. My client is aware that [an associate] is here, but I may — I've fallen asleep twice during — I'm on some fairly heavy duty medication, so I want to report it to the court and have it on the record that my client has given [the associate] permission to continue with the trial in my absence if I have to leave on occasion.

"[T]he right to be represented by a particular attorney is not absolute when it would unduly delay and require the adjournment of a trial because of counsel's illness. [Cit.]" Fleming v. State, 246 Ga. 90, 94(2), 270 S.E.2d 185 (1980). Therefore, representation by the associate of the lead attorney did not violate Cox's constitutional right to counsel. See Blair v. State, 166 Ga.App. 434(1), 304 S.E.2d 535 (1983). Although Cox made a post-trial claim that he did not approve of the substitution, he did not object when the attorney informed the trial court that his client had given permission for the associate to assume the role of defense counsel should that prove necessary. "A statement by an attorney relating to the conduct of his client is to be considered as a statement by the client himself. [Cit.]" White v. State, 153 Ga.App. 808, 809, 266 S.E.2d 528 (1980).

Insofar as a violation of the constitutional right to effective assistance of trial counsel is concerned, Cox was required to show that the performance of the lawyer who defended him did not meet a reasonable standard of professional conduct and that, but for that deficient performance, there...