Furgerson v. State, 29783
|17 June 1975
|234 Ga. 594,216 S.E.2d 845
|James FURGERSON v. The STATE.
|Georgia Supreme Court
Larry W. Dowdy, McRae, for appellant.
Albert D. Mullis, Dist. Atty., Eastman, Arthur K. Bolton, Atty. Gen., G. Stephen Parker, Asst. Atty. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
This is an out of time appeal, granted by the Superior Court of Telfair County where the defendant was convicted.
After his arrest on June 21, 1970, defendant was indicted at the June term for the crime of rape which was alleged to have occurred on June 20. Counsel was appointed September 1 with the understanding that the defendant was seeking to employ counsel of his own choosing.
The defendant was arraigned October 28, 1970, the trial commenced October 29 with appointed counsel representing the defendant, and the jury returned its verdict of guilty on October 31, on which verdict a life sentence was imposed.
Knowing of no reversible error, counsel was allowed to withdraw from the case without the agreement of the defendant. Defendant later filed his pro se motion for out of time appeal, counsel was appointed, the motion was granted, a motion for new trial and an amendment thereto were filed and overruled, and this appeal followed.
Errors are enumerated on the general grounds and on the alleged ineffective assistance of appointed trial counsel.
1. Briefly stated, the evidence showed that on the night of June 20, 1970, the 14 year old victim and her boyfriend were parked; that two men appeared, opened the door, and hit the boyfriend on the head with a pipe-like object; that a third person appeared; that they approached the boyfriend with a rope; and that he ran. The victim testified that she was raped by the three men. Thereafter she went to the police, then to the hospital, and later to a doctor. Investigating officers found a rope and piece of pipe at the scene. In his unsworn statement, the defendant admitted being at the scene, opening the car door, and hitting the boyfriend. He denied that rape had occurred. This statement coincided generally with a statement he previously had given to the investigating officers. A co-defendant in his statement given to these officers had admitted that he had intercourse with the victim after the defendant had done so.
The trial court did not err in overruling the motion for new trial on the general grounds as the verdict was not contrary to the law or the evidence.
2. Defendant strenuously contends that appointed trial counsel rendered ineffective assistance. This contention is based primarily on the facts that at the commencement of the trial, counsel moved for a continuance for purpose of discovery on the ground that he had not been afforded an opportunity to subpoena witnesses and take their pre-trial testimony, pointing out that the defendant had been indicted so soon after arrest that no commitment hearing was held, and urging that it was only the day before trial that he learned for certain that the defendant would not have retained counsel to represent him; that he moved to be discharged from representing the defendant because the defendant ignored his advice and counsel; and that after trial he did not pursue an appeal.
Defendant, represented on this appeal by newly appointed counsel, does not cite any incident which occurred at the trial which would show ineffectiveness or lack of preparation.
The trial transcript shows that trial counsel was vigorous in defense of the defendant. His cross examination of the State's witnesses shows familiarity with the case. He called one doctor who examined the victim whose testimony was that he saw no evidence of rape. The defendant's unsworn statement was...
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