Garvey v. State
| Decision Date | 10 September 1985 |
| Docket Number | No. 70744,70744 |
| Citation | 176 Ga.App. 268,335 S.E.2d 640 |
| Parties | GARVEY v. The STATE. |
| Court | Georgia Court of Appeals |
Rhonda A. Brofman, Atlanta, for appellant.
Robert F. Mumford, Dist. Atty., for appellee.
Michael Garvey, the defendant, appeals his conviction for the offenses of aggravated assault on a peace officer and possession of cocaine. Held:
1. Defendant claims the trial court erred in denying his request to participate in his trial, and requiring him "to elect whether he wanted his appointed counsel to represent him or whether he wanted to represent himself." Counsel informed the court that defendant would like to take an active part in the trial, "in all probability in the opening statement, closing argument, and especially in the cross-examination of witnesses." The court advised the defendant: "I need you to make an election, however, as to whether you want to represent yourself or whether Mr. Nix [the appointed counsel] is going to represent you." The court and counsel and the defendant engaged in an extensive discussion of what was wanted and what would be permissible. The defendant explained his position:
The trial court clarified his earlier ruling: "I will go back to the point that we began with, and that is that you have a right to represent yourself and this court will do everything it possibly can to see that you have a fair trial, and that will include allowing you to take part in such portions of the trial as you wish to do so.
Counsel then asked whether one counsel must question one witness, and the court said this was permissible, but added: Counsel then advised the court that the opening and closing statements would be bifurcated between himself and the defendant.
The defendant elected to cross-examine a state witness and was permitted to do so by the court. At the close of the state's case, counsel announced that he and the defendant had discussed their case and "we had reserved our opening statement until the presentation of our defense." The defendant presented no evidence on his behalf and no opening argument was made. The transcript does not indicate who made closing argument. The facts cited above are indicative of the understanding of counsel and defendant that defendant could participate as co-counsel, with the appointed counsel acting as lead counsel. Hence, defendant was not required to elect who was to represent him, but only designate a "lead counsel."
At the outset, we will note a change in the Georgia Constitution of a defendant's right to act as his counsel. In the 1976 Constitution, it was provided that "[n]o person shall be deprived of the right to prosecute or defend his own cause ... in person, by attorney, or both." (Emphasis supplied.) Art. I, Sec. I, Par. IX. However, in the 1983 Constitution, this provision was changed to state: "No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the courts of this state." Art. I, Sec. I, Par. XII. The transcripts of hearings of the General Assembly on this paragraph show the primary issue debated was whether the "or both" language should be deleted. Nelms v. Georgian Manor Condo. Assn., 253 Ga. 410, 413, 321 S.E.2d 330.
It has been the law prior to this time that a criminal defendant had a constitutional right of self-representation which arose from the Sixth Amendment. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. "However, [in Georgia] a criminal defendant has a separate, state constitutional right of self-representation which derives from Art. I, Sec. I, Par. IX of the Georgia Constitution...." Burney v. State, 244 Ga. 33, 36, 257 S.E.2d 543, U.S. cert. den. 444 U.S. 970, 100 S.Ct. 463, 62 L.Ed.2d 385. Thus, under our former state constitution, the defendant had the right to both self-representation and appointed counsel. Id. The trial court, however, retained the power to regulate, in its discretion, the manner in which the defendant exercised his right of self-representation. Id.
"The discretion of the trial judge in regulating the conduct of counsel, parties, and the witnesses, and in prescribing the manner in which the business [of the court] shall be conducted, including the manner in which the prisoner shall exercise his constitutional right of defense in person, is broad and is ample to enable him in any case to effect the purposes for which it is inherently his; but his discretion is not unlimited, for it must not be abused and it may not be exercised in such a way as to involve a deprivation of right." (Emphasis supplied.) Loomis v. State, 78 Ga.App. 153, 163, 51 S.E.2d 13; see also Jackson v. State, 149 Ga.App. 496(1), 254 S.E.2d 739.
The record does not support counsel's assertion that defendant was denied the right to participate as co-counsel, or required to elect whether he wanted to defend himself or permit appointed counsel to represent him. See Powers v. State, 168 Ga.App. 642(3), 310 S.E.2d 260. The election required was to designate lead counsel, and "[t]he trial court can require leading counsel to be appointed and leading counsel can be required to conduct other aspects of the case...." Burney v. State, supra, 244 Ga. p. 37, 257 S.E.2d 543. We find no error in the procedure followed.
2. Defendant enumerates as error the denial of his request for a change of venue. This motion was based primarily on two grounds: (1) pervasive pre-trial publicity, and (2) the individual alleged to have been shot by the defendant was a member of a prominent family in the county in which he was being tried. Voir dire of the prospective jurors revealed that some of the jurors had read local and Atlanta newspaper accounts of the incident but did not remember the details. None of the jurors selected was of the opinion that his exposure to the newspaper or TV stories about this episode would affect his opinion and all agreed they would abide by the instructions of the court to base their determination of guilt or innocence on evidence presented in court. It is well settled in Georgia that a motion for a change of venue based on pre-trial publicity surrounding the incident involving the defendant addresses itself to the sound discretion of the trial judge, and his decision will not be disturbed on appeal unless it can be shown there was an abuse of that discretion. Coleman v. State, 237 Ga. 84, 90, 226 S.E.2d 911.
The best test of jury impartiality is shown by examination of prospective jurors on voir dire. Jarrell v. State, 234 Ga. 410, 416, 216 S.E.2d 258. Whether unfavorable pre-trial publicity has prejudiced one accused of a crime is to be judged by a test of whether the juror has formed a fixed opinion as to the guilt or innocence of the accused from reading or hearing unfavorable media publicity. Dutton v. State, 228 Ga. 850, 852, 188 S.E.2d 794. The extensive voir dire here of the prospective jurors showed that those selected had no fixed opinion on the defendant's guilt or innocence. Allen v. State, 235 Ga. 709, 713, 221 S.E.2d 405.
In Chenault v. State, 234 Ga. 216, 222, 215 S.E.2d 223, our Supreme Court found no abuse of discretion in the trial court's refusal to change venue where the victim, Mrs. Martin Luther King, Sr., was a well-known and highly respected person and substantial publicity had surrounded the offense. We also find no abuse of discretion in the refusal of the trial court to change the venue of the trial.
3. On September 12, 1983, defendant's appointed counsel moved for a continuance on the basis that he was unprepared. This case was originally scheduled to be tried on August 15 but the attorney from Miami, Florida, whom defendant had retained to represent him, did not appear. Defendant was given two weeks to prepare for trial and the public defender was asked to monitor the case and assist Garvey in retaining counsel. The public defender went to the Rockdale County jail and spoke to defendant on August 19. On September 2, counsel had some personal problems which required that he leave the state over a weekend. He became ill and finally returned to his office on September 8. He stated that he was unable to work on this particular case until the weekend prior to the hearing on the motions. Hearing was held on September 12 on motions he had filed. Counsel received a list of the state's witnesses from the prosecutor on Friday, September 9, but did not interview any of them before the hearing on Monday, September 12. The court granted a one-day continuance and trial commenced on September 13. Voir dire consumed the first day and the jury was impaneled on September 14.
We can empathize with the position of the public defender, but this empathy does not detract from an appreciation of the problems facing the trial court in scheduling cases and jury panels, and the prosecution's dilemma of assembling evidence and witnesses and arranging his trial schedule. Trial judges necessarily require a great deal of latitude in scheduling trials and granting continuances (Ealy v. State, 251 Ga. 426(3), 306 S.E.2d 275) and the grant or denial of a motion for a continuance is left to the...
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