Hightower v. State

• Decision Date: 06 May 1983
• Docket Number: No. 65777,65777
• Citation: 166 Ga.App. 744,305 S.E.2d 372
• Court: Georgia Court of Appeals
• Parties: HIGHTOWER, Jr. v. The STATE.

Page 372

305 S.E.2d 372

166 Ga.App. 744

HIGHTOWER, Jr. v. The STATE.

No. 65777.

Court of Appeals of Georgia.

Decided May 6, 1983.

Rehearings Denied May 26, 1983.

Certiorari Denied for Defendant,

June 29, 1983.

Certiorari Granted for State June 30, 1983.

Henry G. Bozeman, Dublin, for appellant.

Beverly B. Hayes, Jr., Dist. Atty., H. Jeff Lanier, Asst. Dist. Atty., for appellee.

QUILLIAN, Presiding Judge.

The defendant appeals his conviction for armed robbery. Held:

1. From the evidence adduced at the trial, a rational jury could reasonably have found proof of defendant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

2. It is asserted that the trial judge erred in denying defendant's motion for continuance because trial counsel was appointed on May 10, 1983 and trial began on May 12, 1983.

We recognize that " '[u]ndue haste in the administration of the criminal law is as much to be condemned as unnecessary delay. The true course lies between these two extremes.' " Smith v. Greek, 226 Ga. 312, 317, 175 S.E.2d 1. Our Supreme Court has also pointed out: "The constitutional guaranty of benefit of counsel to one charged with an offense against the laws of this State means something more than the mere appointment. Such counsel is entitled to a reasonable length of time to prepare properly for his defense." Smith v. State, 215 Ga. 362(1), 110 S.E.2d 635.

Standing alone, the facts heretofore recited would raise a grave question as to whether the trial judge abused his discretion in refusing a continuance. However, a review of the totality of circumstances herein involved serves to dispel such apprehension. The defendant was indicted January 27, 1982. Counsel was appointed and appeared at his arraignment February 1, 1982. Counsel withdrew upon being informed by defendant that he desired private counsel. Defendant was informed by the court that it was his responsibility to obtain an attorney. On April 1, 1982, defendant appeared before the court in compliance with an order, at which time in response to inquiry he assured the court he would hire an attorney. Again in May at calendar call the defendant had not employed counsel and was informed he would go to trial the following week. On May 7, 1982 a special hearing was conducted concerning the lack of counsel, defendant reiterated his desire to employ an attorney and was directed by the court to do so. On May 10, 1982, the day set for trial the defendant appeared sans attorney. The trial judge then appointed present trial (and appeal) counsel and gave counsel "a few days to talk to him." From the hearing on the Motion for Continuance held on May 12, 1982, it appears that the state turned over its file on defendant to his counsel and the indictment listed 8 witnesses for the state. Actually on trial the state called only two witnesses, the victim and the officer most directly concerned with the investigation; the defendant was the only witness on his behalf.

Therefore, considering all aspects of this case we find no error in the denial of the motion to continue the case. We make this ruling based on the following maxims: "motions for a continuance predicated on the basis that counsel had not had sufficient time to prepare for trial address themselves to the sound discretion of the trial court, and the ruling of the trial judge in denying a motion for a continuance will not be interfered with unless the court has abused its discretion in denying the motion." Burnett v. State, 240 Ga. 681, 684, 242 S.E.2d 79. In Walker v. State, 157 Ga.App. 484(1), 277 S.E.2d 740 this court observed: " 'Our decisions must be made on a case-by-case basis after reviewing the particular facts at hand ... Counterbalancing the court's duty to insure that the defendant is not brought to trial with unnecessary haste and with possible prejudice to his defense is our obligation to prevent defendants from trifling with the operation of the trial courts in an attempt to obtain delay or some other perceived advantage. For this reason, this court will find the denial of requests for continuance in situations such as this to be error only with great reluctance.' " There under circumstances similar to the instant case the "fault in nonrepresentation" was found to lie with defendant.

In Hendrix v. State, 145 Ga.App. 170(2), 243 S.E.2d 112 where counsel was appointed for defendant's arraignment but he was directed to thereafter procure his own counsel this court held: "The fact that the defendant had not been determined to be indigent and had utterly disregarded the trial court's instructions to obtain counsel and had failed to contact his appointed counsel or the trial court thereafter shows clearly that the motion for continuance was a mere dilatory tactic, and the trial court being well aware of all the facts involved did not abuse its discretion."

Jones v. State, 146 Ga.App. 88(1), 245 S.E.2d 449 involved the following factual situation: "The accusation against the defendant for theft by taking was issued some months before the trial, and examination of the record reveals that the defendant was originally represented by another attorney. The fact that the defendant changed counsel and that the new counsel, who came in one day prior to the trial, requested a continuance which was denied, does not represent reversible error." We held: "The defendant, not the state, is chargeable with the delay in such a situation, absent a showing of why the late employment of counsel occurred."

A clear summation of the principles involved is found in Standridge v. State, 158 Ga.App. 482, 484, 280 S.E.2d 850 wherein it was stated that: "by his own misconduct, a defendant may, by repeated continuances giving rise to a valid conclusion that delay is the actual motivation, ultimately forfeit the right to yet another delay solely for the purpose of allowing the final counsel the opportunity to make trial preparations. A defendant will not be permitted to use the change of counsel as a dilatory tactic in requesting a continuance.... Mere shortness of time for preparation by counsel does not ipso facto show a denial of the rights of an accused. Something more is required.... Stated otherwise, even if counsel shows error, that error must be shown to be harmful.... Thus where there is no convoluted case or one without a large number of witnesses or intricate defenses, denial of a continuance merely because of shortness of time will not reflect an abuse of discretion." (Citation omitted.) Accord, Bearden v. State, 159 Ga.App. 892(2), 285 S.E.2d 606. See Scott v. State, 151 Ga.App. 840(2), 262 S.E.2d 198.

3. It is contended that the trial judge erred by admitting evidence which was obtained as the result of an illegal arrest. " '[T]he mere fact that admissions are made by one while under illegal arrest does not render inadmissible testimony obtained from him which would otherwise be admissible.' " Smith v. State, 159 Ga.App. 20(1), 21, 282 S.E.2d 677. Accord, Mobley v. State, 164 Ga.App. 154(4), 296 S.E.2d 617, wherein it was pointed out "the legality of the detention is simply one factor to be considered in determining whether or not the statement is voluntary."

"Factual and credibility determinations of this sort made by a trial judge after a suppression hearing must be accepted by appellate courts unless such determinations are clearly erroneous." Johnson v. State, 233 Ga. 58, 209 S.E.2d 629. We, therefore, find no basis for reversal where "the trial judge and jury were authorized to determine from the circumstances that these statements were voluntary and admissible." Mace v. State, 144 Ga.App. 496, 499, 241 S.E.2d 615.

4. Error is assigned on the admission of defendant's statements which were obtained without his attorney being present. Defendant's argument is that, because counsel had been appointed for him at the lineup and the police knew such fact, his statement was inadmissible. Such contention is misplaced.

The trial judge conducted a full scale Jackson v. Denno, hearing 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and determined that the defendant's statements were voluntary. We find this to be sustained by a preponderance of the evidence. Moreover, it was shown at the hearing that the defendant was advised of his Miranda rights and at no time invoked his right to have counsel during custodial investigation.

In Waddell v. State, 160 Ga.App. 743, 745, 288 S.E.2d 90, this court held: "as we interpret Edwards [451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378], the accused must actively invoke his right to have counsel present during custodial interrogation before the procedural safeguards set forth therein come into play. There is a distinction between having counsel appointed or retaining counsel and a defendant specifically asserting his right to have counsel present during interrogation."

In Emmett v. State, 243 Ga. 550, 556(8), 255 S.E.2d 23, the Supreme Court held: "Assuming without deciding that counsel had already been appointed for Emmett prior to his making the statement and that police knew this fact, that would not alone make his statement inadmissible. We have previously refused to adopt such a rule." Accord, Waddell v. State, 160 Ga.App. 743, 745, 288 S.E.2d 90, supra; Golden v. State, 163 Ga.App. 629, 631, 295 S.E.2d 144; Pierce v. State, 235 Ga. 237, 238(2), 219 S.E.2d 158; Highfield v. State, 246 Ga. 478, 483(6), 272 S.E.2d 62.

We, therefore, find that the trial judge's ruling based on all the circumstances was not error.

5. Counsel for defendant urges that the trial court erred in allowing the jury to read the defendant's statement as well as his waiver of rights.

This ground is based upon the following factual situation. After the defendant's statement was read to the jury, it and his waiver of rights were then given to the jury for examination by the jurors. The defendant objected on the grounds that such evidence could...