Hudson v. State

• Decision Date: 13 January 1983
• Docket Number: No. 39153,39153
• Citation: 299 S.E.2d 531,250 Ga. 479
• Parties: Willie B. HUDSON v. The STATE.
• Court: Georgia Supreme Court

Page 531

299 S.E.2d 531

250 Ga. 479

Willie B. HUDSON v. The STATE.

No. 39153.

Supreme Court of Georgia.

Jan. 13, 1983.

Wm. Washington Larsen, Jr., Larsen & Larsen, Dublin, for Willie B. hudson.

Beverly B. Hayes, Dist. Atty., Dublin, for the State.

GREGORY, Justice.

In October, 1976 the defendant was convicted of the murder of Dessie Woods and sentenced to life imprisonment.

The evidence at trial showed that the defendant and victim worked turpentine boxes together and lived within a few hundred yards of one another. On the night of his death the victim came out of his house and called in the direction of the defendant's house, "we're going to take the women and put you on the girls and take them boxes." At trial the defendant testified that he did not know what the victim meant by this statement but that the victim's words had upset him. He removed his .22 automatic rifle from his bedroom and walked to the victim's house. The defendant testified that as the victim stepped toward him saying, "I'm going to put you off this place," he shot the victim three times in the leg. The defendant then walked approximately four miles to his sister's home to request that she call the police. When law enforcement officers arrived, the defendant admitted shooting the victim and surrendered himself to their custody.

Medical testimony indicated the victim had been shot at least ten times in the legs, stomach and back with a .22 rifle from a distance of no more than three or four feet. No weapon was found on the victim's person.

The defendant defended on the basis of insanity. In support of this defense a staff psychiatrist from the State Hospital testified that the defendant was insane at the time of the commission of the murder and had been insane "for at least three years and three months prior to trial."

On July 17, 1980 the trial court entered an order granting defendant's petition for an out-of-time appeal. ¹ The defendant's motion for new trial was denied on May 4, 1982. ² This appeal followed.

(1) At his trial defendant was represented by appointed counsel who at that time was simultaneously serving as the Probate Judge and Solicitor of the State Court of Treutlen County. On appeal defendant's present retained counsel argues that appointed trial counsel's functions as a state court prosecutor and probate judge prevented him from rendering effective assistance as a defense counselor at defendant's trial. Defendant takes the position that there is an inherent conflict of interest between an attorney's function as a state court prosecutor and his ability to vigorously represent a criminal defendant. In support of this argument defendant points to jurisdictions which prohibit a public official with prosecutorial duties from representing a criminal defendant. ³ One theory underlying this prohibition is the concern that maintaining strong ties to law enforcement agencies in a prosecutorial capacity will prevent an attorney from pursuing a forceful cross-examination of law enforcement officers in a criminal defense case.

While this court has not addressed the issue of whether a state court solicitor or a probate judge is disqualified from serving as defense counsel in a criminal trial ⁴ or when objection to his qualification must be raised in these circumstances, we recognize the rule that objection to counsel's qualification to represent multiple criminal defendants must be raised prior to trial. Brown v. State, 247 Ga. 298, 275 S.E.2d 52 (1981). We also acknowledge that all attorneys have "an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial." Cuyler v. Sullivan, 446 U.S. 335, 346, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980); Ga.Code Title 9 Appendix, Rules and Regulations for Organization and Government of State Bar of Georgia, Canon 5. Where, as here, an accused asserts that his trial counsel should have been disqualified due to loyalties divided between his representation of a criminal client and those owed the public in his prosecutorial capacity, we hold the objection to counsel must be made without delay, at the first opportunity after the accused learns of the grounds for disqualification. In this case the objection was not made until this out-of-time appeal; further, at no stage of the litigation has defendant claimed he did not know his appointed counsel held two public offices while representing him. It is not improbable that in many instances an accused may perceive numerous benefits to be gained from being represented by counsel holding two esteemed public offices. We cannot approve the practice, suggested by defendant, which would allow an accused to remain silent about his misgivings, take his chance on a favorable outcome at trial, and then complain after trial that his counsel was ineffective because of his commitments to public office at the time of trial.

Further, we decline to adopt the broad rule proposed by defendant which would require automatic disqualification of every attorney in a criminal defense action ⁵ where the attorney is simultaneously employed as either a state court solicitor or probate judge.

"In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler, supra, at 348. "A mere possibility of conflict is insufficient to impugn a criminal conviction amply supported by competent evidence." Brown v. State, supra, at 299, 275 S.E.2d 52; Montgomery v. State, 156 Ga.App. 448, 454, 275 S.E.2d 72 (1980).

Defendant has failed to show that an "actual conflict" existed between his attorney's role as defense counsel and his role as state solicitor or probate judge. By "actual conflict" we mean more than the bare possibility that a conflict might have developed. The record does not indicate either that counsel's position as a state court solicitor or his position as a probate judge actually affected his defense of his client. We find no error.

(2) Next defendant maintains the trial court erred in excluding his appointed counsel from a critical stage of trial by conducting an ex parte charge conference with the district attorney while appointed counsel was making his closing argument. However, the trial transcript does not support defendant's contention that such a conference took place.

(3)(a) Prior to trial the trial court inquired whether the parties anticipated a need for an alternate juror. At that time the district attorney proposed that the parties stipulate to proceed with eleven jurors if it became necessary. Defense counsel agreed; the record does not show that defense counsel consulted with the defendant prior to announcing this decision. ⁶ Before opening arguments were made, one juror was excused and the trial proceeded with eleven jurors. Defendant now argues that under the due process clause of the Fourteenth Amendment trial counsel could not bind him to be tried by eleven jurors absent his participation in the decision to be tried by a jury of less than twelve. Whether, as a matter of federal constitutional law, an accused is required to personally waive his right to be tried by a jury of less than the statutory requirement is a disputed issue among the federal circuits. ⁷ We have found no controlling state authority and the parties have cited none to us.

We agree, however, with the Seventh Circuit that traditionally, the defense attorney has been considered spokesman for the defendant, and, therefore, able to speak on behalf of his client. See, United States, Etc. v. People of State of Ill., 619 F.2d 668, 671 (7th Cir.1980). We have, in other instances, held that "in order for the waiver of counsel to be binding on the defendant, it must be made in his presence or by his express authority, or be subsequently acquiesced in by him." State v. Phillips, 247 Ga. 246, 248, 275 S.E.2d 323 (1981). ⁸ While the record in this case does not affirmatively show that defense counsel's waiver of defendant's right to be tried by a jury of twelve was made in the defendant's presence or by the defendant's express authority, we find that the defendant subsequently acquiesced in the waiver by not objecting to the reduction in size of the jury at any point during trial. See People v. Murrell, 60 Ill.2d 287, 326 N.E.2d 762 (1975). We conclude that, while it may be a better practice, it is not necessary for an accused to personally waive his right to a jury of twelve and agree to be tried by a jury of less than twelve. Counsel for the accused may validly waive this right for him if (1) the waiver is made, without objection, in the accused's presence or (2) the accused otherwise acquiesces in the waiver.

(b) Defendant also argues, and the State concedes, that the trial court erred in excusing the twelfth juror due to his relationship to the defendant. ⁹ However, no objection was made to the dismissal of the juror at trial. Errors not objected to at trial will not be entertained by this court on appeal. See, e.g., Willis v. State, 249 Ga. 261, 290 S.E.2d 87 (1982).

(4) In his ninth enumeration of error defendant contends that the trial court erred in permitting the District Attorney to make prejudicial statements to the jury in his closing argument. Defendant concedes that no objection was made at trial, but argues that the trial court has an independent duty, arising out of Code Ann. § 81-1009 "to interpose and prevent" statements of prejudicial matters even absent a timely objection by counsel. Notwithstanding the expansive language of this code section, "it has been held that, unless the court's attention is called to such improper argument and a ruling invoked upon the trial, it is too late to raise the point for the first time in a motion for new trial." Morris v. State, 200 Ga. 471, 480, 37 S.E.2d 345 (1946). We find no error.

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