Jackson v. State, 57281
| Decision Date | 01 June 1979 |
| Docket Number | No. 57281,57281 |
| Citation | 254 S.E.2d 739,149 Ga.App. 496 |
| Parties | JACKSON v. The STATE. |
| Court | Georgia Court of Appeals |
Fuller & McFarland, Millard D. Fuller, Americus, for appellant.
Claude N. Morris, Dist. Atty., Howard S. McKelvey, Jr., Asst. Dist. Atty., for appellee.
Jackson, indicted for and convicted of the offense of aggravated assault, appeals and we reverse.
1. The accused assigns as error the trial court's denial of his retained counsel's motion to allow to participate at trial as co-counsel, asserting that this is a Sixth Amendment right established by Faretta v. California, 422 U. S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). While Faretta affirms the constitutional right to act as one's own counsel, it does not hold that a defendant has a Sixth Amendment right to act as co-counsel while still enjoying the benefits of an attorney. United States v. Bowdach, 561 F.2d 1160, 1176 (5th Cir. 1977); United States v. Wolfish, 525 F.2d 457, 462 (2d Cir. 1975), cert. den. 423 U.S. 1059, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976). 1
Here, however, counsel for appellant also specifically invoked the provision of our Constitution, that "No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney, or both." Code Ann. § 2-109 (formerly § 2-104). Appellant's counsel in presenting the motion stated: "(O)ne particular request that I would make of the court in connection with this motion is that in the closing argument that I be allowed to divide my time with him to allow him to make a short statement to the jury and then I will conclude, because the district attorney, we anticipate putting on evidence in the defendant's behalf, so the district attorney would have the right to open and close, but I would request of the court to allow the defendant himself to make a statement to the jury as a part of the closing arguments of this case and then I would conclude, and we also may want him to question a witness or two, . . . " The motion itself stated "that most of the evidence which will be presented in this case lies within the defendant's personal knowledge, and in many instances the clarification of such evidence may lie within his exclusive knowledge."
The unsworn statement privilege was abolished in 1973. Ga.L.1973, pp. 292, 294 (Code Ann. § 38-415). Otherwise the same arguments were advanced in Loomis v. State, 203 Ga. 394, 47 S.E.2d 58 (1948), and the same constitutional provision was urged on behalf of Loomis. There the eminent trial judge, Judge Bond Almand (later Chief Justice of our Supreme Court) in denying such a motion ruled: "I am simply passing on the request of your son to be permitted to act as his own counsel, and I am ruling as long as he has you as counsel you will have to represent him." On appeal the Supreme Court, after quoting at length from Roberts v. State, 14 Ga. 18(2) (1853), stated that Loomis v. State, 203 Ga. 394, at p. 404, 47 S.E.2d 58, at p. 64, supra.
Consequently, upon transfer this court held that "the constitutional provision here sought to be invoked by the defendant is plainly subject to the inherent power of the court to prescribe the manner in which the business of the court shall be conducted and to preserve the order and decorum of the trial to the furtherance of justice, but that power of the court cannot be 'exercised in such a way as to involve a deprivation of right.' . . . (Cits.) 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 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.)
"This discretion of the trial court in assuming the general superintendence and control of the litigation before it is a point of extreme delicacy with which we are reluctant to interfere, and interference will not be had unless there appears in the case something to demand imperatively the corrective interposition of this court." Loomis v. State, 78 Ga.App. 153, 163, 51 S.E.2d 13, 21 (1948), cert. den. See also Heard v. State, 126 Ga.App. 62, 64(2), 189 S.E.2d 895 (1972).
In denying his motion to participate the judge noted that Jackson had only a third grade education, had no legal training, was represented by two competent attorneys and could contribute nothing to the case as co-counsel. The trial judge's ruling, however, denied the accused a right specifically granted by our Constitution. The trial court, of course, has the inherent authority and discretion to regulate and govern the manner by which the accused could exercise that constitutional right, but that discretion "may not be exercised in such a way as to involve a...
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Burney v. State
...not extend so far as to cause an absolute deprivation of this constitutional right enjoyed by the defendant. See Jackson v. State, 149 Ga.App. 496, 254 S.E.2d 739 (1979); Loomis v. State, 78 Ga.App. 153, 160, 51 S.E.2d 13 We find that in the present case the trial court's absolute denial of......
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Strozier v. Newsome, 90-8313
...on jury instructions, petitioner again questioned the validity of the waiver and, purporting to quote from Jackson v. State, 149 Ga.App. 496, 254 S.E.2d 739 (1979), he said that a defendant must be informed of the charges, defenses and possible sentences for a waiver to be knowing and intel......
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Powers v. State
...Burney v. State, 244 Ga. 33, 35(2), 257 S.E.2d 543 (1979); Moody v. State, 153 Ga.App. 866, 267 S.E.2d 291 (1980); Jackson v. State, 149 Ga.App. 496, 254 S.E.2d 739 (1979); Loomis v. State, 78 Ga.App. 153, 160(6), 51 S.E.2d 13 (1948). Indeed, appellant was originally permitted to serve as c......
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Garvey v. State
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