Johnson v. State, 52647
| Decision Date | 28 September 1976 |
| Docket Number | No. 2,No. 52647,52647,2 |
| Citation | 139 Ga.App. 829,229 S.E.2d 772 |
| Parties | Bobby JOHNSON v. The STATE |
| Court | Georgia Court of Appeals |
R. Alex Crumbley, McDonough, for appellant.
E. Byron Smith, Dist. Atty., Barnesville, Hal Craig, Asst. Dist. Atty., McDonough, for appellee.
Bobby Johnson appeals his conviction of aggravated battery. He raises two enumerations of error. One complains that he was denied representation by counsel of his own choosing. The other asserts the trial court failed to charge the jury on the lesser offense of simple battery. Held:
1. In relation to the first enumeration of error, the record discloses that following his indictment, Johnson was granted a preliminary hearing. At that hearing, Johnson was represented by a court-appointed attorney who cross-examined the witnesses and began preparation of the defendant's case. He interviewed witnesses and examined the file pertaining to Johnson's case.
Thereafter, Johnson retained private counsel. His case was called for trial during the week of October 24, 1975. During the several days of that week, with prosecution witnesses present, the retained counsel did not appear. The case was postponed until the week of November 17, 1975. Again, during that week, the state was ready to proceed with its witnesses present. Retained counsel was also present but involved in a capital murder case that continued through Monday and Tuesday of the week.
Following a verdict of guilty in the murder case on Tuesday evening, retained counsel announced to the court that he would be present the next morning for sentencing in the murder case and then be prepared to proceed with several other cases pending before the court, including the case of Bobby Johnson. The following morning retained counsel did not appear. The court made numerous efforts to determine the whereabouts of retained counsel without success. Counsel did send the court a telegram stating the he was sick, but did not set forth the nature of that illness nor apparently did he seek a continuance. The trial court then issued a bench warrant for the arrest of the several defendants who did not appear for trial, including Bobby Johnson.
The retained counsel personally talked to his several clients in the Henry County jail on the morning to November 24, 1975. However, when Johnson's case was called for trial, retained counsel was not present. The court and district attorney were unable to determine the whereabouts of retained counsel nor were they aware of any reason for his absence. No request for continuance was made to the court.
After the foregoing facts were placed on the recrod, the court determined that the original appointed counsel was ready, willing and able to proceed with the defense of Johnson. The trial court then ruled that '. . . in view of the fact that the State's witnesses have been here, this is the third week they have appeared, and (retained counsel) has not made it known to me as to why he is absent, and the court in the absence of a proper showing can only conclude that (retained counsel) has either abandoned the representation of this defendant, or has elected not to be here . . . I am letting this case go forward upon the call by the District Attorney . . .'
Appointed counsel conferred with Johnson. Neither Johnson Nor the appointed counsel voiced any objection to proceeding in the absence of retained counsel. No motion for continuance was made. Even when the court stated in the presence of Johnson that it appeared retained counsel had either abandoned the case or declined to appear in court, Johnson did not register any disagreement.
We are in complete agreement with the contention that one accused of crime has the right to be represented by counsel of his own choosing. The improper denial of this right is violative of the Constitution and laws of the State of Georgia (Art. I, Sec. I, Par. V, Georgia Constitution (Code Ann. § 2-105); Ga.L.1865-6, p. 236 (Code Ann. § 27-403)). Such denial abrogates the right of procedural due process. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Glasser v. U.S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491; Delk v. State, 100 Ga. 61, 27 S.E. 152; Long v. State, 119 Ga.App. 82, 166 S.E.2d 365.
But just as other constitutional and statutory rights may be waived intelligently by an accused (Jones v. Mills, 216 Ga. 616, 118 S.E.2d 484), so too, we believe the constitutional guarantees of counsel of choice may be waived by action or declaration. See Williams v. Gooding, 226 Ga. 549, 176 S.E.2d 64; Bradley v. State, 135 Ga.App. 865, 866, 219 S.E.2d 451. The determination as to an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding the case. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461. We find such a waiver here.
In this case appellant was acquainted with and had been represented by his appointed counsel earlier during the pre-trial proceedings. He was present and privy to all the facts recited by the trial court. He heard the trial court question whether the retained counsel had abandoned the case or simply declined to appear. He heard appointed counsel state the extent to which the case had been prepared and that counsel was ready to proceed. In spite of these actions and statements, Johnson did not state that he was dissatisfied with the substitution of appointed counsel. He did not request the presence of his retained counsel, nor did he request a continuance or offer any explanation of the whereabouts of his retained counsel. ...
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