Johnson v. State, A94A0663

• Decision Date: 29 June 1994
• Docket Number: No. A94A0663,A94A0663
• Citation: 214 Ga.App. 77,447 S.E.2d 74
• Parties: JOHNSON v. The STATE.
• Court: Georgia Court of Appeals

Page 74

447 S.E.2d 74

214 Ga.App. 77

JOHNSON v. The STATE.

No. A94A0663.

Court of Appeals of Georgia.

June 29, 1994.

Reconsideration Denied July 18, 1994.

Certiorari Denied Oct. 28, 1994.

William F. Sparks, Rome, for appellant.

Stephen F. Lanier, Dist. Atty., C. Stephen Cox, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Indicted as a recidivist, defendant was charged with one count of selling cocaine, in violation of OCGA § 16-13-30, and with a second count alleging that he sold cocaine within 1,000 feet of a public housing project, in violation of OCGA § 16-13-32.5. Defendant was tried before a jury and found guilty of each charge. This appeal followed the denial of defendant's amended motion for new trial. Held:

1. In his first enumeration, defendant contends that the trial court erred in denying his motion for new trial, arguing that he received ineffective assistance of counsel because his trial counsel stipulated to proceed with 11 jurors without defendant's knowledge and consent.

" ' "When inadequate representation is alleged, the critical factual inquiry ordinarily relates to ... whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; (and) whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy." (Cit.)' Hawes v. State, 240 Ga. 327, 329-330(1) (240 SE2d 833) (1977). Generally, 'the burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney's representation in specified instances fell below "an objective standard of reasonableness" and (2) there is "a reasonable probability" that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Cit.)' (Emphasis in original.) Williams v. State, 258 Ga. 281, 286(7) (368 SE2d 742) (1988). The trial court's determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986)." Jackson v. State, 209 Ga.App. 53, 56(7), 432 S.E.2d 649.

At the evidentiary hearing on defendant's motion for new trial in the case sub judice, defendant's trial counsel testified that he agreed to proceed with 11 jurors if one became sick. This stipulation was made in the presence of his client in open court, and in response to a direct inquiry by the presiding judge as to the need for an alternate juror. Counsel admitted that he "did not talk to [defendant] at all about the prospects of whether or not we needed an alternate," and thought that it was "within [counsel's] authority ... to waive that ... right to an alternate." Only after the verdict and sentencing did defendant voice any complaint to trial counsel about not being involved in the decision to go with 11 jurors. The transcript of the trial corroborates this chronology. After the jury had been struck, the court asked: "Will y'all agree to go with 11 if one of them gets sick?" Defense counsel responded: "Yeah, that'll be fine." The next morning, before any evidence had been presented, the trial court excused the twelfth juror due to illness. The court "checked with the court reporter, and we agreed to go with 11 if one of them's sick. I have satisfied myself, from talking with her, that she is sick, so we'll proceed with 11." Without objection from any side, the case proceeded to trial.

" ' "[I]n order for the waiver by 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." ' (Emphasis in original.) State v. Phillips, 247 Ga. 246, 248 (275 SE2d 323) (1981)." Hudson v. State, 250 Ga. 479, 482(3a), 483, 299 S.E.2d 531. The record in the case sub judice shows that defense counsel's waiver of defendant's right to be tried by a jury of 12 was made in the defendant's presence, but not by the defendant's express authority. While trial counsel conceded that he had failed to consult defendant before stipulating in advance to a waiver of the twelfth juror in open court, the record similarly shows that defendant made no objection "to the reduction in size of the jury at any point during trial." Hudson v. State, 250 Ga. 479, 484(3a), 299 S.E.2d 531, supra. Defendant's failure to object at any point before the jury returned its verdict amounts to a waiver by acquiescence. Weeks v. State, 187 Ga.App. 307, 308(2), 310, 370 S.E.2d 344, affirmed in 258 Ga. 662, 374 S.E.2d 532; Hudson v. State, 250 Ga. 479, 483-484(3a), 299 S.E.2d 531, supra. " '(W)hile 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....' " Davis v. State, 192 Ga.App. 47, 48(3), 383 S.E.2d 615. Trial counsel in the case sub judice validly waived defendant's right to trial by a jury of 12. For purposes of determining whether defendant's right to effective assistance of counsel has been adequately protected or impermissibly infringed by that waiver, trial counsel's decision whether to insist on a jury of 12 or to accept the remaining jurors and proceed is properly analyzed as trial tactics and strategy.

" 'The decisions on which witnesses to call, whether and how to conduct cross[-]examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.' Reid v. State, 235 Ga. 378, 379 (219 SE2d 740, 742) (1975), quoting ABA Standards, relating to the Adm. of Crim.Justice (1974), the Defense Function, § 5.2(b)." Hawes v. State, 240 Ga. 327, 328(1), 330, 240 S.E.2d 833, supra. In the case sub judice, the decision of trial counsel to proceed with the remaining 11 jurors who had undergone voir dire but who had not heard opening statements or any witnesses simply "is not any evidence that trial counsel's conduct fell below that standard of reasonably effective assistance which members of the bar in good standing are presumed to render, as that right to effective assistance is protected by both the Georgia and [U.S. C]onstitutions. Hill v. Balkcom, 213 Ga. 58(1) (96 SE2d 589) (1957)." Shaw v. State, 211 Ga.App. 647, 649(2), 440 S.E.2d 245. Consequently, the trial court did not err in denying defendant's motion for new trial predicated upon this instance of allegedly ineffective assistance of counsel.

2. In his second enumeration, defendant contends that trial counsel was ineffective because he did not move for a directed verdict of acquittal as to Count 2, which alleged that defendant sold cocaine "within 1000 feet of real property of a publicly owned and operated housing authority, to wit: THE ROME HOUSING AUTHORITY, located at MAPLE STREET." He argues that his motion should have been granted since the State did not prove with sufficient clarity that the sale took place within 1,000 feet of a publicly owned housing authority.

OCGA § 16-13-32.5(b) makes it "unlawful for any person to manufacture, distribute, dispense, or possess with intent to distribute a controlled substance or marijuana or a counterfeit substance in, on, or within 1,000 feet of any real property of any publicly owned or publicly operated housing project.... For the purposes of this Code section, the term 'housing project' means any facilities under the jurisdiction of a housing authority which constitute single or multifamily dwelling units occupied by low and moderate-income families pursuant to Chapter 13 of Title 8." OCGA § 16-13-32.5(e) provides: "In a prosecution under this Code section, a map produced or reproduced by any municipal or county agency or department for the purpose of depicting the location and boundaries of the area on or within 1,000 feet of the real property of any publicly owned or publicly operated housing project ..., or a true copy of the map, shall, if certified as a true copy by the custodian of the record, be admissible and shall constitute prima-facie evidence of the location and boundaries of the area, if the governing body of the municipality or county has approved the map as an official record of the location and boundaries of the area." This Code section further provides that it "shall not preclude the prosecution from introducing or relying upon any other evidence or testimony to establish any element of this offense." OCGA § 16-13-32.5(e).

At the hearing on defendant's motion, trial counsel defended his decision not to make the motion for directed verdict "just as a personal decision I...