Jones v. State

• Decision Date: 06 September 1974
• Docket Number: No. 28894,28894
• Parties: Donald L. JONES v. The STATE.
• Court: Georgia Supreme Court

Page 825

208 S.E.2d 825

232 Ga. 771

Donald L. JONES v. The STATE.

No. 28894.

Supreme Court of Georgia.

Sept. 6, 1974.

Rehearing Denied Sept. 24, 1974.

Syllabus by the Court

1. The appellant was not denied the effective assistance of counsel upon his trial.

2. The appellant was not denied his right to a jury trial.

3. The lineup was not illegal because the appellant's counsel was not present.

4. The subsequent indictment, trial and conviction rendered the omission of the preliminary hearing harmless.

5. There was no violation of the best evidence rule (Code, § 38-203).

6. Taking a pistol from the appellant's home at the time of his arrest was not an unconstitutional search and seizure.

7. The imposition of consecutive twelve-year sentences for two armed robberies did not constitute a denial of due process.

8. Denial of the motion for new trial was not an abuse of discretion upon the ground that the arresting officer failed to testify at the hearing thereon.

Nicholas F. Maniscalco, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Morris H. Rosenberg, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., B. Dean Grindle, Jr., Asst. Atty. Gen., Atlanta, for appellee.

GRICE, Chief Justice.

Donald Lewis Jones was indicted by the grand jury of Fulton County for the armed robberies of Earl Miller and William H. Austin, as bailees of Church's Fried Chicken stores on Joyland Place and Georgia Avenue in Atlanta.

Upon the trial before the superior court without a jury, Earl Miller testified that until that early part of July, 1973, the appellant had been the manager of the Church's Fried Chicken store on Joyland Place and he had succeeded him as manager; that when the appellant came to his store on July 25, 1973, and asked him to 'give him the money' he thought he was kidding; that only after the appellant pulled out a pistol and ripped the telephone from the wall did he take him seriously; and that he then opened the safe and the appellant helped himself to over $500 in currency.

An employee who was also present testified to substantially the same events surrounding the robbery.

William H. Austin swore that he was the manager of the Church's Fried Chicken store on Georgia Avenue; that he knew the appellant on the basis of their common employment and having done business with him in the past; that on August 3, 1973, the appellant came to his store on the pretext of business; that after the store had closed for the evening and the other employees had gone home, the appellant pulled out a gun and forced him to open the safe; and that the appellant then took in excess of $500, pulled the telephone from the wall and left.

The appellant's girl friend testified that he was in bed asleep with her at the time the August 3 robbery occurred.

The appellant took the stand and swore that Earl Miller called about 11:30 p.m. on July 25, 1973, and asked him to come to the store; and that Miller then took all the money from the safe and gave him $40. He further stated that from August 1 until the time he was arrested he never left his house after 8:00 p.m. or after dark in the evening because of his fears for the safety of his three young children and his girl friend.

He appeals from the judgment of guilty and sentences of 12 years each to be served consecutively, and from the denial of his motion for new trial.

1. The first enumeration of error asserts that the appellant was denied due process of law in that he did not have the effective assistance of counsel upon his trial.

This contention is not sustained by the transcript of the trial and the hearing on the motion for new trial.

The appellant swore at the hearing on the motion for new trial that his trial attorney spoke to him only on the day of the trial and that an investigator for the attorney's office had spoken with him once at the jail for no more than ten minutes.

However, the trial attorney testified that he talked to the appellant before the trial for 45 minutes to an hour and went over the case with him several times; that his investigator handled most of the investigation; that everyone listed on the indictment and everyone appellant named was spoken to; that the district attorney opened his files to him; and that he had practiced law since 1948 and he handled over 1,200 capital felonies.

The investigator stated that he spoke with the appellant at the jail on three occasions; that the first interview lasted from one to two and a half hours; that he talked to a number of witnesses suggested by the appellant; and that he spent about ten hours investigating the case. Both the attorney and the investigator testified that they had done the best they could.

The trial judge, who presided both at the trial and at the hearing on the motion, found that there was nothing to indicate that the appellant was represented by incompetent counsel.

Clearly this finding was supported by the evidence. The constitutional right to the assistance of counsel does not guarantee errorless counsel, nor counsel judged ineffective by hindsight. See Hart v. State, 227 Ga. 171(10), 179 S.E.2d 346; Mitchell v Smith, 229 Ga. 781, 194 S.E.2d 414; Pitts v. Glass, 231 Ga. 638, 639, 203 S.E.2d 515.

Enumerations of error 2, 3, 4, 5 and 6 involve alleged errors to which no objection was made upon the trial. It is well settled that objections to alleged defects occurring during the trial proceedings cannot be raised for the first time in a motion for new trial or on appeal. Edwards v. State, 224 Ga. 684, 164 S.E.2d 120; Strozier v. State, 231 Ga. 140, 200 S.E.2d 762. However, since the issues raised in these enumerations are also interrelated to the issue of whether the appellant was afforded effective assistance of counsel, we will examine each of them upon the merits.

2. The appellant was not denied the right to a jury trial in that he did not know or understand his rights regarding a trial by jury and hence could not effectively waive those rights, as urged in enumeration of error 2.

The record reveals that the appellant was 27 years old, had graduated from high school and attended Washington University in St. Louis for two years. He signed a written waiver of trial by jury. The trial judge asked him before the trial if he was agreeable to having the case tried without a jury and he responded, 'Yes, Your Honor.' His attorney stated at the motion hearing that because of the inconsistent defenses, they had 'a long discussion about whether we should go to a jury or the bench'; and that 'he definitely wanted a bench trial, that he did not want to carry it before a jury.'

On the basis of the above it can be concluded that there was a knowing and deliberate choice made by the appellant.

Even though he swore that he did not realize the difference between a jury and a bench trial, the evidence was sufficient to support the finding of the trial court that he 'validly and understandingly waived his right to a jury trial.'

3. The third enumeration contends that the appellant was denied his right to an attorney in that no attorney was present at the lineup in which he appeared and he had not waived counsel being present.

Although the appellant was arrested on August 8, 1973, and the lineup was held on August 9, 1973, he was not indicted until August 17, 1973. Thus the lineup was conducted prior to the commencement of formal criminal proceedings while the case was still in an investigatory stage and he was not constitutionally entitled to the assistance of counsel at that time. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411; West v. State, 229 Ga. 427(1), 192 S.E.2d 163.

The appellant had been advised of his rights when he was arrested, including his right to counsel, told that he would be placed in a lineup the next evening, and given the opportunity to make a telephone call. Furthermore, since he was well known to both of his victims, the failure to have counsel present clearly did not prejudice him in any way when he was identified. The evidence shows that the lineup was fair in every respect and that there was no denial of due process.

4. The contention that the appellant's rights were violated because there was no attorney present at the preliminary hearing and that he did not waive his right to a preliminary hearing likewise cannot be sustained.

The state objected that this matter was not properly before the court when it was raised for the first time at the hearing on the motion for new trial. The court sustained the objection and testimony in this regard was ruled out.

We find no error.

The rule is that a subsequent indictment, trial and conviction renders the omission of a preliminary hearing harmless. Thrash v. Caldwell, 229 Ga. 585(1), 193 S.E.2d 605; Phillips v. Stynchcombe, 231 Ga. 430(1), 202 S.E.2d 26 (two Justices dissenting); Hubbard v. State, 129 Ga.App. 793, 794, 201 S.E.2d 337 5. Enumeration 5 asserts that an interstore transfer slip which was mentioned by William Austin during his testimony was not introduced in evidence by the state, and that since the transfer slip itself was the best evidence of its substance, the failure to produce it denied the appellant due process of law.

We do not agree.

The essential fact sought to be proved by the witness Austin was the appellant's presence and perpetration of the offense of which he was charged. On direct examination this witness testified that the appellant came to his store wanting to borrow some boxes to transfer to another store. Until it was brought out on cross examination there was no mention of the interstore transfer slip or the appellant's signing of it. The substance of the transfer slip was not in issue, however, and therefore the best evidence rule (Code, § 38-203) would not bar the testimony that the appellant was present at the store with an interstore transfer slip prior to committing the armed robbery. See Mallette v. Mallette, 220 Ga. 401(2), 139 S.E.2d 322.

6. The...