Landers v. State

• Decision Date: 03 February 1983
• Docket Number: No. 39164,39164
• Citation: 299 S.E.2d 707,250 Ga. 501
• Parties: Jerry Lee LANDERS v. STATE.
• Court: Georgia Supreme Court

Page 707

299 S.E.2d 707

250 Ga. 501

Jerry Lee LANDERS v. STATE.

No. 39164.

Supreme Court of Georgia.

Feb. 3, 1983.

Jerry Lee Landers, pro se.

Larry W. Yarbrough, Marietta, for Jerry Lee Landers.

Thomas J. Charron, Dist. Atty., Mary E. Staley, Asst. Dist. Atty., Michael J. Bowers, Atty.Gen, Susan V. Boleyn, Asst. Atty.Gen., Marietta, for State.

HILL, Chief Justice.

A jury found defendant guilty of possession of a firearm by a convicted felon. OCGA § 16-11-131 (Code Ann. § 26-2914). He had been convicted of burglary in 1966 and was found in possession of two guns in December, 1980. The Court of Appeals transferred defendant's appeal to this court because defendant challenges the constitutionality of OCGA § 16-11-131(Code Ann. § 26-2914).

The evidence introduced at trial showed that on December 18, 1980, defendant was arrested under an arrest warrant issued in Fulton County for violation of the Georgia Controlled Substances Act. At the time of his arrest, the defendant was nude. Incident to this arrest a Detective Greene searched the area immediately surrounding defendant. In response to a question by defendant, Greene stated he was looking for weapons. Motioning to a chest of drawers, defendant told Greene the top drawer contained two weapons. Greene found the weapons and announced to defendant that they were forfeited. Defendant stated one gun belonged to him and the other was "pawned" to him. At trial defendant could not recall making these statements, nor could he recall the sequence of events of the arrest. He testified that one gun belonged to his common law wife and the other to a friend.

The motel efficiency suite where the arrest was made was registered in defendant's name. Defendant's common-law wife was the only other person in the room at the time of the arrest. Defendant testified that another couple shared the suite and that all four persons stored their belongings in the chest. Before leaving the motel, officers observed defendant remove several packs of cigarettes from the drawer where the guns had been located.

1. Defendant first contends the evidence was insufficient to sustain a verdict of guilty. We find the evidence sufficient to establish defendant's possession of the weapons. There was evidence that defendant admitted owning one gun and that the other had been pawned to him. Defendant's first enumeration is without merit.

2. Defendant next argues his conviction should be reversed because he was denied effective assistance of trial counsel. Defendant complains trial counsel failed to make certain trial motions, to subpoena certain witnesses (one of whom defendant stated at trial he preferred not be called), and to object to certain evidence. We find no basis for a motion to suppress the guns. It was proper for the officer to search for weapons before allowing the defendant to dress. We find no interrogation of the defendant; he volunteered that the guns were in the dresser drawer and that they were his.

" 'The decisions on which witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.' (Citation omitted.)" Reid v. State, 235 Ga. 378, 379, 219 S.E.2d 740 (1975). " 'We interpret the right of counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.' " Pitts v. Glass, 231 Ga. 638, 639, 203 S.E.2d 515 (1974) and cit. "The fact that the case could have been tried differently on behalf of the defendant does not mean that he failed to receive a vigorous and competent defense." Fortson v. State, 240 Ga. 5, 6, 239 S.E.2d 335 (1977).

We find defendant's second enumeration without merit.

3. Defendant challenges the constitutionality of OCGA § 16-11-131 (Code Ann. § 26-2914) on two grounds. Defendant first contends the statute is invalid on its face because it violates Art. I, Sec. I, Para. V of the Constitution of Georgia. ¹

Defendant seeks a literal interpretation of this provision, particularly its first part. Under defendant's interpretation he would have had the constitutional right to bear arms during his trial in the court below and while serving his sentence. We reject such literalism. In Strickland v. State, 137 Ga. 1, 6, 72 S.E. 260 (1912), the court stated: "[T]he right to bear arms, like other rights of person and property, is to be construed in connection with the general police power of the State, and as subject to legitimate regulation thereunder. Where a State constitution in terms provides, in connection with the right to bear arms, that the State may regulate this right, or may regulate the manner of bearing arms, these words expressly recognize the police power in direct connection with the constitutional declaration as to the right." 137 Ga. at 6. This court has recently upheld the power of the General Assembly to enact reasonable regulations dealing with the keeping and carrying of weapons. Carson v. State, 241 Ga. 622, 247 S.E.2d 68 (1978). In enacting OCGA § 16-11-131 (Code Ann. § 26-2914), the General Assembly sought to keep guns out of the hands of those individuals who by their prior conduct had demonstrated that they may not possess a firearm without being a threat to society. We find the statute here is a reasonable regulation authorized by the police power and thus not violative of our Constitution.

4. Defendant next contends OCGA § 16-11-131 (Code Ann. § 26-2914), as applied to him, acts as an ex post facto law. He argues that because § 16-11-131 was not enacted until April, 1980, approximately 14 years after his burglary conviction, it...