Manus v. State, 73118
| Decision Date | 23 October 1986 |
| Docket Number | No. 73118,73118 |
| Parties | MANUS et al. v. The STATE. |
| Court | Georgia Court of Appeals |
Eric G. Kocher, Dalton, for appellants.
Michael H. Crawford, Dist. Atty., Leonard M. Geldon, Asst. Dist. Atty., for appellee.
On October 5, 1985, appellant Verna Manus was driving an automobile in which her husband, appellant Marvin Manus, and her daughter, Lisa, were passengers, when Deputy Sheriff Duncan pulled appellants to the side of the road. Duncan stopped appellants so that he could talk to Marvin Manus about a report that Mr. Manus had received a stolen power saw. Duncan did not have a warrant for arrest; nor was the stop justified by any traffic or motor vehicle violation. At trial, there was dramatically conflicting testimony as to what occurred after the stop. Officer Duncan testified that he questioned Marvin Manus concerning the stolen saw and then received a blow to his back by Mr. Manus while Verna Manus pulled on his right arm. Marvin Manus testified that Duncan stated that he was arresting appellant for receiving stolen property, grabbed appellant and twisted his arm, threw him against the car and then onto the pavement. Duncan then proceeded to forcefully put Verna Manus in the car and in the process, knocked Lisa down, breaking her glasses.
At trial, the jury found Marvin Manus guilty of simple battery and Verna Manus guilty of obstructing an officer. Appellants filed a Motion and an Amended Motion for a New Trial, which were denied by the trial court. In their appeal from the convictions and sentences and from the denial of their Amended Motion for New Trial, appellants assert four enumerations of error.
1. Verna Manus contends that she was denied her right to confront a witness against her. The transcript shows that she left the courtroom after her daughter testified and the defense rested. The state called a rebuttal witness and counsel waived her presence. We find that she cannot now complain for the first time on appeal that she was denied her right to confront a witness. A defendant waives his right of confrontation if he voluntarily absents himself from trial after jeopardy attaches, which occurs immediately once the jury is selected and sworn. Pollard v. State, 175 Ga.App. 269, 333 S.E.2d 152 (1985). See also Byrd v. Ricketts, 233 Ga. 779, 213 S.E.2d 610 (1975), and Croy v. State, 168 Ga.App. 241, 308 S.E.2d 568 (1983), for the rule that a defendant who is out on bail and voluntarily absents himself from trial waives his right of confrontation.
2. Appellants were not denied effective assistance of counsel as they contend. An examination of the transcript of the motion for new trial shows that trial counsel testified that he was employed by Mrs. Manus approximately one week before trial, that he talked to her husband once, but he worked out of town and would not come in to see him. He talked to Mrs. Manus several times and she told him that she had talked to a witness, but he claimed that he didn't see anything. He did not interview the Manus' twelve-year-old daughter prior to trial because he was undecided about calling her as a witness. Her mother had told him what the child's testimony would be and he would not now change any of the questions that he asked her when he did decide to use her as a witness. He decided not to use any character witnesses after he learned that Mr. Manus had a prior felony conviction. In selecting the jurors, counsel consulted with the accused, he made an opening statement, cross-examined the state's witnesses, made a closing argument, and based his defense on appellants' contention that Officer Duncan instigated this incident. As for failure to conduct pre-trial discovery, there was nothing to discover; there were no in-custody statements, no documentary evidence, no scientific evidence, and no physical evidence that might be suppressed. He received a copy of the accusation and a list of the state's witnesses. It was probably the inconsistency of the defendants' statements that led the jury to believe the state's witnesses. Under Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), there are two components to the claim of ineffective assistance of counsel: deficient performance and prejudice resulting from such deficient performance. Jones v. State, 177 Ga.App. 531, 339 S.E.2d 786 (1986). We find neither exists in the instant case.
3. Appellants cannot now complain about the trial court's charge on impeachment of witnesses. Counsel responded that he did not have any exceptions to the trial court's charge after the court asked if he had any objections. White v. State, 243 Ga. 250, 251, 253 S.E.2d 694 (1979); Henry v. State, 176 Ga.App. 462, 464, 336 S.E.2d 588 (1985).
4. The evidence adduced at trial, when viewed in a light favorable to the prosecution, was sufficient for a rational trier of fact to find the defendants guilty beyond a reasonable doubt. Crawford v. State, 245 Ga. 89, 263 S.E.2d 131 (1980).
Judgment affirmed.
I concur in what is said in the opinion, but I do not believe Division 2 goes far enough in addressing the issues.
As to ineffective assistance of counsel, appellant raised both federal and state constitutional grounds both in the motion for new trial and on appeal. We have treated only the federal claim, measuring it against the yardstick articulated by the United States Supreme Court in its construction solely of the United States Constitution.
As appellant points out, the Georgia Constitution of 1983, Art. I, Sec. I, Par. XIV provides: "Every person charged with an offense against the laws of this state shall have the privilege and benefit of counsel."
Long before Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court of Georgia expressed its present-age understanding of "effective assistance of counsel" in Pitts v. Glass, 231 Ga. 638, 203 S.E.2d 515 (1974). It is not clear in that case whether it was addressing a federal claim or a state constitutional claim or both. At any rate, it held that "the effectiveness of counsel cannot be fairly measured by the results of a criminal trial or appeal, but upon the reasonable effectiveness of counsel at the time the services were rendered."
Pitts was applied in Jones v. State, 243 Ga. 820, 830(12), 256 S.E.2d 907 (1979), again without designating which constitution had been invoked and was being applied. There the Court expressly adopted the federal circuit wording that the right to counsel meant "counsel reasonably likely to render and rendering reasonably effective assistance," emphasizing that it is to be judged as of the time given and not with the...
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