McCannon v. State
| Decision Date | 24 February 1982 |
| Docket Number | No. 63214,63214 |
| Citation | 161 Ga.App. 685,288 S.E.2d 663 |
| Parties | McCANNON v. The STATE. |
| Court | Georgia Court of Appeals |
Donn M. Peevy, Lawrenceville, for appellant.
Jeff C. Wayne, Dist. Atty., Gainesville, for appellee.
Defendant appeals his conviction for possessing a vehicle with an altered vehicle identification number. Held :
1. Error is alleged because the trial court refused a defense motion for continuance made on the ground that defense counsel did not have sufficient time to prepare for trial.
Defendant was indicted and arraigned in January 1981 and was represented by retained counsel at the time. It appears that the case was twice called for trial starting in March but trial was delayed due to the apparent illness of defense counsel. Trial was then scheduled for the week of May 11.
On May 5, defendant's counsel wrote a letter to the trial judge stating that he was withdrawing from representation because of difficulties with the defendant as to method of proceeding and compensation. On May 9 defendant's present counsel agreed to represent him. On Monday, May 11, the new counsel filed motions for continuance and to suppress evidence and requested copies of any statements made by defendant. A motion hearing was held on May 13 in which the motions were denied and defense presented with copies of summaries made by two police officers of defendant's statements to them.
The trial commenced on May 14 with the denial of the renewed motion for continuance. The trial court told the new counsel that if he was not ready to proceed, he could withdraw, and the court would require the former counsel to try the case. The present counsel elected to proceed subject to his motion for continuance. " Nix v. State, 157 Ga.App. 406(1), 407, 277 S.E.2d 768.
As in both Williams v. State, supra, and Nix v. State, supra, this case involved few witnesses, and the issues were not complex. As in Foster v. State, supra, and Nix v. State, supra, there is no apparent lack of preparation or diligence on the part of defense counsel. There was no error in denying the request for continuance.
2. Defense counsel requested copies of defendant's pre-trial statements on May 11, received them on May 13, and objected to their use in trial on May 14 because they had not been presented to the defense within 10 days of trial as required by Code Ann. § 27-1302 (Ga.L.1980, p. 1388). The overruling of the objection is asserted as error.
We find no error. While present counsel apparently requested the statement as soon as he could, the request was not timely made. The case had been pending trial since March and was delayed because of problems of the preceding counsel. Although the record contains no request for the statements from the preceding counsel, when the district attorney furnished present counsel copies of the statements in the hearing on May 13, he stated that he had already furnished them to the prior attorney. This statement of the district attorney finds some evidentiary support in defendant's testimony where he said: "I think a statement when my last lawyer asked for some information about what ya'll had, they gave it to him and it said something in the statement about ..."
Code Ann. § 27-1302, supra, states that the defendant shall be entitled to copies of his statements and the defendant may make the request therefore within any reasonable time before trial.
Under the circumstances, the request for the statements was not made within a reasonable time prior to trial. Not only is there some evidence that the prior counsel obtained statements from the state, but if he did not, a request easily could have been made more than 10 days prior to trial during his representation of the defendant which extended from January until just prior to the third scheduled trial date on May 11.
While our ruling may make the provisions of Code Ann. § 27-1302 unavailable to a new counsel coming into a case shortly before trial to replace a prior counsel, a contrary ruling would give a defendant an opportunity to delay his trial by a last minute counsel change to obtain a delay under this statute. See Tanner v. State, 160 Ga.App. 266, 287 S.E.2d 268 (1981). The provisions of the statute apply to defendants, not their counsel, and compel this ruling.
3. Error is claimed because Henry, a police officer, testified as to pretrial statements of defendant which were not included in Henry's written summary of defendant's statements given to the defense and therefore excludable under Code Ann. § 27-1302, supra. It is also contended that his testimony as to matters not included within his summary should have been excluded as hearsay. Three officers participated in the questioning of defendant and two of them made summaries of what he said as concerned the different matters each of them was investigating. Both summaries were given to the defense. Although the testimony complained of was not included in Henry's summary, it was included in the summary prepared by Stowe, who did subsequently testify, without objection, concerning these matters. Under these circumstances, if there was any error, it was rendered harmless by Stowe's testimony.
4. Defendant contends his motion to suppress the seizure of a van and other property of his...
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State v. Jackson
...v. State, 249 Ga. 132(5), 287 S.E.2d 195 (1982); Pressel v. State, 163 Ga.App. 188(1b), 292 S.E.2d 553 (1982); McCannon v. State, 161 Ga.App. 685(4), 288 S.E.2d 663 (1982). The term "reliable informer," used in the affidavit in the present case, is a term of art which neither requires nor i......
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Walls v. State
...the preliminary hearing had requested or been provided written copies of appellant's in-custody statement. Compare McCannon v. State, 161 Ga.App. 685(2), 288 S.E.2d 663 (1982); Chester v. State, 164 Ga.App. 697, 296 S.E.2d 237 (1982). The applicability of OCGA § 17-7-210 (Code Ann. § 27-130......
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Miller v. State
...did not abuse its discretion in denying the continuance request. Vereen v. State, 162 Ga.App. 1(1), 289 S.E.2d 766; McCannon v. State, 161 Ga.App. 685(1), 288 S.E.2d 663; Williams v. State, 148 Ga.App. 55(1), 250 S.E.2d 848. 2. Appellant next argues that certified copies of his indictments ......
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Pealor v. State
...contends that the defendant's request was not timely because it was made less than 10 days prior to trial, citing McCannon v. State, 161 Ga.App. 685(2), 288 S.E.2d 663 (1982), as authority for allowing the statements into evidence under such circumstances. However, that holding is inapposit......