McDuffie v. Jones

• Decision Date: 05 November 1981
• Docket Number: No. 37605,37605
• Citation: 248 Ga. 544,283 S.E.2d 601
• Parties: Michael Stanley McDUFFIE v. Thomas JONES, Warden.
• Court: Georgia Supreme Court

Page 601

283 S.E.2d 601

248 Ga. 544

Michael Stanley McDUFFIE v. Thomas JONES, Warden.

No. 37605.

Supreme Court of Georgia.

Nov. 5, 1981.

Stanley R. Lawson, Cleveland, for Michael Stanley McDuffie.

Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Asst. Atty. Gen., for Thomas Jones, Warden.

PER CURIAM.

Michael Stanley McDuffie was convicted of burglarizing the Habersham Medical Center and received a fifteen year sentence. He withdrew his motion for a new trial and did not seek appellate review of his conviction. We granted McDuffie's application to appeal the denial of his petition for a writ of habeas corpus in which he asserts that: (1) He was denied his right to make the closing argument to the jury; (2) the trial court erroneously considered an undisclosed probation report as an aggravating circumstance in determining the length of the sentence to be imposed; and (3) he received ineffective assistance of counsel.

1. Because there was no appeal in this case, it gives us the occasion to examine the scope of our habeas corpus act. Code Ann. § 50-127(1) (Ga.L.1967, p. 835; Ga.L.1975, p. 1143) provides that: "Any person imprisoned by virtue of a sentence imposed by a State court of record who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Georgia or the laws of the State of Georgia may institute a proceeding under this section." Thus, not only can a substantial denial of a federal or state constitutional right be raised on habeas corpus, but a substantial denial of rights under the laws of this state can also be raised pursuant to our habeas corpus act.

However, Code Ann. § 50-127(1) goes on to provide that: "Except for objections relating to the composition of a grand or traverse jury, rights conferred or secured by the Constitution of the United States shall not be deemed to have been waived unless it is shown that there was an intentional relinquishment or abandonment of a known right or privilege which relinquishment or abandonment was participated in by the party and was done voluntarily, knowingly, and intelligently." The act prescribes the waiver standard as to U.S. constitutional rights but does not prescribe the waiver standard as to rights under the constitution or laws of this state. ¹ Because the constitutional rights of persons accused and convicted of crimes, if not identical, are substantially the same under both the state and federal constitutions, the waiver standard as to state constitutional rights would be controlled in most instances by the statutory waiver standard for federal constitutional rights (and we will not deal here with the waiver standard for state constitutional rights, if any, which may be in addition to federal constitutional rights). The waiver standard as to rights under the laws of this state is certainly no more stringent than the statutory standard for constitutional rights and in many instances may be less stringent.

The foregoing demonstrates that in each habeas corpus case, the threshold inquiry should be to ascertain whether the right asserted arises under the federal constitution, the state constitution, or state law. The next step in habeas corpus would be to see if waiver, under the corresponding standard, has occurred. ² In the absence of waiver, the third step would be to determine if the habeas petitioner's rights were violated. If so, the final step would be to determine whether the error was harmless under the appropriate standard. ³ We will examine each of petitioner's claims using this four step analysis.

2. The defendant was tried jointly with co-defendant Karl Varnes. Varnes presented no evidence at trial. This defendant testified in his own behalf, denying his involvement in the burglary, but introduced no other evidence. Over objection, the trial court ruled that although both Varnes and this defendant could open the arguments to the jury prior to the state's argument, only Varnes could make the closing argument after the state's argument. Defendant argues that this ruling is in conflict with the provisions of Code Ann. § 27-2201 and therefore constitutes reversible error. ⁴

Therefore we deal with an alleged violation of defendant's rights under state law as opposed to a constitutional right. Defendant made timely and proper objection at trial to the denial of his right to make a closing argument and hence there was no waiver by failure to object at trial. (We do not here decide whether defendant waived the right to raise this issue on habeas corpus by failing to appeal because defendant complains that he was confused by the trial court's advice as to his rights to seek sentence review, a matter which we do not reach on this appeal because we proceed to the merits of his claim.) Thus, we next consider whether defendant's statutory right to make a closing argument was violated.

Generally, if the defendant in a criminal case introduces no evidence at trial, he is entitled to present arguments to the jury both before and after the state makes its argument. Code Ann. § 27-2201. This right is not forfeited when the defendant testifies in his own behalf, provided he introduces no other evidence. Code Ann. § 38-415.

However, the right of a defendant introducing no evidence at trial to open and close the final argument is not absolute. If one defendant offers evidence in the trial of co-defendants, the right to make the closing argument is lost to all defendants, even those introducing no evidence, for the reason stated in Lackey v. State, 246 Ga. 331(10), 271 S.E.2d 478 (1980). Further, the right is waived by failure to make a timely objection at trial. Scott v. State, 243 Ga. 233, 234, 253 S.E.2d 698 (1979); Garrett v. State, 21 Ga.App. 801(7), 95 S.E. 301 (1918).

The trial court in this case held that the portion of Code Ann. § 27-2202 which reads "in no case shall more than one counsel be heard in conclusion" provides that only one attorney can make the closing argument and hence precludes separately represented but jointly tried defendants introducing no evidence from both making closing arguments. Construing Code Ann. §§ 27-2201 and 27-2202 together, the trial court ruled that even though neither defendant had introduced evidence such as would bar their right to open and close arguments, under § 27-2202 only one defendant was entitled to make the closing argument. Between the two defendants, the trial court reasoned that Varnes should make the closing argument because he had introduced nothing in defense while this defendant had testified in his own behalf. The habeas court agreed with the trial court's interpretation of the statutes and found no error in its ruling.

Until 1971 jointly indicted defendants in felony cases had an absolute right to request severance and receive separate trials. See Code of 1933, § 27-2101, prior to Ga.L.1971, pp. 891-92. Code Ann. § 27-2202 was enacted forty-seven years before this 1971 change in the law. Ga.L.1924, p. 75. Further, Code Ann. § 27-2202 begins by saying: "Not more than two counsel shall be permitted to argue any cause for each side, except by express leave of court...." This limitation would be inapplicable where three or more defendants represented by different attorneys are tried jointly. Therefore we find that § 27-2202 was not intended to act as a limitation on the rights of separately represented, jointly tried defendants. Instead, we find that the final portion of § 27-2202 is a limitation on the number of attorneys who may present closing arguments on behalf of any one defendant tried jointly. Thus, the trial court erred in denying this defendant the right to make a closing argument following the state's argument simply because he was jointly indicted and tried. Accord, Thornton v. State, 157 Ga.App. 75, 77, 276 S.E.2d 125 (1981).

The question remains, however, whether the error was harmless. The right to make the final argument to the jury is an important right and harm to the defendant is presumed on appeal when the right is erroneously denied. Seyden v. State, 78 Ga. 105(4) (1886). However, the presumption is not absolute and the error may be shown to be harmless.

The evidence in this case disclosed that three men broke into a locked office in the Habersham County Medical Center and removed a safe. They carried the safe into the medical center's parking lot where they loaded it into the back of an automobile. The automobile was later identified as belonging to this defendant's wife. An off-duty deputy sheriff, alerted to the crime by medical center employees, approached the men as they were loading the safe into the automobile. He immediately recognized this defendant and Varnes from previous encounters and, as he attempted to apprehend them, called Varnes by name. At the trial, the deputy positively identified this defendant and Varnes as two of the men he observed loading the safe into the automobile.

Breaking away from the deputy, the three men escaped into some nearby woods. Dogs were brought in and they tracked the fleeing men through heavy underbrush and briars for most of the night. When this defendant turned himself in to the sheriff the following day, his legs were covered with scratches of the type normally inflicted by briars. During his testimony the defendant denied participating in the burglary. He explained the scratches on his legs by saying that he and his wife had visited his mother and stepfather and he had helped his stepfather catch some hogs which had gotten loose.

This defendant was not denied the right to argue his case to the jury and in fact did so. He was merely prohibited from making the closing argument. The co-defendant who had the closing argument was also found guilty by the jury. In view of the evidence against the defendants, it is highly probable, if not a certainty, that the error did not contribute to the...