Mercier v. State

• Decision Date: 20 March 1992
• Docket Number: No. A91A2213,A91A2213
• Citation: 203 Ga.App. 494,417 S.E.2d 430
• Parties: MERCIER et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 430

417 S.E.2d 430

203 Ga.App. 494

MERCIER et al. v. The STATE.

No. A91A2213.

Court of Appeals of Georgia.

March 20, 1992.

Johnny Mercier, pro se.

David Nuzum, pro se.

James L. Webb, Sol., Helen A. Roan, R. Lee O'Brien, Jr., Asst. Sol., for appellee.

CARLEY, Presiding Judge.

Appellants Mercier and Nuzum were tried before a jury and found guilty of criminal violations committed in connection with their protest against abortion. They appeal jointly from the judgments of conviction and sentences entered by the trial court on the jury's guilty verdicts.

1. Nuzum has filed no separate enumeration of error or brief. However, this court never entered an order, pursuant to Rule 14(a), directing him to do so. Nothing in Rule 14(a) of this court authorizes the dismissal of a case wherein this court has itself failed to enter an order directing that an enumeration of errors and brief be filed. Moreover, since Nuzum appeals from a criminal conviction, his failure to file an enumeration of errors and brief, even if he had been ordered to do so, would not result in a dismissal. Lee v. State, 203 Ga.App. 487, 417 S.E.2d 426 (1992).

A review of the record shows that, from the evidence adduced at the trial, the jury was authorized to find proof, beyond a reasonable doubt, of Nuzum's guilt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In addition, "our independent examination of the record and transcript has revealed no error of law requiring reversal. Accordingly, [Nuzum's] conviction is affirmed." Allen v. State, 192 Ga.App. 320, 321, 385 S.E.2d 29 (1989). See also Conyers v. State, 183 Ga.App. 591(2), 359 S.E.2d 454 (1987); DeBroux v. State, 176 Ga.App. 81(2), 335 S.E.2d 170 (1985).

2. Mercier urges that he was denied the assistance of counsel. However, "[t]he trial court's refusal to allow [someone], who is not a member of the State Bar of Georgia, to sit at the defense table during trial [or to conduct the defense] was not a denial of appellant's constitutional right to counsel, nor of any other constitutional right. 'While an accused has a right to representation by an attorney and to represent himself, there is no right to be represented by a non-lawyer third party.' [Cit.]" Cruickshank v. State, 258 Ga. 544(1), 372 S.E.2d 223 (1988). The trial court was authorized to find that Mercier's rejection of the assistance of the public defender, coupled with his insistence upon the appointment of counsel of his own choosing, was " 'the functional equivalent of a knowing and voluntary waiver of counsel. In such an instance the trial court may proceed to trial with the defendant representing himself.' [Cit.]" Phipps v. State, 200 Ga.App. 18, 19, 406 S.E.2d 493 (1991). See also Turner v. State, 199 Ga.App. 836(1), 406 S.E.2d 512 (1991).

3. Mercier moved to dismiss the accusations because he had been denied physical access to the law library. However, a continuance, and not a dismissal, would be the appropriate remedy for a purported lack of preparation. Mercier expressly declined the opportunity for a continuance and announced ready for trial. "[T]he announcement of ready constitutes a waiver of [Mercier's] right to a continuance. [Cit.]" Whatley v. State, 162 Ga.App. 106(1), 290 S.E.2d 316 (1982). " 'A defendant will not be allowed to induce an asserted error, sit silently hoping for acquittal, and obtain a new trial when that tactic fails. (Cits.)' [Cit.] 'Induced error is impermissible and furnishes no ground for reversal. (Cit.)' [Cit.]" Bess v. State, 187 Ga.App. 185, 189(5), 369 S.E.2d 784 (1988).

4. "This court will not consider factual allegations in the briefs of parties which are not supported by evidence contained in the record. [Cit.]" Hurst v. State, 198 Ga.App. 380, 381(4), 401 S.E.2d 348 (1991). Accordingly, we are unable to consider Mercier's assertion that he was forced to trial while wearing prison garb.

5. Insofar as Mercier questions the correctness of the transcript, "there is nothing for [this] court to review." Zachary v. State, 245 Ga. 2, 4, 262 S.E.2d 779 (1980).

6. Mercier urges that, during the sentencing phase, counsel for the State made an improper comment. However, no objection was raised in the trial court. Insofar as the actual sentence is concerned, it is within the statutory limits and beyond our authority to review. Sherrell v. State, 170 Ga.App. 798(1), 318 S.E.2d 221 (1984).

7. From the evidence adduced at trial, the jury was authorized to find proof, beyond a reasonable doubt, of Mercier's guilt. Jackson v. Virgina, supra.

Judgments affirmed.

SOGNIER, C.J., McMURRAY and BIRDSONG, P.JJ., and POPE, COOPER and JOHNSON, JJ., concur.

BEASLEY and ANDREWS, JJ., concur in part and dissent in part.

ANDREWS, Judge, concurring in part and dissenting in part.

I concur fully in the opinion and judgment affirming Mercier's conviction. For the reasons stated in my dissent in Lee v. State, 203 Ga.App. 487, 417 S.E.2d 426 (1992), I dissent from the majority's disposition of Nuzum's appeal.

BEASLEY, Judge, dissenting in part.

Mercier and Nuzum were each charged in two separate accusations with criminal trespass in violation of OCGA §§ 16-7-21(a) (two counts) and 16-7-21(b)(3) (two counts), resulting from their participation in demonstrations occurring on December 31, 1989 and January 3, 1990. They were jointly tried and convicted of each offense.

They both signed a notice of appeal, with a certificate of service signed by someone designated as "next friend," but only Mercier has pursued it.

1. To the extent there is an appeal by Nuzum, it should be dismissed. See dissent in Lee v. State, 203 Ga.App. 487, 417 S.E.2d 426 (1992). I do not reach the issue decided in Division 1.

2. Mercier was among 14 to 16 people who "pushed their way into" Atlanta Northside Family Planning Services on December 21, 1989, where they proceeded to throw chairs and handcuff themselves to the furniture. The clinic administrator summoned the police after requesting several times that they leave and receiving no response. The police advised the group that they were trespassing on private property and again asked them to leave. When they received no response, they arrested the demonstrators.

On January 3, 1990,...