Mitchell v. State, 51221
| Decision Date | 20 November 1975 |
| Docket Number | No. 2,No. 51221,51221,2 |
| Parties | Randolph MITCHELL, Jr. v. The STATE |
| Court | Georgia Court of Appeals |
Hudson John Myers, Atlanta, for appellant.
Edward E. McGarity, Dist. Atty., Kenneth R. Waldrep, Asst. Dist. Atty., McDonough, for appellee.
The defendant-appellant was charged, tried and convicted of two offenses; one, a violation of the Georgia Controlled Substances Act, the possession of less than one ounce of marijuana (Ga.L.1974, p. 221; 1975, p. 1112; Code Ann. § 79A-811(j)), and two, giving a false name to a police officer in discharge of his official duties. Code § 26-2506. He appeals to this court enumerating error on various actions of the trial judge, on the general grounds under the evidence, and the overruling of a motion to suppress certain evidence. Held:
1. The motion to suppress was properly overruled. The marijuana was discovered in a pat down search after ample grounds to arrest. The defendant was stopped for failing to dim his lights. When asked, he exhibited a driver's license with his picture thereon and the name Lester Long signed thereon. When other officers arrived on the scene he was identified as William Mitchell, Jr. He was then advised that he was under arrest for giving a false name to a police officer, the pat down then occurred and the officer felt something like a pistol barrel, reached in the pocket and found the marijuana rolled in a piece of cardboard with a rubber band around it. There was ample cause to arrest the defendant and make the search. See Code § 27-207. There was no error in overruling the motion to suppress.
2. After a jury had been impaneled to try the case, the appellant complained that his counsel employed by him had not asked enough questions on the voir dire examination and stated that he did not think he was getting a fair trial. No request was made to the trial judge to take any action, and none was taken, other than to assure the defendant that his selected attorney was capable and that he would have a fair trial. No action of the trial judge being sought and no ruling having been made, nothing is presented for review by this court. Further under the circumstances here, appellant-defendant chose and employed his own counsel as he had a right to do (Code § 2-105; Andrews v. State, 196 Ga. 84, 93, 26 S.E.2d 263), and one he had previously employed in other cases, and he was not legally harmed by the trial judge's failure, on his own motion, to voluntarily permit the defendant, after the trial began, to discontinue the trial to permit other counsel to be employed by the defendant. See in this connection, U.S. v. Casey, 5 Cir., 480 F.2d 151, cert. denied, 414 U.S. 1045, 94 S.Ct. 550, 38 L.Ed.2d 336; U.S. v. Woods, 5 Cir., 487 F.2d 1218.
3. Error is enumerated on certain remarks of the trial judge made out of the hearing of the jury in the matter ruled upon in Division 2 above, the complaint being that the remarks indicated the trial judge was biased and prejudiced against the defendant. Inasmuch as the remarks made were out of the hearing of the jury, they could not have affected the jury verdict. See, Jackson v. Seaboard Air-Line Rwy., 140 Ga. 227(3), 78 S.E. 1059; McDuffie v. State, 121 Ga. 580(13), 49 S.E. 708; Mehaffey v. State,114 Ga. 852(2), 40 S.E. 993; Clenney v. State, 229 Ga. 561, 192 S.E.2d 907. Nor do we think the remarks made show...
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