Newby v. State, s. 63154

• Decision Date: 09 March 1982
• Docket Number: 63155,Nos. 63154,s. 63154
• Court: Georgia Court of Appeals
• Parties: NEWBY v. The STATE. (two cases)

Page 889

288 S.E.2d 889

161 Ga.App. 805

NEWBY v. The STATE. (two cases)

Nos. 63154, 63155.

Court of Appeals of Georgia.

March 9, 1982.

Certiorari Denied April 21 1982.

Lawrence L. Schneider, Decatur, for appellant.

Robert Wilson, Dist. Atty., Decatur, for appellee.

POPE, Judge.

Michael Delmar Newby was indicted on three counts of armed robbery (Counts I, VI and VII), two counts of aggravated sodomy (Counts IV and V), one count of rape (Count III), and one count of aggravated assault (Count II). Following severance of Counts I, II and VII defendant was tried on Counts III, IV, V and VI (Case No. 63155) and was convicted of one count of aggravated sodomy, rape and robbery by intimidation; he was acquitted on the other count of aggravated sodomy. While the jury was considering their verdict in this case, defendant was tried on Count I (Case No. 63154) and found guilty of armed robbery. Counts II and VII have been ordered nolle prosequi. Defendant brings these appeals from his convictions and the denial of his motions for new trial in both cases.

Case No. 63155

1. Defendant first enumerates as error the trial court's overruling his motion to suppress certain physical evidence. This evidence was obtained pursuant to a search warrant from his room in a rooming house located at 2059 East Drive in Decatur. Defendant contends that the subject warrant was invalid because it authorized the search of the entire house and thus was an impermissible general warrant.

The search warrant in this case was issued for the person of defendant and the premises known as 2059 East Drive, Decatur, DeKalb County, Georgia. The items listed on the warrant were certain articles of clothing and a chrome pistol. The warrant provided that it was "requested for the above residence where Michael Newby rents a room." The evidence of record shows that the defendant was arrested at the subject premises and thereafter incarcerated. At the time of the arrest the officers discovered that defendant only rented one room and that the subject premises was a rooming house. When the officers subsequently executed the search warrant at the rooming house, only defendant's room was searched.

"To be valid a search warrant must contain a description of the person and premises to be searched with such particularity as to enable a prudent officer executing the warrant to locate the person and place definitely and with reasonable certainty, without depending upon his discretion." Jones v. State, 126 Ga.App. 841, 842, 192 S.E.2d 171 (1972). The search warrant in this case meets the foregoing test. The case at bar is factually distinguishable from the two cases cited by defendant in support of this enumeration, Jones v. State, supra, and Miller v. State, 126 Ga.App. 847(2), 191 S.E.2d 883 (1972). In both of these cases the search warrants were found to have insufficiently described the areas to be searched in premises which were not discovered to have been multiple dwelling units until after the search had begun. In our view, the premises described in the search warrant in this case were sufficiently definite to enable the officers who executed the warrant to determine with reasonable certainty the area to be searched, viz., the room occupied by the defendant. See Tomblin v. State, 128 Ga.App. 823(5), 198 S.E.2d 366 (1973).

2. In his second enumeration of error defendant contends that the trial court erred in denying his motion to represent himself. Following the testimony of the victim, the following colloquy transpired between the trial court, counsel for defendant and the defendant himself: "MR. SCHNEIDER: Your Honor, I believe the Defendant wants me relieved from his case. He doesn't like me anymore. THE COURT: I'm afraid the Defendant is out of luck, and he is going to have to proceed as he is. MR. SCHNEIDER: He does want to make a motion he wants to represent himself. THE COURT: Do you want to represent yourself? THE DEFENDANT: I want to relieve Mr. Schneider ... I respectfully request you accept my demand to release Mr. Schneider. THE COURT: You want to file that in the form of a motion, you want to put it in the record? THE DEFENDANT: I would like to say it verbally. THE COURT: What he says is he wants to relieve Mr. Schneider as his attorney because of his irresponsibility and his neglect of his case, and what else? THE DEFENDANT: And I feel my privilege is being ... I feel my freedom is being jeopardized. THE COURT: He feels his freedom is being jeopardized on Mr. Schneider's incompetence with the Defendant. THE DEFENDANT: With his illogic. THE COURT: For his illogic judicial decisions. All right, your motion, if it is a motion, is denied, and Mr. Schneider will continue to represent you."

The record does not support defendant's contention on appeal that he wished to represent himself. Rather, the foregoing colloquy discloses that defendant was simply dissatisfied with his court-appointed counsel's conduct of the trial to that point and wanted him replaced. This view is buttressed by defendant's decision on the preceding day not to be denominated as co-counsel in this case.

"A criminal defendant does have a constitutional right to be defended by counsel of his own selection whenever he is willing and able to employ such counsel. [Cits.] However, an indigent criminal defendant does not have an absolute right to discharge one court-appointed counsel and have another substituted in his place. A request of this sort addresses itself to the sound discretion of the trial court." Burney v. State, 244 Ga. 33, 35, 257 S.E.2d 543 (1979), cert. den. Burney v. Georgia, 444 U.S. 970, 100 S.Ct. 463, 62 L.Ed.2d 385 (1979); see also Loomis v. State, 78 Ga.App. 153(6), 51 S.E.2d 13 (1948). We conclude that the trial court did not abuse his discretion in this case.

3. Appellant's third enumeration cites as error the trial court's failure to charge the jury on the defense of alibi. The record discloses that defendant requested a charge on the law relating to personal identity and that this instruction was included in the trial court's charge to the jury. The record does not disclose any request by the defendant for a charge on the law relating to alibi and no such charge was given to the jury.

The victim testified that the defendant was the perpetrator of the crimes committed against her. The defendant testified that he was at home at the time the crimes were committed. "Where the defense of alibi and the question of personal identity are virtually the same defense, the omission of the court to instruct separately on alibi is not error. Cooper v. State, 237 Ga. 288(2), 227 S.E.2d 745 (1976); Jones v. State, 235 Ga. 103(6), 218 S.E.2d 899 (1975). The trial judge did charge on the law of identification. Hence the omission of the court to instruct separately on alibi, without request, did not affect the outcome of the case and was not error." Herring v. State, 238 Ga. 288, 289, 232 S.E.2d 826 (1977).

Case No. 63154

4. Defendant was placed on trial in this case immediately following the conclusion of the foregoing trial. He enumerates as error the trial court's failure to take "corrective action" in regard to the jury panel and by placing him on trial before jurors who had in part been subjected to the voir dire on the previous case against him and had, in some cases, been stricken by him from the previous jury. The record shows that defendant orally raised his objection to the jury panel prior to the panel being put on him. Following a discussion of this matter, the trial court acceded to defendant's request to first call a group of jurors who had not been put on him in the previous case before calling any who had. The voir dire in this case was not recorded. After the jury had been selected, defendant renewed his objection. He specifically complained that two of the jurors seated in this case had been present during the voir dire of the previous case, one of these having been stricken by defendant in that case. Defendant stated that he had no choice but to take a juror whom he had stricken in the previous case because he had already used 18 of his 20 peremptory strikes when this juror was put on him and the next two jurors had also been stricken by him in the previous case. Nevertheless, the trial court again refused to disqualify the jury.

In Sides v. State, 213 Ga. 482, 99 S.E.2d 884 (1957), the district attorney arraigned the defendant for rape, molesting a minor and kidnapping. This entire proceeding took place in the courtroom, in the presence of the jurors who were to subsequently try the defendant for rape, and before the jury had been empaneled and sworn. Our Supreme Court held: "While 'an indictment is a mere charge or accusation by a grand jury, and is not evidence of guilt' (McCray v. State, 134 Ga. 416, 425 ... ), the fact that a defendant is also under indictment for one or more other crimes than the one for which he is on trial would tend to impress upon the jury that he is more likely to be guilty in the case under consideration and thus to effectively deprive him of the right to enter upon his trial with the presumption of innocence in his favor. It would have been error to have permitted the other indictments to be introduced in evidence in the rape case, and it was error to read such indictments in the presence and hearing of the prospective jurors." Sides, supra at 485, 99 S.E.2d 884. The trial court was held to have erred in denying defendant's motion for continuance. In the recent case of Thrash v. State, 158 Ga.App. 94(1), 283 S.E.2d 611 (1981), this court applied the rationale of Sides to a situation in which several of the jurors knew that the defendant had been indicted for arson and believed, incorrectly, that he had been convicted; he had in fact been acquitted of the arson charge on the previous day. The trial court was held to have erred in denying defendant's motion for a mistrial.

Applying the rationale in Sides...