Phillips v. State, s. 31806

Decision Date08 March 1977
Docket Number31851 and 31852,Nos. 31806,s. 31806
Citation233 S.E.2d 758,238 Ga. 497
PartiesThomas Edward PHILLIPS v. The STATE (three cases).
CourtGeorgia Supreme Court

E. Kontz Bennett, Jr., Waycross, for appellant in No. 31806.

Thomas Edward Phillips, pro se in Nos. 31851, 31852.

Dewey Hayes, Dist. Atty., Douglas, Arthur K. Bolton, Atty. Gen., Isaac Byrd, Staff Asst. Atty. Gen., Atlanta, for appellee.

JORDAN, Justice.

Thomas Edward Phillips was convicted for murder. The State waived the death penalty, he was sentenced to life imprisonment and he appeals.

Case No. 31851

In this case, Phillips appeals pro se from the trial court's denial of his "Motion to Discharge Counsel," in which he apparently sought the substitution of new appointed counsel to prosecute his appeal because appointed counsel was disinterested and ineffective. There is no transcript of the hearing on this motion. However, from a close review of the trial transcript if is clear that Phillips' appointed counsel conducted an able and enthusiastic defense. This appeal is without merit and the judgment in Case No. 31851 is therefore affirmed.

Case No. 31852

In this case Phillips appeals pro se from the denial of his motion for new trial. In Case No. 31806 he appeals through his appointed counsel. Thus we have two appeals from the same judgment. The enumerations of error filed in each case are substantially the same. The only difference is that the brief filed by counsel supports the enumerations with clear and forceful argument while that of Phillips is vague and confusing. So long as Phillips is represented by counsel on appeal, he does not have the right to independently conduct his own defense and have both considered by this court. Reid v. State, 235 Ga. 378, 219 S.E.2d 740 (1975). Accordingly, Case No. 31852 filed by Phillips himself is dismissed.

Case No. 31806

We now turn to a consideration of the merits of the appeal filed by Phillips through his appointed counsel.

The record reveals that the evidence fully supported the verdict and the first enumeration of error is without merit.

The fourth enumeration of error complains that the evidence produced during a Jackson-Denno hearing established that Phillips was not informed of his right to have an attorney prior to questioning. It is uncontradicted that Phillips signed a written waiver of rights which read in part: "If you cannot afford a lawyer, one will be appointed for you before questioning if you wish." Phillips admitted that the waiver was read to him and that he understood it when he signed. The only conflict in the testimony related to when the waiver was signed. Two police officers testified that the waiver was explained to Phillips prior to questioning; Phillips testified that the questioning took place before the signing. The finding by the trial court is not "clearly erroneous" and will not be disturbed. High v. State, 233 Ga. 153, 210 S.E.2d 673 (1974).

Enumeration of error number two complains of the trial court's denial of Phillips' written requests to charge on voluntary and involuntary manslaughter. The evidence showed that the victim Merritt sustained fractures of the nasal bone, the jaw bone, the spine, the larynx, and the ribs. The broken ribs punctured the victim's lungs. The victim also sustained a blood clot on the brain which resulted from a blow to the head. Eyewitness testimony established that these injuries were the result of a vicious stomping and kicking of the victim by Phillips. As in Johnston v. State, 232 Ga. 268(3), 206 S.E.2d 468 (1974), and Addison v. State, 124 Ga.App. 467(2), 184 S.E.2d 186 (1971), "the nature and extent of the beating precluded a change on involuntary manslaughter . . . ." Johnston v. State, supra.

Where there is "any evidence, however, slight as to whether the offense is murder or voluntary manslaughter" (see Banks v. State, 227 Ga. 578, 580, 182 S.E.2d 106, 108 (1971)) the defendant is entitled, upon written request (See State v. Stonaker, 236 Ga. 1, 222 S.E.2d 354 (1976)), to have a charge on voluntary manslaughter as well as murder.

Phillips testified that on the morning of Merritt's death, he (Phillips) awoke and discovered that he was missing a large sum of money. He went into the room where Merritt was sleeping and tried to wake him up to ask him if he had taken the money. Phillips testified that upon being disturbed, Merritt began to withdraw a closed pocketknife from his pocket. Phillips then shook Merritt, causing the knife to fall, still unopened, back into Merritt's pocket, whereupon Phillips proceeded to knock him down with his fist and kick him in the face. It was...

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19 cases
  • Kennebrew v. State
    • United States
    • Georgia Supreme Court
    • November 12, 1996
    ...appoint new appellate counsel to pursue a potentially frivolous ineffective assistance of trial counsel claim. See Phillips v. State, 238 Ga. 497-498, 233 S.E.2d 758 (1977); Hesterlee v. State, 210 Ga.App. 330, 333(2), 436 S.E.2d 32 (1993). To hold otherwise allows a defendant to obtain the......
  • Clough v. State
    • United States
    • Georgia Supreme Court
    • March 7, 2016
    ...; Beam v. State, 265 Ga. 853(6), 463 S.E.2d 347 (1995) ; Raines v. State, 247 Ga. 504(1), 277 S.E.2d 47 (1981) ; Phillips v. State, 238 Ga. 497, 499, 233 S.E.2d 758 (1977).In this case, the trial court declined to give the charge as it was troubled by the fact that appellant entered his mot......
  • Swett v. State, 33812
    • United States
    • Georgia Supreme Court
    • September 26, 1978
    ...to require a charge on voluntary manslaughter. See Burger v. State, 238 Ga. 171, 172, 231 S.E.2d 772 (1977); Phillips v. State, 238 Ga. 497, 233 S.E.2d 758 (1977); Reeves v. State, 234 Ga. 896, 218 S.E.2d 625, 2. Appellant contends that because he introduced evidence of his good character, ......
  • May v. State
    • United States
    • Georgia Court of Appeals
    • June 23, 1978
    ...840; Carmichael v. State, 115 Ga.App. 591, 155 S.E.2d 439. A charge on involuntary manslaughter was therefore precluded. Phillips v. State, 238 Ga. 497, 233 S.E.2d 758; Johnston v. State, 3. May enumerates as error the refusal of the trial court to charge the jury as follows: "(W)here the e......
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