Reid v. State, 30132
| Decision Date | 21 October 1975 |
| Docket Number | No. 30132,30132 |
| Citation | 219 S.E.2d 740,235 Ga. 378 |
| Parties | Clarence REID et al. v. The STATE. |
| Court | Georgia Supreme Court |
Marion L. Bridges, L. Clark Landrum, Sylvester, for appellants.
W. J. Forehand, Dist. Atty., Tifton, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, for appellee.
Defendants Clarence Reid and Nathaniel Mosely appeal from the overruling of their amended motions for new trial following a joint trial, verdicts of guilty of armed robbery and sentences to life imprisonment. Through appointed counsel, appellants have enumerated as error the general grounds and the admission of a photograph.
Appellants, pro se, have filed a motion pointing out that their counsel have not enumerated as error for review by this court two special grounds of their amended motion for new trial. On this basis, appellants contend that they are being ineffectively represented, and they have moved that this case be remanded to the trial court for the appointment of new and competent counsel. We will consider this motion first.
1. An indigent defendant has the right to be represented by counsel upon appeal of his criminal conviction. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). He has the right to be advised of and insist upon his right of appeal, Thornton v. Ault, 233 Ga. 172, 210 S.E.2d 683 (1974); Holloway v. Hopper, 233 Ga. 615, 212 S.E.2d 795 (1974), subject to the right of appointed counsel not to be required to pursue a wholly frivolous appeal, by following the procedures set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
In this case, appellants' motion raises the issue: Does appellants' right to be represented by counsel on appeal include the right to insist that appointed counsel enumerate as error specified rulings of the trial court as to which appellants, but not counsel, urge appellate review? Stated differently, the question presented is, to what extent does an appellant have the right to control decisions of appellate counsel relating to the conduct of the appeal.
Because the question is one of first impression, perhaps some guidance may be obtained by considering to what extent a defendant has the right to control decisions of appointed trial counsel relating to the conduct of the trial. On this matter, the ABA Standards Relating to the Administration of Criminal Justice (1974) are clear (ABA Standards, The Defense Function § 5.2):
It would appear that if appointed trial counsel has exclusive control over what jurors to strike, what witnesses to call, what questions to ask, what motions and objections to urge, and what arguments to make before the court and jury, then appointed counsel on appeal should have exclusive control over what errors to urge and argue before the appellate court. 1 However, the ABA Standards do not expressly provide appellate counsel such exclusive control of the scope of the appeal, and those Standards even indicate that if counsel is unable to persuade the defendant that particular contentions are lacking in substance, it is 'better for counsel' to present the matter so long as this does not involve misleading the court or compromising professional standards (ABA Standards, Criminal Appeals § 3.2(b); Providing Defense Services § 5.3). However, our inquiry here is not what is 'better' practice but is what is the consequence when that practice has not been followed.
Douglas v. California, supra, dealt with the rights of an indigent appellant vis-a-vis the State. Anders v. California, supra, dealt with the rights of the appellant vis-a-vis his appellate counsel. Anders held that if appellate counsel conscientiously decides that the appeal is wholly frivolous, he should so advise the appellate court and request permission to withdraw, at the same time furnishing the court and the indigent with a brief of anything in the record arguably supporting the appeal.
Do Douglas v. California and Anders v. Clifornia mean that appellate counsel should insist upon and argue those grounds of appeal counsel decides are meritorious, and also request permission not to be required to insist upon and argue those grounds urged by the...
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Presley v. State
...the rule that whether or not to proceed with such a motion is a decision of trial tactics in counsel's hands. See Reid v. State, 235 Ga. 378, 379, 219 S.E.2d 740 (1975). Defense counsel refused to allow the district attorney to direct the question to the defendant personally and although th......
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Garland v. State
...arguments" to meet the threshold despite our acknowledgment "that they cannot do these very things for themselves." Reid v. State, 235 Ga. 378, 381(1), 219 S.E.2d 740 (1975). The State also argues, as did the dissent in Kennebrew v. State, 267 Ga. 400, 408, 480 S.E.2d 1 (1996) (Carley, J., ......
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