Shaw v. State

• Decision Date: 10 September 1982
• Docket Number: No. 64079,64079
• Citation: 294 S.E.2d 676,163 Ga.App. 615
• Parties: SHAW v. The STATE.
• Court: Georgia Court of Appeals

Page 676

294 S.E.2d 676

163 Ga.App. 615

SHAW v. The STATE.

No. 64079.

Court of Appeals of Georgia.

Sept. 10, 1982.

Christopher Coates, Laughlin McDonald, Neil Bradley, Atlanta, for appellant.

Gary C. Christy, Dist. Atty., Cordele, Richard E. Thomas, Asst. Dist. Atty., for appellee.

CARLEY, Judge.

Appellant was indicted for aggravated assault on a peace officer, robbery and simple battery. The jury in appellant's first trial was unable to reach a verdict and a mistrial was declared. Appellant was retried and found guilty on all three counts. Appellant appeals from the denial of his motion for new trial.

1. During his first trial which resulted in a mistrial on April 30, 1981, appellant was represented by retained counsel. The same attorney was also representing appellant in several pending but unrelated misdemeanor cases. During the week prior to July 27, 1981, this attorney, as counsel of record, was informed that appellant's retrial would be held the following week. Appellant and the same attorney appeared in court on the morning of July 27, 1981. When appellant's case was called on that day, the state announced that it was ready for trial. However, appellant and the attorney briefly left the courtroom before responding to the call of the case. Upon his return, counsel informed the court that he no longer represented appellant in this case, but would continue to represent him in the misdemeanor cases. Following this announcement, the trial court informed appellant that his case would be set for trial on Thursday, July 30, 1981, three days later. Apparently, appellant contacted the trial court on the afternoon of July 27 to state that the attorney he had retained to represent him in his retrial was on vacation and would not be available for a trial to begin in three days. The trial court again advised appellant that the case was set for July 30, 1981, and that he should be present at that time with counsel to represent him.

On July 30, 1981, appellant appeared in court without counsel. At that time, appellant informed the trial court that he had retained the services of an attorney on May 15, 1981, who "just told me yesterday he wouldn't ... he couldn't get here." In point of fact, the secretary of the attorney whom appellant had ostensibly "retained" had been in contact with the district attorney and the clerk of the court. Apparently, the gist of the message relayed to the district attorney and the court was that the attorney, who was on vacation out of state, did not formally represent appellant but that appellant did want to secure his services for the retrial. It was subsequently established that appellant had conferred with the attorney and had partially paid his retainer fee. However, not having been paid the balance of his fee and not having received the materials requested by him from appellant, the attorney had not formally entered onto the active representation of appellant. Apparently, appellant had not been in touch with his "retained" counsel for some weeks prior to the retrial and had only tried to contact him on July 27, after the case had been called.

With this factual background the trial court declined to grant the motion for continuance which was based upon the absence of appellant's "retained" counsel. Instead, the trial court appointed the public defender to assist appellant during the course of the trial. The denial of the motion to continue the case in order that "retained" counsel could appear is enumerated as error.

The facts which surround appellant's legal representation at his retrial do not demonstrate that, through no fault of his own, he was denied the right to retained counsel. Compare Wallis v. State, 137 Ga.App. 457, 224 S.E.2d 91 (1976). Instead, the facts show that appellant discharged his former retained counsel and failed to exercise reasonable diligence to secure a replacement. "The record and transcript sub judice does not show a reasonable diligence on [appellant's] part to retain counsel, or on the part of the alleged retained counsel, if indeed retained, to make such fact known to the trial court." Reid v. State, 237 Ga. 106, 108, 227 S.E.2d 24 (1976). " 'It is the defendant's duty to employ counsel to aid in the preparation of his defense in advance of the trial of the case. [Cits.] ...' [Cit.]" Scott v. State, 151 Ga.App. 840, 841, 262 S.E.2d 198 (1979). "[I]f the defendant were negligent in failing to promptly employ counsel, a continuance may be denied within the trial judge's discretion. [Cit.]" Wallis, 137 Ga.App. at 459-460, 224 S.E.2d 91, supra.

Appellant was not incarcerated pending his retrial, and was not indigent. Appellant had discharged his original attorney, a fact which was either not accomplished or at least not made known to the trial court until the call of the case. When the discharge of his former counsel was announced to the trial court, appellant was advised that he would be tried in three days and to secure legal representation. See generally Hendrix v. State, 145 Ga.App. 170, 243 S.E.2d 112 (1978). It was not until his case had already been called that appellant tried to contact an attorney with whom he had previously conferred but with whom he had not communicated in several weeks. See Woodcock v. State, 144 Ga.App. 678, 242 S.E.2d 335 (1978). Although appellant had failed to meet both the financial and consultive obligations necessary to the retention of the services of this attorney, a continuance was sought because of the absence of "retained" counsel. Cf. Scott, 151 Ga.App. 840, 262 S.E.2d 198, supra. Under these circumstances, the trial court was authorized "to find that the 'fault in nonrepresentation' clearly [lay] with appellant herein. [Cit.]" Walker v. State, 157 Ga.App. 484, 485, 277 S.E.2d 740 (1981). " 'Generally, granting or refusing a continuance is a matter within the discretion of the trial court, and unless abused, such discretion will not be controlled. [Cits.]' [Cit.] We find that the court did not abuse its discretion in denying the request for continuance." Scott, 151 Ga.App. at 841, 262 S.E.2d 198, supra. The facts "do not display the diligence by appellant or his alleged retained counsel which is contemplated by the Georgia Constitution or the Sixth Amendment, and is not sufficient to show an abuse of discretion by the trial court in proceeding with the trial." Reid v. State, 237 Ga. at 108, 227 S.E.2d 24, supra.

Appellant also asserts that it was error for the trial court to appoint the public defender to advise him during the trial. "We recognize that a defendant must not be coerced into accepting counsel not of his own choosing and that he may proceed to defend himself without counsel. [Cit.]" Rogers v. State, 156 Ga.App. 466, 467, 274 S.E.2d 815 (1980). In the instant case, however, appellant did not waive his right to counsel and assert his constitutional right to represent himself. Instead, it is clear that appellant asserted his right to counsel but insisted that that legal representation be conducted by his "retained" counsel. As discussed above, it was not error, under the circumstances, to deny the motion to continue the trial until "retained" counsel could appear. Therefore, the trial court in the instant case was confronted with a defendant who had not waived his right to counsel but who was not entitled to a continuance based upon the absence of the attorney he wished to represent him. Thus, "[t]he case sub judice is not one of those instances where a defendant declines to permit appointed counsel to represent him and chooses to represent himself, but one in which this defendant ... didn't 'have no choice' but to represent himself... [W]e [can] not ... endorse the defendant's position that a continuance was mandated when requested by defendant. Such a continuance would have been one alternative for handling the situation available to the trial court. Another alternative ... would be to appoint other counsel or his former retained counsel as counsel for defendant and continue with the trial..." (Emphasis supplied.) Robertson v. State, 162 Ga.App. 873, ---, 293 S.E.2d 477 (1982). Accordingly, we find no error in the trial court's appointment of the public defender to advise appellant during the trial.

2. Appellant enumerates as error the denial of a continuance predicated upon the absence of four defense witnesses for whom subpoenas had been issued but not served by the sheriff's department. It does not appear that a motion for continuance on this ground was ever made at trial. See Holland v. State, 141 Ga.App. 422(2), 233 S.E.2d 497 (1977). What does appear is that the subpoenas were delivered to the sheriff for service at approximately 4 p. m. on the afternoon of July 30, 1981, the first day of the retrial. Two of the four witnesses apparently were residents of Florida. The other two witnesses were apparently residents of Dooly County but could not be located by the sheriff.

Appellant has a constitutional guarantee of compulsory process to obtain the testimony of witnesses. See Code Ann. § 2-111; Murphy v. State, 132 Ga.App. 654, 209 S.E.2d 101 (1974). However, such a guarantee is of "no benefit when the witnesses reside beyond the jurisdiction of the courts of this State." Hughes v. State, 228 Ga. 593, 597, 187 S.E.2d 135 ...