Shaw v. State

• Citation: 303 S.E.2d 448,251 Ga. 109
• Decision Date: 06 June 1983
• Docket Number: No. 39264,39264
• Parties: SHAW v. The STATE.
• Court: Supreme Court of Georgia

Page 448

303 S.E.2d 448

251 Ga. 109

SHAW v. The STATE.

No. 39264.

Supreme Court of Georgia.

June 6, 1983.

Rehearing Denied June 28, 1983.

H. Christopher Coates, M. Laughlin McDonald, Neil T. Bradley, Atlanta, for Tom Shaw.

Gary C. Christy, Dist. Atty., Cordele, for the State.

SMITH, Justice.

Tom Shaw was indicted for aggravated assault on a peace officer, robbery, and simple battery. He was convicted on all three counts and sentenced to a total of thirty-one years imprisonment, with two fifteen-year terms to run consecutively and a one-year term to run concurrently. On appeal from the denial of his motion for new trial, the Court of Appeals affirmed Shaw's conviction. Shaw v. State, 163 Ga.App. 615, 294 S.E.2d 676 (1982). We granted certiorari and now reverse.

This case arises out of the March 1981 beating of Dooley County Deputy Sheriff Terry Wright. Shaw was originally indicted and tried for the crime in April 1981, but the jury was unable to reach a verdict and a mistrial was declared. Shaw was retried in July 1981, resulting in the conviction now on appeal. The general circumstances of Shaw's retrial are set forth in the Court of Appeals' opinion. We include additional facts as they relate to Shaw's contention that he was denied assistance of counsel.

During his first trial, Shaw was represented by Benjamin Zeesman, who at that time also represented Shaw in a number of pending but unrelated misdemeanor cases. Following the mistrial, Shaw became dissatisfied with Zeesman and decided to change attorneys. On May 15, 1981 (some two weeks after his first trial ended in a mistrial and 76 days before the commencement of his retrial), Shaw visited the offices of Tifton attorney David Perry for the purpose of retaining Perry's services for the retrial. After conferring about the case, Perry and Shaw signed a document entitled "Criminal Fee Contract" and Shaw wrote Perry a check in the amount of $50. The fee contract states that Perry's law firm "has been retained by Tom Shaw to represent Tom Shaw as a result of criminal charges in Dooley County, Georgia, wherein the charge is Agg. Assault & Armed Robbery & Simple Battery." (Emphasis supplied.) The retainer fee agreed upon was $1000.

At the May 15 meeting, Perry instructed Shaw to inform Zeesman that Perry would represent Shaw at the retrial and to request that Zeesman forward his file from the first trial to Perry. Shaw, while returning to Dooley County that same day, stopped by Zeesman's Cordele law offices and told Zeesman that he was discharged in the aggravated assault case. Shaw and Zeesman agreed that Zeesman would continue to represent Shaw in the pending misdemeanor cases, for which Zeesman had already been paid. In response to Shaw's request for his case file, attorney Zeesman informed him that no such file existed. In addition, contrary to the usual practice in Dooley County Superior Court, Zeesman failed to notify the court, the clerk's office, or the district attorney that he had been discharged from the aggravated assault case by Shaw.

Approximately ten days after his initial consultation with Shaw, Perry traveled to Dooley County and met with Shaw, observed the scene of the beating, and interviewed prospective witnesses for the upcoming trial. Perry also visited the Dooley County Clerk of Court's office, where he reviewed the file of Shaw's first trial and made photostatic copies of relevant documents. Perry again visited Shaw in mid-June, at which time he accepted a check for $350 as payment for his services as Shaw's attorney.

On Monday, July 27, Shaw was arraigned in Dooley County Superior Court. When Shaw's case was called, Zeesman informed the court (for the first time, it appears) that he was no longer Shaw's attorney of record in the case. Shaw then informed the judge that he had retained Perry as his lawyer for the retrial. The court advised Shaw that his case was set for trial on Thursday, July 30, three days later; and that Shaw should be present at that time with counsel to represent him. After leaving the courtroom Monday afternoon, Shaw called Perry's office, only to learn that the attorney was out of state on vacation.

On Tuesday, July 28, Perry's secretary informed him by telephone that Tom Shaw had called the day before and told her that his case would proceed to trial on Thursday. Perry advised her to call the clerk of Dooley County Superior Court and request a continuance. The secretary did so, but was informed that the judge would not grant a continuance. On July 29, Perry attempted to get an airline flight back to Georgia, but was unable to do so because of the impending air traffic controllers' strike. Attorney Perry, while maintaining throughout that Shaw never formally retained him for purposes of conducting his trial defense, testified at the hearing on Shaw's motion for new trial that, in his opinion, Shaw honestly believed that Perry would represent him at the retrial if he paid Perry the remaining $600 by the date of the commencement of the retrial. In addition, Shaw testified that once he learned that Perry could not represent him, he contacted four other area attorneys in hopes of securing a lawyer for the July 30 trial date. All declined to take the case on such short notice.

On Thursday, July 30, the case was called for trial. Shaw immediately announced that he had no attorney and moved for a continuance. The court denied the motion, stating that attorney Perry's failure to appear "has nothing to do with the trial of this case ... [Y]ou may have [an] action against attorneys for not complying with your contractual relationship ... [But the] only issue before the Court is whether or not these charges can be proven by the State and this is the business we must be about ..." The court offered to appoint the public defender to represent...