Stevens v. State

• Decision Date: 17 April 1991
• Docket Number: No. A91A0434,A91A0434
• Citation: 405 S.E.2d 713,199 Ga.App. 563
• Parties: STEVENS v. The STATE.
• Court: Georgia Court of Appeals

Page 713

405 S.E.2d 713

199 Ga.App. 563

STEVENS v. The STATE.

No. A91A0434.

Court of Appeals of Georgia.

April 17, 1991.

Merritt & Rose, C. Nathaniel Merritt, Hinesville, for appellant.

Dupont K. Cheney, Dist. Atty., J. Thomas Durden, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

Rufus Stevens appeals his judgment of conviction of two counts of sale of cocaine in violation of the Georgia Controlled Substances Act and the sentence. He enumerates five errors. Held:

1. Appellant's assertion that the trial court erred when it failed to disclose the identity of the confidential informant in response to a timely motion to disclose is without merit.

In the case at bar, the evidence at the motion to disclose hearing shows, regarding the two alleged drug sales, that the confidential informant was not located where he could witness one of these sales; and, that the confidential informant was not observed actually witnessing the other sale, although perhaps he could have done so from his vantage point approximately a car length away. Further, appellant testified at trial that prior to being held in jail pending trial on an unrelated DUI charge the only two times he saw the undercover agent, the agent was in the presence of a man named Dean Holmes and no drug sales occurred. Dean Holmes testified as a defense witness. After initially testifying that no drug sales occurred between appellant and the undercover agent during the three occasions when he was present, Holmes subsequently recalled appellant had sold drugs to the undercover agent on one occasion.

This case is factually distinguishable from Moore v. State, 187 Ga.App. 387, 391, 370 S.E.2d 511, where the evidence established the informant actually witnessed the contested drug sale and was at the time of trial " 'the only witness in a position to amplify or contradict the testimony' of the appellant and the police officer." An absolute privilege against disclosure in every case involving an informer is impermissible. See generally Thornton v. State, 238 Ga. 160, 163(2), 231 S.E.2d 729. However, after examining the record in its entirety and applying the balancing test of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, we find that the trial court did not err.

2. Appellant asserts that he was provided ineffective assistance of counsel prior to and during trial of this case in violation of the Georgia Constitution and the Sixth and Fourteenth Amendments of the United States Constitution.

When appellant's case was assigned for trial on April 9, 1990, appellant sent word to the court that he did not have an attorney. The court, having appointed counsel for appellant who had claimed entitlement thereto as an indigent, elected to hold a hearing into the assertion. At the hearing appellant in essence argued he had been denied adequate representation by counsel, as the latter had not conferred with him about the case prior to trial and had neither obtained from him nor considered information which appellant believed necessary to the presentation of his defense. See generally Hawes v. State, 240 Ga. 327, 328(1), 240 S.E.2d 833.

" 'Effective assistance does not mean that a defendant is entitled to have the best counsel appointed, or any particular counsel, but it does mean that he must have such assistance as will assure him due process of law.' " Hawes, supra at 330, 240 S.E.2d 833. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. At the hearing, the trial court initially relieved appointed counsel, but following receipt of additional information regarding counsel's consultations with appellant, reappointed counsel to represent him. The trial court's tacit findings regarding consultation between appellant and his appointed counsel were not clearly erroneous and we have no basis for overturning these findings on appeal. Moreover, appellant failed to make a showing of inadequate representation as required by the first prong of the two-prong rule of Strickland v. Washington, supra, particularly in view of the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. The trial court did not err in failing to relieve counsel of his representation of appellant at the hearing.

Appellant next asserts the trial court, however, compelled him to proceed to trial without benefit of counsel and to represent himself. The trial court in its order denying appellant's motion for new trial pertinently found that appellant "after explanation of the consequences to him of self-representation, elected to proceed pro se. The court appointed stand-by counsel to assist [appellant] whenever he desired.... The court again finds that trial counsel was not ineffective and that the decision of [appellant] to proceed pro se was his choice, freely and knowingly made."

Appellant never expressly stated: "I waive my right to counsel and desire to represent myself at trial." However, the hearing transcript reflects the following: "THE COURT: You're entitled to be represented by counsel, of course. [DEFENDANT]: Yes, sir. THE COURT: But you're not entitled to be represented by counsel of your choosing unless you pay for it. And you're an indigent ... and the court has so determined.... The court feels that [counsel] has adequately prepared your case.... Now, I'm going to revoke the court's previous order where I relieved [counsel] and I'm going to reinstate him as your attorney. You can use him if you want to or you can not use him. You can represent yourself. But I'm not going to appoint another attorney for you. So you either use [reinstated counsel] or you represent yourself. The court doesn't ever recommend anyone represent themselves because ... in the first place you're not skilled in the law and it's a very difficult thing for you to do to separate your emotions for the rest of it.... You can't do the job that counsel can do for you. But its your privilege under the Constitution of the United States to represent yourself or to have court-appointed counsel who is competent and who will reasonably effectively carry out his duties.... The court has no reason whatever to disqualify [appointed counsel]. So...