Tudhope v. State, 5 Div. 425

Decision Date21 November 1978
Docket Number5 Div. 425
PartiesRoger Begg TUDHOPE v. STATE.
CourtAlabama Court of Criminal Appeals

James B. Sprayberry, Auburn, for appellant.

William J. Baxley, Atty. Gen., and Karen Neal Daniel, Asst. Atty. Gen., for the State, appellee.

JOSEPH J. MULLINS, Retired Circuit Judge.

The grand jury of Lee County returned an indictment against the appellant, Roger Begg Tudhope, charging him with grand larceny. Appellant entered a plea of not guilty. A jury found the appellant guilty of grand larceny. The trial court duly sentenced the appellant to five years imprisonment in the penitentiary and the appellant appeals to this Court.

The appellant was at all proceedings in the trial court represented by court appointed counsel, and is so represented in this Court. This appeal was submitted to this Court on briefs.

The appellant contends that the trial court erred to his prejudice on the following grounds: First, in overruling appellant's motion to dismiss his court appointed counsel; second, by overruling appellant's motion to exclude the state's evidence.

The record before us shows that the indictment against the appellant was returned on April 13, 1978. Counsel to represent, assist and defend the appellant was appointed on April 26, 1978. On April 28, 1978 the appellant, attended by his counsel, was duly arraigned and entered a plea of not guilty as charged. The trial court set the case to be tried on Friday, May 12, 1978. When the case was called for trial on May 12, 1978, the appellant made known to the court that he would like to say something to the court.

There was a conference in the courtroom out of the presence and hearing of the jury venire, with the appellant, his counsel, the trial judge, and other officials of the court present. The appellant stated to the trial judge that the counsel the court had appointed for him is not able to represent him and that appellant wanted him taken off the case because there was a conflict of interest, and appellant wanted another counsel appointed to represent him. That the conflict of interest was due to the fact that the counsel appointed by the court to represent the appellant has a law partner whose father is kin to the appellant by marriage, and appellant's wife had filed a divorce suit against him. This request was denied and the case continued for trial until 9:00 o'clock Monday, May 15, 1978 at which time the trial was held.

We find nothing in the record before us tending to indicate that the appellant made known to the trial court before his case was called for trial on May 12, 1978 that he wanted the court to discharge his court appointed counsel. Appellant's attitude toward the court was most contemptible during the conference. The court was patient, kind, but firm with the appellant during the lengthy colloquy between the court and the appellant. The appellant did not request the court to discharge his attorney and allow the appellant to conduct his defense. The record indicates that the court appointed counsel discharged his professional duties in defending the appellant in a commendable manner. We have examined the entire record in this case and find nothing in it that indicates the appellant was prejudiced by the court refusing to discharge his counsel, and appoint another. The appellant had ample time to discharge his counsel before his case was called for trial.

We hold that the question of removing a court appointed counsel and appointing another counsel for the appellant was a matter within the discretion of the trial court. That considering the conduct of the appellant, the defense of the appellant in the trial court as shown by the record, the trial court did not abuse its discretion in overruling appellant's request to discharge his court appointed counsel and appoint him another counsel. Hamilton v. State, 270 Ala. 184, 116 So.2d 906; Hayes v. State, Ala.Cr.App., 340 So.2d 1142; Hillyer v. State, Ala.Cr.App., 351 So.2d 646; Matthews v. State, Ala.Cr.App., 361 So.2d 1195.

We now address appellant's second contention that the trial...

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11 cases
  • Reynolds v. State Of Ala.
    • United States
    • Alabama Court of Criminal Appeals
    • October 1, 2010
    ...is within the sound discretion of the trial court. ' Crawford v. State, 4 7 9 So. 2d 1349, 1355 (Ala. Cr. App. 1985). See also, Tudhope v. State, 364 So. 2d 708 (Ala. Cr. App. 1 978).... The right to choose counsel may not be subverted to obstruct the orderly procedure in the court or to in......
  • Reynolds v. State
    • United States
    • Alabama Court of Criminal Appeals
    • December 14, 2012
    ...within the sound discretion of the trial court.’ Crawford v. State, 479 So.2d 1349, 1355 (Ala.Cr.App.1985). See also, Tudhope v. State, 364 So.2d 708 (Ala.Cr.App.1978).... The right to choose counsel may not be subverted to obstruct the orderly procedure in the court or to interfere with th......
  • Baker v. State
    • United States
    • Alabama Court of Criminal Appeals
    • January 12, 2001
    ...within the sound discretion of the trial court.' Crawford v. State, 479 So.2d 1349, 1355 (Ala.Cr.App.1985). See also, Tudhope v. State, 364 So.2d 708 (Ala.Cr.App.1978).... The right to choose counsel may not be subverted to obstruct the orderly procedure in the court or to interfere with th......
  • Floyd v. State
    • United States
    • Alabama Court of Criminal Appeals
    • July 7, 2017
    ...the sound discretion of the trial court.’ Crawford v. State, 479 So. 2d 1349, 1355 (Ala. Cr. App. 1985). See also, Tudhope v. State, 364 So. 2d 708 (Ala. Cr. App. 1978).... The right to choose counsel may not be subverted to obstruct the orderly procedure in the court or to interfere with t......
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