Ammons v. State

309 S.E.2d 885, 168 Ga. App. 601, 1983 Ga. App. LEXIS 2864
CourtCourt of Appeals of Georgia
DecidedOctober 25, 1983
Docket67176
StatusPublished
Cited by4 cases

This text of 309 S.E.2d 885 (Ammons v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ammons v. State, 309 S.E.2d 885, 168 Ga. App. 601, 1983 Ga. App. LEXIS 2864 (Ga. Ct. App. 1983).

Opinion

Deen, Presiding Judge.

Randolph Ammons was found guilty of burglary and sentenced to serve five years in prison and five years on probation. He appeals from this judgment, enumerating as error ineffective assistance of counsel.

[602]*602Brown, a resident of a DeKalb County apartment complex, was idly looking out his front window when he observed an old van, which he could not remember having seen in the area, making several slow passes along a street running through the complex. In the front seat were two black males. When the van came into view for what turned out to be the final time, Brown saw that only one person, the driver, was visible; and as the vehicle drew parallel with the witness’ vantage point, a black male ran towards the van from the building across the street, carrying a beige-colored sack apparently filled with heavy objects. At that point Brown instructed his sister-in-law to call the police, and, carrying a gun, he rushed outside and ordered the van’s driver to halt. The latter complied, stepped out of the van, and surrendered; the passenger, however, ran away and, ignoring a warning shot fired over his head, made good his escape. Police officers took custody of the driver and the van. Investigation revealed that an apartment in the building from which the escapee had emerged had been ransacked, and that attempts had been made to pry open the doors of two other units in the building. The sack found in the van (actually, a beige pillowcase) and its contents were subsequently identified by the tenant of the looted apartment.

The van driver cooperated with police, gave a written statement, and identified his co-defendant as “Larry Turner.” Two or three days later he telephoned the police and told them that “Turner,” whom he had known only casually in the neighborhood where both lived, was actually named Randolph Ammons. Police then showed Brown, the eyewitness, a group of photographs which included that of Ammons; Brown was not told in advance whether any of the photographs depicted a suspect. He identified Ammons’ picture as “possibly” that of the escapee, and a warrant was issued for Ammons’ arrest. Appellant was taken into custody at his girl friend’s apartment. After less than an hour in custody, according to the times stamped on the official records, Ammons signed a waiver, and fifteen minutes later had completed execution of a longhand statement as to his participation in the burglary.

At trial appellant repudiated the confession and asserted during his Jackson-Denno hearing that it had been made under threats of violence and was the product of isolation, protracted interrogation, and deprivation of food and drink lasting possibly as long as twelve hours. Ammons raised an alibi defense and produced as witnesses his girl friend and her younger brother, both of whom corroborated appellant’s testimony that he was with them at the time of the burglary, and that arresting officers had used force and threats in taking appellant into custody. The exact number of officers participating in the arrest was variously reported as between five and [603]*603twelve, the number increasing, in a Falstaffian sort of progression, as each succeeding witness testified. The testimony of arresting officers (officially three) and investigators conflicted in nearly every material respect with that of the defendant and his witnesses.

On appeal Ammons enumerates as the sole error ineffective assistance of counsel of such magnitude as to deny defendant a fair trial. He lists a number of alleged “mistakes” which he contends constitute ineffective assistance. Appellant complains chiefly of two instances: defense counsel’s eliciting of an in-court identification by Brown, the eyewitness who had made a tentative identification from the photographic line-up; and counsel’s failure to request a jury instruction that if the jury found the confession to be the product of police threats and coercion, it would be inadmissible under OCGA §§ 24-3-50; 24-3-53 (Code Ann. §§ 38-411, 38-420), because involuntary.

Appellant also complains of trial counsel’s failure to submit any requests at all for jury instructions, most particularly that cited, supra, on the admissibility of the confession, and also an instruction that a conviction may not be based solely on the uncorroborated testimony of a co-defendant, under OCGA § 24-4-8 (Code Ann. § 38-121); appellant concedes, however, that the latter instruction was rendered inappropriate by counsel’s alleged faux pas (however inadvertent) in eliciting an in-court identification of the defendant after the prosecutor had not done so. Other mistakes listed by appellant are counsel’s failure to object to the admission of the confession; his failure to reserve the right to object to jury instructions; his placing defendant’s character in evidence during the state’s presentation of its case by eliciting from a police investigator that at the time of the burglary the defendant was under investigation for other crimes; his failure to object to the prosecution’s allegedly leading questions of state’s witnesses; his failure to have the co-defendant’s written statement adequately identified so that it could be admitted into evidence (the court nevertheless subsequently admitted it); and his failure to make any argument regarding the voluntariness of the confession. Held:

Appellant concedes that a defendant is not necessarily entitled to “errorless counsel, [or] counsel judged ineffective by hindsight.” MacKenna v. Ellis, 280 F2d 592, 599 (5th Cir. 1960); Pitts v. Glass, 231 Ga. 638, 639 (203 SE2d 515) (1974); Jones v. State, 243 Ga. 820, 830 (256 SE2d 907) (1979). He contends, however, that the alleged mistakes, particularly when viewed collectively, so impaired his defense as to make it impossible for the jury to make a fair determination of guilt or innocence.

The trial transcript discloses that, at the beginning of the second [604]*604day of the trial, after only two state’s witnesses had testified, defendant expressed dissatisfaction with his attorney (“I feel I need somebody ... to fight for me”) and informally requested a continuance to obtain new counsel. The court offered to recess the trial until noon (approximately two and one-half hours) to permit new counsel to arrive and take over the defense. When Ammons replied that this was insufficient time to complete the arrangements, the court twice offered to appoint a public defender to assist in the defense. Upon defendant’s twice declining to accept the offer, the court refused to grant a continuance, pointing out that to allow a defendant to cause the trial to be suspended while he obtained a new lawyer could cause the administration of justice to bog down in interminable delays: “I don’t see how you could ever operate the [criminal justice] system by starting the trial and then let the man get up and say he is dissatisfied.” The court further offered to be especially vigilant that the defendant’s right to a fair trial not be compromised: “And if I think you haven’t been adequately represented, then there are certain things that I could do ... [I] f I think [counsel] hasn’t done everything he can do for you there are certain rights I can exercise on your behalf. But just to grab something out of the air and say, ‘Well, he is not doing it’ — I haven’t see[n] any evidence of anything that he has failed to represent you in so far.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Graham v. State
324 S.E.2d 518 (Court of Appeals of Georgia, 1984)
Johnson v. State
321 S.E.2d 402 (Court of Appeals of Georgia, 1984)
Beard v. State
319 S.E.2d 136 (Court of Appeals of Georgia, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
309 S.E.2d 885, 168 Ga. App. 601, 1983 Ga. App. LEXIS 2864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ammons-v-state-gactapp-1983.