Frasard v. State

629 S.E.2d 53, 278 Ga. App. 352, 2006 Fulton County D. Rep. 1038, 2006 Ga. App. LEXIS 326
CourtCourt of Appeals of Georgia
DecidedMarch 22, 2006
DocketA05A2314
StatusPublished
Cited by4 cases

This text of 629 S.E.2d 53 (Frasard 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
Frasard v. State, 629 S.E.2d 53, 278 Ga. App. 352, 2006 Fulton County D. Rep. 1038, 2006 Ga. App. LEXIS 326 (Ga. Ct. App. 2006).

Opinion

Barnes, Judge.

Michael Frasard appeals his conviction for aggressive driving in violation of OCGA § 40-6-397 (a).1 Frasard represented himself at trial, but, following his conviction, he retained counsel who filed a motion for new trial. After the trial court denied this motion, this appeal followed. He now contends the trial court failed to investigate and establish that he knowingly and voluntarily waived his right to counsel, that the trial court erred by failing to charge the jury on justification, and that the verdict was contrary to the evidence. We disagree, and affirm.

1. Viewed in the light most favorable to the verdict, Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997), the evidence shows that early one morning, after a SEC Championship football game,2 as part of a program to curtail street crime in connection with the game, an Atlanta police officer, in uniform, was traveling in an unmarked police car at approximately five miles per hour on Peach-tree Center Avenue. The officer was one lane away from the curb on the left hand side of the four-lane street because he was watching a woman who appeared to be followed by two men.

In his car, Frasard approached from behind the officer’s car and came up so close to the officer’s car that the officer could not see Frasard’s headlights. When the officer did not go faster, Frasard followed closely behind the officer and began honking his horn and moving his car back and forth behind the officer’s car. Although the officer motioned for him to go around, Frasard refused to do so. In the officer’s opinion, Frasard could have passed him at any time. The officer recalled that the only vehicles on the street were Frasard’s and his own, and Frasard had ample room to go around him.

When they had to stop for a red light, the officer got out of the police car and approached Frasard to see if he needed assistance. At that point, Frasard yelled at the officer, ‘You need to get out of my way. You have no right to go that slow.” The officer then called for a marked police car and Frasard was cited for aggressive driving.

[353]*353The officer estimated that Frasard stayed on his horn for the time it took to travel the entire city block from Harris to Baker Streets; he estimated this was about 20-25 seconds. According to the officer, Frasard was very agitated, yelling at him, and was upset with the fact that the officer was driving slowly. When asked why he did not just go around the officer, Frasard replied, “you shouldn’t be going that slow on a city street.”

Frasard testified that, according to his parking slip, he left his parking deck at 11:27 p.m. and the officer testified he was stopped at 11:30. He testified that he waited for a car to pass, and then pulled out behind what later turned out to be the officer’s car. He got behind the car and “because the driver was going too slow,” “tooted” his horn. After Frasard tooted his horn, the officer slowed down even more. He further testified that when he tooted his horn again, the officer “slammed on his brakes to try to create an accident rather than avoid an accident.” He could not pass the officer because traffic was in the lane closest to the curb. Frasard did not pass the officer on the right side because he did not believe it made sense “to get in the fast lane and come over and cut the officer off again” to make his left turn to go home.

He “honked [his] horn because the driver was going too slow which is, [he thought, his] right as a driver.” He maintained that he “tooted his horn,” which is different from “laying on the horn or honking on the horn.” Frasard also attempted to show that his horn was no louder than the taxi bell used by one of the hotels in the area. According to him, this hotel has a very loud taxi bell and his horn was no louder than that bell.

Frasard asserts that the evidence was insufficient to sustain his conviction as he was “stuck” behind a car traveling five miles an hour on a street with a thirty mile per hour speed limit. Needing to make a left turn, he proceeded to honk his horn which he contends OCGA § 40-8-70 (a)3 allows because he was unable to legally pass the car ahead of him. He contends his conduct was not irrational and thus does not violate the Code section.

On appeal we view the evidence in the light most favorable to the verdict, Frasard no longer enjoys the presumption of innocence, and we determine the sufficiency of the evidence, but neither weigh the [354]*354evidence nor judge the credibility of the witnesses. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). Further, resolving conflicts and inconsistencies in the evidence, determining the credibility of witnesses, and weighing the evidence are for the factfinder. Hampton v. State, 272 Ga. 284, 285 (1) (527 SE2d 872) (2000); Turner v. State, 206 Ga. App. 683, 684 (426 SE2d 168) (1992). Thus, after reviewing the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found Frasard guilty of violating OCGA § 40-6-397 (a) beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Frasard also contends that his conviction must be reversed because the record does not show that he voluntarily and intelligently waived his right to counsel. The right to counsel

may be waived only by voluntary and knowing action. Waiver will not be lightly presumed, and a trial judge must indulge every reasonable presumption against waiver. It is clear, however, that should a defendant choose to represent himself, he must have an opportunity to voluntarily, knowingly, and intelligently waive his right to counsel. The standard for waiver requires an intentional relinquishment or abandonment of a known right or privilege, and the constitutional right of the accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear on the record.

(Citations and punctuation omitted.) Hasty v. State, 215 Ga. App. 155, 158 (2) (450 SE2d 278) (1994).

The State initially argued that the record on appeal would be supplemented with a transcript that would show that Frasard was advised by the trial court of the dangers and disadvantages of proceeding without counsel. The State has now filed a supplemental brief stating that this transcript is not available because the court reporter who took down the trial has moved from the State and may be dead.

Nevertheless, the State contends the affidavit for pleading not guilty that Frasard executed shows he was properly warned of his [355]

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Cite This Page — Counsel Stack

Bluebook (online)
629 S.E.2d 53, 278 Ga. App. 352, 2006 Fulton County D. Rep. 1038, 2006 Ga. App. LEXIS 326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frasard-v-state-gactapp-2006.