Garvey v. State

335 S.E.2d 640, 176 Ga. App. 268, 1985 Ga. App. LEXIS 2854
CourtCourt of Appeals of Georgia
DecidedSeptember 10, 1985
Docket70744
StatusPublished
Cited by33 cases

This text of 335 S.E.2d 640 (Garvey 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
Garvey v. State, 335 S.E.2d 640, 176 Ga. App. 268, 1985 Ga. App. LEXIS 2854 (Ga. Ct. App. 1985).

Opinions

Birdsong, Presiding Judge.

Michael Garvey, the defendant, appeals his conviction for the offenses of aggravated assault on a peace officer and possession of cocaine. Held:

1. Defendant claims the trial court erred in denying his request to participate in his trial, and requiring him “to elect whether he wanted his appointed counsel to represent him or whether he wanted to represent himself.” Counsel informed the court that defendant would like to take an active part in the trial, “in all probability in the opening statement, closing argument, and especially in the cross-ex-[269]*269animation of witnesses.” The court advised the defendant: “I need you to make an election, however, as to whether you want to represent yourself or whether Mr. Nix [the appointed counsel] is going to represent you.” The court and counsel and the defendant engaged in an extensive discussion of what was wanted and what would be permissible. The defendant explained his position: “[A]ll I was asking was an opportunity to cross-examine any witness of my choice, and possibly read [sic] the jury this morning. If that will create a problem I will just withdraw it and continue with it as it is.”

The trial court clarified his earlier ruling: “I will go back to the point that we began with, and that is that you have a right to represent yourself and this court will do everything it possibly can to see that you have a fair trial, and that will include allowing you to take part in such portions of the trial as you wish to do so.”

“I need you to tell me basically whether you are calling the shots or whether Mr. Nix is calling the shots. All that’s going to do is give me someone to talk to primarily.” Counsel then asked whether one counsel must question one witness, and the court said this was permissible, but added: “However, I would allow the two of you to confer. Do you understand? MR. GARVEY: Yes Sir. THE COURT: Is that acceptable? MR. GARVEY: Yes, sir. THE COURT:... Mr. Nix will be counsel, and because you have a right to represent yourself, I will allow you within limits, but I can’t draw the line, but within limits to represent yourself at certain portions of the trial.” Counsel then advised the court that the opening and closing statements would be bifurcated between himself and the defendant.

The defendant elected to cross-examine a state witness and was permitted to do so by the court. At the close of the state’s case, counsel announced that he and the defendant had discussed their case and “we had reserved our opening statement until the presentation of our defense.” The defendant presented no evidence on his behalf and no opening argument was made. The transcript does not indicate who made closing argument. The facts cited above are indicative of the understanding of counsel and defendant that defendant could participate as co-counsel, with the appointed counsel acting as lead counsel. Hence, defendant was not required to elect who was to represent him, but only designate a “lead counsel.”

At the outset, we will note a change in the Georgia Constitution of a defendant’s right to act as his counsel. In the 1976 Constitution, it was provided that “[n]o person shall be deprived of the right to prosecute or defend his own cause ... in person, by attorney, or both.” (Emphasis supplied.) Art. I, Sec. I, Par. IX. However, in the 1983 Constitution, this provision was changed to state: “No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this [270]*270state.” Art. I, Sec. I, Par. XII. The transcripts of hearings of the General Assembly on this paragraph show the primary issue debated was whether the “or both” language should be deleted. Nelms v. Georgian Manor Condo. Assn., 253 Ga. 410, 413 (321 SE2d 330).

It has been the law prior to this time that a criminal defendant had a constitutional right of self-representation which arose from the Sixth Amendment. Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562). “However, [in Georgia] a criminal defendant has a separate, state constitutional right of self-representation which derives from Art. I, Sec. I, Par. IX of the Georgia Constitution. . . .” Burney v. State, 244 Ga. 33, 36 (257 SE2d 543), U. S. cert. den. 444 U. S. 970. Thus, under our former state constitution, the defendant had the right to both self-representation and appointed counsel. Id. The trial court, however, retained the power to regulate, in its discretion, the manner in which the defendant exercised his right of self-representation. Id.

“The discretion of the trial judge in regulating the conduct of counsel, parties, and the witnesses, and in prescribing the manner in which the business [of the court] shall be conducted, including the manner in which the prisoner shall exercise his constitutional right of defense in person, is broad and is ample to enable him in any case to effect the purposes for which it is inherently his; but his discretion is not unlimited, for it must not be abused and it may not be exercised in such a way as to involve a deprivation of right.” (Emphasis supplied.) Loomis v. State, 78 Ga. App. 153, 163 (51 SE2d 13); see also Jackson v. State, 149 Ga. App. 496 (1) (254 SE2d 739).

The record does not support counsel’s assertion that defendant was denied the right to participate as co-counsel, or required to elect whether he wanted to defend himself or permit appointed counsel to represent him. See Powers v. State, 168 Ga. App. 642 (3) (310 SE2d 260). The election required was to designate lead counsel, and “[t]he trial court can require leading counsel to be appointed and leading counsel can be required to conduct other aspects of the case. . . .” Burney v. State, supra, p. 37. We find no error in the procedure followed.

2. Defendant enumerates as error the denial of his request for a change of venue. This motion was based primarily on two grounds: (1) pervasive pre-trial publicity, and (2) the individual alleged to have been shot by the defendant was a member of a prominent family in the county in which he was being tried. Voir dire of the prospective jurors revealed that some of the jurors had read local and Atlanta newspaper accounts of the incident but did not remember the details. None of the jurors selected was of the opinion that his exposure to the newspaper or TV stories about this episode would affect his opinion and all agreed they would abide by the instructions of the court to [271]*271base their determination of guilt or innocence on evidence presented in court. It is well settled in Georgia that a motion for a change of venue based on pre-trial publicity surrounding the incident involving the defendant addresses itself to the sound discretion of the trial judge, and his decision will not be disturbed on appeal unless it can be shown there was an abuse of that discretion. Coleman v. State, 237 Ga. 84, 90 (226 SE2d 911).

The best test of jury impartiality is shown by examination of prospective jurors on voir dire. Jarrell v. State, 234 Ga. 410, 416 (216 SE2d 258). Whether unfavorable pre-trial publicity has prejudiced one accused of a crime is to be judged by a test of whether the juror has formed a fixed opinion as to the guilt or innocence of the accused from reading or hearing unfavorable media publicity. Dutton v. State, 228 Ga. 850, 852 (188 SE2d 794).

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

Related

Ayla King v. State
Court of Appeals of Georgia, 2024
Leonard Antonio Tate-Jesurum v. State
Court of Appeals of Georgia, 2023
Jamie Lee Weyer v. State
Court of Appeals of Georgia, 2015
Weyer v. State
776 S.E.2d 304 (Court of Appeals of Georgia, 2015)
Sosebee v. State
640 S.E.2d 379 (Court of Appeals of Georgia, 2006)
McWhorter v. State
621 S.E.2d 571 (Court of Appeals of Georgia, 2005)
Colon v. State
619 S.E.2d 773 (Court of Appeals of Georgia, 2005)
Carnell v. State
541 S.E.2d 118 (Court of Appeals of Georgia, 2000)
Sears v. State
536 S.E.2d 605 (Court of Appeals of Georgia, 2000)
Reed v. State
534 S.E.2d 871 (Court of Appeals of Georgia, 2000)
Lawrence v. State
517 S.E.2d 822 (Court of Appeals of Georgia, 1999)
Leonard v. State
492 S.E.2d 747 (Court of Appeals of Georgia, 1997)
Love v. State
490 S.E.2d 527 (Court of Appeals of Georgia, 1997)
Lowe v. State
477 S.E.2d 341 (Court of Appeals of Georgia, 1996)
Andrews v. State
466 S.E.2d 909 (Court of Appeals of Georgia, 1996)
Person v. State
425 S.E.2d 371 (Court of Appeals of Georgia, 1992)
Sanders v. State
405 S.E.2d 727 (Court of Appeals of Georgia, 1991)
Nelson v. State
399 S.E.2d 748 (Court of Appeals of Georgia, 1990)
Singleton v. State
389 S.E.2d 496 (Court of Appeals of Georgia, 1989)
Hamlin v. State
388 S.E.2d 48 (Court of Appeals of Georgia, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
335 S.E.2d 640, 176 Ga. App. 268, 1985 Ga. App. LEXIS 2854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garvey-v-state-gactapp-1985.