James Wedel v. State

• Court: Court of Appeals of Georgia
• Decided: July 8, 2014
• Docket: A14A0622
• Status: Published

Opinion

THIRD DIVISION BARNES, P. J., BOGGS and BRANCH, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

July 8, 2014

In the Court of Appeals of Georgia A14A0622. WEDEL v. THE STATE.

B RANCH, Judge.

James Wedel was tried by a Cherokee County jury and found guilty of one

count of child molestation.1 Wedel now appeals from the denial of his motion for a

new trial, arguing that the trial court decided his lawyer’s motion to withdraw during

an informal hearing from which Wedel was absent, and that this conduct violated his

constitutional right to be present at all critical stages of the proceedings against him.

We find no error and affirm.

Where, as here, an appeal from the grant or denial of a motion for a new trial

involves a mixed question of law and fact, we employ two different standards of

1 OCGA § 16-6-4 (a). The jury also acquitted Wedel of one count of aggravated sexual battery. review. We review de novo the trial court’s decision as to any questions of law, while

applying the clearly erroneous standard of review to any factual findings made by that

court. State v. Wakefield, 324 Ga. App. 587 (751 SE2d 199) (2013). “In Georgia, it

is well-settled that the ‘clearly erroneous’ standard for reviewing findings of fact is

equivalent to the highly deferential ‘any evidence’ test.” Reed v. State, 291 Ga. 10, 13

(3) (727 SE2d 112) (2012) (citations omitted). Thus, we will uphold the trial court’s

factual findings if there is any evidence to support them, and we defer to the trial

court’s credibility determinations. See Cruz v. State, 305 Ga. App. 805, 808-809 (2)

(700 SE2d 631) (2010) (“[i]t is the function of the trial court at the hearing on the

motion for new trial to determine witness credibility and to resolve any conflicts in the

testimony”) (citation, punctuation and footnote omitted).

The relevant evidence in this case consists of the transcript of the hearing on

Reynolds’s motion to withdraw as Wedel’s attorney and the testimony received at the

hearing on Wedel’s motion for a new trial. The record shows that following his arrest,

Wedel retained Marietta attorney Victor Reynolds to represent him. Reynolds and

Wedel were personal friends, with Wedel, his brother, and his brother’s wife having

done work for Reynolds at his home. After discovering that he knew the alleged

victim (who was the stepdaughter of W edel’s brother), Reynolds associated attorney

2 Jimmy Berry, with whom Reynolds shared office space, to assist him with the

representation of Wedel. 2 The case was specially set for trial on August 22, 2011. On

the day before trial, Reynolds met with members of Wedel’s family at his office, who

provided Reynolds with clothes for Wedel, who was incarcerated, to wear at trial.

Wedel’s girlfriend specified which of the clothes the attorneys should provide to

Wedel for the first day of trial.

The following morning, Reynolds and Berry took the designated clothes with

them into the Cherokee County courthouse and gave them to deputies, who were then

to give the clothes to Wedel. A short time later, however, the deputies informed

Reynolds, Berry, and the assistant district attorney trying the case that potential

contraband had been found in the jacket pocket of the suit the attorneys had provided

for Wedel. Two agents from the Cherokee County narcotics squad then interviewed

Reynolds and Berry and informed the lawyers that they were seeking a search warrant

for the remaining clothes located in their legal office. Reynolds, Berry, and the

prosecutor then went to the chambers of the judge scheduled to preside at trial to

2 Eventually it was decided that Berry would conduct voir dire and would cross- examine three of the State’s seven witnesses, including the victim.

3 inform him of these developments. Wedel was not present at that meeting, which was

not recorded or transcribed.

Shortly after the in-chambers meeting, court convened with all attorneys and

Wedel present. At the outset of the court proceedings, Reynolds stated on the record

the events of that morning and concluded by saying, “I’ve been placed in – in

minimally a very difficult position in continuing to represent Wedel,” and moved to

withdraw from the case. The trial judge then noted for the record how he had learned

of the morning’s events concerning the discovery of the alleged contraband, that he

had met with the attorneys in chambers prior to court, and that during the conversation

in chambers, Reynolds had indicated he wanted to withdraw from representing Wedel.

The trial judge stated on the record that after Reynolds proposed withdrawing from

the case, the judge “made some suggestions about possible options,” and told

Reynolds and Berry “to think about” those options and to speak with Wedel. After

summarizing what had transpired in chambers, the judge asked the lawyers for both

Wedel and the State if any of them knew of any additional information “concerning

our conversation back in chambers” that needed to be placed on the record. The judge

further stated: “I want to hear from [W edel] whether there’s any problem that [the]

conversation [occurred] outside his presence. . . . I want to make sure there’s no issue

4 about anything being discussed outside his presence.” Reynolds responded that he and

Berry had spoken with Wedel and “advised him of the substantive nature” of the

conversation that had occurred in chambers. The State responded that the description

of the conversation given by the court was “a complete assessment of that meeting.”

At this point in the proceedings, Berry asked the court if Reynolds was going

to be allowed to withdraw. The judge indicated no decision had been made, saying:

“I’m going to ask [Wedel] and then I’m going to go step by step [through] some of the

things we discussed.” The judge reiterated, however, that before he addressed the

question of withdrawal, he wanted “to make sure there is not any problem about the

fact of our having discussed [the situation] without [Wedel] being present.” The judge

therefore asked once more if there was anything either party wanted to place on the

record regarding the in-chambers meeting “before I inquire of M r. Wedel about Mr

Reynolds’ withdrawing. Anything else?” When the parties offered no additional

information, the court spoke directly to Wedel, telling him: “Mr. Reynolds . . . has

said he wants to withdraw. Do you have a problem with that?” Wedel responded, “My

preference is to retain both [attorneys] as previously planned. And I assume full

responsibility for having a Valium tablet.” The trial court cautioned W edel not to

make any remarks about the contraband and again asked whether he had any objection

5 to Reynolds’s proposed withdrawal from the case. Wedel reiterated his desire to

proceed with both attorneys representing him. The court thereafter indicated its

inclination to grant Reynolds’s motion and asked Wedel if he had “[a]nything else”

he wanted to say about the subject. Wedel responded that he had nothing else to say.

The trial judge then asked the State to make an offer of proof as to how the pill

had been discovered and as to whether there was any possibility that the pill had been

in Wedel’s clothes by accident. The judge further stated that he wanted to hear such

proof “before I decide whether to let . . . Mr. Reynolds withdraw.” The prosecutor

then stated in her place that phone calls at the Cherokee County jail, where Wedel was

incarcerated, were recorded and sometimes monitored; that on the previous weekend

Wedel was heard asking his girlfriend to place a pill in the clothing he would be

provided for trial “so that he could relax a little bit and be able to focus on the trial”;

that based on this conversation the deputies had been careful to search W edel’s

clothing after receiving it from his attorneys that morning; and that during the search,

deputies had discovered what they suspected was a Xanax tablet in the interior breast

pocket of Wedel’s suit jacket. After hearing this offer of proof, the trial court granted

Reynolds’s motion to withdraw.

6 The case thereafter proceeded to trial with Berry acting as Wedel’s sole lawyer.

Following his conviction, Wedel filed a motion for a new trial, arguing, among other

things, that the trial judge had heard and decided Reynolds’s motion to withdraw

during the in-chambers meeting from which W edel was absent. Wedel asserted that

the trial court had therefore violated his constitutional right to be present at all critical

stages of the proceeding against him. At the hearing on Wedel’s motion, Berry

testified that when he left the chambers of the judge on the morning of trial, it was his

understanding that he would be trying the case alone, without Reynolds. Berry

explained that “after [Reynolds] told the judge he wanted to withdraw, I knew it was

going to fall on me.” He further testified that following the meeting in chambers,

Reynolds and he had met with Wedel to discuss the situation with their client. As best

Berry could recall, Reynolds indicated to Wedel that “he was withdrawing no matter

what.” There was no testimony by Berry as to whether the lawyers explained to Wedel

that the ultimate decision about Reynolds’s withdrawal would be made by the trial

court.

Reynolds testified that at the meeting in chambers, he told the judge that he was

“extremely aggravated” and that he wanted to withdraw from his representation of

Wedel. According to Reynolds, the judge responded that he wanted to go to the

7 courtroom and “get everything on the record.” The judge suggested that perhaps Berry

could try the case with Reynolds sitting in close proximity to act as an advisor, and

Reynolds took this as an indication that the judge would grant the motion to withdraw.

Reynolds also stated that during the subsequent meeting with Wedel, he told Wedel

that he was going to withdraw from the case.

The trial court denied Wedel’s new trial motion, finding, in relevant part, that

“there was no hearing, no testimony, and there were no rulings” that took place in

Wedel’s absence. In its written order, the court observed, “[a]s is usual for this trial

judge, suggestions were made in chambers about ways to work around” the situation

presented by the discovery of the contraband and Reynolds’s expressed desire to

withdraw from the case. The court further noted, however, that the transcript of the

hearing on the motion to withdraw and the testimony at the hearing on the motion for

new trial showed that “no final ruling or decision was made while in chambers.” On

appeal, Wedel argues that a hearing on Reynolds’s motion to withdraw from his

representation of Wedel on the eve of trial was a critical stage of the proceedings

8 against him, and that the trial court violated his right to be present at that proceeding

by deciding that motion in chambers.3

Under both the Georgia and the federal constitutions, a criminal defendant has

the “right to be present at all critical stages of his trial.” Fair v. State, 288 Ga. 244,

260 (3) (702 SE2d 420) (2010) (citation omitted). “[T]he right to be present attaches

‘at any stage of [a] criminal proceeding that is critical to its outcome if the defendant’s

presence would contribute to the fairness of the procedure.’ Kentucky v. Stincer, 482

U. S. 730, 745 (107 SCt 2658, 96 LEd2d 631) (1987).” Huff v. State, 274 Ga. 110, 111

(2) (549 SE2d 370) (2001). The Supreme Court of Georgia “has determined that a

critical stage in a criminal prosecution is one in which a defendant’s rights may be

lost, defenses waived, privileges claimed or waived, or one in which the outcome of

the case is substantially affected in some other way.” Id. (citation and punctuation

omitted). Nevertheless, a defendant’s right to be present during a critical stage “may

be waived if the defendant later acquiesces in the proceedings occurring in his

absence.” Jackson v. State, 278 Ga. 235, 237 (3) (599 SE2d 129) (2004) (citation and

punctuation omitted). See also Brown v. State, 310 Ga. App. 285, 290 (6) (e) (ii) (712

3 Wedel does not challenge as improper the grant of Reynolds’s motion to withdraw from Wedel’s case.

9 SE2d 521) (2011) (defendant waived right to claim that his absence from proceedings

was error where he was fully informed of the proceedings that occurred in his absence

and acquiesced in those proceedings).

Here, evidence was presented at the hearing on the motion for new trial that

supported the court’s conclusion that the trial court did not rule on Reynolds’s

withdrawal motion until after court had been convened and Wedel was present. The

record also shows that the judge went to great lengths to get all of the information

about what had transpired at the in-chambers meeting on the record in W edel’s

presence; that the judge repeatedly asked Wedel if he had a problem with the fact that

a discussion about the situation occurred without Wedel being present; and that

neither Wedel nor Berry objected. Under these circumstances, Wedel waived the right

to claim that his absence was error. See, e.g., Wilson v. State, 274 Ga. 637, 639 (3)

(555 SE2d 725) (2001) (defendant acquiesced in the proceedings when, following an

in-chambers conference held in defendant’s absence at which the court ruled on a

motion in limine, when the motion and the court’s ruling wwere subsequently

discussed at length by all parties in defendant’s presence without objection by defense

counsel and without comment by defendant); Brown, 310 Ga. App. at 290 (6) (e) (ii).

Judgment affirmed. Barnes, P. J., and Boggs, J., concur.