Newby v. State

Court of Appeals of Georgia

Newby v. State

612 S.E.2d 837, 272 Ga. App. 507, 2005 Fulton County D. Rep. 1165, 2005 Ga. App. LEXIS 318

CourtCourt of Appeals of Georgia

DecidedMarch 25, 2005

DocketA05A0921

StatusPublished

This text of 612 S.E.2d 837 (Newby 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

Newby v. State, 612 S.E.2d 837, 272 Ga. App. 507, 2005 Fulton County D. Rep. 1165, 2005 Ga. App. LEXIS 318 (Ga. Ct. App. 2005).

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Opinion

Blackburn, Presiding Judge.

Following a jury trial that resulted in a reckless driving conviction, Justin Newby appeals, arguing that the trial court erred in failing to ascertain on the record that Newby knowingly and voluntarily waived his right to testify. Because no law required the trial court to do so, we affirm.

Construed in favor of the verdict, the evidence shows that three nearby pedestrians witnessed Newby accelerate his vehicle to a high rate of speed while driving in a shopping center parking lot, endangering those pedestrians. Represented by counsel at trial, Newby did not testify but rather called two witnesses to show he was traveling slowly. The jury found him guilty of reckless driving, and he appeals.

Newby’s sole enumeration of error is that the trial court failed to advise him of his right to testify and failed to determine on the record that he waived that right knowingly and voluntarily. After carefully considering the matter, the Supreme Court of Georgia in Burton v. State¹ agreed with the majority of jurisdictions that “the trial judge has no duty to advise a defendant of the right to testify or to ascertain on the record whether the defendant’s waiver of that right is voluntary, knowing, and intentional.” In Barron v. State,2 our Supreme Court reiterated that it was not persuaded “that we should mandate [508]*508the trial court to engage in an on-the-record colloquy with a defendant to inquire of the non-testifying defendant whether he desires to waive his right to testify”; rather, such an inquiry is simply a “better practice.”

Decided March 25, 2005. Lister & Holt, Steven E. Lister, Scott W. DePlonty, for appellant. Charles A. Spahos, Solicitor-General, Jefferson F. Upchurch, Assistant Solicitor-General, for appellee.

Accordingly, we have repeatedly and consistently rejected such an enumeration of error when raised by nontestifying defendants. See, e.g., Brock v. State;3 Avila-Nunez v. State;4 Backey v. State;5 King v. State;6 Coonce v. State.7 Indeed, the law is so clear in this area that the Supreme Court of Georgia, in transferring the present case to this Court, stated in its transfer order that this case would “require only the application of unquestioned and unambiguous constitutional issues.” Newby’s appellate argument that this is a case of first impression is utterly groundless.

Judgment affirmed.

Miller and Bernes, JJ., concur.

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Blackburn, Presiding Judge.

Following a jury trial that resulted in a reckless driving conviction, Justin Newby appeals, arguing that the trial court erred in failing to ascertain on the record that Newby knowingly and voluntarily waived his right to testify. Because no law required the trial court to do so, we affirm.

Construed in favor of the verdict, the evidence shows that three nearby pedestrians witnessed Newby accelerate his vehicle to a high rate of speed while driving in a shopping center parking lot, endangering those pedestrians. Represented by counsel at trial, Newby did not testify but rather called two witnesses to show he was traveling slowly. The jury found him guilty of reckless driving, and he appeals.

Newby’s sole enumeration of error is that the trial court failed to advise him of his right to testify and failed to determine on the record that he waived that right knowingly and voluntarily. After carefully considering the matter, the Supreme Court of Georgia in Burton v. State¹ agreed with the majority of jurisdictions that “the trial judge has no duty to advise a defendant of the right to testify or to ascertain on the record whether the defendant’s waiver of that right is voluntary, knowing, and intentional.” In Barron v. State,2 our Supreme Court reiterated that it was not persuaded “that we should mandate [508]*508the trial court to engage in an on-the-record colloquy with a defendant to inquire of the non-testifying defendant whether he desires to waive his right to testify”; rather, such an inquiry is simply a “better practice.”

Decided March 25, 2005. Lister & Holt, Steven E. Lister, Scott W. DePlonty, for appellant. Charles A. Spahos, Solicitor-General, Jefferson F. Upchurch, Assistant Solicitor-General, for appellee.

Accordingly, we have repeatedly and consistently rejected such an enumeration of error when raised by nontestifying defendants. See, e.g., Brock v. State;3 Avila-Nunez v. State;4 Backey v. State;5 King v. State;6 Coonce v. State.7 Indeed, the law is so clear in this area that the Supreme Court of Georgia, in transferring the present case to this Court, stated in its transfer order that this case would “require only the application of unquestioned and unambiguous constitutional issues.” Newby’s appellate argument that this is a case of first impression is utterly groundless.

Judgment affirmed.

Miller and Bernes, JJ., concur.

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Bluebook (online)

612 S.E.2d 837, 272 Ga. App. 507, 2005 Fulton County D. Rep. 1165, 2005 Ga. App. LEXIS 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newby-v-state-gactapp-2005.

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