Phillips v. State

Court of Appeals of Georgia

Phillips v. State

280 S.E.2d 438, 158 Ga. App. 302, 1981 Ga. App. LEXIS 2172

CourtCourt of Appeals of Georgia

DecidedApril 16, 1981

Docket59956

StatusPublished

This text of 280 S.E.2d 438 (Phillips 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.

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Phillips v. State, 280 S.E.2d 438, 158 Ga. App. 302, 1981 Ga. App. LEXIS 2172 (Ga. Ct. App. 1981).

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Opinion

Sognier, Judge.

Phillips appealed his conviction of aggravated assault and denial of his motion for a new trial. We reversed the judgment on the ground that it was error to allow cross-examination of the key prosecution witness during appellant’s absence where the record failed to show that the waiver was made in the presence of the accused or by his express authority, or that he subsequently acquiesced in such waiver. Phillips v. State, 155 Ga. App. 509 (271 SE2d 656) (1980).

The Supreme Court of Georgia reversed the decision of this court and held that Phillips’ temporary absence “appears to have been the product of a deliberate tactical decision... by counsel,” and Phillips acquiescence in his counsel’s waiver was both knowing and voluntary; therefore, his absence during cross-examination of his wife is not ground for reversal. State v. Phillips, 247 Ga. 246 (275 SE2d 323) (1981). Accordingly, our opinion of September 2,1980 is vacated and the judgment of the trial court is affirmed.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur. Joseph H. Phillips, pro se. William F. Lee, Jr., District Attorney, MarcE. Aeree, Assistant District Attorney, for appellee.

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Sognier, Judge.

Phillips appealed his conviction of aggravated assault and denial of his motion for a new trial. We reversed the judgment on the ground that it was error to allow cross-examination of the key prosecution witness during appellant’s absence where the record failed to show that the waiver was made in the presence of the accused or by his express authority, or that he subsequently acquiesced in such waiver. Phillips v. State, 155 Ga. App. 509 (271 SE2d 656) (1980).

The Supreme Court of Georgia reversed the decision of this court and held that Phillips’ temporary absence “appears to have been the product of a deliberate tactical decision... by counsel,” and Phillips acquiescence in his counsel’s waiver was both knowing and voluntary; therefore, his absence during cross-examination of his wife is not ground for reversal. State v. Phillips, 247 Ga. 246 (275 SE2d 323) (1981). Accordingly, our opinion of September 2,1980 is vacated and the judgment of the trial court is affirmed.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur. Joseph H. Phillips, pro se. William F. Lee, Jr., District Attorney, MarcE. Aeree, Assistant District Attorney, for appellee.

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280 S.E.2d 438, 158 Ga. App. 302, 1981 Ga. App. LEXIS 2172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-state-gactapp-1981.

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