Thaxton v. State

390 S.E.2d 841, 260 Ga. 141, 1990 WL 56986
CourtSupreme Court of Georgia
DecidedMay 2, 1990
DocketS90A0255
StatusPublished
Cited by95 cases

This text of 390 S.E.2d 841 (Thaxton v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thaxton v. State, 390 S.E.2d 841, 260 Ga. 141, 1990 WL 56986 (Ga. 1990).

Opinions

Benham, Justice.

Richard Lamar Thaxton appeals his convictions for the robbery and felony murder of Mary Frances White.1 We affirm appellant’s felony murder conviction.2

Appellant was positively identified by an eyewitness as the man who grabbed the 65-year-old victim’s purse and dragged her with him when she refused to yield possession of her bag. After the victim was knocked to the ground and the purse strap broken, the assailant, with the purse, entered a waiting car bearing the tag number CTD-834. The victim suffered abrasions and bruises, and died the next morning after suffering a heart attack. The neuropathologist who served as assistant medical examiner testified that the victim suffered severe internal trauma in the abdomen, blunt force trauma on the head, and died from a heart attack caused by generalized blunt trauma.

1. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of felony murder. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); [142]*142Durden v. State, 250 Ga. 325 (5) (297 SE2d 237) (1982).

2. Appellant contends that he asserted his constitutional right to represent himself during jury selection and again during the course of the trial, and that the trial court’s denial of his request, without discussion or inquiry, was error.

Both the federal and state constitutions guarantee a criminal defendant the right to self-representation. See Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975); 1983 Ga. Const., Art. I, Sec. I, Par. XII. An unequivocal assertion of the right to represent oneself, made prior to trial, should be followed by a hearing to ensure that the defendant knowingly and intelligently waives the right to counsel and understands the disadvantages of self-representation. Faretta, 422 U. S. at 836; Strozier v. Newsome, 871 F2d 995 (11th Cir. 1989). See also Potts v. State, 259 Ga. 812 (388 SE2d 678) (1990); Williams v. State, 169 Ga. App. 812, 814 (315 SE2d 42) (1984).

In the case at bar, appellant did not make an unequivocal assertion of his right to represent himself prior to the commencement of his trial.3 While his remarks may be construed as an expression of dissatisfaction with his attorney, they cannot be construed as an assertion, much less an unequivocal assertion, of his right to represent himself. Compare Faretta, supra; Fitzpatrick v. Wainwright, 800 F2d 1057 (11th Cir. 1986). Appellant did, however, unequivocally assert his right to represent himself in the midst of his trial, during a discussion between the court and counsel concerning appellant’s behavior.4 The denial of this request to represent himself, a request made after the testimony of the State’s third witness, cannot serve as the basis for reversal since a defendant “cannot frivolously change his mind in midstream” by asserting his right to self-representation in the middle of his trial. Preston v. State, 257 Ga. 42 (3) (354 SE2d 135) (1987).

3. During voir dire, appellant destroyed the indictment and announced before the venire that he wished to make a confession. Contending that it would be impossible to select an impartial jury from the panel that had witnessed appellant’s outburst, appellant’s counsel moved for a new panel from which to select the jury.

The trial court’s denial of that motion was not error. The only member of the venire who expressed reservations about his ability to be impartial due to appellant’s behavior did not serve on the jury which convicted appellant. Since there was no showing that the out[143]*143burst influenced the minds of the jury prejudicially to appellant, the denial of appellant’s motion was not error. Roberts v. State, 259 Ga. 441 (2) (383 SE2d 872) (1989). Compare Lingerfelt v. State, 147 Ga. App. 371 (1) (249 SE2d 100) (1978).

4. Appellant maintains that, having witnessed appellant’s courtroom behavior, the trial court sua sponte should have conducted an inquiry into appellant’s competence to stand trial. Pursuant to the pre-trial request of appellant’s counsel, psychiatric personnel at the Georgia Regional Hospital had evaluated appellant approximately six weeks prior to trial and determined that appellant was competent to stand trial, and that his lack of cooperation should not be mistaken as an inability to communicate effectively with an attorney. “[Constitutional guarantees require the trial court to inquire into competency, even where state procedures for raising competency are not followed, if evidence of incompetence comes to the court’s attention.” Baker v. State, 250 Ga. 187, 190 (297 SE2d 9) (1982). Assuming arguendo that appellant’s courtroom behavior constituted evidence, it was not evidence of incompetence but the very lack of cooperation that the psychiatric evaluators warned should not be mistaken for incompetence. There being no evidence of incompetence, the trial court did not err by failing to sua sponte order a competency hearing. See Harris v. State, 256 Ga. 350 (2) (349 SE2d 374) (1986).

5. Appellant contends he was denied a fair trial due to a purported violation of the holding in Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). At trial, the investigating detective testified that, based on a meeting he had with one of appellant’s co-defendants, he included a picture of appellant in a photo line-up he assembled for the eyewitness. The detective’s testimony that he “had received information that [appellant] was the one — ” was stricken in response to appellant’s hearsay objection. After testimony in which the detective identified several photographic exhibits, explained how he had presented the photos to the eyewitness, and stated that the eyewitness had immediately identified appellant’s photo as depicting the person she had seen take the victim’s purse, appellant’s counsel made a motion for mistrial, citing Bruton.

A motion for mistrial not made at the time the testimony objected to is given is not timely and will be considered as waived because of the delay in making it. Peoples v. State, 184 Ga. App. 439 (361 SE2d 848) (1987).

6. Contending that he did not receive, sufficient notice of the State’s intent to introduce evidence of a similar transaction and that the court did not hold a timely hearing on the admissibility of the similar transaction evidence, appellant maintains the admission of the similar transaction evidence violated Uniform Superior Court Rule 31.1-3 and was reversible error.

[144]*144Although Rule 31.1 requires the notice to be filed at least 10 days before the trial, it authorizes the exercise of a trial court’s discretion by providing that the trial court may shorten or lengthen the time for compliance with the rule. Robinson v. State, 257 Ga. 194 (1) (357 SE2d 74) (1987). The trial court’s decision that the 5-day notice given by the State was sufficient was not an abuse of discretion. See Thompson v. State, 186 Ga. App. 421 (2) (367 SE2d 586) (1988).

Appellant, citing Grogan v. State, 192 Ga. App.

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

Related

Wesley Vick, Jr. v. State
Court of Appeals of Georgia, 2025
Neloms v. State
873 S.E.2d 125 (Supreme Court of Georgia, 2022)
Jessica Alred v. Georgia Public Defender Council
Court of Appeals of Georgia, 2022
Jermaine Porter v. State
Court of Appeals of Georgia, 2021
Kenneth Ray Leggett v. State
Court of Appeals of Georgia, 2020
COOPER v. the STATE.
829 S.E.2d 433 (Court of Appeals of Georgia, 2019)
Coast v. State
305 Ga. 508 (Supreme Court of Georgia, 2019)
ALLEN v. the STATE.
824 S.E.2d 50 (Court of Appeals of Georgia, 2019)
Hillsman v. the State
802 S.E.2d 7 (Court of Appeals of Georgia, 2017)
Owens v. State
783 S.E.2d 611 (Supreme Court of Georgia, 2016)
Wiggins v. State
782 S.E.2d 31 (Supreme Court of Georgia, 2016)
Tyner v. the State
780 S.E.2d 494 (Court of Appeals of Georgia, 2015)
Herrington v. the State
775 S.E.2d 195 (Court of Appeals of Georgia, 2015)
Shelton R. Thomas v. State
771 S.E.2d 255 (Court of Appeals of Georgia, 2015)
McDonald v. State
770 S.E.2d 6 (Supreme Court of Georgia, 2015)
Roger Bettis v. State
Court of Appeals of Georgia, 2014
Bettis v. State
761 S.E.2d 570 (Court of Appeals of Georgia, 2014)
Charles Edwin Mason v. State
Court of Appeals of Georgia, 2014
Mason v. State
754 S.E.2d 397 (Court of Appeals of Georgia, 2014)
Danenberg v. State
729 S.E.2d 315 (Supreme Court of Georgia, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
390 S.E.2d 841, 260 Ga. 141, 1990 WL 56986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thaxton-v-state-ga-1990.