Wedel v. State

761 S.E.2d 454, 328 Ga. App. 28, 2014 WL 3057165, 2014 Ga. App. LEXIS 458
CourtCourt of Appeals of Georgia
DecidedJuly 8, 2014
DocketA14A0622
StatusPublished
Cited by4 cases

This text of 761 S.E.2d 454 (Wedel 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
Wedel v. State, 761 S.E.2d 454, 328 Ga. App. 28, 2014 WL 3057165, 2014 Ga. App. LEXIS 458 (Ga. Ct. App. 2014).

Opinion

Branch, 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 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 Victor 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 Wedel’s brother), Reynolds associated attorney 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, [29]*29who 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 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 [Wedel] whether there’s any problem that [the] conversation [occurred] outside his presence. ... I want to make sure there’s no issue 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 [30]*30I’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 Mr. 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 Wedel not to make any remarks about the contraband and again asked whether he had any objection 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 Wedel’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.

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Cite This Page — Counsel Stack

Bluebook (online)
761 S.E.2d 454, 328 Ga. App. 28, 2014 WL 3057165, 2014 Ga. App. LEXIS 458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wedel-v-state-gactapp-2014.