323 S.E.2d 898 | Ga. Ct. App. | 1984
Defendant was convicted of the offenses of aggravated assault upon a peace officer and escape while armed with a dangerous weapon, although the jury returned a verdict of not guilty of two counts of burglary, kidnapping and another count of aggravated assault upon a peace officer. A motion for new trial based upon the general grounds was filed, heard and denied. Defendant appeals. Held:
Based on Bethay v. State, 237 Ga. 625 (229 SE2d 406), and Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493), defendant’s appointed counsel has moved to withdraw from the case on appeal, contending the same is wholly frivolous. Counsel also properly filed a brief, raising any possible point of law which might be considered arguably in support of an appeal. Additionally, counsel served upon the defendant a copy of the motion to withdraw and the brief which counsel filed in this court. As required by the decision in Bethay, we have fully examined the record and transcript to determine whether, in fact, the appeal is frivolous, and finding it so, counsel was granted permission to withdraw.
Appointed counsel, in his brief, set forth it could be argued that
We do not agree with counsel or the defendant that the police officers lacked probable cause to make an arrest. The defendant was observed inside the service station with defendant’s van located on the service station property at a time when it was closed, albeit the jury did not convict him of the two counts of burglary, kidnapping and aggravated assault upon the other police officer. After his arrest, he made an escape while armed with a dangerous weapon, and the evidence was sufficient to show that there was an aggravated assault upon the police officer. Applying the standard prescribed in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), after further examination of the record and transcript, we are satisfied that the evidence was sufficient to enable a rational trier of fact, in this case the jury, to find the defendant guilty of the offenses of aggravated assault upon a peace officer and escape while armed with a dangerous weapon beyond a reasonable doubt, even though the evidence at trial was conflicting as to whether or not he was guilty of the offense of burglary (being observed inside the service station shortly before his arrest) although he was outside the service station building at the time of his arrest. See Mullis v. State, 248 Ga. 338 (1) (282 SE2d 334); Newberry v. State, 250 Ga. 819, 820 (1) (301 SE2d 282). The testimony offered by the State clearly shows the police officers had probable cause to make the arrest (even though the jury did not convict him of burglary), and the same was not illegal so as to void the subsequent armed attack upon the police officer and the éscape while armed with a dangerous weapon. With reference to the other questions, the irregularities in the arrest and arraignment, the record does not support the claims of the defendant.
Defendant contends that he was denied effective assistance of counsel because his counsel failed to file any pre-trial motions and failed to properly prepare for trial. Decisions as to what motions to file and what witnesses to call are the exclusive province of the lawyer
Judgment affirmed.