*1 217 them below. Cf. French v. 212 failure to raise 67) (1990), opinion. dissenting Decided November Rehearing denied December Kondritzer, Reighard,
Steven W. Kenneth appellant. Slaton, Drolet, Attorney, Joseph Patsy Lewis R. District J. Y. Porter, Greenberg, Attorneys, Carl P. Assistant District appellee.
A90A1415. BUTLER v. THE STATE.
Beasley, Judge. appeals Butler the denial of his motion for new trial after his molestаtion, conviction of child OCGA 16-6-4.
He was a shoe salesman working on commission when he was ar- July rested on days, 1987. He was unable to make bond for 33 losing job his as a August applied appointed result. On he counsel and the Cobb circuit defender’s office determined that met he eligibility attorney standards and an for him. Defend- attorney. ant never met or talked with this bond, When work, he was released on defendant returned to only part-time incarcerated, work was available. While defendant was he was evicted from his belongings placed residence and all his on the curb, from disappeared. which most expend He therefore had to most part-time of his income for essentials. income,
Because he now had the circuit defender’s office deter- he longer mined sel, no met standards for coun- attorney and the assigned was removed court order of October 27, 1987.
After he was attorney, denied an he went to an listed on qualified $5,000 defender’s list. He was told a retainer was neces- sary, which he pay. was unable to
At the 10, 1987, motions defendant peared pro se and was attorney. responded asked he had an He he was unable to afford one gotten job “maybe” but had and could afford one later.
At 18, 1988, the calendar call on defendant advised the court that he had been told eligible he was not and that he had financially tried to retain counsel unable to but was sо. do The court suggested speak prosecutor, he with the after which the case opportunity was taken off the him give get calendar to an attorney. again an counsel, On March inquiry ineligible office. the defender’s No but was found regarding and his his efforts to retain was made of pay required retainer. appeared April again call, calendar without an Defendant attorney, although’ either defendant or the this was not addressed *2 court. appeared 1, 1988, defendant
At the trial of the case on November addressed. He con- counsel and the issue was not further without only questions asking himself, minimal of a few voir dire ducted the potential jurors. empaneled jury lunch, and excused for After the was repre- attorney whо advised the court he returned to court with an observing trials and had watched de- sented defendant. He had been approached break, fendant conduct voir dire. At the lunch he represent ant defendant a told him he needed an he would and gave quarter gave him him a retainer. Defendant as he phone retainer, call. The attоr- which he then borrowed to make a ney, a member of the bar since had never tried criminal case representing trying only experience in or assisted one. His civil was contending examiners, himself unfair. he the exam was when sued the bar Although placed he had to be on the circuit defender’s qualified attorneys, accepted. list of he hаd not been conviction, After trial 1988. counsel withdrew adjudging On an order was entered defendant an indigent appeal appointed. representing him and counsel general asserting trial, New counsel filed a motion for new 910) (1988); grounds, State, Stinson v. 185 Ga. App. newly Towns v. motion appoint evidence, was amended to failure to include discoverеd § in counsel violation of OCGA 17-12-4 USCR and “ineffec tive assistance of counsel.” (a) erroneously
1. failed Defendant first contends the trial court requested although indigent counsel, one, he was and had thereby depriving him of effective assistance of counsel violation of imple- I, I, XIV, 17-12-4, § Ga. Const. Art. Sec. Par. OCGA menting rules.
During County provided indigent time, this a local dеfense program, contemplated by Chapter as Article 1 OCGA Title implemented by seq. USCR 29.1 et provides designee
USCR 29.4 that the its shall determine court or the financial of an and that accused for counsel may appoint “[t]he court the defendant does counsel cases where qualify provided provided [as not rules.]” and cannot be сounsel (5) (a) regarding §§ See OCGA 17-12-2 indi- 17-12-10 gency vel non. may appoint provides “[t]he court coun- 29.5 further USCR person any who is unable to obtain accused
sel for counsel hardship, emergency, or due to circumstances such private bar be- of the case members documented refusal pay for counsel.” The Cobb defender’s of financial сause guidelines attorneys repeat provision, specify three must representation.1 decline any possibility he could ob-
Defendant was not advised there was baseline, even if he did not meet the financial tain nor were the
“special inquired into as of the time of circumstances” imple- comply trial. There was a failure to menting with OCGA 17-12-4and effectively defendant counsel. rules which denied volunteering counsel, These failures resulted prepare. then advised the court he needed a continuance Art. Sec. Par. XIV offense order to provides “Every person charged I, I, with against privilege the laws of this State shall have the and ben- efit of counsel.” “ guarantees рerson I, ‘[Art. I, XIV] Sec. Par. . . . such who is employ right to court. unable by counsel the to have counsel empty right . . .’ That benefit of counsel is not an has emphasized again. been necessary . . . time and time right That reasonable time is *3 truly recog-
for the to be a substantial one has been many guaranty nized in cases. ‘The constitutional amounts to noth- ing, by appointed by unlеss the counsel selected accused or the the given [sic] court are a reasonable time to ascertain what is the charac- upon ter of the case that the accused is called to defend.’ Nick v. (58 48). prepa- State, [Cits.] 128 Ga. . 573 SE . . While the time generally ration of such a case is a matter for the discretion of the judge, rеviewing upon, courts, trial when called have to review the Balkcom, 721, exercise of that discretion.” Fair v. 216 Ga. 725-726 (119 691) (1961). SE2d requested Denial of the continuance after an volun representation teered to assume the v. was denial of counsel. Smith (175 1) (1970); supra; Greek, 312, Fair, 226 Ga. 317 SE2d Lowrance v. (1) (359 196) (1987) App. (physical pre State, 421, 183 Ga. 422 SE2d cedent); (22 462) (1942). State, 727, see Walker v. 194 Ga. 733 SE2d (b) impediment validity process There is another Having repeatedly requested appointed used here. counsel, defendant right never waived his to one. representation specified
Until afforded, defendant never 1 open question designee may specify many It is to whether the court’s how members activated, “members,” sаys must refuse before this clause is since the rule indicating only a number more than one. 220 relying federal Sixth Amendment right
whether he was the I, I, by Sec. XIV of provided counsel or that Art. Par. the Georgia Constitution. either, however, for waiver an
Under standard inten relinquishment right or of a or privilege, tional abandonment known “ right represented an accused and of tо be ‘constitutional invokes, itself, court, protection counsel of of a trial which the — — at liberty accused life or is stake is This whose without counsel. imposes the protecting duty weighty responsibility upon serious judge determining intelligent of whether there is an competent may waiver the accused. While an waive accused right counsel, proper clearly whether there is waiver should be court, fitting determined it would be appropriate the record.’ Johnson [v. upon appear that determination Zerbst, (58 1461) (1937)].” Clarke v. 458 82 304 U. S. SC LE2d Zant, (275 49) (1981). Kemp, See Hance v. 247 Ga. 196 SE2d 258 (373 184) (1988); Singleton State, v. (1) Ga. 650 SE2d 176 Ga. (337 350) (1985). App. 733 SE2d
“(A) judge investigate long thoroughly must and as as the cir- cumstances of the case before demand. ... To bе valid such waiver apprehension must be made with an of the nature of the charges, them, statutory offenses included within the range of al- punishments thereunder, lowable possible charges defenses to the thereof, mitigation and all other facts essential ato State, v. understanding . . Turner broad of the matter. . 162 [Cits.]” (1) (293 67) (1982). State, v. App. Ga. See Moss 806 SE2d (395 363) App. (1990). Hеre, 81 SE2d only the record reflects request ant’s or silence. adequate There was not an State, waiver. Stapp v. (1) (290 439) (1982); 249 289 Ga. SE2d State, Strozier v. (1) (369 504) (1988). 187 Ga. 17 SE2d reversed, judgment must be of since review the record shows that did “reasonably not render effective assistance.” Glass, Pitts v. Brogdon (1974). Ga. 639 See (3) Ga. 2. remaining Consideration of the necessary enumerations is nоt light holding 1. Division *4 Judgment Birdsong JJ., reversed. and Cooper, Carley, concur. C. J., J., and Sognier, judgment Been, J., concur only. P. Mc- Murray, J., Banke, J., J., Pope, P. P. dissent.
Pope, Judge, dissenting.
1. I cannot agree with the conclusion the trial court failed to comply implementing with OCGA 17-12-4 rules. Said stat- ute provide procedure all trial courts of state to determining eligibility a defendant’s ap- counsel and tо point in where is determined to be indi- cases a defendant County Superior gent. Cobb does have The record shows the Court of procedure. Superior Rule 29.5 of the Uniform Court Rules re- such a quires eligibility superior income level for
each court to determine Superior The record shows the Court of Cobb counsel. County eligibility and that defendаnt in had established such an scale appropriate admin- this case was reviewed several occasions requirements if istrative officerto determine he met the Repeatedly it counsel. ceeded the standard. was determined that defendant’s income ex- provides “may,” special circumstances, Rule 29.5 the court eligibility рoint counsel even for one who does not otherwise meet the alia, where, standard members of the bar because of financial The record shows the provide inter there is “documented refusal of the case pay to for counsel.” adopted by County rules also public “may” accept defender a client for private due find no I to “refusal of the case three members of the bar.” requirement applicable in the statutes or rules permitting, though requiring, appoint- ant be advised of this rule not representation by ment of counsel when the defendant is refused private majority opinion Therefore, bar. I cannot concur with the might qualify a failure so to advisе the defendant that he otherwise guidelines counsel even he exceeded the income con- comply applicable stitutes a failure to with the statutes or rules. agree failing I Nor can that the trial court this case erred in provi- counsel for defendant under the preliminary case, In sions. at motions jail, 10, 1987, four months after he was released from defendant re- ported judge job to he had been rehired to his and “now I can maybe attorney.” judge afford an The trial declined to rule on de- fendant’s motion for a continuance but informed defendant he could January date, have until the scheduled obtain an prepare for trial. When the case was called explained judge defendant to the that he had not obtained counsel purchase personal belongings because he first had to new clothes and replace apartment those stolen when he was evicted from his while jail attorneys required payment and had talked to several $2,500 $5,000 between case, to take his which defendant could Although ready, not afford. the State announced the record shows the again Again public case was continued. de- again ineligible. fender’s officefor counsel and he was found to be year case was not reached for trial until November one over jail during from defendant’s release from which time defendant was employed earning indigent guide- income in excess of the defense county. ready lines for the Defendant announced to commence the *5 trial. hearing
At the on defendant’s motion for new trial defendant ad- granted oppor- mitted he was several continuances to afford tunity to obtain counsel but defendant held to the belief that the case might for lack of The record be dismissed evidence. shows the trial arguably supports court heard the evidence which defendant’s claim special provision for the rules and counsel under the
nevertheless, discretion, its denied defendant’s re- quest agree Thus, I for counsel. cannot with the conclusion majority “special ap- that defendant’s circumstances” were not propriately prior my opinion, presented In considered. neither the evidence presented hearing
to trial nor the evidence at the on defendant’s court, law, motion for new trial appoint as a matter of “special pro- counsel to defendant under the circumstances” determining eligibility vision of the rules fоr Both Rule 29.5 and the counsel.
guidelines adopted by County leave the decision to counsel under circumstances to the discre- tion of the trial court. A decision left to the discretion of the trial appellate court will not be overturned on review unless the record shows an abuse of I discretion. find no such abuse in this case and denying therefore believe we should hold the trial court did not err in request defendant’s counsel. denying
2. Neither Ido believe the trial court erred the motion ground attorney points provide for new trial on the defendant’s failed to ef- alleged fective assistance of counsel. Defendant to three errors support attorney’s to lack of ure to ing his claim of ineffective assistance of counsel: his adequate opportunity prepare attorney’s trial, fail- object testimony attorney’s to certain mistake rais- prior opening record, the issue of defendant’s criminal thus prose- door to the introduction of harmful character evidence Because, conclude, cutor. as I the defendant was not entitled to pointed attorney’s adequate opportunity counsel, the lack of an prepare for trial is due to defendant’s own failure to retain counsel prior argument to the commencement of trial. Defendant’s second showing ineffective assistance of counsel is also meritless. The testi- mony concerning of certain witnesses statements to them the made pursuant attorney’s victim is admissible to OCGA 24-3-16 and the object ground testimony impermissibly failure to on the such bol- testimony attorney Finally, stered the victim’s does not show error. testimony of defendant’s trial on defend- attorney’s question ant’s motion for new trial shows the defendant about his decisiоn to prior solely criminal record on a was not based understanding testimony permit prosecu- lack of that such would present prejudicial tion to character evidence also on defendant’s misrepresentation prior own that he had no criminal proyides by the defendant induced which is Error an adult. record no basis (2) (221 SE2d appeal. Edwards See Presiding Judge Presiding Deen, to state authorized I am join Judge Presiding McMurray in this dissent. Judge Banke 4, 1990 December Decided Rehearing 20, 1990 denied December *6 Yarbrough, appellant. Larry W. Nancy Attorney, Bernes, Debra H. Charron, District Thomas J. appellee. Attorneys, for Jordan, Assistant District I. Gary Pelphrey, curiae. amicus R. PEPSICO, INC. TYLER et al.
A90A1447. (400 SE2d Judge. Cooper, Tyler brоught Appellant action to recover dam- this Claudette attempting open injuries ages personal while she sustained Pepsi-Cola cap a nutcracker. with two liter bottle of aluminum on a cap squeezed jaws was and the were of the nutcracker When eye. appellant striking cap exploded turned, bottle from the liability, nеgligence complaint on theories of strict was based subsequently Appel- added. fraud, was and a loss of consortium claim cap charged inade- aluminum were the threads on the lants quately point manufacture; were too that the threads of formed pressure cap turned, shallow; from the carbon- that when cap beveragе from the bottle and the bottle forced the ated inside warning. labelling seller, The retail that the the should have included (“bottler”) product, bottling company and sold the which bottled cap appellee, the manufacturer of the aluminum licensor and manufacturer franchisor/ Pepsi syrup, named defendants. of were summary judgment granted appellee’s The trial court all motion for appeal counts, followed. appellants error, 1. In contend their first enumeration of holding appellee under was not a manufacturer court erred OCGA 51-1-11 (b). Appellants argue appellee had sub- that because production, the bot- of stantial control over the tler’s sale and distribution products by bottling agreement between exclusive virtue purposes” appellee appellee bottler, is and the intents and “for all syrup, appellee manufactures manufacturer. The record shows companies bottling mix other it with which it sells to licensed ingredients produce Pepsi-Cola. Pepsi-Cola and dis- is then bottled