Petition — Ellis v. Georgia

Office Supreme Court, U.S.

82-1597 FILED

ALEXANDER L. STEVAS,

IN THE SUPREME COURT CLERK

OF THE

UNITED STATES

OCTOBER TERM, 1982

RODNEY WAYNE ELLIS,

Petitioner,

v.

STATE OF GEORGIA,

Respondent.

PETITION FOR

WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE UNITED STATES

FROM THE SUPREME COURT

OF THE STATE OF GEORGIA

EDWIN MARGER

ROBERT O. DAVIES

6666 Powers Ferry Road, N.W.

Suite 320

Atlanta, Georgia 30339

(404) 955-1010

ATTORNEYS FOR PETITIONER

QUESTIONS PRESENTED

I.

Is a Constitutional right personal to an accused,

or may it be forced upon him by a Trial Court, even

when invocation of that right results in denial of

rights more fundamental to due process fairness?

II.

Was the denial of Petitioner's Motion for Severance

error when Petitioner's conviction was based on evi-

dence introduced against co-Defendants after Petitioner

had rested, and should the doctrine of inherent pre-

judice apply to the severance issue in this instance?

III.

When prejudicial evidence was introduced against a

co-Defendant after Petitioner had rested, should the

Trial Court have given requested instructions that the

jury could not consider such evidence against Petition-

er?

Index of Authorities

Opinions Below. . . 11+ +sseseeeee6

Statement of Jurisdiction. ...+s.++e-s

Constitutional and Statutory

Provisions Involved. . . 1. + +++ sess.

Statement of the Cases...

Reasons for Granting the Writ:

I.

II.

The case presents a unique and

important question of law, and

this Court should grant certiorari

to provide a definitive answer as

to whether a Constitutional right

is personal to an accused, and may

not be forced upon him against his

will when to force exercise of that

right will result in denial of rights

more fundamental to due process

fairness. . * . . * . * * . . * . . .

A. The forced invocation of

Petitioner's right to be pre-

sent at trial was error where

his waiver was knowingly, in-

telligently and voluntarily made,

and the decision below seriously

confused the law on this issue

in the State of Georgia

B. The forced invocation of

Petitioner's right resulted

in a denial of his right to

effective assistance of counsel. .

The Court should grant certiorari to

consider whether the Georgia Courts

ii

14

Page

below erred when they denied Petition-

er's Motion for Severance where Petition-

er's conviction was based on evidence

introduced against co-Defendants after

Petitioner had rested, and to consider

whether the doctrine of inherent pre-

judice applies to the issue of severance

in this instance. ..++eecececsee 18

A. The denial of the Motion for

Severance was error 138

B. The doctrine of inherent pre-

judice applies to the issue of

severance in this case. ..... 26

III. This Court should grant certiorari

to decide whether the refusal of the

Trial Court to give requested instruc-

tions relating to the introduction of

evidence against a co-Defendant after

Petitioner had rested was error. . 29

Conel us ion 31

Certificate of Service... 32

Appendix "A"

Appendix "B"

INDEX OF AUTHORITIES

Page

Cases

Adams v. United States Ex Rel McCann

317 U.S. 269 (1942). * * * . 7 * . * . * 13

F. E. 2d 704 1982). .

Brooks v. Tennessee

6 U.S. 605 (1972) * * . * . . . . * . 17

Byrd v. Ricketts

233 Ga. 779, 213

8. E. 2d 610 (1975). eo s'e@ 6 €.6 € & O@ ®8 ll, 12

Cawthon v. State

Ga. 395, 46

. B. 897 (1904). «© ee „ „ „ „ „ „ „ 12

Crawford v. State

Ga.App. 523, 251

S.E.2d 602 (1978) . . . . * . . . * . 25

Downey v. Peyton

n. . n ct tl A

Dutton v. Evans

o ˙¼è/ĩ r

Estes v. Texas

M.. 532 (1965). «ww ee 6.26

Farese v. United States

28 F.2d 178 (5th Cir. 1970) ..... 27

Faretta v. California

ing —— ˙ r . .

Ferguson v. Ceor ais

G8, 961) * . * . * . * . * . 17

Gideon v. Wainwright

„u. 338 (19 PS er ae

iv

TABLE OF AUTHORITIES

(Cont'd)

Harrell v. State

J Ga.App. 556, 228

S.E.2d 723 (1976). * . * . * . * . * *

Hawes v State

40 Ga. 327, 240

S.E.2d 833 (1977). . * „ * „ . * „ * .

Irvin v. Dowd

es gt GS)

Jones v. State

243 Ga. 820, 256

S.E.2d 907 (1979) * . * * . . . * . .

Krulewitch v. United States

Marshall v. United States

360 (1959).

Miller v. State

122 Ga.App. 869, 179

S.E.2d 265 (1970) . * * . * * . * . * .

Parker v. Gladden

385 U.S. 303 (1966). .

Paz v. United States

462 F.2d 740 (5th Cir. 17)

People v. Parker

2 Crim.L.Rep. 2072 (1982ʒͥ3ĩ37ꝑr

Pointer v. Texas

.

Price v. State

155 Ja- App. 206, 270

S.E.2d 203 (1980) „„ „„ © © © © „ „ @ ©

Price v. State

35 Ga. App. 844, 273

8. B. 2d 225 (1960). nn ! ʃFʃ]ò‚tñ))) vevene

Vv

16

26

24

TABLE OF AUTHORITIES

(Cont'd)

Reid v. State

235 Ga. 378, 219

S.E.2d 740 (1975). * „ 29 „ . . . „ . 16

Richardson v. United States

360 F.2d 366 Oth Cir. 1966). 0 + * „ 28

Rideau v. Louisiana

373 U 5. 723 (1963) * * * . . . * . * 26

Scott v. State

157 Ga.App. 608, 278

S.E.2d 49 (1981) . % % % „ „f „ © 16

Sheppard v. Maxwell

U.S. 333 (1966) * . . * . * * 26

Snyder x. Massachusetts

1 U 3 * 6 N 3 J 5 * . * . * * . * 10

Spence v. State

Ga.App. » 292

e |

State v. Phillips

247 Ga. N88, 275

S. E. 2d 323 (1981) „„ © %% „% „ „ „ @ @ ll, 12

Turner v. Louisiana

St 2° &@ 2. eee eae

United States v. Dunla

577 F.cd 6607 (4th Cir. 197) 12

United States v. Hand

203 F. 2d 40 rq Cir. 1932. 15

United States v. Howard

505 F.2d 665 (5th Cir. 1975) .... 27

United States v. Pittman

449 F.2d 1284 (9th Cir. 1971). ... 27

United States v. Thomas

~~ 463 F.ed 1061 (7th Cir. 1972)... 27

vi

TABLE OF AUTHORITIES

(Cont'd)

Page

Wilcoxon v. Aldredge

193 Ga. bol, 75

3 . 2d 499 (1942). * . * . * . 5 . 15

Wilson v. State

IZ Ga. 73, 90

e . 12

ong Sun X. United States

371 Us N i71 (1963) * . . * . * * 11

Constitutions

9.8. Const., Am. V. * . . * . * * . * 2, 29

U.S. Const., Am. VI. e 3, ll,

15, 2

Ueno Const., Am. XIV. . * * * . * . 7. 3. 29

Ga. Const., Art. I, § | 7 1 . „ 3

Ge, Gonet., . , 1, 0 .. cee 11.

15

Statutes

. 2

Ga. Code Ann. § 26-801 (O. C. G. A.

9 162-20). e 4, 30

Ga. Code Ann. 5 27-1701 (O. C. G. A.

7n%„%„%„„„ ˙ 4 „ 6 4

Ga. Code Ann. §§ 79A-8, et. sec.

(O. C. G. A. §§ 16-3-l1, et. sec.). „ 4

Other Authorities

ABA Standards, Compliation, The Defense

Function § 5.2 (1974). «6 eee eee 15, 16

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1982

RODNEY WAYNE ELLIS,

Petitioner,

STATE OF GEORGIA,

)

)

)

)

v. ) CASE NO.

)

)

)

Respondent. )

)

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE UNITED STATES

FROM THE SUPREME COURT

OF THE STATE OF GEORGIA

Petitioner prays that a Writ of Certiorari issue to

review the Judgment of the Court of Appeals and the

Supreme Court of the State of Georgia, which judgment

was finally entered on January 25, 1983.

OPINIONS BELOW

The opinion of the Court of Appeals for the State

of Georgia, which has not yet been reported, is at-

tached hereto as Appendix A.“ Petitioner moved the

Court of Appeals for the State of Georgia for a re-

hearing on that appeal. See, Appendix "A." Petitioner

then applied for Certiorari to the Supreme Court of the

State of Georgia. The Supreme Court of the State of

Georgia denied that Application for Certiorari on

January 5, 1983. Said denial is attached hereto as

Appendix B.“ Petitioner finally moved the Supreme

Court of the State of Georgia for a rehearing on the

Application for Certiorari. On January 25, 1983, the

Supreme Court of the State of Georgia denied the

Motion for rehearing on the Application for Certiorari.

See, Appendix H,“ attached herewith.

STATEMENT OF JURISDICTION

The Supreme Court of the State of Georgia, the

Court of last resort in said state, rendered a final

decision in this matter on January 25, 1983. Jurisdiction

of this Court is invoked under 28 U.S.C. § 1257(3),

Petitioner having asserted below and now in this Court

the deprivation of rights secured by the Constitutions

of the United States and the State of Georgia.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

This case involves the Fifth Amendment to the

Constitution of the United States, which provides in

pertinent part as follows:

2

"No person shall be. . .deprived of life,

liberty, or property without due process of

law:

The following portions of the Sixth Amendment to

the Constitution of the United States are involved in this

case:

In all criminal prosecutions, the accused

shall enjoy the right. . . to be confronted

with the witnesses against him; . . and to

have the Assistance of Counsel for his de-

fence."

The Fourteenth Amendment to the United States

Constitution, in Section I, provides as follows:

"All persons born or naturalized in the

United States and subject to the jurisdiction

thereof, are citizens of the United States and

of the State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of citi-

zens of the United States; nor shall any State

deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny to

any person within its jurisdiction the equal

protection of the law."

Additionally, this case involves the following

Sections of the Georgia Constitution:

Article I, Section I, Paragraph I:

"No person shall be deprived of life,

liberty, or property except by due process of

law."

Article I, Section I, Paragraph XI:

"Every person charged with an offense

against the laws of this State shall have the

privilege and benefit of counsel; . . . shall

be confronted with the witnesses testifying

against him; . . ."

a3

Finally, this case involves the following statutory

provisions of the State of Georgia:

Ga. Code. Ann. § 26-801 (now O.C.G.A. 5

16-2-20). Parties to crime; punishment

"(a) Every person concerned in the

commission of a crime is a party thereto and

may be charged with and convicted of com-

mission of the crime.

(b) A person is concerned in the com-

mission of a crime only if he: (1) directly

commits the crime; or (2) intentionally causes

some other person to commit the crime under

such circumstances that the other person is

not guilty of any crime either in fact or

because of legal incapacity; or (3) inten-

tionally advises, encourages, hires, counsels,

or procures another to commit the crime.“

Ga. Code Ann. § 27-2701 (now O. C. G. A. § 17-8-4)

Separate trials. Competency as witnesses. Order of

Trial. Operation of acquittal or conviction. Striking of

jury.

"When two or more defendants are jointly

indicted . . . for a felony less than capital,

or for a misdemeanor, defendants may be

tried jointly or separately in the discretion of

the trial court

STATEMENT OF THE CASE

On November 5, 1979, the Grand Jury for Cobb

County, State of Georgia, presented Indictments against

Petitioner, RODNEY WAYNE ELLIS, Robert Marion

Hoskins, Samuel Thomas Rickman and Brenda Elaine

Klutz, charging them with violations of the Georgia

Controlled Substances Act (Ga. Code Ann. §§ 79A-8, et

sed -: now O. C. G. §§ 16-3-1, et seq.).

Numerous pre-trial Motions were timely filed in this

case, including a Motion for Severance and Citation of

Authorities. Hearings were held on those Motions on

January 9, 10, 21 and 22, 1980, the Honorable Watson

L. White, Judge, Cobb County Superior Court, pre-

siding.

On February 9, 1981, Petitioner and his co-

Defendants Hoskins and Rickman were brought to trial

before a jury, the Honorable John W. Williford, Senior

Judge, Georgia Superior Courts presiding. The other

co-Defendant, Brenda Elaine Klutz, was not brought to

trial and was not considered on the trial of this case.

At appropriate points during the trial, upon ie

conclusion of the State's case, and at the time Peti-

tioner rested, Petitioner renewed his Motion for

Severance. These motions were denied.

Additionally, Petitioner ELLIS requested certain

instructions to be given to the jury concerning sever-

ance, the prejudicial effect on him for having been

tried jointly with co-Defendants, and having evidence

presented to the jury after he rested. All such mo-

tions, along with certain objections during the course of

the trial, were denied by the Trial Judge.

On February 13, 1981, the State rested. Peti-

*

tioner ELLIS rested his case without presenting any

evidence in his defense, and prior to the presentation

of a defense by co-Defendants., At that point, Peti-

tioner moved the Court to be excused from the Court-

room. This motion was denied,

On February 16, 1981, the jury brought back a

verdict of guilty against Petitioner ELLIS and his two

co~Defendants.

The Court sentenced each of the Defendants to

seventeen years — twelve years to serve and five years

probation,

Thereafter, Petitioner timely filed his Motion for

New Trial. Hearings were had on the Motion for New

Trial as amended, and it was ultimately overruled on

each and every ground on October 21, 1981. Following

the denial of Petitioner's Motion for New Trial, he

timely filed his Notice of Appeal and was therefore

properly before the Court of Appeals of Georgia. That

Appeal insofar as this Application for Writ of Certiorari

is concerned resulted from the Trial Court's denial of

Petitioner's Motion for Severance, Motion to be excused

from the Courtroom, and certain requests to charge

submitted by the Petitioner. All of these motions and

requests were based upon the prejudice and harm to

Petitioner by virtue of being tried jointly with his

abo

co-Defendants, Further, as specifically regards his

request to be excused from the courtroom, Petitioner

was denied his right to waive a constitutional right and

his right to effective assistance of counsel,

The Court of Appeals heard argument on this

appeal and affirmed the decision and judgment of the

Trial Court below,

Within the time provided by law, Petitioner moved

for a rehearing of the Court of Appeals' decision, which

was denied on November 12, 1982. In denying said

motion, the Court of Appeals of Georgia made no chan-

ges in its opinion, Thereafter, Petitioner timely applied

to the Supreme Court of Georgia for a Writ of Certiorari.

Petitioner's Application was denied on January 5, 1983,

Petitioner then timely filed a Motion for Reconsideration

with the Supreme Court of the State of Georgia. That

Motion for Rehearing was denied on January 25, 1983,

Petitioner now timely brings this Petition from that final

decision of the Supreme Court of the State of Georgia,

the appellate court of last resort in said State.

The citations herein which refer to the trial trans-

cript are designated as "T" with the page number

following. Citations to the record other than trans-

cripts of the trial are designated as "R" with the page

number following.

REASONS FOR GRANTING THE WRIT

I,

THE CASE PRESENTS A UNIQUE AND

IMPORTANT QUESTION OF LAW, AND

THIS COURT SHOULD GRANT CERTIO-

RARI TO PROVIDE A DEFINITIVE AN-

SWER AS TO WHETHER A CONSTITU-

TIONAL RIGHT IS PERSONAL TO AN

ACCUSED, ANL MAY NOT BE FORCED

UPON HIM AGAINST HIS WILL WHEN TO

FORCE EXERCISE OF THAT RIGHT WILL

RESULT IN DENIAL OF RIGHTS MORE

FUNDAMENTAL TO DUE PROCESS FAIR-

NESS.

A. The forced invocation of Petition-

er's right to be present at trial was

error where his waiver was knowing-

ly, intelligently and voluntarily

made, and the decision below seri-

ously confused the law on this issue

in the State of Georgia.

Petitioner ELLIS asserted as error on appeal the

Trial Court's denial of his motion to be excused from

the Courtroom. The State of Georgia rested its case

against all Defendants on February 13, 1981, 1-761.

After presentation, argument, and denial of Petitioner

ELLIS“ and co-Defendant Rickman's Motions for Directed

Verdicts of Acquittal, and co-Defendant Hoskins' Motion

to Sever, Petitioner immediately rested his case, 1-777.

At that point, Petitioner moved the Court to allow

Petitioner and his counsel not to be present during any

of the proceedings which were to follow until the time

that the case was to go before the jury, on the

grounds that the case was concluded as to him and that

any evidence which would be introduced by co-Defend-

ants or the State in rebuttal would be prejudicial to

this Petitioner. T-778, This Motion was denied by the

Trial Court, and Petitioner was granted a continuing

objection and motion for mistrial throughout the contin-

uance of the co-Defendants' trials. T-780,

In addressing this issue, the Court of Appeals of

Georgia concluded as follows:

"In Georgia, a criminal defendant has a

constitutional right to be present at all stages

of his trial. Ga. Code Ann. § 2-111; Wilson

v. State, 212 Ga. 73 (I) (90 S. Ek. 2d 557);

Durrett v. State, 135 Ga. App. 749 (2) (219

S.E.2d. 9). Such a right can be waived by

the defendant. See, Wilson, supra. However,

the exercise of a waiver of a constitutional

right is not an absolute right, and the Trial

Court must exercise its discretion when pre-

sented with a defendant's request to waive a

constitutional right. It cannot be said that

the Trial Court erred when it made a ruling

which insured the enforcement of the defend-

ant's constitutional right."

The first problem with the Court of Appeals' de-

cision is that it entirely missed the point of Petitioner's

argument. When the State and this Petitioner rested,

and the State did not make any motion to reopen the

evidence, Petitioner's trial, except for closing argu-

ments and jury deliberations, had ended. When the

-9-

Trial Court denied Petitioner's motion to be excused

from the courtroom, the Trial Court did not insure the

enforcement of Petitioner's "constitutional right to be

present at all stages of his trial." In this case, the

Trial Court's decision insured that Petitioner would be

present at all stages of someone else's trial, i.e., the

other Defendants. His presence was not needed by the

State -- it had rested and did not move to reopen its

case. He was not needed by his co-Defendants — they

each had requested severance from Petitioner because

his presence prejudiced them. No useful purpose was

served by Petitioner remaining in the Courtroom, While

holding that a defendant has the right to be present at

all stages of his trial when his absence might thwart

the fairness of the proceedings, this Court held in

Snyder v. Massachusetts, 291 U.S. 96, 106-107 (1934),

that due process does not assure "the privilege of

presence when presence would be useless, or the bene-

fit but a shadow." As a consequence, the law cited by

the Court of Appeals is misapplied on its very face.

However, the case law is not only misapplied in

this instance; that law is also misconstrued even if the

Court were correct in its application. The holdings of

the Courts below, without any supporting authority,

that a defendant has no absolute right to waive a

-10-

constitutional right is an extremely dangerous stance.

As numerous cases on search and seizure and the right

to silence have pointed out, the exercise of a constitu-

tional right is personal. Only an individual whose

constitutional right is affected can assert that right.

See, e.g., Wong Sun x. United States, 371 U.S. 471

(1963).

The right to be present at criminal trials falls

within the confrontation clauses of the Sixth Amendment

to the United States Constitution and Article I, Section

I, Paragraph XI of the Constitution of the State of

Georgia. People X. Parker, 32 Crim. L. Rep. 2072, 2073

(10-7-82); State v. Phillips, 247 Ga. 246, 275 S.E.2d

323 (1981). This fundamental right is extended to a

Defendant in a State criminal prosecution by the Four-

teenth Amendment. Pointer v. Texas, 380 U.S. 400

(1965). See also, Dutton v. Evans, 400 U.S. 74

(1970).

The highest Court of the State of Georgia has held

that "confrontation rights are personal to the ac-

cused . . ." Byrd x-. Ricketts, 233 Ga. 779, 213 S.E.2d

610, 611, cert. denied 422 U.S. 1011 (1975). Indeed,

the very case cited by the Court of Appeals in its

opinion, Wilson v. State, 212 Ga. 73, 90 S.E.2d 557

(1955), holds that the accused may voluntarily waive

-ll-

his right to be present. The waiver must be knowing-

ly, voluntarily, and intelligently made, and will be con-

sidered valid even when made through counsel, so long

as the defendant was present at the time it was made or

subsequently acquiesced thereto. State v. Phillips,

supra; Wilson v. State, supra. Further, if the accused

was present at the opening of the trial, but then volun-

tarily absented himself, where he was free on bond to

come and go at will, he has waived his right to be

present. Byrd v. Ricketts, 233 Ga. 779, 213 8. E. 2d

610, cert. denied 422 U.S. 1011 (1975); Cawthon v.

State, 119 Ga. 395, 46 S.E. 897 (1904); Miller v. State,

122 Ga. App. 869, 179 S.E.2d 265 (1970).

Petitioner's request to absent himself from the

Courtroom was the product of a calculated tactical

decision by counsel, to which Petitioner acquiesced.

This automatically results in a knowing and voluntary

waiver of Sixth Amendment rights. United States v.

Dunlap, 577 F. zd 867 (4th Cir. 1978); Bailey v. State,

— 6a. 2091 S. E. 2d 704 (1982); State .

Phillips, 247 Ga. 246, 275 8. E. 2d 323 (1981).

Here, the Petitioner had been admitted to bail; he

was present when his case was called for trial; he pled

not guilty; he was represented by counsel; he was

present for jury selection; and his request to absent

12

himself - after he rested his case and only until closing

argument - was a deliberate tactical decision, There

can be no doubt that waiver of his appearance was

knowing and voluntary. As noted from the above- cited

case law, a Defendant will not be heard to complain of

Sixth Amendment violations when these conditions exist.

The decisions below have therefore seriously confused

the law on this issue in the State of Georgia, and this

Honorable Court should grant certiorari to provide a

definitive answer and clarify the law on waiver of the

constitutional right of confrontation, Otherwise, the

Georgia Courts could arbitrarily insist on the exercise

of a right even where defendant's best interest would

be served by the waiver.

", . » What were contrived as protections for

the accused should not be turned into fet-

ters. ° *

» « « When the administration of criminal law

.. « is hedged about as it is by the Consti-

tutional safeguards for the protection of an

accused, to deny him in the exercise of his

free choice the right to dispense with some of

these safegaurds. . . is to imprison a man in

his privileges and call it the Constitution,"

Adams v. United States Ex Rel. McCann, 317

We 65, 279-280 „

An analogous case to the one at bar is Faretta v.

California, 422 U.S. 806 (1975), which cites Adams,

supra, for the proposition that Constitutional rights are

personal; and that a State cannot force a defendant to

1

exercise that right if he knowingly, voluntarily and

intelligently chooses to waive it. In Faretta, this Court

reversed the conviction where the defendant had been

forced to accept an attorney to represent him against

his will, and noted:

"Personal liberties are not rooted in the

law of averages. The right to defend is

personal, The defendant, and not the State,

will bear the personal consequences of a con-

viction. It is the defendant, therefore, who

must be free to decide. ." Id. at 834,

Therefore, the Court of Appeals of Georgia erred

when it initially overlooked the material fact that Peti-

tioner's trial had ended, and misapplied the law cited

therein to the facts of this case. In addition the Court

of Appeals of Georgia misconstrued the Trial Court's

right to insist that a constitutional right be exercised

by the Petitioner, against his will and when he know-

ingly, voluntarily and intelligently waived such right.

B. The forced invocation of Petitioner's

confrontation right resulted in a denial

of his right to effective assistance of

counsel,

The decision to move the Trial Court to be ex-

cused from the courtroom after his case had ended was

based upon a determination by Petitioner and his coun-

sel that a waiver of his right to be present until such

time as the case was to be presented to the jury was in

-14-

the best interest of Petitioner. The decision was one of

strategy and tactics and was made after counsel evalu-

ated the available defenses, discussed the case with

Petitioner, and provided Petitioner the basis for an

inforned choice, as required of counsel. ABA Stand-

ards, Compilation, The Defense Function, § 5.2

(Control and direction of the case), pp. 127-28 (1974).

By not allowing Petitioner to be excused from the

Courtroom, the Courts below have denied Petitioner the

right to effective assistance of counsel as guaranteed to

him by the Sixth Amendment to the Constitution of the

United States, and Article I, Section I, Paragraph XI of

the Constitution of the State of Georgia.

"Effective assistance of counsel involves

the right of counsel and his client to plan

defense strategy and tactics, in private and

independent of interference by the Court,

Were this tenet not true, criminal convictions

would always be subject to reversal on the

alternative grounds — first, of undue inter-

ference and restraint by the Court upon the

conduct of the defense Waited States v.

Handy, 203 F.2d 407) (zr . 15527..."

arrell X. State, 139 Ga. App. 556, 228

S.E.2d 723 (1976) (Emphasis added).

See also, Wilcoxon x: Aldredge, 193 Ga. 661, 19 S.E.2d

499, cert. denied, 317 U.S. 626 (1942).

A long line of cases in Georgia dealing with a

defendant's claim of ineffective assistance of counsel

clearly shows that defense counsel has broad discretion

-15-

in formulating trial tactics and should be allowed to

plan and execute defense strategies. See, Jones v.

State, 243 Ga. 820, 256 S.E.2d 907 (1979), cert.

denied, 444 U.S. 957 (1979); Hawes v. State, 240 Ga.

327, 240 S.E.2d 833 (1977); Spence v. State,

Ga.App. „ 292 S.E.2d 908 (1982); Scott v. State,

157 Ga. App. 608, 278 8. E. 2d 49 (1981); Harrell x.

State, 139 Ga. App. 556, 228 S.E.2d 723 (1976). See

also, Reid x. State, 235 Ga. 378, 219 S.E.2d 740, 742

(1975), a case of first impression in Georgia, which

cites to the ABA Standards, the Defense Function,

§ 5.2 [". . .all other strategic and tactical decisions

are the exclusive province of the lawyer after consul-

tation with his client."] Although these cases involve a

claim that the errors were made by counsel's actions or

omissions, and not by the Trial Court in restricting

counsel's actions as here, the holdings apply to demon-

strate that counsel should be free to use the tactics

and strategies he deems best.

Further, as noted in Faretta v. California, 422

U.S. 806, 820 (1975), when a defendant consents to

have an attorney represent him, "law and tradition may

allocate to the counsel the power to make binding decis-

ions of trial strategy in many areas."

The right to benefit of counsel is a valuable and

-16-

sacred one, and one that should never be denied or

abridged. It is a "fundamental right, essential to a fair

trial," and was therefore made obligatory on the States

through the Fourteenth Amendment. Gideon v.

Wainwright, 372 U.S. 335 (1963). The mere presence

of counsel at trial is insufficient to fulfill the guaran-

tees of the Sixth Amendment; the right is to effective

assistance of counsel. This concept has been interpre-

ted to mean that there can be no restrictions upon the

function of counsel in defending a criminally accused in

accordance with the guarantees of the Sixth and Four-

teenth Amendments. E.g., Brooks v. Tennessee, 406

U.S. 605 (1972) [restriction on counsel as to when and

whether defendant should take the stand unconstitution-

al]; Ferguson X. Georgia, 365 U.S. 570 (1961) [prohi-

biting counsel from directly examining defendant after

defendant was ailowed to make unsworn statement un-

constitutional]. Beyond that concept, Brooks held that

where conflicts arise, they should be resolved in favor

of right to assistance and guidance of counel.

In the instant case, Petitioner was denied his right

to effective assistance of counsel. The refusal of the

Trial Court to allow Petitioner and his lawyer to con-

duct the defense in the manner which they deemed best

was tantamount to Petitioner's having no counsel at all.

-17-

This denial of Petitioner's Sixth Amendment right con-

stitutes reversible error, and the conviction below

should therefore be vacated.

II.

THE COURT SHOULD GRAN T CER-

TIORARI TO CONSIDER WHETHER THE

GEORGIA COURTS BELOW ERRED WHEN

THEY DENIED PETITIONER'S MOTION

FOR SEVERANCE WHERE PETITIONER'S

CONVICTION WAS BASED ON EVIDENCE

INTRODUCED AGAINST CO-DEFENDANTS

AFTER PETITIONER HAD RESTED, AND

TO CONSIDER WHETHER THE DOCTRINE

OF INHERENT PREJUDICE APPLIES TO

THE ISSUE OF SEVERANCE IN THIS IN-

STANCE,

A. The denial of the Motion for Sever-

ance was error.

Petitioner ELLIS, along with three, later reduced

to two, co-Defendants, was indicted by the Grand Jury

of Cobb County for violation of the Georgia Controlled

Substances Act in 1979. On December 6, 1979, Peti-

tioner ELLIS filed a Motion for Severance and Citation

of Authorities. R-90-92. This Motion was denied by

the Honorable Watson L. White, Judge, Cobb County

Superior Court, on May 23, 1980. R-219.

On February 9, 1981, Petitioner ELLIS and his

co-Defendants were tried on the charges against them

before a jury, the Honorable John W. Williford, Senior

Judge, Georgia Superior Courts, presiding. At appro-

-18-

priate points during the trial, upon the conclusion of

the State's case, and at the time Petitioner rested,

Petitioner ELLIS renewed his Motion for Severance.

T-225-227, 335-337, 351, 772-773, 776-780, 826,

967-969; See also, in this regard, T-24-25 and R-93.

Additionally, Petitioner ELLIS requested certain

instructions to be given to the jury concerning sever-

ance and the prejudicial effect on him of having been

tried with co-Defendants and having evidence presented

to and considered by the jury after he rested. T-782-

783, 827, 858, 859, 909-910 and 1010. All such motions,

along with certain objections during the course of the

trial, were denied by the Trial Judge. The Trial Judge

did instruct the jury that each co-Defendant was to be

considered separately. T-1079-1080, 1094. Petitioner

contended on appeal that these instructions were totally

inadequate and did not cure the harm and prejudice

which arose from this joint trial, particularly when the

trial of the co-defendants continued after the State and

this Petitioner rested, and no motion to reopen was

made on the State's behalf.

In addressing the severance issue in reference to

Petitioner, the Court of Appeals states as follows:

"Insofar as. . .Ellis [is] concerned, the evi-

dence, as previously summarized, was suffic-

ient for a rational trier of fact to determine

-19-

beyond a reasonable doubt that. . Ellis [was

a party] to the crime. See Code Ann § 26-801,

‘while Code Ann. § 26-801 does not use the

word "conspiracy" it is plain that it embodies

the theory of conspiracy.' (Hamby v. State,

158 Ga. App. 265(2)) [279 S.E.2d Hs and,

under such a theory, each of the acts and

statements of each of these participants in the

criminal enterprise is the same as if [Ellis]

had done the act or made the statement

himself, Thus, whether such evidence was

admitted at a severed trial or a joint trial the

effect and impact legally are the same,' "

The reliance on the above legal theories is mis-

placed in reference to this case, since the Court over-

looked material facts which require a different holding.

In this matter Petitioner's co-Defendant, Bobby -

Hoskins, pled entrapment. See, T-784-802, 834-906.

Co-Defendant Hoskins claimed that he was engaged in

the illegal sale oi a controlled substance to an under-

cover agent, but that he was entrapped into doing 80.

Neither Petitioner ELLIS nor his co-Defendant Rickman

plead entrapment,

Petitioner ELLIS maintained his innocence through-

out. He asserted that the State failed to show that he

was in either actual or constructive possession of any

controlled substance. See, 1T-762-767, 770-772. All

witnesses to the event said that they neither heard of

ELLIS before the arrest, nor did they see Petitioner at

any time with any controlled substance, T-303, 327,

516, ll, 612, 677-678, 699, 701, 833, 933, 949, Fur-

-20- .

er een

ther, the State did not prove that Petitioner was a

party to the crime either before or after Petitioner

rested his case. For example, in responding to a

series of questions, co-Defendant Hoskins stated as

follows:

"Q. You said you had met Mr. Ellis

somewhere down in Florida, I be-

lieve, at a fishing tournament or

something like that, down in

Florida?

A. Yes, sir.

Q. Did you ever see Mr. Rickman or

meet Mr. Rickman back then?

A. No, sir.

Q. You mentioned something about

prints that Mr. Ellis was handling

at that time. Had you previously

bought some prints or artwork or

whatever from him?

A. Yes.

Q. And when you said you had some

conversation with Mr. Ellis shortly

prior to the 20th, about him coming

over to Atlanta or to the Atlanta

area —

A. Yes, sir.

Q. Do you know what that was about?

A. Well, he said he had to check out

the flea market, I believe it was

somewhere on Piedmont, over in

the Atlanta area, to see about

somebody selling some of his paint-

ings cheaper than him, or some-

thing, and that he also wanted to

talk to me again about you know,

possibly me, you know, selling some

of his work for him,

Q. Do you know some folks around

here in Atlanta that had some shops

that you might could have placed

those prints in on consignment or

whatever?

A. No, sir. I really --

Q. You were just sort of banking on

getting some of his pictures and

21

Q.

A.

doing what you could with them?

Yes, sir. That was one reason I

was hesitant. Well, there were

several reasons that I was hesitant.

You said you got to the motel

around the 4 o'clock time period, is

that correct?

Yes, sir.

And there was some activity in

room 105, Rick Martin doing what-

ever he was doing with these white

powders?

Yes, sir.

Prior to seeing Mr. Ellis and Mr.

Rickman at approximately, say 4:30

or a quarter to 5 or whatever

that time was that you saw them,

had you ever seen Tom Rickman

priorto that time in your life?

No, sir, I have not.

When you talked to Mr. Ellis on the

days preceding the 20th, did he

indicate that anybody else was

going to be coming with him?

No, sir, he did not.

When you saw Mr, Ellis outside of

room 105, were you a little bit

relieved?

Very.

Why is that?

Well, he is a pretty healthy fellow

and I knew then that Rick Martin

had seen him and if there was any

hanky panky going to be going on

that he would, you know, relate to

this guy next door.

You think that he was going to

help you out of that problem?

Yes, sir.

Bobby, in your mind do you have

any notion that Mr. Ellis and Mr.

Rickman had any idea of what was

going on in 105 before they got

there?

No, sir, they did not.

In your presence in that little brief

encounter in the hallway outside of

room 105, did you or Mr. Martin

make any kind of comment that

would = them any idea about

222.

what in the heck was going on?

A. No, sir.

Q. And you are certain beyond any

doubt that the sample you took over

to 107, or that was taken over to

107, that was taken over before Mr.

Ellis ever arrived?

A. Yes, sir."

T-903-905. See also, in this regard, T-988. In es-

sence, ELLIS was there for some purpose other than

co-Defendant and Decoy Martin, and ELLIS merely got

caught up in an event about which he had no knowl-

edge. The principal individual, Hoskins, testified that

Petitioner was not involved. The conspiracy and par-

ties to a crime theories therefore just do not apply

under these facts.

Where evidence against Petitioner was thinly cir-

cumstantial at best, where one co-Defendant admitted

the charges against him by pleading the defense of

entrapment, where that same co-Defendant introduced

evidence, or had evidence introduced against him about

his prior drug addiction (T-861), possible other crimes

(1-449, 838, 849-850, 860-862, 865; see also T-802-833,

986-987, 990-993) and other prejudicial evidence (T-913,

915, 920, 935 and l1l2), and where Petitioner's defense

of innocence was totally opposed and antagonistic to the

co~Defendant's entrapment defense, the jurors inevita-

bly linked co-Defendant Hoskins and the evidence

-23-

presented by and against him with this Petitioner. By

not severing the parties, or at the least by not ade-

quately instructing the jury, the Trial Court caused

confusion of the law and evidence in regard to the two

antagonistic cases that existed here. Indeed, the Trial

Court itself recognized the possibility of confusion

during the trial. T-219, 335-337, 351; see also, T-826

in this regard. As a result, Petitioner was prejudiced

thereby.

While the evidence against Petitioner was "mini-

mal,“ the evidence against co-Defendants, primarily

co-Defendant Hoskins who admitted the offense, albeit

by entrapment, was "substantial." Price X. State, 155

Ga.App. 844, 273 S.E.2d 225, 227 (1980). Indeed, the

Trial Court recognized the minimal nature of the evi-

dence against Petitioner at the time it denied Petitioner

ELLIS' Motion for a Directed Verdict of Acquittal and

concluded that there might be a very good chance that

Petitioner ELLIS would not be convicted based on the

evidence presented by the State to that point. T-768.

See also, prosecutor's statement at T-769. Petitioner's

conviction, then, more than likely resulted from the

evidence against his co-Defendant rather than from the

evidence against him. Hence, Petitioner was prejudiced

thereby.

-24-

Further, the defenses as presented by Petitioner

ELLIS and his co-Defendant Hoskins are in every re-

spect "mutually exclusive and antagonistic." The

defense of entrapment by which co-Defendant Hoskins

admits the offense, cannot be reconciled with Petition-

er's assertion that he is innocent of all charges against

him, particularly where the only evidence against

Petitioner ELLIS was circumstantial. Price v. State, 155

Ga. App. 206, 270 S.E.2d 203, 204-205 (1980), revised

on other grounds, 247 Ga. 58, 273 S.E.2d 854 (1981).

That rule applies where "([petitioner] was unable to

cross-examine his co-defendant." Here, Petitioner

ELLIS was not able to cross-examine his co-Defendants,

including co-Defendant Hoskins who pled the defense of

entrapment, because Petitioner had already exercised

his right to rest his case at the conclusion of the

State's case and before his co-Defendant presented

evidence. Petitioner ELLIS' conviction then resulted

from confusion and the "spill-over of the substantial

evidence adduced" against his co-Defendants, partic-

ularly co-Defendant Hoskins. Crawford v. State, 148

Ga. App. 523, 251 S. E. 2d 602, 605 (1978). However,

even if there may have been some evidence supporting

the verdict against Petitioner, the result in Crawford

controls because, when balanced with the evidence

-25-

against the co-Defendant pleading entrapment, the

evidence against Petitioner is scanty to the point of

being non-existent. Id. at 603.

B. The doctrine of inherent prejudice applies

to the issue of severance in this case.

Prior to 1963, in considering cases where there

was pervasive pre-trial publicity, this Court made an

examination of the facts to determine whether actual

prejudice resulted to the Petitioner because the jury

was probably unable to lay aside their opinions in view

of that prejudicial publicity. See, e.g., Irvin v.

Dowd, 366 U.S. 717 (1961); Marshall x. United States,

360 U.S. 310 (1959).

In four later cases, the Court broke away from the

requirement that actual prejudice be shown and esta-

blished the "doctrine of inherent prejudice." Sheppard

X- Maxwell, 384 U.S. 333 (1966); Estes v. Texas, 381

U.S. 532 (1965); Turner v. Louisiana, 379 U.S. 466

(1965); Rideau v. Louisiana, 373 U.S. 723 (1963).

Three of these cases involved publicity by the news

media; in Turner, the Court applied the doctrine where

bailiffs who looked after the jury were also witnesses

for the State.

The doctrine of inherent prejudice applies where

jurors are exposed to extrinsic facts which did not come

-26-

as evidence developed against the Defendant from the

stand, and which could conceivably have influenced the

jury in rendering a verdict against the Defendant. A

wing of actual prejudice is not required as a pre-

requisite to reversal. Instead, the doctrine comes into

play when, based on the circumstances of the particular

case, there is a high probability that prejudice will

result and due process is therefore inherently lacking.

Although the doctrine of inherent prejudice is most

frequently applied to cases involving pre-trial publicity,

various Courts have applied the doctrine to different

factual situations. See, e.g., Parker v. Gladden, 385

U.S. 363 (1966) [communication between bailiff and

jury]; United States v. Howard, 506 F.2d 865 (5th Cir.

1975) [one juror told other jurors that defendant had

been in trouble before]; Paz v. United States, 462 F.2d

740 (5th Cir. 1972), cert. denied, 414 U.S. 820 [book

on drug problems and traffic in jury room during trial

involving drugs]; United States v. Thomas, 463 F.2d

1061 (7th Cir. 1972) [news article in jury room];

Downey . Peyton, 451 F.2d 236 (4th Cir. 1971)

[discussion among jurors of defendant's conduct and

other affairs]; United States v. Pittman, 449 F.2d 1.54

(9th Cir. 1971) [government witness operating tape

recorder in jury room]; Farese v. United States, 428

-27-

F. 2d 178 (5th Cir. 1970) [jury found money in exhibit

where crime charged involved monetary gain]; and

Richardson v. United States, 360 F.2d 366 (5th Cir.

1966) [juror/prosecution witness conversation].

In this case, after Petitioner had rested and the

case was concluded as to him, evidence was introduced

relating to his co-Defendants, especially Hoskins, which

was inherently prejudicial to this Petitioner — evidence

which in all probability confused the jury and resulted

in a conviction of Petitioner based on "guilt by associa-

tion." This evidence included testimony as to Hoskins“

being "ripped off" in a previous drug transaction; his

former drug addiction and purchase of drugs on the

street; his understanding because of his addiction of

the dangers of drug abuse and yet apparent willingness

to put it back on the streets; possible ownership of

shrimp boats; the introduction of a tape recording of

conversations of this particular transaction; and his

admission of the crime charged through his entrapment

defense. See, citations to transcript, supra.

All of this evidence introduced as to a co-Defen-

_ dant violated Petitioner's right to have nothing reach

the mind of the jury about his case except strictly legal

evidence against the Petitioner admitted according to

law. The "spill-over" effect of prejudicial evidence

-28-

against Hoskins invokes application of the doctrine of

inherent prejudice as to Petitioner. Even the Trial

Court's instructions to the jury, which Petitioner claims

were insufficient (see, Argument III, infra) could not

cure the prejudicial effect on Petitioner. As noted by

Mr. Justice Jackson in Krulewitch v. United States, 336

U.S. 440, 453 (1949), "the naive assumption that pre-

judicial effects can be overcome by instructions to the

jury. . .all practicing lawyers know to be unmitigated

fiction."

Had Petitioner's trial been severed from his co-

Defendants, the evidence which was introduced after he

rested his case would never have been considered

against him. There would not have been even a risk of

prejudice, and Petitioner's rights to due process and an

impartial trial would never have been jeopardized. The

Courts of Georgia below have erred, and the violation

of Petitioner's Fifth, Sixth, and Fourteenth Amendment

rights mandates reversal of his conviction.

III.

THIS COURT SHOULD GRANT CERTIORARI

TO DECIDE WHETHER THE REFUSAL OF THE

TRIAL COURT TO GIVE REQUESTED IN-.

STRUCTIONS RELATING TO THE INTRO-

DUCTION OF EVIDENCE AGAINST A Co-

DEFENDANT AFTER PETITIONER HAD

RESTED WAS ERROR.

-29-

As the Court of Appeals noted in its Opinion,

Petitioner ELLIS complained that the Trial Court's

refusal to give requested instructions after the denial

of the renewed Motion to Sever was error. Petitioner

sought to have the jury informed that they were not to

consider against Petitioner any evidence introduced

after he had rested.

In addressing this issue, the Court of Appeals

states as follows:

"Such a charge would have been inappropriate

in light of the State's use of Code Ann.

§ 26-801 concerning parties to a crime.

Furthermore, it was not error to refuse to

give the requested instruction since the Trial

Court could have exercised its discretion and

allowed the State to reopen its case and

present additional evidence. (Case citations

omitted.)

The Court of Appeals“ determination is in error

since the parties-to-a-crime and conspiracy theories fail

under the actual facts of this case as set out heretofore

in Section II of this Argument. Particularly is this so

when both Petitioner and the State rested, and the

alleged evidence in support of those theories came out

after that point without a motion to reopen the evidence

on the part of the State.

The Court of Appeals panel states further in its

Opinion, however, that even under those facts:

-30-

", . it was not error to refuse to give the

requested instruction since the trial court

could have exercised its discretion and allowed

the State to reopen its case and present addi-

tional evidence."

The problem with that assertion is that the Trial

Court could not have exercised that discretion here,

since there was no motion to reopen the evidence

brought by the State in this case. As a result, the

case law cited here does not apply to the facts of this

case, and the Court of Appeals erred in that regard.

CONCLUSION

For the foregoing reasons, the decision of the

Georgia Courts below should be reversed, and the

judgment of conviction against Petitioner should be

vacated,

Respectfully submitted,

LAW OFFICES OF EDWIN

MARGER

By: n~ Vag

A

By: .

231

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have this date served a

true and correct copy of the foregoing Petition for Writ

of Certiorari to the Supreme Court of the United States

from the Supreme Court of the State of Georgia upon

James T. Martin, Esq., Assistant District Attorney,

Cobb Judicial Circuit, P. O. Box 649, Marietta, Georgia

30061, by placing same in the United States Mail with

adequate postage affixed thereon.

I HEREBY CERTIFY that I have this date served

the requisite number of true and correct copies of the

foregoing Petition for Writ of Certiorari to the Supreme

Court of the United States from the Supreme Court of

the State of Georgia upon Michael J. Bowers, Esq.,

Attorney General for the State of Georgia, 132 Judicial

Building, Atlanta, Georgia 30334, by placing same in

the United States Mail with adequate postage affixed

thereon.

This oi Kay of March, 1983.

ROBERT O. 8

-32-

APPENDIX "A"

No. 63923

RODNEY WAYNE ELLIS, Appellant

Ve

STATE OF GEORGIA, Appellee

Rehearing Denied November 12, 1982

Application for Certiorari Denied January 5, 1983

Application for Rehearing Denied January 25, 1983

SHULMAN, Presiding Judge

Appellants were tried together and convicted of

possession of cocaine. Each now appeals from the

judgment entered on the jury's verdict.

The following facts could be adduced from the

evidence presented at trial. Using an informant as an

intermediary, an undercover police officer made ar-

rangements to purchase a kilogram (2.2 lb.) of cocaine

from appellant Hoskens. After meeting Hoskens at a

Delk Road motel, the undercover officer and Hoskens

proceeded to the Best Western Motel on Interstate 20 to

rendezvous with people arriving from Alabama for the

deal. The officer and Hoskens' female companion rented

adjoining rooms at the motel (Rooms 105 and 107).

Surveillance teams stationed near the Best Western

observed appellants Rickman and Ellis arrive in a car

with Alabama tags and park next to Hoskens' auto-

mobile. The latest arriving appellants went into the

motel, returned to the car, retrieved frum it a brown

briefcase, and reentered the motel.

Meanwhile, the undercover officer, having seen

one pound of cocaine, having been told the remainder

of the kilogram was "next door," and having been

satisfied with the cocaine sample provided to him by

Hoskens, left Room 107 of the motel and went to his

parked automobile to obtain the money for the drug

purchase. This conduct was the prearranged signal for

the surveillance teams to assemble for the imminent

arrests. The police officers gained access to Room 107

through the use of the undercover officer's room key,

arrested Hoskens and confiscated a pound of cocaine.

Upon knocking and announcing their identity as police

officers at Room 105, they were met with the sounds of

running water and a repeatedly flushed toilet. Using

the manager's pass key, the officers entered that room

to find Ellis standing by the door and Rickman in the

bathroom with an empty plastic bag. Scrapings from the

toilet bowl and the residue from the plastic bag were

identified as cocaine. A search of Room 105 uncovered

a glass vial containing what was later identified as

cocaine from between the bed's mattress and box

springs, and a plastic bag containing a white powdery

substance later identified as cocaine from a shaving

bag. ;

l, Appellant Hoskens, who pled a defense of

entrapment at trial, now asserts that the verdict is

contrary to the law. "Entrapment exists where the idea

and intention of the commission of the crime originated

with a government officer or employee, or with an agent

of either, and he, by undue persuasion, incitement, or

deceitful means, induced the accused to commit the act

which the accused would not have committed except for

the conduct of such officer." Code Ann 5 26-905.

Hoskens maintains that the state failed to prove he was

predisposed to commit the crime. However, Hoskens

himself testified that a police informant's alleged offer

of $1,500 caused him to become involved in the pur-

ported sale of cocaine. "[T]he mere fact that the

defendant was persuaded (if he was) by a friend to

engage in practices he knew to be criminal simply to

make a lot of money' does not constitute entrapment; if

it did, practically every offender could find and rely on

such incidents in his own past." Leonardi v. State,

154 Ga. App. 402, 405 (268 SE2d 380). Hoskens' asser-

tion of the general grounds is without merit.

2. Appellants Rickman and Ellis appeal from the

denial of their motion to suppress evidence discovered

pursuant to warrantless searches of Rooms 105 and 107

following their warrantless arrests.

An officer may make a warrantless arrest "if the

offense is committed in his presence, or the offender is

endeavoring to escape. . .or for other cause there is

likely to be failure of justice for want of an officer to

issue a warrant." Code Ann. § 27-207(a). A warrant-

less arrest is not violative of this statute if the officer

had probable cause to make an arrest, i.e., if he knew

facts and circumstances, based on reasonably trustwor-

thy information, sufficient to warrant a prudent man to

believe tnat the defendant had committed an offense.

2

Watson v. State, 153 Ga. App. 545 (1) (265 SE2d 871).

The knowledge that a pound of cocaine was in the room

"next door" to Room 107; the failure of anyone to

respond to police requests to enter Room 105; the

continuous sounds of running water and a flushing

toilet; and Rickman's fully-clothed presence in a

running bathtub with an empty plastic bag was ample

cause to arrest appellants. It was not error to refuse

to suppress the plastic bag and its residue (later

identified as cocaine) found with Rickman or the sam-

ples of white powder an officer viewed on the rim of

the toilet bowl. Both were dicovered in the plan view of

officers who had a legal right to be where they were at

the time they saw the evidence. Brewer v. State, 129

Ga. App. 118, 119 (199 SE2d 109).

3. Appellants Rickman and Ellis also protest the

admission into evidence of a glass vial containing co-

caine. The vial was discovered between the mattress

and box springs of one of the beds in Room 105 by

police officers conducting a search of the room subse-

quent to appellants' arrests. Whether or not this

evidence was illegally seized is immaterial in light of the

fact that the amount of legally seized contraband suffi-

ciently supports the jury's verdict. See generally

Lentile v. State, 136 Ga. App. 611 (1) (222 SE2d 86)

where this court affirmed a conviction for possession of

marijuana after suppressing some of the evidence per-

taining to that charge.

4. The remaining contraband introduced at trial

was discovered in Room 107 or in a blue shaving bag

found in Room 105. At trial, Hoskens identified the

bag as his. Since neither appellant Rickman nor

appellant Ellis established that he had "a legitimate

expectation of privacy" in Room 107 (rented by the

undercover officer) or in Hoskens' blue shaving bag

which he had left in Room 105, neither showed that his

Fourth Amendment rights were violated with regard to

the items seized from Room 107 and the shaving bag.

Having failed to establish a violation of their Fourth

Amendment rights, appellants do not have standing to

challenge the constitutionality of these searches.

United States v. Salvucci, 448 U.S. 83 (100 SC 2547,

65 LE2d 619).

5. Rickman and Ellis argue that warrants could

have been procured by the police prior to the arrests

-3-

and search. This contention is without merit. In

Lentile v. State, supra, p. 613, "the rendezvous point

was not agreed upon until approximately an hour and a

half beforehand, and it does not appear that the agents

knew in advance that the defendant planned to proceed

from the rendezvous point to his residence." That

situation is analogous to the present one in that the

police officers did not know beforehand that the deal

would be moved to a different motel. It was not until

Hoskens and the undercover officer met at the location

originally agreed upon that it was decided that the sale

would take place at another site. The drug purchase

occurred approximately an hour and a half after the

undercover officer's arrival at the second motel. As in

Lentile, the time span was not so long as to require the

procurement of a warrant.

6. Each appellant enumerates the denial of his

motion for severance an error. Such a motion is com-

mitted to the sound discretion of the trial judge, whose

ruling is subject to reversal only for an abuse of dis-

cretion. Montgomery v. State, 156 Ga. App. 448, 452

(274 SE2d 3040 "Some of the considerations for the

court in exercising its discretion have emerged from the

cases considering motions to sever: 1. Will the num-

ber of defendants create confusion of the evidence and

law applicable to each individual defendant? 2. Is

there a danger that evidence admissible against one

defendant will be considered against another despite the

admonitory precaution of the court? 3. Are the de-

fenses of the defendants antagonistic to each other or

to each other's rights? [Cit.] If the defendant can

show the court by some facts that failure to sever will

prejudice him under one or more of these considera-

tions, his motion should probably be granted." Cain v.

State, 235 Ga. 128, 129 (218 SE2d 856). Furthermore,

"the trial court's denial of the motion to sever will not

be disturbed unless the defendant can make a clear

showing of prejudice. [Cits.]" Degree v. State, 246

Ga. 240, 241 (217 SE2d 155).

Each appellant maintains that Hoskens' assertion of

the defense of entrapment was antagonistic to the pleas

of not guilty propounded by Ellis and Rickman. "The

mere fact that co-defendants’ defenses are antagonistic

is not sufficient in itself to warrant separate trials.

{[Cit.] A showing of harm is necessary. [Cit.]" Cain

x- State, supra, p. 129. Each appellant complains that

-4-

he was harmed by the evidence admitted against his

co-defendants. We disagree.

Because Hoskens' entrapment defense required him

to admit the commission of the offense with which he

was charged, we are unable to find that Hoskens was

prejudiced by the evidence adduced against his co-

defendants. McDonald v. State, 156 Ga. App. 143 (5)

(273 SE2d 881). Insofar as Rickman and Ellis are con-

cerned, the evidence, as previously summarized, was

sufficient for a rational trier of fact to determine be-

yond a reasonable doubt that Rickman and Ellis were

parties to the crime. See Code Ann. § 26-801. "While

Code Ann § 26-801 does not use the word 'conspiracy'

it is plain that it embodies the theory of conspiracy"

(Hamby v. State, 158 Ga. App. 265 (2) (279 SE2d 715))

and, under such a theory, "each of the acts and state-

ments of each of the participants in the criminal enter-

prise was the same as if [Ellis and Rickman] had done

the act or made the statement himself. Thu, whether

such evidence was admitted at a severed trial or at a

joint trial, the effect and impact legally is the same."

Montgomery v. State, supra, p. 451. Consequently,

none of . appellants has demonstrated harm or pre-

judice accruing from the denial of his motion to sever.

Accordingly, the denial of the motions to sever was not

error.

7. In a related enumeration, appellant Ellis

asserts as error the trial court's denial of his motion to

be excused from the courtroom. Ellis made the motion

after he had rested his case without presenting any

evidence in his defense and prior to the presentation of

a defense by appellant Hoskens.

In Georgia, a criminal defendant has a constitu-

tional right to be present at all stages of his trial.

Code Ann. § 2-111; Wilson v. State, 212 Ga. 73 (1) (90

SE2d 557); Durrett v. State, 135 Ga. App. 749 (2) (219

SE2d 9). Such a right can be waived by the defendant.

See Wilson, supra. However, the exercise of a waiver

of a constitutional right is not an absolute right, and

the trial court must exercise its discretion when pre-

sented with a defendant's request to waive a consti-

tutional right. It cannot be said that the trial court

erred when it made a ruling which ensured the en-

forcement of the defendant's constitutional right.

8. Both Rickman and Ellis complain that the trial

court's refusal to give requested instructions after the

denial of their renewed motions to sever was error.

Appellants sought to have the jury informed that they

were not to consider against Ellis and Rickman any

evidence introduced after those defendants had rested.

Such a charge would have been inappropraite in light of

the state's use of Code Ann. § 26-801 concerning par-

ties to a crime. Furthermore, it was not error to

refuse to give the requested instruction since the trial

court could have exercised its discretion and allowed

the state to reopen its case and present additional

evidence. See King v. State, 230 Ga. 581 (3) (198

SE2d 305); Burden X. State, 182 Ga. 533 (3) (186 SE

555).

9. Appellants Ellis and Rickman contend that

error resulted from the trial court's refusal to grant

their motions for a mistrial after the jury had allegedly

discussed evidence before the case had been submitted

to it. Appellants' enumeration is based upon a hand-

written note submitted by a juror to the trial judge on

the third day of tne six-day trial. The note, written

on a paper towel, read: "Please clarify: 1. What is an

"agent?" 2. Are ail agents police officers? The

attorneys have been using the terms agent and officer

interchangeably." Appellants maintain that this note is

evidence that the jury improperly discussed the case

prior to the close of the evidence. However, the con-

tents of the note in no way indicate that an improper

discussion had taken place, that any of the jurors had

already formed an opinion on the case, or that a fair

and impartial trial could not be had with this jury.

"The question of whether or not to grant a mistrial lies

within the sound discretion of the trial court. That

decision will not be reversed on appeal absent an abuse

of discretion." Roberts v. State, 242 Ga. 634, 636 (250

SE2d 482). No irregularity having been established and

no harm having been sustained by appellants, the trial

court did not abuse its broad discretion in deying the

motions for mistrial. See Smith v. State, 218 Ga. 216

(2c3) (126 SE2d 789); Smith v. Blackshear, 127 Ga.

App. 610 (194 SE2d 519).

10. Appellant Hoskens claims error in the trial

court's refusal to poll the jury to determine whether its

memebers had engaged in an improper discussion of the

case. Inasmuch as no irregularity in the conduct of a

abe

juror was shown to have occurred, it was not necessary

to poll the jury. Since the actions of the trial court

were not abusive of its authority, appellant's contention

is meritless.

11. Appellants Rickman and Ellis also appeal the

denial of their motions for directed verdicts of acquit-

tal. Each appellant maintains that because the sole

connection between him and the contraband was "spatial

proximity," each appellant was entitled to a directed

verdict of acquittal. See, e.g., McCann v. State, 137

Ga. App. 445 (224 SE2d 99).

"The trial court's refusal to direct a verdict of

acquittal is error only where there is no conflict in the

evidence and a verdict of acquittal is demanded as a

matter of law. [Cits.] In reviewing the denial of a

motion for directed verdict. . .the proper standard to

be utilized by the appellate court is the any evidence“

test. [Cits.] Sims x. State, 242 Ga. 256, 257 (248

SE2d 651).

Our review of the trial transcript leads us to con-

clude that there was evidence to support the trial

court's denial of the motions for directed verdict.

There was testimony that the undercover police officer

had been informed by Hoskens that the cocaine would

be brought to the Best Western by people from

Alabama; Ellis and Rickman arrived in Ellis' car (which

displayed an Alabama tag), parked next to Hoskens'

station wagon and proceeded to the room which

Hoskens' companion had rented. They returned to the

car, retrieved from it a brown briefcase which was

capable of containing a kilogram of cocaine, and re-

entered the motel. When the police announced their

identify and requested admission into the Ellis/Rickman

room, the officers were greeted with the sound of a

toilet being flushed repeatedly. After gaining entry to

the room and overcoming Ellis“! resistance, the officers

apprehended appellant Rickman in the bathroom where

he was holding a plastic bag which contained cocained

residue. A scraping from the commode also revealed

the presence of cocaine. Inasmuch as there was testi-

mony that appellants Rickman and Ellis were linked to

the possession of the cocaine by more than "spital

proximity," the trial court did not err when it denied

the motions for directed verdicts of acquittal.

12. Citing Cunningham v. State, 248 Ga. 835 (4)

(286 SE2d 427), Rickman contends that the admission

into evidence of the brown briefcase constituted re-

versible error. In Cunningham, the Supreme Court

reversed the appellant's murder conviction on the

ground that the two pieces of physical evidence, un-

connected to the crime, were admitted into evidence and

considered by the trier of fact. That holding is not

applicable to the case at bar since the briefcase here

was connected to the appellants: it was found in their

room, appellants had been observed carrying it from

Ellis' car to the motel, and it was posited that the

cocaine had been transported within it. It was not

error to admit it into evidence.

13. Rickman next complains that the trial court

erred in charging the jury on the concept of parties to

a crime because the statute (Code Ann. § 26-801) upon

which the instruction was based is allegedly unconstitu-

tional. Because appellant made no constitutional objec-

tion to either the charge or the statute at trial, we will

not address his enumeration other than to note that the

Supreme Court held that Code Ann. §§ 26-801 and 802

were not unconstitutionally vague, indefinite and over-

broad in Wanzer v. State, 232 Ga. 523 (6) (207 SE2d

466). Corley v. State, 154 Ga. App. 301 (2) (268 SE2d

508). Inasmuch as the evidence authorized a charge on

parties to a crime, there was no error in so instructing

the jury.

14. Appellants Hoskens and Rickman contend that

a tape recording of conversations electronically trans-

mitted by means of a "body bug" worn by the under-

cover officer was improperly admitted into evidence.

Rickman maintains that the trial court erred when

it permitted the state to play portions of the tape re-

cording to the jury after the court had denied appel-

lant's motion to have the tape independently tested.

Three conversations transmitted by the "body bug"

were played for the jury by the state in rebuttal to

appellant Hoskens' entrapment defense. In a pre-trial

motion, appellant Rickman sought to have the tape

independently examined to determine whether the tape

had been altered and to see if inaudible portions could

be made audible.

"A criminal defendant on trial for his liberty is

entitled on motion timely made to have an expert of his

choosing, bound by appropriate safeguards imposed by

the court, examine critical evidence whose nature is

subject to varying expert opinion." Sabel v. State, 248

Ga. 10, 17 (282 SE2d 61). Because we have concluded

that the tape recording was not "critical evidence," we

do not reach the question of whether it is subject to

varying expert opinion, and we affirm the trial court's

decision to deny appellant's motion for an independent

examination of the tape and to allow the jury to hear

portions of the tape at trial.

Critical evidence, for the purposes of the due

process clause, is evidence, that, when developed by

skilled counsel and experts, could induce a reasonable

doubt in the minds of enough jurors to avoid a con-

viction." White v. Maggio, 556 F2d 1352, 1357 (5th Cir.

1977), cited with approval in Sable v. State, supra, p.

18. The tape recording, as used, did not constitute

"critical evidence" as that term has been defined, and

therefore the trial court did not err in refusing to allow

an independent examination of the tape. It was not

error to allow the jury to hear portions of the record-

ing. See Tookes v. State, 159 Ga. App. 423 (3) (283

SE2d 642).

15. Hoskens' first argument against the admission

of the tape is the alleged failure of the state to lay a

proper foundation for the admission of a tape recording

into evidence.

The basic steps for laying the proper foundation

before a tape recording is admissible at trial are set

forth in Steve M. Solomon, Jr., v. Edgar, 92 Ga. App.

207 (3) (88 SE2d 167), and its progeny. Since police

officers testified "that the tape recorded was in con-

dition to take testimony; that the operator of it was

competent; that it was authentic and correct; that it

had not been changed or altered; that it had been in

their custody; and who the speakers were" (Estes v.

State, 232 Ga. 703 (4b) (208 SE2d 806)), and Vtſhere

was absolutely nothing to indicate that [appellants']

statements were not voluntary and of [their] own

choosing" (Brooks v. State, 141 Ga. App. 725, 735 (234

SE2d 541)), the proper foundation was laid and it was

not error to admit the tape.

16. Lastly, appellant Hoskens argues that the

-9-

lack of a transcript of the portions of the tape played

before the jury resulted in an incomplete record for

this court to review.

The record and transcript of the case, which in-

cludes the reel of tape as an exhibit thereto, have been

examined by this court. Appellant's claim of an in-

complete record is without merit. See State v.

Knowles, 247 Ga. 218 (274 SE2d 468).

17. Rickman and Ellis each enumerates as error

the denial of his motion for new trial. Any ground for

reversal presented in those motions not discussed above

must be deemed abandoned as unsupported claims of

error under Court of Appeals Rule 15 (c) (2). Code

Ann. § 24-3615 (c)(2).

Judgment affirmed. Quillian, C. Z.. and Carley,

J., concur.

-10-

COURT OF APPEALS

OF THE STATE OF GEORGIA

Atlanta,

November 12, 1982

The Honorable Court of Appeals met pursuant to

adjournment.

The following order was passed:

63923. Rodney W. Ellis v. The State

63999. Samuel T. Rickman v. The State

Upon consideration of the motions for a rehearing

filed in these cases, it is ordered that they be hereby

denied.

COURT OF APPEALS

OF THE STATE OF GEORGIA

Clerk's Office, Atlanta

I certify that the above is a true

extract from the minutes of the Court

of Appeals of Georgia.

Witness my signature and the seal of

said court hereto affixed the day and

year last above written.

/s/ ALTON HAWK, Clerk.

Court of Appeals

of the State of Genrgia

The Honorable Court of Appeals met pursuant to adjournment.

The following order wes passed:

ATLANTA,November 12, 1982

63923. Rodney . Ellis v. The State

63999. Samuel T. Rickman v. The State

these cases,

Upon consideration of the motionsfor a rehearing filed in h- it is ordered

that kabethereby denied.

Court of Appeals of the i tate of Georgia

CLERE'SOPTICE, ATLANTA OV 12 1982

I certify that the above is a crue extract from the minutes

of the Court of Appeals of Georgia.

Witness my signacure and the seal of said court hereto affixed

the day and year last above written.

222

APPENDIX WB“

CLERK'S OFFICE, SUPREME COURT OF GEORGIA

Atlanta Wh {E/E ieee 5

Very truly yours,

MRS. JOLINE B. WILLIAMS, Clerk

—

Clerk's Office, Supreme Court of Georgia

ATLANTA_Z2SL2 3

e

The motion for a sehearing was denied today:

Case No. 1 LAL, Etter E. he State

Yours very truly,

MRS. JOLINE B. WILLIAMS, Clerk