The issue here is whether the trial court abused its discretion in refusing to appoint the two lawyers who had previously represented the defendant and by appointing new local counsel for the retrial of defendant's capital case. We hold in the affirmative and reverse.
Tony B. Amadeo was convicted of murder and given the death sentence in 1977. We affirmed in Amadeo v. State, 243 Ga. 627 (255 SE2d 718) (1979)
, but the United States Supreme Court reversed on Amadeo's petition for habeas corpus in Amadeo v. Zant, ---- U. S. ---- (108 SC 1771, 100 LE2d 249) (1988). Upon remand for retrial in Putnam County, the trial court appointed two well-respected local lawyers, neither of whom had previously tried a death penalty case. After conferring with the two lawyers who had been representing Amadeo in his previous appeals, 1
local counsel sought permission to withdraw from the case and the other two lawyers, who had represented Amadeo for 10 and 4 years, sought appointment. The trial court denied both motions, but invited the intervening attorneys to participate in Amadeo's defense at their own expense. 2
We granted Amadeo's application to appeal.
1. We recognize that "the Sixth Amendment does not grant a defendant, who does have the absolute and unqualified right to appointed counsel, the additional right to counsel of his own choosing." Preston v. State, 257 Ga. 42
, 44 (354 SE2d 135
) (1987). Accord Kesler v. State, 249 Ga. 462 (291 SE2d 497) (1982)
; Bailey v. State, 240 Ga. 112
, 114 (239 SE2d 521
) (1977); McClure v. Hopper, 234 Ga. 45
, 49 (214 SE2d 503
) (1975). See OCGA 17-12-44
. However, since Gregg v. Georgia, 428 U. S. 153 (96 SC 2909, 49 LE2d 859) (1976), it has become apparent that special skills are necessary to assure adequate representation of defendants in death penalty cases. ABA, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases at 5.1. While it is true that utilization of local lawyers 3
is one of the goals to be furthered in selecting counsel, an appointing trial court must also consider the prior experience of the available lawyers when choosing counsel in a death penalty case. E.g., OCGA 17-2-8
; Uniform Superior Court Rule 29.8; Ga. Indigent Defense Act, OCGA 17-12-30
et seq. Since, however, we reverse on other grounds, we do not decide whether the failure to appoint counsel with previous death penalty experience is, in itself, an abuse of the trial court's discretion. 4
2. Here we are faced with the issue of the extent to which a trial court must consider the reappointment of lawyers with whom the defendant has already developed a close relationship. We are guided by the decision of Harris v. People, 567 P2d 750 (140 Cal. Rptr. 318, 1977). In that case, the Supreme Court of California noted that, while the appointment of counsel is a matter entrusted to the court's exercise of discretion, the appointment by the court of an individual meeting the minimum standards of competency does not insulate the court's decision from all review. Id. at 757. Rather, the court's exercise of its discretion is to be reviewed in light of the factors before the court at the time of its decision. In reversing the judgment of the trial court refusing to appoint the defendant's prior counsel, the California court emphasized not the subjective desire of the defendant to be represented by the lawyers who had earned his trust, confidence, and allegiance, but the objective fact that the prior lawyers, through their representation of the defendant, were thoroughly familiar with the defendant's case. Id. at 758. The California court noted that while an indigent defendant's preference for a particular attorney must be considered by the trial court, it is not a determinative factor requiring the appointment of that attorney. Id. at 756. However, as in the case before us, not only did the defendant argue he had developed a relationship of trust and confidence with prior counsel, but, also, the defendant's newly appointed counsel argued in favor of representation by the prior lawyers based on the legal and factual complexities of the case, which they knew they would also have to master. Convinced that these factors must play an important part in the exercise of the trial court's discretion, we adopt the conclusion of the Harris court:
In summary, while we reaffirm today the basic holding . . . that the court's discretion in the appointment of counsel is not to be limited or constrained by a defendant's bare statement of personal preference, we hold that when that statement of preference, timely made, is supported by objective considerations of the consequence here involved, and where there are no countervailing considerations of comparable weight, it is an abuse of sound judicial discretion to deny the defendant's request to appoint the counsel of his preference.
Id. at 759.
That is to say, under the facts of this case, the considerations favoring the appointment of Amadeo's previous counsel clearly outweighed any opposing consideration, including the desirability of involving local lawyers. Therefore the trial court's refusal to appoint them amounted to an abuse of discretion. Its order is reversed and the matter is remanded for appointment of previous counsel. 5
Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, amicus curiae.