Brenneman v. State , 200 Ga. App. 111 ( 1991 )

Andrews, Judge,

concurring specially.

I concur in the judgment and all the divisions of the opinion except Divisions 2 and 3.

In addressing appellant’s claims in Divisions 2 and 3 based on pre-charge, pre-trial, ineffective assistance of counsel, it is not necessary to reach the merits of the ineffective assistance allegation. Even if appellant’s pre-trial counsel provided ineffective assistance under these circumstances, no constitutional ineffective counsel question is presented because no adversary judicial proceedings had been initiated against appellant at that time. The appellant’s Sixth and Fourteenth Amendment right under the United States Constitution to be represented by counsel attached only after adversary judicial proceedings were initiated against him. United States v. Gouveia, 467 U. S. 180 (104 SC 2292, 81 LE2d 146) (1984); Kirby v. Illinois, 406 U. S. 682 (92 SC 1877, 32 LE2d 411) (1972); State v. Simmons, 260 Ga. 92, 93 (390 SE2d 43) (1990); Houston v. State, 187 Ga. App. 335, 339 (370 SE2d 178) (1988). Since appellant had no constitutional right to be represented by counsel during the events of which he complains, he could not have been deprived of the effective assistance of counsel by any alleged deficiency in his attorney’s representation. Wainwright v. Torna, 455 U. S. 586, 587-588 (102 SC 1300, 71 LE2d 475) (1982); accord People v. Claudio, 453 NE2d 500 (N.Y. 1983) (Defendant confessed to police in non-custodial setting. No constitutional right to effective assistance of counsel attached. Despite ineffective counsel, defendant’s statements were not suppressed.)

Decided June 21, 1991. Edwards & McLeod, Jennifer McLeod, for appellant. Thomas J. Charron, District Attorney, Donald T. Phillips, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.