Judgment affirmed. All the Justices concur, except Nichols C. J., Jordan and Hall, JJ., who concur specially.

Lewis R. Slaton, District Attorney, H. Allen Moye, Assistant District Attorney, Arthur K. Bolton, Attorney General, Mary Beth Westmoreland, for appellee.Lewis R. Slaton, District Attorney, H. Allen Moye, Assistant District Attorney, Arthur K. Bolton, Attorney General, Mary Beth Westmoreland, for appellee.Joe H. Gailey, for appellant.

The appellant, David Burney, Jr., was convicted of the murder of City of Atlanta Police Officer Frank Schlatt and the armed robberies of Ronald Dukes, who was the manager of the Dixie Furniture Store, and George Malcom, who was an employee of the furniture store. These crimes were committed by the appellant and others during their holdup of the Dixie Furniture Store on May 13, 1978. The appellant's trial was held in the Fulton Superior Court in November of 1978, and he was given three consecutive sentences of life imprisonment.

1. In the first enumeration of error, the appellant argues that the trial court erred in denying him the right to counsel of his own choosing during a pretrial hearing on a motion for a continuance.

At appellant's arraignment in June of 1978, he represented to the trial court that he was indigent, and he requested that the trial court appoint counsel to represent him. The trial court appointed the Public Defender to represent the appellant. After arraignment, the appellant became dissatisfied with the Public Defender, and he decided to obtain another attorney, Mr. Joe Gailey, to represent him. In August of 1978, Mr. Gailey filed a notice before the trial court that he would represent the appellant, and he also filed a motion that the court appoint him as the appellant's counsel and, since the appellant was indigent, that the trial court compensate him for his services.

In September of 1978, there was a hearing on a motion for continuance filed by the state. The state was seeking this continuance so that a material witness, one of the appellant's alleged accomplices could be extradited from out of state and appear at trial. Gailey appeared at the hearing and requested the trial court to dismiss the Public Defender as the appellant's attorney. The trial court conducted a hearing on this question, and the court ruled that Gailey would not be allowed to serve as the appellant's leading counsel because of Gailey's lack of experience (Gailey had never tried a murder case.) The trial court made this ruling despite the appellant's testimony that he was aware of Gailey's lack of experience and wanted Gailey to represent him anyway. The trial court did rule that Gailey could participate in the trial by associating himself with the Public Defender's office or by obtaining another leading counsel with more experience. The trial court did later admit Gailey as co-counsel for the appellant, and Gailey was in fact allowed to serve as leading counsel at trial.

The state's motion for continuance was granted without objection by any of the attorneys present at the hearing. Nonetheless, the appellant argues that if Gailey had been allowed to represent him during the hearing on a motion for continuance, he might have persuaded the trial court to deny the motion. In this manner, the appellant alleges prejudice.

A criminal defendant does have a constitutional right to be defended by counsel of his own selection whenever he is willing and able to employ such counsel. Delk v. State, 119 Ga. App. 82 (166 SE2d 365) (1969). However, an indigent criminal defendant does not have an absolute right to discharge one court-appointed counsel and have another substituted in his place. A request of this sort addresses itself to the sound discretion of the trial court. See Crawford v. State, 232 Ga. 71 (205 SE2d 276) (1974). See also Williams v. State, 230 Ga. 484 (198 SE2d 144) (1973). [2] Thus, under the express terms of the state constitutional guarantee, the assertion of the right to be represented by counsel does not constitute a waiver of the right of self-representation. It is axiomatic that this court must follow the Constitution.

The cases have held that the trial court retains the inherent power to regulate, in its discretion, the manner in which the constitutional right of self-representation will be exercised. See Roberts v. State, 144 Ga. App. 298 (6) (240 SE2d 894) (1977); Heard v. State, 126 Ga. App. 62, 65 (189 SE2d 895) (1972); Moyers v. State, 149 Ga. App. 496 (254 SE2d 739) (1979); Loomis v. State, 230 Ga. 536 (198 SE2d 161) (1973) is overruled insofar as it holds that the assertion of the right to be represented by counsel constitutes a waiver of the defend pro se.

3. In the third enumeration of error, the appellant argues that the trial court erred in overruling his challenge to the array of the traverse jury on the ground that the traverse jury pool was not composed in accordance with Code 59-106 (as amended, Ga. L. 1978, pp. 1611, 1612, eff. July 1, 1978). Code 59-106 provides, in pertinent part, that: "At least biennially, or, if the senior judge of the superior court shall direct, at least annually, the board of jury commissioners shall compile and maintain and revise a jury list of intelligent and upright citizens of the county to serve as juries. In composing such list the commissioners shall select a fairly representative cross section of at least 50 per cent. of the intelligent and upright citizens of the county from the official registered voters' list of the county as most recently revised by the county board of registrars or other county election officials." (The emphasized language was added to the statute in the 1978 amendment.)

The evidence presented in support of the appellant's jury challenge showed that as of November 13, 1978, which was the opening day of the appellant's trial, the jury list for Fulton County had not been revised since June 29, 1976. The evidence also showed that the jury list did not contain a number of names equal to 50% of the registered voters of Fulton County, as is apparently required by the 1978 amendment to Code 59-106. See Op. Atty. Gen., 78-52.

It has been held that the provisions of Code 59-106 are directory only and, therefore, the failure to revise the jury list in accordance with the timetable set forth in Code 59-106 does not invalidate the jury list or deprive the defendant of any right to which he is entitled. See McHan v. State, 232 Ga. 470 (3) (207 SE2d 457) (1974); Sims v. State, 221 Ga. 190 (1c) (144 SE2d 103) (1965); Haden v. State, 233 Ga. 58 (209 SE2d 629) (1974). This enumeration of error is without merit.

6. In the sixth enumeration of error, the appellant argues that the following charge to the jury on implied malice was unconstitutionally burden shifting: "Malice shall be implied where no considerable provocation appears and where all of the circumstances show an abandoned and malignant heart." This same argument has been made and rejected by this court on previous occasions. See Thomas v. State, 240 Ga. 454 (1) (241 SE2d 204) (1978); Hudson v. State, 240 Ga. 70, 74 (239 SE2d 330) (1977); Patterson v. State, 239 Ga. 409 (4b) (238 SE2d 2) (1977); Davis v. State, 132 Ga. App. 654, 656-657 (209 SE2d 101) (1974); Hobbs v. State, 230 Ga. 536 (198 SE2d 161) (1973) holding that a defendant who chooses to be represented by counsel waives the "correlative right to represent himself." This holding is in accord with the majority view in the United States and is consonant with the language in our Constitution. The use of the word "both" does not demand a finding that it means "both" at the same time. To allow a defendant to have counsel appointed to represent him and at the same time allow him to represent himself is entirely inconsistent with the orderly procedure of a trial. See Heard v. State, 126 Ga. App. 62, 65 (189 SE2d 895) (1972). A defendant cannot "have his cake and eat it too."

I do not believe that the writers of the Constitution intended that this provision of the Constitution should be interpreted as the majority opinion holds. Since I agree that the error, if any, was harmless, I concur in the judgment of affirmance.

1979

Notes:

1. In order to establish an abuse of discretion on the part of the trial court in denying such a request, other courts have required the defendant to make a showing of good reason to believe that the right to assistance of counsel was substantially impaired or effectively denied because the request was not granted. See generally, 157 ALR 1225.

2. There is a reference in Bloomfield v. Liggett & Meyers, Inc., supra, to discussion of this constitutional provision during the Constitutional Convention preceding the adoption of the Constitution of 1877. For discussion of the same provision during the Constitutional Convention prior to the adoption of the Constitution of 1945, see Records of the Commission of 1943-44 to Revise the Constitution of Georgia, edited by Albert B. Saye, Vol. 1, pp. 532-533.