Riley v. State

• Decision Date: 23 June 1976
• Docket Number: No. 30646,30646
• Parties: Kenneth RILEY v. The STATE.
• Court: Georgia Supreme Court

Page 922

226 S.E.2d 922

237 Ga. 124

Kenneth RILEY v. The STATE.

No. 30646.

Supreme Court of Georgia.

June 23, 1976.

I. Burl Davis, Jr., Macon, for appellant.

Fred M. Hasty, Dist. Atty., Macon, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Staff Asst. Atty. Gen., Atlanta, for appellee.

INGRAM, Justice.

This is an out-of-time appeal from a murder conviction of appellant by a jury in Bibb County Superior Court and from a sentence of life imprisonment. The appeal was authorized by the trial judge as a result of habeas corpus proceedings brought by appellant during his confinement under the sentence.

Briefly, the evidence at the murder trial shows the following events: On December 3, 1969, the deceased, a bus driver, got into a disagreement over the payment of a bus fare with a teenager and codefendant of appellant, Nathaniel Swarn, who was tried separately. Swarn threatened to 'get even' with te driver. Appellant and several others were also passengers on the bus. On the following night of December 4, 1969, the same driver was again driving his bus and he stopped to pick up a group of teenage passengers at an intersection. One of the group stepped onto the bus while another reached around the boy on the steps of the bus and shot the driver. The bus driver was found slumped over in the bus by a police officer and was taken to the hospital. He was able to describe to the police the above incidents before he died a few days later. The person who was on the steps of the bus was described as having a certain hair style, which was the same style as appellant's hair.

Appellant, who was then 15 years of age, was arrested for aggravated assault and then charged with murder after the bus driver died. The appellant gave the police an incriminating statement in which he admitted meeting with Nathaniel Swarn and a third person, George Thomas, waiting on the street corner for the bus, and agreeing that Thomas would shoot the driver. At the trial, appellant produced alibi witnesses and denied any participation in the crime. He claimed that he gave the police the incriminating statement only after being confronted by Swarn who was also in police custody and after reading Swarn's statement which implicated appellant.

We consider appellant's first three enumerations of error as similar and they will be considered together. Appellant's first trial for this same crime resulted in a mistrial. He was represented by counsel who cross examined, or had an opportunity to cross examine, the witnesses for the state. At the second trial, appellant's trial counsel entered into a stipulation with the district attorney regarding the chain of custody of the bullet that killed the deceased. This stipulation is now enumerated as error by new counsel in this appeal. However, we find no error. It is not error, for example, for counsel to stipulate the chain of custody of heroin. See United States v. Martin, 489 F.2d 674, 678 (9th Cir. 1973).

Similarly, the prior sworn testimony of the two crime lab witnesses who identified the gun which was linked to Nathaniel Swarn as the murder weapon was admitted at the present trial without objection. In fact, the trial judge specifically inquired in open court whether the prior testimony of these two witnesses was being read at this trial by agreement. Defense counsel replied in the presence of appellant at this point that, 'I have no objection.' Additionally, both the direct testimony and cross examination of Alfred Durham, who testified about the nonpayment of the bus fare incident, was admitted without objection. This witness was also shown at the second trial to be serving in the U.S. Marine Corps and stationed in South Carolina, beyond the reach of a Georgia subpoena.

A witness' testimony taken at a prior trial upon substantially the same issue between substantially the same parties is admissible if the witness is inaccessible for any cause. Code Ann. § 38-314. The prior testimony of the crime lab witnesses is now objected to for the first time on appeal because no showing of 'inaccessibility' was made. The party seeking introduction of the prior testimony must show that the witness is 'inaccessible.' See Whatley v. State, 230 Ga. 523, 198 S.E.2d 176 (1973). The question of inaccessibility is one for the determination of the trial court in the exercise of its sound discretion. See Robertson v. State, 124 Ga.App. 119, 120, 183 S.E.2d 47 (1971). While it is true that no showing was made of the inaccessibility of the two crime lab witnesses, this does not, as appellant now contends, lead to automatic reversal of the conviction.

Under the circumstances of this case, we regard the admissibility of this evidence as a procedural matter in which alleged errors could be and were waived as a trial tactic by defense counsel. The confrontation clause of the Sixth Amendment to the U.S. Constitution is not offended by this procedure. See California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1967). Cf. Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1965). We hold that, under the facts of this case, appellant waived at trial, through his counsel at that time, the use of this sworn testimony from the former trial and cannot now claim the waiver was error for the first time on appeal.

Appellant also enumerates as error the giving by the trial judge of a jury charge on conspiracy. In our opinion, the evidence of appellant's presence at the scene of the crime, his incriminating statements and other evidence of the events of the two days including the agreement that Thomas would shoot the driver authorized the charge on conspiracy given in this case.

The next enumeration of error asserts that it was error to admit appellant's incriminating statement because appellant was 15 years of age at the time the statement was given and his parents were not present. At the Jackson v. Denno hearing, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the evidence showed that appellant was arrested at his home on December 10, 1969. His mother was present when appellant was advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). There is no evidence that appellant's mother was separately advised of appellant's rights.

Appellant was questioned and denied any knowledge of the crime. The next day, after the victim had died, appellant was again advised of his rights which he stated he understood. He was told the bus driver had died and the charge against him was now murder. Nathaniel Swarn was brought in and Swarn's statement implicating appellant was read to him. Appellant then gave the police an incriminating statement. The trial judge found that appellant understood his rights and had voluntarily waived them.

It is argued that the case of Freeman v. Wilcox, 119 Ga.App. 325, 167 S.E.2d 163 (1969) should control the outcome of this case and that, under Freeman, appellant's incriminating statement was inadmissible. In Freeman, a 14-year old child was in custody for five days before his confession was obtained and used in a juvenile delinquency proceeding against him. The Court of Appeals stated (Hn. 4): 'In the present case Freeman's confession was solicited out of court with neither counsel nor parent present. If Freeman was advised of his right to counsel and if he understood that right, it is clear from the record that his mother was not so advised. This is a crucial deficiency under the Gault case. Both must be advised . . . We think, under the circumstances, that the confession was too suspect as to its procedural purity and its voluntariness to be allowed into evidence against Freeman.' Id. at p. 329, 167 S.E.2d p. 167. See also M.K.H. v. State of Ga., 135 Ga.App. 565, 218 S.E.2d 284 (1975), and J.J. v. State of Ga., 135 Ga.App. 660, 664, 218 S.E.2d 668 (1975). These cases all cite Daniels v. State, 226 Ga. 269, 174 S.E.2d 422 (1970), a case in which defendant was not advised of any of his rights, including the right to have parent or counsel present.

The question raised in this case, in light of controlling authority, is whether there was a knowing and intelligent waiver of constitutional rights by appellant. In our opinion, the question of a voluntary and knowing waiver depends on the totality of the circumstances and the state has a heavy burden in showing that the juvenile did understand and waive his rights. See United States v. Miller, 453 F.2d 634 (4th Cir. 1972); Cotton v....