Blake v. State

• Decision Date: 15 April 1964
• Docket Number: No. 40665,No. 2,40665,2
• Citation: 137 S.E.2d 49,109 Ga.App. 636
• Parties: Stonewall BLAKE v. The STATE
• Court: Georgia Court of Appeals

Page 49

137 S.E.2d 49

109 Ga.App. 636

Stonewall BLAKE v. The STATE.

No. 40665.

Court of Appeals of Georgia, Division No. 2.

April 15, 1964.

Rehearing Denied April 29, 1964.

Syllabus by the Court

1. In Georgia the preliminary commitment hearing is not inherently a critical stage of criminal proceedings. The failure to make counsel available to the defendant at a preliminary commitment hearing, where the defendant entered a plea of guilty that was not introduced in evidence at his trial, was not a denial of due process of law under the Fourteenth Amendment to the United States Constitution.

2. The provision of Code Ann. § 27-212, that a defendant arrested without a warrant and not conveyed within 48 hours before an officer authorized to issue a warrant shall by released, does not mean that the defendant shall be released from trial after he has been indicted for a crime.

3. The fact that a person is arrested without a warrant and is not conveyed before an officer authorized to issue a warrant within a reasonable time allowed for the purpose, as required by Code Ann. § 27-212, does not of itself render his confession, voluntarily given during his unlawful detention, inadmissible in evidence.

The defendant, convicted of burglary, filed a writ of error in the Georgia Supreme Court assigning error on orders of the trial court overruling two pleas in bar, and overruling a special ground of his motion for new trial based on the admission of evidence of his confession. The Supreme Court transferred the writ of error to this court.

Malcolm Maclean, Stanley W. Feiler, Savannah, for plaintiff in error.

Andrew J. Ryan, Jr., Sol. Gen., Sylvan A. Farfunkel, Asst. Sol. Gen., Savannah, for defendant in error.

HALL, Judge.

1. The ground of the defendant's first plea in bar is that 'no counsel was made available to him at the time of his trial in the Recorder's Court of the City of Savannah,' which was a critical stage of the proceedings against the defendant, and where he pleaded guilty, and that this denied him due process of law in violation of the Fourteenth Amendment of the United States Constitution. The trial judge heard evidence on this plea in bar. The defendant testified: 'I did not have a lawyer in police court and I plead guilty. Nobody offered me one down there; I cannot afford to pay a lawyer. * * * Judge Braziel, the recorder down there, didn't explain to me my rights; he didn't explain to me that I was entitled to an attorney; he didn't tell me that I didn't have to make any statement at all; he didn't explain to me that I could be quiet or I could explain what I wanted to. He did not tell me none of that. * * * I was not allowed to call my mother after I was arrested; she finally came to see me; but for 48 hours after my arrest my mother didn't know where I was. I was unable to contact a lawyer or anybody. I couldn't use the telephone or write letters. I didn't ask to call my mother or anybody. I asked the policeman at the jail (I don't know which one it was) to tell my mother and gave him her name. I didn't ask any of those detectives.' It was stipulated that the defendant was arrested on October 9, 1963, and the preliminary hearing was held on October 14.

The 'trial in the Recorder's Court of the City of Savannah' appears to have been a preliminary commitment hearing at which the recorder, as a court of inquiry, determined that there was probable cause to bind the defendant over to the superior court (Code § 27-401), where he was indicted by the grand jury and tried for the offense of burglary. 'The duty of the court of inquiry is simply to determine whether there is sufficient reason to suspect the guilt of the accused, to require him to appear and answer before the court competent to try him; and whenever such probable cause exists, it is the duty of the court to commit.' Code § 27-407. The law provides that the defendant shall have a reasonable time to prepare his case and to procure counsel for this commitment hearing. Code § 27-403. A defendant's plea of guilty at this stage, however, amounts to no more than a waiver of the State's proof of probable cause, or an admission that there is probable cause to suspect his guilt and require him to appear for trial. He has not at this time been accused by the State of a crime and it is still necessary that he be charged by indictment or information and arraigned. The grand jury is the only body authorized to subject the defendant to trial for a felony, unless he waives indictment. Code Ann. § 27-704.

There is no question that the right of a person accused of a felony to the aid of counsel at all critical stages of proceedings designed to bring him to trial is fundamental and must be protected by the State under our system of government. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 799; White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193. This doctrine requires counsel at least at the stage of arraignment in non-capital cases as well as in capital felony cases. Tucker v. State, 275 Ala. 700, 157 So.2d 229. Accord Fair v. Balkcom, 216 Ga. 721, 727, 119 S.E.2d 691, 695, interpreting the Georgia Constitution: The right to benefit of counsel exists 'once an indictment charging a felony has been returned * * *. This right includes the benefit of counsel at all stages of the arraignment and sufficiently prior thereto for adequate preparation.' To indigent defendants counsel must be provided by the State unless the defendant understandably, intelligently, and competently waives the right; the right can not be waived unless an offer of counsel has been made. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70; Lee v. United States, 322 F.2d 770, 777 (5th Cir.1963); Louisiana v. Walker, 217 F.Supp. 168, 172 (E.D.La.1963); Balkcom v. Shores, 219 Ga. 429, 134 S.E.2d 3; King v. State, Fla.App., 157 So.2d 440; In re Garofone, 80 N.J.Super. 259, 193 A.2d 398, 410.

The question presented in this case is whether the defendant's commitment hearing was a critical stage of his prosecution, when at that hearing he had no counsel and entered a plea of guilty amounting to an admission of probable cause to place him on trial, and when he was thereafter indicted by the grand jury, and at his arraignment and trial he had counsel and the commitment hearing plea was not introduced in evidence.

In White v. Maryland, supra, a defendant charged with murder was arrested in May and at a preliminary hearing held in August, without counsel, pleaded guilty. He was thereafter tried on pleas of not guilty made at his arraignment after counsel was appointed for him, but the plea of guilty made at the preliminary hearing was introduced in evidence at the trial. The United States Supreme Court held that in this case the defendant's preliminary hearing was a critical stage; absence of counsel when he entered the plea of guilty before the magistrate violated his rights under the Due Process Clause of the Fourteenth Amendment. An essential reason for this holding distinguishes it from the present case: The defendant's plea of guilty at the preliminary hearing was introduced in evidence at the trial; retrospectively the absence of counsel when that plea was entered a became critical.

The absence of counsel when the defendant entered a plea of not guilty at a preliminary hearing before a commiting magistrate has been held not to be a denial of constitutional rights under the White decision. Application of DeToro, 222 F.Supp. 621 (D.C.Md.1963). The DeToro opinion states that in Maryland '[A] preliminary hearing is held for the purpose of 'determining whether there is probable ground to believe the accused guilty. The magistrate, therefore, can only commit the accused for appearance before the grand jury, subject to bail under certain circumstances, or discharge him'. * * * All defenses reaching back to the arrest may be raised at the Maryland arraignment. The preliminary hearing in no way can act as a stage of the criminal process during which a defendant may waive a defense.' Of the holding in White that the Maryland preliminary hearing was in that case critical, the District Court points out, 'The next sentence reads: 'For petitioner entered a plea before the magistrate and that plea was taken at a time when he had no counsel.' This sentence cannot be read out of context. It must relate to the case before the Court, namely that the 'plea' was 'guilty', and that it was offered in evidence at the trial.'

In Georgia, as in Maryland, the preliminary commitment hearing is for the purpose of determining whether there is probable ground to believe the accused guilty; it requires no defenses be made lest they be waived; it is not inherently a critical stage. Its function is to authorize the keeping in custody of one accused with probable cause of committing a crime, pending determination by the Grand Jury from evidence presented to it that he should stand trial for the offense. (Even after arraignment the prisoner may withdraw a plea of guilty and plead not guilty at any time before judgment 'and such former plea shall not be given in evidence against him on his trial.' Code § 27-1404). In this case the preliminary commitment hearing was not a critical stage. The defendant, by pleading guilty when he had no counsel, admitted that there was probable cause to try him. But later with the aid of counsel he pleaded not guilty thereby placing the burden upon the State to overcome the presumption of innocence, and the plea of guilty at the preliminary hearing was not used as evidence against him. The absence of counsel at the preliminary hearing, where the defendant entered a plea of guilty that was not introduced in evidence at his trial, did not constitute a denial of due process of law under the Fourteenth Amendment to the United States Constitution. Application of DeToro, supra; cf. Latham v....