Brown v. State
| Decision Date | 23 September 1970 |
| Docket Number | No. 2,No. 45537,45537,2 |
| Citation | 122 Ga.App. 570,177 S.E.2d 801 |
| Parties | W. S. BROWN v. The STATE |
| Court | Georgia Court of Appeals |
Scott & Alexander, Guy B. Scott, Jr., Athens, for appellant.
Thomas W. Ridgway, Dist. Atty., Monroe, for appellant.
Syllabus Opinion by the Court
1. There was no error in denial of the challenge to the array on the ground that the jury had a disproportionate representation of Negroes on it. Defendant's evidence in support of the challenge utterly failed to disclose any purposeful, intentional or systematic discrimination by the jury commissioners in the selection of names for placing in the jury box. On the contrary, it appears that there was no such discrimination, and that the names were selected in accordance with the law. Brookins v. State, 221 Ga. 181, 187, 144 S.E.2d 83, 88. And see Thacker v. State, 226 Ga. 170, 172, 173 S.E.2d 186; Sullivan v. State, 225 Ga. 301, 168 S.E.2d 133; Burns v. State, 119 Ga.App. 678(1), 168 S.E.2d 786.
2. 'The court did not err in excluding for cause veniremen who unmistakably expressed the view that their feelings toward capital punishment were such that they would never vote to impose the death penalty regardless of the facts of the case. ' Thacker v. State, 226 Ga. 170(5), 173 S.E.2d 186; Jackson v. State, 225 Ga. 790, 171 S.E.2d 501. Furthermore, defendant was convicted of manslaughter and the death penalty was not, and could not be imposed, and he fails to show error. Curtis v. State, 224 Ga. 870(3), 165 S.E.2d 150.
3. There is exception to the admission of a confession made by the defendant to the police after he surrendered at the jail. It appears that when the defendant turned himself in to a deputy at the sheriff's office the deputy explained to the defendant his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 964, 10 A.L.R.3d 974, and started to question him, whereupon the defendant stated that he would prefer not to answer questions without a lawyer. The deputy then stopped questioning and placed defendant in a jail cell. Some three or four hours later, after midnight and a change of shifts at the jail, two detectives came on duty and, learning that the man whom defendant shot had died at the hospital, took him to a conference room and, after informing him fully of his rights, began to question him. He made no request for counsel at that time and the detectives were unaware of his previous request to the deputy sheriff. He made a full confession. On trial of the case the State put one of the detectives on the stand for proving the confession, and defendant objected on the ground that it had not been freely and voluntarily made and that it had been made without the benefit of counsel, though he had previously stated to the deputy that he wanted a lawyer before answering questions.
Complying with the requirement of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, the court heard evidence as to the circumstances under which the confession was made, including a statement made to the deputy when defendant turned himself in that he had come 'to tell about a shooting,' and found as a fact that the confession was freely and voluntarily made.
The State contends that when the defendant thus made a free and voluntary confession to the detectives, making no request to them for counsel, it is to be assumed that he had changed his mind and that there was a waiver by him of the presence or assistance of counsel.
(a) It is settled that an accused who is in custody is entitled to the assistance of counsel before he is questioned. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, supra; Ballard v. Smith, 225 Ga. 416(2), 169 S.E.2d 329.
(b) An accused may waive his right to counsel, provided he is capable of doing so and it appears that he did so knowingly and intelligently. Broome v. Matthews, 223 Ga. 92(2), 153 S.E.2d 721.
(c) There is a presumption against a waiver of constitutional rights by one accused of crime. Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314. Presumption of waiver from a record which is silent on the matter is impermissible. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70, 77; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Whether there has been a knowing and intelligent waiver of one's right to counsel must depend, in each case, upon the particular facts and circumstances, including the background, experience and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; United States v. Hayes, 4 Cir., 385 F.2d 375(3).
(d) Applying these principles to the situation here we conclude that if there was error in admitting the confession,...
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...cannot be heard to complain of the admission of the confession, though it was introduced over his objection. (cits).' Brown v. State, 122 Ga.App. 570(3d), 177 S.E.2d ,801. No evidence was presented that the confessions by the other two defendants were involuntary. Therefore, the trial judge......
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