Creamer v. State

• Decision Date: 26 September 1972
• Docket Number: No. 27555,27555
• Citation: 192 S.E.2d 350,229 Ga. 511
• Parties: James Edward CREAMER v. The STATE.
• Court: Georgia Supreme Court

Page 350

192 S.E.2d 350

229 Ga. 511

James Edward CREAMER v. The STATE.

No. 27555.

Supreme Court of Georgia.

Sept. 26, 1972.

Rehearing Denied Oct. 5, 1972.

Syllabus by the Court

Evidence concealed within the body of a prisoner may, under proper circumstances be removed where no danger to the life or limb of the prisoner is involved without violating his rights under the Constitution of the United States not to be subjected to unreasonable searches and seizures or be compelled to produce evidence against himself, nor does the extraction of such evidence violate the prisoner's rights under the Constitution of Georgia of 1945 or statutory law where he is not forced to himself produce the evidence.

On May 7, 1971, Dr. Warren B. Matthews and his wife were murdered at their home in Cobb County, Georgia. On September 1, 1972, criminal warrants were issued by the Judge of the State Court of Cobb County ordering the arrest of James Edward Creamer for such crimes. On this same day Creamer was brought before the Superior Court of Cobb County for a hearing to determine if a search warrant should be issued to remove a bullet from his body for possible use in connecting him with the double murder of May 1, 1971. After the defendant was advised of his constitutional rights, but before counsel was appointed, the defendant admitted the presence of a bullet in his body and agreed to an examination, but refused to submit to an operation to remove such bullet. Before the hearing proceeded further counsel was appointed to represent the defendant, a conference was held by the attorney with the defendant and on September 7, 1972, the hearing was continued as a show cause hearing why a search warrant should not be issued. At this hearing counsel for the defendant filed various pleadings in which the legality of the defendant's arrest and confinement was challenged, an injunction sought and motion for a commitment hearing and motion in limine filed.

Affidavits of an agent of the Division of Investigation of the State of Georgia submitted in support of the search warrant showed that an informer had been at the scene of the crime. This fact was substantiated by the informer being familiar with the scene of the crime, the physical layout of the home, the location of furniture therein, which lights were on, where the bodies were found and a knowledge of the clothes one of the victims was wearing at the time of the murder. The informant told the agent of the defendant having been shot at the scene by one of the victims and of the bullet still being in his body. The agent then visually examined the defendant who was in custody in another county and determined that, as described by the informant, there was an entry wound and no exit wound.

After hearing the trial court ordered an examination to be made to determine if the health of the defendant would be substantially impaired by the removal of the bullet and a report of the physicians' report made to the court.

On September 19, 1972, the hearing was resumed and the physician testified that he examined the defendant orally, physically and by the use of x-ray, that he asked the defendant if he was submitting to the examination willingly, to which the defendant answered that he was, that he found a wound of entry but no exit wound, that he could feel in the fat, subcutaneous area of the right side of the chest, within the area of the muscle, a foreign body which he then submitted to x-ray examination, which indicated the presence of a piece of steel which could have been a bullet, that it could be removed in no more than fifteen minutes with a local and not a general anesthetic, that the defendant informed him that he has previously had local anesthetics and no risk to the defendant would be involved in administering a local anesthetic and no risk to the defendant would be involved in removing the bullet although it would require a cutting procedure.

There was also testimony, which was not disputed, from a jailer that the defendant voluntarily suggested that he feel the area where the bullet was lodged in his body and that he did feel the area where the bullet was located.

Thereafter, the trial court ordered the defendant transported to the Talmadge Memorial Hospital in Augusta, Georgia, there to have the bullet removed and turned over to Dr. Larry Howard of the State Crime Laboratory.

On the following day a motion seeking to stop the carrying into effect of the trial court's judgment was filed in this court, a notice of appeal having been filed to such judgment, as well as the judgments overruling the defendant's habeas corpus and other pleadings. Under Rule 36(c) a supersedeas was entered to preserve this court's jurisdiction and prevent the issue as to the removal of the bullet from becoming moot. By agreement of the parties a hearing upon the question of continuance of the supersedeas was combined with a hearing upon the whole case and the issues were presented by oral argument on September 25, 1972, as well as by briefs submitted by counsel.

McDonald, Dupree, Rodriguez & Moore, Duard R. McDonald, Hylton B. Dupree, Jr., John H. Moore, Marietta, for appellant.

Ben F. Smith, Dist. Atty., Marietta, for appellee.

NICHOLS, Justice.

1. The issue in a habeas corpus proceeding is the legality of the present confinement of the petitioner. See Lewis v. Smith, 227 Ga. 220, 179 S.E.2d 745; Patterson v. Smith, 227 Ga. 170, 179 S.E.2d 247. There being no evidence submitted showing that the confinement of the defendant was illegal per se and there being no evidence that his confinement was cruel and unusual, the judgment of the trial court denying the writ of habeas corpus was not error.

2. The remaining issues in the case all turn upon the question of whether it would, under the facts in this case, violate the rights of the defendant for the State to remove the bullet from his body.

Under the decision of the United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the removal of the bullet would not be a violation of any of the defendant's rights guaranteed by the Constitution of the United States. The court in the Schmerber case dealt extensively with each assertion made by the defendant here and concluded that blood could be taken for chemical analysis under the circumstances of that case, that the Fifth Amendment refers to the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will,' and that the fourth amendment, dealing with unreasonable search and seizure, did not prohibit the extraction of blood through an opening in the body made with the State's needle by a physician in a medical environment under circumstances where probable cause existed. In concluding its opinion it was stated: 'It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual's person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.'

Based upon the uncontradicted evidence in this case the removal of the bullet from the defendant's body would amount to a minor intrusion into his person and would not be violative of his rights under the Constitution of the United States. Accordingly, the judgment of the trial court overruling these contentions of the defendant was not error.

3. We now reach the question of whether the defendant's rights under the Constitution of the State of Georgia and statutory law would be violated by the removal of the bullet.

As counsel for the defendant states, Georgia has long granted more protection to its citizens than has the United States and that while the States cannot grant less protection it can grant more.

Article I, Section I, Paragraph VI of the Constitution of 1945 states: 'No person shall be compelled to give testimony tending in any manner to criminate himself'. (Code Ann. § 2-106).

The Act of 1962 (Code Ann. § 38-416) provides: 'No person, who shall be charged in any criminal proceeding with the commission of any indictable offense or any offense punishable on summary conviction, shall be compellable to give evidence for or against himself.' (Acts 1866, pp. 138, 139; 1962, pp. 133, 135).

While the language in the United States Constitution has long been construed to be limited to 'testimony' the Georgia Constitution has been construed to limit the State from forcing the individual to present evidence, oral or real.

In one of the latest opinions of this court on this subject it was held in a full bench opinion: 'This leaves for decision only whether or not 'testimony' as found in the Constitution embraces all kinds of evidence? Fortunately, this court has many times decided that question by holding that the word 'testimony' means all types of evidence as the following decisions will illustrate. In Day v. State, 63 Ga. 667(2), it was said: 'Evidence that a witness forcibly placed defendant's foot in certain tracks near the scene of the burglary, and that they were of the same size, is not admissible. A defendant can not be compelled to criminate himself by acts or words.' At page 669, the clause of the Constitution is quoted, and then it is said: 'Nor can one, by force, compel another, against his consent, to put his foot in a shoe-track for the purpose of using it as evidence against him on the criminal side of the court.' Dealing with the same facts this court in Elder v. State, 143 Ga. 363, 85 S.E. 97, followed the ruling in the Day case, supra, and Evans v. State, 106 Ga. 519, 32 S.E. 659 (, 71 Am.St.Rep. 276).

'An extensive discussion of this question is found in Calhoun v. State, 144 Ga. 679, 87 S.E. 893. There the Constitution is quoted and it is then said at page 680, ...