Davis v. State

• Decision Date: 25 November 1975
• Docket Number: 2,3,Nos. 1,No. 51245,51245,s. 1
• Parties: R. E. DAVIS v. The STATE
• Court: Georgia Court of Appeals

Page 188

222 S.E.2d 188

136 Ga.App. 749

R. E. DAVIS v. The STATE.

No. 51245.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 25, 1975.

Dennis J. Strickland, Waycross, for appellant.

Dewey Hayes, Dist. Atty., C. Dean Strickland, Asst. Dist. Atty., Waycross, for appellee.

WEBB, Judge.

Eugene Davis was indicted for assault with intent to rape (aggravated assault, Criminal Code § 26-1302). Following his conviction and sentence to the maximum imprisonment of ten years, he filed his petition for the writ of habeas corpus in the United States District Court for the Southern District of Georgia, Savannah Division. On November 11, 1974, Judge Anthony A. Alaimo of that court ordered 'that unless petitioner Davis is permitted to perfect, with the assistance of appointed counsel, an out-of-time appeal from his conviction in the Brantley County Superior Court within 120 days from the date of the entry of this order, he shall stand discharged from custody.' The Attorney General obtained an order from the District Court extending the time period to March 25, 1975, and on March 18 the Superior Court entered an order granting defenant thirty days to file an out-of-time appeal. Counsel for appeal was appointed and a motion for new trial was made and overruled. This appeal followed.

1. Defendant argues that the federal district court's extension order was obtained ex parte and should be set aside by this court, thus resulting in his discharge under that court's November 11 order. Whether the federal district judge was right or wrong in his orders to the superior court, we are not empowered either to enforce them or to set them aside. Defendant cannot expect this court to vacate the order of the federal district court whose jurisdiction he initially invoked.

2. At the close of the evidence, and again in the amended motion for new trial, defendant complained that his constitutional rights had been violated because counsel had not been afforded him at the commitment hearing. The trial court refused to grant relief, and error is enumerated thereon.

State v. Houston, 234 Ga. 721, 218 S.E.2d 13 held that the commitment hearing provided for by our statutes is a critical stage of criminal proceedings and that the ruling in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, rather than the ruling in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54, was controlling so that the assistance of counsel was required at the commitment hearing. We had previously so held in Mollins v. State, 122 Ga.App. 865, 179 S.E.2d 111; Dismuke v. State, 127 Ga.App. 835, 195 S.E.2d 259, and Hightower v. State, 135 Ga.App. 92, 217 S.E.2d 325. The U.S. Supreme Court in Coleman remanded the case to the Alabama courts to determine whether the denial of counsel was harmless error, stating that 'The test to be applied is whether the denial of counsel at the preliminary hearing was harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1067 (1967).' 399 U.S. at 11, 90 S.Ct. at 2004. Chapman held that the burden was upon the State to demonstrate beyond a reasonable doubt that the constitutional error did not contribute to the conviction, and that before a constitutional error can be held harmless in a state criminal case the reviewing court 'must be able to declare a belief that it was harmless beyond a reasonable doubt.' 386 U.S. p. 24, 87 S.Ct. p. 828. The three questions which Houston, Coleman and Chapman present here are (a) whether the denial-of-counsel point was raised at the appropriate time; (b) whether the error was harmless under Chapman standards; and (c) whether the granting of a new trial is sufficient relief.

( a) Normally pleas in abatement or special pleas in bar, however designated, cannot be made as late as the close of the evidence. See the cases cited in Judge Evans' special concurrence to Douglas v. State, 132 Ga.App. 694, 209 S.E.2d 114. However, since under Chapman the reviewing court must be able to declare its belief that the error did not contribute to the conviction and was harmless beyond a reasonable doubt, there must first be a conviction before the determination can be made. Our Supreme Court so held in Houston, reversing our holding in State v. Houston, 134 Ga.App. 36, 213 S.E.2d 139, where we ruled upon the merits of the pre-trial motion. However, the issue cannot successfully be raised in a post-trial habeas corpus proceeding. Cf. Wilson v. Hopper, 234 Ga. 859, 218 S.E.2d 573 (1975). Since an accused is entitled to counsel at the preliminary hearing, it is our view that the state must afford an opportunity for the issue to be raised. Under Houston, before trial is too early; under Wilson, post trial habeas corpus is too late. We therefore hold that the issue may be (and must be) raised at the first opportunity the determination can be made-in the motion for new trial, or, if the appeal is from the judgment of conviction and sentence, in the enumeration of errors on appeal. Of course a sufficient record should be made to allow the determination.

( b) The State has failed to make any showing as to whether the denial of counsel did or did not contribute to the conviction, and it is impossible for us to declare, under the present state of the record, that the error was harmless beyond a reasonable doubt. On the contrary it may well be that had counsel been provided, impeaching testimony could have been elicited from witness Marie Screen, the purported victim, upon whose testimony the State's case rested. Had her testimony been discounted by the jury, no conviction could have resulted. Since we cannot hold the constitutional error harmless, we must presume that it was harmful. Mollins v. State, 122 Ga.App. 865, 866, 179 S.E.2d 111, supra.

(c) A more difficult question is presented as to the relief to which defendant is entitled. Compare the dispositions made in Mollins v. State, 122 Ga.App. 865, 179 S.E.2d 111, supra; Dismuke v. State, 127 Ga.App. 835, 195 S.E.2d 259, supra; Hightower v. State, 135 Ga.App. 92, 217 S.E.2d 325, supra, and Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, supra. See also Manor v. State, 221 Ga. 866, 148 S.E.2d 305 and Middlebrooks v. State, 135 Ga.App. 411, 218 S.E.2d 110 (cert. granted Sept. 18, 1975, Sup.Ct. No. 30344).

It appears that the choice must be made between (1) quashing the indictment and remanding for a new commitment hearing, with benefit of counsel, with new trial to follow, or (2) simply reversing for a new trial. Coleman v. Alabama, which remanded to the state court for a determination as to 'whether the convictions should be reinstated or a new trial ordered,' indicates the way by pointing out the advantages of counsel at the hearing: 'Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer's skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State's case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State's witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.' 399 U.S. p. 9, 90 S.Ct. p. 2003.

It will be observed that the first and fourth issues-whether the defendant should be bound over, and whether there should be an early psychiatric examination or bail-are now moot. Likewise, as to the second there is no suggestion that testimony favorable to the accused has been lost, and in any event it could not now be retrieved by either of the alternatives of remanding for a new commitment hearing or reversing for a new trial. This leaves for discussion the following purposes for the assistance of counsel at the commitment hearing-to fashion an impeachment tool, and to discover the state's case against the accused.

It is our view that the trial in chief below, had with the assistance of counsel, will quite adequately serve for impeachment and discovery purposes and will substitute for the defective commitment hearing. The state's witnesses, including Marie Screen, have now fully testified and can be impeached by cross examination on a retrial. Similarly, we know of no better discovery method than a full-blown trial, and defendant has now discovered the case against him. We hold, therefore, that the trial in chief appealed from, where defendant had the benefit of counsel, now stands in place of the defective commitment hearing. Consequently there is no need to remand for a new commitment hearing. The new trial which we here order will become the trial in chief with all questions as to the commitment hearing standing resolved. Accord, Maddox v. State, 136 Ga.App. 370(6), 221 S.E.2d 231.

3. At the pre-sentence hearing held before the jury under prior Code Ann. § 27-2534, evidence of guilty pleas to two misdemeanor offenses was admitted over objection. Defendant was not represented by counsel when the pleas were entered, and the record does not show a waiver of the right to counsel. In Houser v. State, 234 Ga. 209, 214(15), 214 S.E.2d 893, the Supreme Court extended the right-to-counsel ruling of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 to prior misdemeanor convictions introduced during the sentencing phase to increase punishment. Under that ruling the admission of the pleas was error. Contrary holdings of...