Day v. Mills

• Court: Georgia Supreme Court
• Writing for the Court: Lewis R. Slaton, Sol. Gen., Tony H. Hight; ALMAND
• Citation: Day v. Mills, 164 S.E.2d 828, 224 Ga. 741, 142 A.L.R. 1479 (Ga. 1968)
• Decision Date: 07 November 1968
• Docket Number: No. 24880,24880
• Parties: Rufus Willie DAY v. Carl MILLS, Warden.

Page 828

164 S.E.2d 828

224 Ga. 741

Rufus Willie DAY v. Carl MILLS, Warden.

No. 24880.

Supreme Court of Georgia.

Nov. 7, 1968.

Syllabus by the Court

1. The evidence is sufficient to support the trial court's finding that the arresting

officers did not violate any of petitioner's constitutional rights.

2. There being no objection to the voluntariness of petitioner's incriminating statements, petitioner was not deprived of any constitutional right because no issue of voluntariness was raised.

3. The trial court in this application for the writ of habeas corpus made sufficient findings of fact in its judgment to comply with Code Ann. § 50-127(9) (Ga.L.1967, pp. 835, 836).

Garland & Garland, Edward T. M. Garland, Atlanta, for appellant.

Lewis R. Slaton, Sol. Gen., Tony H. Hight, J. Walter LeCraw, Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.

ALMAND, Presiding Justice.

Rufus Willie Day filed his amended two-count petition for habeas corpus in the Superior Court of Fulton County asserting that he is restrained and imprisoned pursuant to a conviction and sentence that is illegal and unconstitutional. Count 1 of the petition alleged that petitioner was denied his constitutional rights to the assistance of counsel and to a fair trial in that the trial court admitted into evidence incriminating statements petitioner made to police officers without being advised of his constitutional rights, and Count 2 alleged that the trial court failed to afford petitioner a fair and reliable procedure for determining the voluntariness of the incriminating statements in that the trial court failed to determine and rule on the voluntariness of the incriminating statements prior to their admission into evidence before the jury. Respondent, Carl Mills, Warden of the Fulton County Public Works Camp, filed an answer to the petition, and the application for the writ of habeas corpus came on for a hearing. After hearing evidence and the argument of counsel for both parties, the trial court denied the application for habeas corpus as follows: 'The court finds as a matter of fact that none of the constitutional rights of the prisoner have been violated by the arresting officers in this case.

'The court further finds that the defendant (petitioner) had a fair and legal trial, and that none of his lawful or constitutional rights were violated in the trial of his case.' Petitioner appeals from this order denying his application for the writ of habes corpus.

1. Petitioner was convicted and sentenced on May 5, 1965, prior to the ruling in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Thus, our inquiry will be limited to a determination of whether the petitioner was afforded his constitutional rights as set forth in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. See Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.

Petitioner contends that he was deprived of his constitutional right to the assistance of counsel and to a fair trial in that incriminating statements were admitted into evidence and such statements were elicited by police officers from the petitioner before he was advised that he had the right to have a lawyer, that he had a right not to say anything, and that anything he said could be used against him.

However, the record in the instant case does not substantiate this contention. On the contrary, evidence at the habeas corpus hearing given by a police officer to whom these statements were made, was that the petitioner made these statements freely and voluntarily after he was advised that any statement made by him could be used against him in court and that he had a right to an attorney, to which the petitioner replied he did not want an attorney present. In the transcript of the original trial which was placed in evidence in the habeas corpus hearing, another police officer gave the following testimony: 'Q. Prior to him (petitioner) giving the statement I will ask you whether or not you informed him that he didn't have to make any statement? A. Yes, we did. Q. Did you further inform him that if he did it might be used in a court of law against him? A. We did. Q. As to his right to counsel, did you advise him of this right? A. Yes. Q. After so advising him of counsel did he request counsel? A. No, he didn't.' Furthermore, the written statement which was made and signed by the petitioner and which was introduced in evidence at the habeas corpus hearing, recites clearly and definitely that petitioner was advised of each of the constitutional rights of which he now contends he was not advised. There was testimony that petitioner had this written statement read to him and that he said he understood it.

The foregoing evidence is sufficient to support the trial court's findings in the instant case that the arresting officers did not violate any of petitioner's constitutional rights and that petitioner did have a fair trial. Brown v. Smith, 223 Ga. 433, 156 S.E.2d 28.

2. Petitioner contends the trial court deprived him of his constitutional right to a fair trial by failing to determine the voluntariness of his incriminating statements prior to their admission into evidence before the jury as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. Assuming the Jackson case applies to admissions as well as to confessions, a survey of the trial record discloses that petitioner's attorney at his trial did not make any objection concerning the voluntariness of the...