Harris v. State, 25248

• Decision Date: 10 July 1969
• Docket Number: No. 25248,25248
• Citation: 225 Ga. 458,169 S.E.2d 331
• Parties: Donald M. HARRIS v. The STATE.
• Court: Georgia Supreme Court

Page 331

169 S.E.2d 331

225 Ga. 458

Donald M. HARRIS v. The STATE.

No. 25248.

Supreme Court of Georgia.

July 10, 1969.

Rehearing Denied July 24, 1969.

Syllabus by the Court

The trial court properly denied the petition seeking the writ of coram nobis and alternative extraordinary motion for new trial.

Lucy S. Forrester, William H. Traylor, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Tony H. Hight, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Marion O. Gordon, Courtney Wilder Stanton, Asst. Attys. Gen., Atlanta, for appellee.

GRICE, Justice.

This appeal is from the denial of a petition for writ of coram nobis and alternative extraordinary motion for new trial. The petition as amended, filed by Donald M. Harris in the Superior Court of Fulton County on December 30, 1968, made in substance the allegations which follow.

On September 11, 1958, petitioner was tried in the superior court of that county on two counts of robbery. Upon being found guilty, he was sentenced to a term of eight to twenty years on each count, to run consecutively.

In that trial a State's witness testified over objection that petitioner made to him incriminating statements amounting to a confession. The court, contrary to the procedure established in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), did not hold a preliminary hearing outside the presence of the jury concerning the admissibility of the statements. Upon cross examination this witness admitted that he had told petitioner that in exchange for petitioner having co-operated with the interrogating officers, he would inform the court at his trial of his co-operation, apparently for purposes of evoking the court's leniency. Thereupon, petitioner's counsel moved to exclude all testimony as to the purported confession, and the court excluded it. The court then and later instructed the jury to disregard any such evidence, but it refused to grant defense counsel's timely motion for a mistrial. A copy of the transcript of this portion of the trial is attached to the petition.

Petitioner's motion for new trial complaining of the refusal to grant the mistrial was denied, and this court affirmed on March 6, 1959. Harris v. State, 214 Ga. 739, 107 S.E.2d 801.

Since the filing of the motion for new trial and this court's decision, the United States Supreme Court in the cases of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, supra; Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593; and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, has held that such trial procedures as were sanctioned by this court in petitioner's case result in a denial of an accused's constitutional rights and invalidate a conviction so obtained. These cases are dispositive of petitioner's conviction in that they have been held to have retroactive application to trials concluded prior thereto. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; and Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100.

On September 20, 1968, petitioner was paroled by the Georgia Board of Pardons and Paroles to a parole plan in Tennessee. Subsequently he was tried and convicted in a United States District Court there for violation of the Federal Firearms Act, to wit, a convicted felon purchasing and conveying a firearm across state lines, and on July 2, 1968, received a sentence of two years. By virtue of his erroneous state conviction, as aforesaid, petitioner was convicted and is currently serving time by incarceration in Tennessee.

The Georgia Board of Pardons and Paroles has filed a detainer in Tennessee, which is pending. It alleges that petitioner, by virtue of the federal conviction, has violated the conditions of his parole. This detainer prevents a federal parole or other early release.

Petitioner has no other remedy available for review of his Fulton County conviction, which he asserts was obtained in violation of his constitutional rights and is void in the following particulars: that the trial court erred in refusing to grant a mistrial, thereby violating his rights under specified provisions of the Federal and State Constitutions; that the allowance of testimony concerning an involuntary, inadmissible confession before the jury, even with subsequent instructions to disregard it, constituted a material mistake of fact and error of the most fundamental character; that under the intervening decisions of the United States Supreme Court, petitioner's constitutional rights were violated and his conviction is void; that this mistake of fact occurred through no negligence of petitioner; and that had the mistake in assessing the facts and refusing the motion for mistrial not been made, petitioner's conviction would have been prevented.

The prayers were that either a writ of coram nobis issue directed to the trial court to review all proceedings in the trial of State v. Harris or, in the alternative, that a new trial be granted.

Pursuant to a rule nisi served upon the District Attorney of Fulton County, a hearing was held and the prayers of the petition were denied.

This was a correct disposition, as we view this record.

1. The petitioner was not entitled to a writ of coram nobis so as to require the trial court to review the proceeding bringing about his conviction in the Superior Court of Fulton County.

While there are reported cases in this state which deal with a writ of coram...