Hilliard v. State

• Decision Date: 13 February 1973
• Docket Number: No. 2,No. 47735,47735,2
• Citation: 195 S.E.2d 772,128 Ga.App. 157
• Parties: Joe M. W. HILLIARD v. The STATE
• Court: Georgia Court of Appeals

Page 772

195 S.E.2d 772

128 Ga.App. 157

Joe M. W. HILLIARD v. The STATE.

No. 47735.

Court of Appeals of Georgia, Division No. 2.

Feb. 13, 1973.

Lanier, Powell, Cooper & Cooper, L. E. Maioriello, Augusta, for appellant.

J. Bacheller Flythe, Augusta, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

The defendant was indicted, tried and convicted of burglary. Three separate indictments were returned against him, which were consolidated for trial. He was thereafter sentenced to serve 7 years in each case to be served concurrently.

No immediate appeal was filed, but after defendant reached the Diagnostic Center at Jackson, Georgia, he filed a petition for habeas corpus, and after a hearing, Judge Hugh D. Sosebee issued an order remanding the prisoner to the Richmond County authorities, there to be provided with an opportunity to appeal or to be re-tried within a reasonable time. The basis for this order was the denial of his right of appeal and the right of assistance of counsel on appeal. This judgment has become final with no appeal by the State.

Thereafter in response thereto appeal counsel was appointed, and a motion for new trial was filed, amended, and overruled. The defendant appeals from the judgment and sentence, enumerating error on the denial of his motion for new trial, as amended. Held:

1. The judgment in the habeas corpus case, unexcepted to, has become final and binding; hence the lower court did not err in entertaining the motion for new trial after adjournment. See Code § 70-303; Code Ann. § 6-701 (Ga.L.1965, p. 18; 1968, pp. 1072, 1073).

2. A police officer was duly sworn, and testified that after defendant's rights were explained to him he made a confession of having stolen certain articles in various burglaries. Defense counsel moved to strike this testimony because the guide-lines for confessions set forth in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, were not followed. There was no contention that the statement made to the police officer was involuntary or made under coercion. See Downs v. State, 208 Ga. 619, 68 S.E.2d 568; Sims v. State, 221 Ga. 190(5c), 144 S.E.2d 103. In Sims, supra, our Supreme Court (voting 8-1) held the Denno case was not applicable where there was no evidence whatsoever of coercion or involuntariness. There the situation was the same as in the case sub judice. But the United States Supreme Court in Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed. 593, reversed, holding: 'The trial judge need not make formal findings of fact or write an opinion, but it must clearly appear from the record that he made a primary finding of voluntariness before the confession was introduced into evidence before the jury.' The voluntariness of the confession must clearly be determined independently of the jury's determination of defendant's guilt, in a separate hearing for such purpose. Unfortunately, the trial court failed to make such independent determination here, and the confession should not have been admitted until the letter of the law, as declared by the U.S. Supreme Court, had been exactly complied with. We are, therefore, compelled to remand this case for another hearing as was done in the Denno case and the Sims case, for a separate determination as to the voluntariness of the confession.

The cases of Strickland v. State, 226 Ga. 750, 751(3), 177 S.E.2d 238, and Pinto v. Pearce, 389 U.S. 31, 32, 88 S.Ct. 192, 19 L.Ed.2d 31, do not hold the requirement of a separate hearing of voluntariness is unnecessary. While the challenge here was not made until the jury heard the evidence, nevertheless, it was challenged.

3. We know of no law or authority requiring a confession or admission to be reduced to writing, and counsel has cited none. The complaint that the alleged confession should have been reduced to writing is not meritorious.

4. Following Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783, the General Assembly amended Code § 38-415 (Ga.L.1962, pp. 133, 134) to allow a defendant in a criminal case to be sworn. It is now a privilege and not a right to allow defense counsel to ask questions of a defendant in making an unsworn statement, since he may be sworn and submit himself to examination and cross examination. Williams v. State, 220 Ga. 766, 769, 141 S.E.2d 436; Massey v. State, 226 Ga. 703(2), 177 S.E.2d 79. Here, the defendant elected to make an unsworn statement, and the court instructed him that if 'his counsel elects to question you . . . in that event the State would be entitled to cross-examine.' Counsel did not seek to question him, and we do not have for decision whether or not the State could have cross-examined him. Code § 38-415, even before the 1962 amendment, stated merely that on cross-examination the prisoner in making an unsworn statement could not be compelled to testify 'should he think proper to decline to answer.' Whether sworn or unsworn, the defendant cannot be compelled to incriminate himself. Code Ann. § 38-416 (Ga.L.1962, pp. 133, 135). We find no error in the instruction as made to the defendant...