Jacobs v. Hopper
| Decision Date | 18 February 1977 |
| Docket Number | No. 31705,31705 |
| Citation | 233 S.E.2d 169,238 Ga. 461 |
| Parties | Richard JACOBS v. Joe S. HOPPER, Warden. |
| Court | Georgia Supreme Court |
Thomas B. West, Atlanta, for appellant.
Arthur K. Bolton, Atty. Gen., Kirby G. Atkinson, Asst. Atty. Gen., Atlanta, for appellee.
This is a habeas corpus case. Appellant and two others were convicted of burglary after a joint jury trial, and the conviction was upheld on direct appeal. Jacobs v. State, 133 Ga.App. 812, 212 S.E.2d 468 (1975).
Prior to the trial, appellant filed a motion to suppress certain evidence obtained in a search incident to arrest, alleging that the arrest was made without probable cause. When neither appellant nor his counsel appeared at the hearing on the motion, the trial court dismissed the motion on the ground it had been abandoned.
The record contains no objection at the trial when this evidence, in the form of testimony of the arresting officer, was introduced. Also introduced at the trial through the testimony of a police officer was an alleged confession made to the officer by one of appellant's co-defendants (who was represented by separate counsel) which implicated the appellant and the third co-defendant as the perpetrators of the burglary. After a substantial Jackson-Denno hearing (out of the jury's presence), the court concluded that the statement was freely and voluntarily made. The co-defendant, who allegedly made this statement, did not take the stand.
Appellant claims that the trial court deprived him of his constitutional rights under the 4th and 14th Amendments in admitting evidence, unobjected to at trial, which was obtained in an illegal search. We find no merit in this claim for the following reasons.
Code Ann. § 50-127 provides that grounds for the writ of habeas corpus exist where: "in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Georgia or the laws of the State of Georgia . . . ." (Emphasis supplied.)
In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) the Supreme Court held that "a federal court need not apply the exclusionary rule on habeas review of a Fourth Amendment claim absent a showing that the state prisoner was denied an opportunity for full and fair litigation of that claim at trial and on direct review." Id., n. 37 at 96 S.Ct. 3052, 49 L.Ed.2d 1088. In reaching that conclusion, the Court noted that, "Post-Mapp decisions have established that the (exclusionary) rule is not a personal constitutional right." Id. at 96 S.Ct. 3048, 49 L.Ed.2d 1083. (Emphasis supplied). Rather, "the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect." Id., quoting from United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). The Court recognized the "minimal utility of the rule when sought to be applied to Fourth Amendment claims in a habeas corpus proceeding," Stone v. Powell, n. 37, at 3052, 96 S.Ct. supra, and concluded that any possible deterrent effect to be gained by applying the rule on collateral review was "outweighed by the acknowledged costs to other values vital to a rational system of criminal justice."
From this it is clear that the introduction of evidence obtained in an illegal search or seizure is not a "substantial denial" of a defendant's rights under the Constitution of the United States. The further question is whether it is necessary to impose the exclusionary rule, in a state habeas corpus proceeding, in order to effectuate the protections of the Fourth and Fourteenth Amendments. We believe the test announced by the Supreme Court in Stone v. Powell, supra, regarding federal habeas corpus review would serve equally well for state habeas corpus review, and we therefore adopt it.
From the record, it appears that the appellant did have a full and fair opportunity to litigate his Fourth Amendment claims at trial and on direct review. We note, and emphasize, that the test is "full and fair opportunity" ; not whether the claim was, in fact, litigated. Code Ann. § 27-313 sets out the procedure by which a claim of unlawful search and seizure is tested. We believe Code Ann. § 27-313 provides the defendant a "full and fair opportunity " to have his Fourth Amendment claims considered prior to his trial, and it provides a method by which a defendant may secure a record on these issues that will enable a court, on direct appeal, to review the trial court's ruling. The appellant here, after filing a pre-trial motion to suppress under Code Ann. § 27-313, failed to appear at the evidentiary hearing; failed to move for a continuance; failed to object at trial to the dismissal of his motion entered on the ground that the motion was abandoned; and failed to object to the introduction of the evidence at trial. Under these circumstances we find nothing to indicate that appellant was denied a full and fair opportunity to litigate his Fourth and Fourteenth Amendment claims. Therefore, his claim, based on the introduction at his trial, of evidence obtained in an illegal search and seizure, does not warrant habeas corpus relief.
In view of our holding today, Morgan v. Kiff, 230 Ga. 277, 196 S.E.2d 445 (1973), to the extent that it is in conflict with what we hold here, will no longer be followed. That case was decided before this court had the benefit of the Supreme Court's decision in Stone v. Powell, supra.
Appellant also complains that his conviction must be set aside because highly prejudicial testimony as to a "confession" made by one of his co-defendants, who did not testify, was not excluded from the evidence.
The record reveals that the introduction of testimony regarding the statement made by the appellant's co-defendant was objected to on the ground that the statement was not made voluntarily. Although the rule announced in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) would clearly have required exclusion of the highly damaging testimony, the applicability of the Bruton rule was not relied on in the objection. After a Jackson-Denno hearing the objection was overruled and the testimony was admitted into evidence.
We find, under the circumstances of this case, that appellant's claim has merit. After a thorough examination of the record, we are unable to find that appellant was not harmed by the introduction of the evidence and we therefore must reverse the judgment of the habeas court and order that the appellant be given a new trial.
Judgment reversed.
All the Justices concur, except GUNTER, J., who concurs in division II and in the judgment, JORDAN, J., who concurs specially as to division II, INGRAM, J., who concurs in the judgment only and NICHOLS, C. J., and HALL, J., who concur in division I, but dissent to division II and to the judgment.
I concur in Division Two of the opinion for the following reason:
Appellant complains, for the first time that the introduction of evidence of his co-defendant's "confession" deprived him of his constitutional right to confrontation in violation of the Sixth and Fourteenth Amendments. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968).
In my view, our first inquiry must be whether appellant, by his failure to object to this evidence (on this ground), both at trial and on appeal, has waived his right to rely on this constitutional protection.
Our habeas statute contains a waiver standard which applies to waiver of federal constitutional rights: "Except for objections relating to the composition of a grand or traverse jury, rights conferred or secured by the Constitution of the United States shall not be deemed to have been waived unless it is shown that there was an intentional relinquishment or abandonment of a known right or privilege which relinquishment or abandonment was participated in by the party and was done voluntarily, knowingly, and intelligently." Code Ann. § 50-127(1). (Emphasis supplied).
However, I do not feel that we are bound to apply this standard because the question of when a right secured by the federal constitution has been waived, is itself, a federal question. Fay v. Noia, 372 U.S. 391 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). The standard set forth by the legislature in the statute constitutes an attempt by the legislature to impose its construction of the requirements of the Constitution of the United States regarding waiver of constitutional rights on this court. This the legislature may not do. The duty and authority to interpret the provisions and requirements of the Federal Constitution resides in this court. Ga.Const. Art. VI, § 2, Par. 4, Ga.Code Ann. § 2-3704 (Rev.1973).
The question of when a right secured by the Federal Constitution is waived often requires consideration of numerous, and sometimes conflicting, values. Decisions of the Supreme Court have made it clear that some rights are so fundamental that they require a personal waiver, made by the defendant voluntarily, knowingly and intelligently. These rights include: the right to counsel and the right to refrain from self-incrimination, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); the right to appeal, Fay v. Noia, supra, 372 U.S. at 439, 83 S.Ct. 822; the right to trial by jury, Patton v. U. S., 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed.2d 854 (1930); and rights waived by guilty pleas, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
The Supreme Court has made it equally clear, that it is not necessary to show a personal waiver in every case where a right existing under the Constitution is not asserted. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); ...
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