Mollins v. State

• Court: Georgia Court of Appeals
• Writing for the Court: DEEN; HALL, P.J., and EVANS
• Citation: Mollins v. State, 179 S.E.2d 111, 122 Ga.App. 865 (Ga. App. 1970)
• Decision Date: 18 November 1970
• Docket Number: No. 3,No. 45705,45705,3
• Parties: Willie MOLLINS v. The STATE

Page 111

179 S.E.2d 111

122 Ga.App. 865

Willie MOLLINS v. The STATE

No. 45705.

Court of Appeals of Georgia, Division No. 3.

Nov. 18, 1970.

Smith, Gardner, Wiggins, Geer & Brimberry, Charles F. Hatcher, Albany, for appellant.

Robert W. Reylonds, Dist. Atty., Albany, for appellee.

Syllabus Opinion by the Court

DEEN, Judge.

State appellate court cases holding that a commitment hearing in a criminal case is not a critical stage of the proceedings (Molignaro v. Balkcom, 221 Ga. 150, 143 S.E.2d 748; Moore v. State, 113 Ga.App. 738, 149 S.E.2d 492) are superseded by the holding in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387: 'Plainly the guiding hand of counsel at the preliminary hearing is essential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.' In the Coleman case the case was remanded for such proceedings as the State court might deem appropriate to determine whether the denial of counsel was harmless error or whether a new trial should be ordered. We can only take such a determination of the question to mean that the denial of counsel is presumptively harmful, since otherwise it would be necessary for the appellant to have shown injury in the first instance. This would place the burden on the State, at a hearing held by the trial court for that purpose, to establish, first, what proceedings were had at the commitment hearing, and, secondly, that such proceedings did not prejudice his fair trial rights before the jury. Justice Stewart, dissenting, made the following observation: 'No record or transcript of any kind was made of the preliminary hearing. Therefore, if the burden on remand is on the petitioners to show that they were prejudiced, it...