Moore v. State

• Decision Date: 13 May 1966
• Docket Number: No. 41998,No. 2,41998,2
• Citation: 149 S.E.2d 492,113 Ga.App. 738
• Parties: Prince MOORE v. The STATE
• Court: Georgia Court of Appeals

Page 492

149 S.E.2d 492

113 Ga.App. 738

Prince MOORE v. The STATE.

No. 41998.

Court of Appeals of Georgia, Division No. 2.

May 13, 1966.

Rehearing Denied May 25, 1966.

Robert E. Corry, Jr., Atlanta, for appellant.

Lewis R. Slaton, Sol. Gen., J. Walter LeCraw, Paul Ginsberg, Atlanta, for appellee.

Syllabus Opinion by the Court

HALL, Judge.

The defendant appeals from his conviction of assault with intent to rape. The defendant contends that he was indigent, and that the failure to provide counsel for him at his commitment hearing, and the failure to provide him before his trial with an examination and written report of his mental condition by a qualified psychiatrist or psychologist, were in contravention of his right to the assistance of counsel and preparation of his defense guaranteed by the Fourteenth Amendment to the Constitution of the United States.

1. We will assume, without deciding in this opinion, that the defendant was indeed indigent. 'There is no question that the right of a person accused of a felony to the aid of counsel at all critical stages of proceedings designed to bring him to trial is fundamental and must be protected by the State under our system of government.' Blake v. State, 109 Ga.App. 636, 638, 137 S.E.2d 49, 51, cert. denied 379 U.S. 924, 85 S.Ct. 281, 13 L.Ed.2d 337. The Georgia appellate courts have held that the commitment hearing in Georgia, for the purpose of determining whether there is probable cause to believe the accused guilty of the crime charged and bind him over for indictment by the grand jury, is not inherently a critical stage of a criminal proceeding. Molignaro v. Balkcom, 221 Ga. 150, 143 S.E.2d 748; Blake v. State, supra. The record in the present case shows no facts or circumstances that made the preliminary hearing without counsel representing the defendant in this case a critical stage, in the sense that it prevented the accused from having a fair trial. See Estes v. State of Texas, 381 U.S. 532, 567, 85 S.Ct. 1628, 14 L.Ed.2d 543. The fact that police officers and other witnesses for the State testified at the hearing and the defendant did not cross examine them nor make a statement nor call any witnesses on his own behalf did not, as contended by the defendant, cause the defendant to be deprived of any fundamental right essential to a fair trial. It appears that the defendant had effective assistance of counsel at the trial and had the opportunity to confront these witnesses and exercised his right to cross examine them. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, upon which the defendant relies, held that the introduction at the trial of the transcript of testimony given at the commitment hearing by the complaining witness, who had moved out of the state and was not present at the trial, was a denial of the accused's right, guaranteed by the Sixth Amendment, to confrontation of the witnesses against him, when the defendant had no counsel or opportunity to cross examine the witness at the preliminary hearing. It is not controlling here.

2. The defendant, through his attorney, filed a petition for mental examination which alleged that there was strong reason to believe that he was then incompetent to be tried, that at the time of the alleged offense he lacked the mental capacity to commit the offense, and that he was destitute and without funds to secure a medical examination. The petition prayed that the court appoint a qualified expert to conduct...