Morgan v. State

• Decision Date: 25 October 1973
• Docket Number: No. 28235,28235
• Citation: 231 Ga. 280,201 S.E.2d 468
• Parties: Michael Lloyd MORGAN v. The STATE.
• Court: Georgia Supreme Court

Page 468

201 S.E.2d 468

231 Ga. 280

Michael Lloyd MORGAN v. The STATE.

No. 28235.

Supreme Court of Georgia.

Oct. 25, 1973.

Emory Lipscomb, III, Cumming, Mobley F. Childs, Decatur, for appellant.

C. B. Holcomb, Dist. Atty., Canton, B. B. Robertson, Arthur K. Bolton, Atty, Gen., Courtney Wilder Stanton, Asst. Atty. Gen., G. Stephen Parker, Deputy Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

MOBLEY, Chief Justice.

Michael Morgan was charged with the murder of his father and mother. His wife, Hollis Wingo Morgan, his brother, Steven Morgan, Robert Howard, and Bob Shaw were jointly indicted with him. He was tried separately. The jury found him guilty and gave him a death sentence. He appeals from his conviction and sentence, and from the denial of his motion for new trial.

1. It was not error to overrule the general grounds of the motion for new trial.

2. The only ground of the amendment to the motion for new trial was as follows: 'The jury was removed from Forsyth County to Hall County out of the jurisdiction of the bailiffs and court without the knowledge or consent of the defendant or counsel.' No evidence was submitted to substantiate this ground, and it was not error to overrule it.

3. It is contended that the court erred in admitting in evidence the confessions and admissions of the appellant. A hearing was held by the trial judge, out of the presence of the jury, on the question of the admissibility of these statements. The evidence authorized the judge to find that the constitutional rights of the appellant were not violated in obtaining these statements, and that they were freely and voluntarily made.

4. The appellant asserts that the court erred in admitting confessions of co-conspirators made after the enterprise had ended.

The statements of Robert Howard, Hollis Wingo Morgan, and Bob Shaw, made to investigating officers during the investigation of the murders, were allowed in evidence over the objection of appellant that the conspiracy had ended, and under Code § 38-414 the statements were not admissible. These co-indictees of the appellant did not testify at the trial. The State urged that the statements were admissible because at the time they were made the identity, or the extent of the participation, of all the perpetrators of the crime had not been determined, and the conspiracy was still in existence. See Evans v. State, 222 Ga. 392, 402, 150 S.E.2d 240.

The admissions and confessions of the appellant introduced in evidence showed that he had hired Robert Howard to kill his father and mother. The murders were committed in an extremely savage and brutal manner. There was evidence in the case that corroborated the appellant's admissions and confessions. The appellant made no statement on the trial, and offered no defense except testimony purporting to show that he was insane at the time of the commission of the crimes. Even if the statements of the co-conspirators were not properly admitted on the trial, their admission was harmless error beyond a reasonable doubt under the circumstances of this case. Burns v. State, 191 Ga. 60, 73, 11 S.E.2d 350.

5. It is contended that the court erred in submitting the death penalty as an alternative to the jury, in that the penalty was an illegal and unconstitutional punishment at that time. The appellant was convicted on August 19, 1972.

The death sentence of the appellant must be vacated and a judgment entered sentencing him to be imprisoned for the balance of his life. Direction is given that the appellant and his counsel of record be served with a copy of the life sentence within five days from the date of entry. See Sullivan v. State, 229 Ga. 731, 194 S.E.2d 410; Howard v. State, 231 Ga. 186, 200 S.E.2d 755.

Judgment of conviction affirmed; sentence reversed, with direction.

All the Justices concur, except GUNTER and INGRAM, JJ., who dissent.

INGRAM, Justice, dissenting.

I must respectfully dissent to Division 4 of this court's opinion and to the judgment affirming the conviction of this defendant. The record clearly shows constitutional errors of magnitude in the trial of the case which cannot be overlooked under our system of law despite the brutal nature of the killings shown by the evidence. The confessions of co-conspirators Robert Howard, Hollis Wingo Morgan and Bob Shaw made to investigating officers during the investigation of these two murders were allowed in evidence to the jury trying this case. These statements made by co-indictees of the appellant were read to the jury on behalf of the prosecution (over objection by defendant's counsel) on the theory that at the time they were made, the identity, or the extent of participation, of all the conspirators had not been determined and therefore the conspiracy was still in existence, making the statements admissible under Code Ann. § 38-306. These statements amounted to confessions and directly incriminate the defendant-appellant. The co-indictees, who made these unsworn, out-of-court confessions, did not testify at the appellant's trial and the record fails to show their unavailability. Thus, the appellant never had an opportunity to confront and cross-examine these three witnesses against him either at the time they made the statements incriminating him or at the time they were read to the jury by an investigating officer of the State as a witness for the prosecution.

The basic constitutional rights of none are safe unless these same rights are extended to all. We are duty-bound to apply these constitutional rights to defendants in State trials under plain mandates from the United States Supreme Court. In Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.E.2d 923 (1965), that court stated 'The Sixth Amendment's right of an accused to confront the witnesses against him is . . . a fundamental right and is made obligatory on the States by the Fourteenth Amendment.' The Court went on to say, (p. 404, 85 S.Ct. p. 1068), '. . . the right of cross examination is included in the right of an accused in a criminal case to confront the witnesses against him.' In Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), the U.S. Supreme Court reversed an Alabama conviction, approved by its highest court, on the ground that the defendant's inability to cross examine his alleged accomplice on his confession implication the defendant denied him the right of cross examination secured by the confrontation clause of the Sixth Amendment. The court observed in that case that cross examination of the police officers on the question of the genuineness of the confession 'could not substitute for cross examination of (the alleged accomplice) to test the truth of the statement itself.' Id., p. 420, 85 S.Ct. p. 1077. I fail to perceive why these principles of law are not applicable in the present case. It is my view that we have no alternative but to apply them here, regardless of the personal revulsion we may feel from the circumstances of the crimes themselves.

An additional failure of the co-conspirators' confessions as admissible evidence in this case is the silence in the record on the unavailability of these conspirators as witnesses. It is true they were also under indictment for murder and it is reasonable to assume they would refuse to testify under their Fifth Amendment right to remain silent. But the record does not disclose any showing why they were not called as witnesses. In order to introduce any hearsay statements of...