Morrison v. State

• Decision Date: 05 September 1973
• Docket Number: No. 2,No. 48304,48304,2
• Parties: William L. MORRISON, III v. The STATE
• Court: Georgia Court of Appeals

Page 286

200 S.E.2d 286

129 Ga.App. 558

William L. MORRISON, III v. The STATE.

No. 48304.

Court of Appeals of Georgia, Division No. 2.

Sept. 5, 1973.

Garland & Garland, Edward T. M. Garland, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty. William M. Weller, Joseph J. Drolet, Morris H. Rosenberg, Atlanta, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

The defendant was indicted and tried for murder. He was convicted of manslaughter and sentenced to serve 10 years. Defendant appeals. Held:

1. Defendant contends a shotgun, bush-axe and shovel were illegally admitted in evidence because same were 'tainted fruit from the poisoned tree,' obtained illegally as a result of an illegal confession, which confession was excluded. He contends these items should also have been excluded, citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. But the above doctrine is limited to evidence which the police cannot trace to an independent and lawful source. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319; Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 9 L.Ed.2d 441, supra. Here the officers had other sources and leads which could have enabled them to discover this evidence and its connection with the crime, independently of the confession. The shotgun was voluntarily turned over to the officers by the defendant's father. The bush-axe and shovel were found on the father's farm, after the father invited the officers to search the farm, and upon which farm a shallow grave was discovered. The grave contained a button and thread similar to that of the victim's shirt, and pieces of human bone. The grave was within a very short distance of a tool shed where the shovel and bush-axe were found.

While these exhibits were not conclusively proven to have been the actual instruments involved in the crime, defendant admitted in his unsworn statement that he was forced to shoot the victim, dig a grave, and he stated that other persons chopped off the victim's legs. Defendant did not object upon the ground that no proper basis, or connection with the crime, had been laid by the state as to these tools, but only as 'tainted fruit.' See Crider v. State, 114 Ga.App. 522(2), 151 S.E.2d 791. He also made a partly inculpatory and partly exculpatory statement to the effect that he did not kill the deceased but was forced to shoot him with a shotgun after two men had first shot the deceased in the face. There was other physical evidence that revealed the victim was shot with a 20-gauge shotgun, that two graves were dug, and the victim's legs were chopped off. It was not error to admit into evidence this physical evidence over the objections made to same. Code § 38-201; Wilson v. State, 215 Ga. 782(2), 113 S.E.2d 447 and cits.

2. The search of the Morrison farm was not illegal, because the owner (defendant's father) invited and requested the search. The defendant did not own the farm, hence the immunity from unreasonable search and seizure (which is a privilege personal to those whose rights are about to be violated) does not, in this case, extend to the alleged unreasonable search of the farm of defendant's father. Marsh v. State, 223 Ga. 590(1), 157 S.E.2d 273 and cits. Also Tolbert v. State, 224 Ga. 291(2), 161 S.E.2d 279. In view of the situation outlined above, it becomes unnecessary to consider the various questions raised as to the legality of the search warrant and the impartiality and independence of the magistrate issuing said warrant.

3. The defendant had been arrested earlier and his car impounded as a consequence of illegal drugs. Therefore, when his car was searched by the officers following discovery of the grave, the shotgun, the bush-axe and the shovel, etc., said search was not subject to the objection that same was an illegal search and seizure. It is not unreasonable to search a car which is being legally held for use as evidence in a forfeiture proceeding. Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 17 L.Ed.2d 730.

Further, the car was an instrumentality used in the commission of the crime, and the articles were seized under Code Ann. § 27-301 (Ga.L.1966, p. 567), and by the time of the search the defendant had been charged with murder. See Abrams v. State, 223 Ga. 216(2), 154 S.E.2d 443.

4. When defendant was brought to the jail to be fingerprinted, photographed and personal data taken, he made a partially inculpatory and partially exculpatory statement to the jailer, claiming two other persons committed the crime. This was not the result of an interrogation by the police officers; it was not elicited or induced by the officers and was therefore admissible in evidence. See Jenkins v. State, 123 Ga.App. 822, 182 S.E.2d 542; Woods v. State, 222 Ga. 321(14), 149 S.E.2d 674.

5. Defendant contends the court erred in denying his request for disclosure of the name of the informant whose information helped to secure a search warrant for discovery of marijuana on the Morrison farm on July 11, 1972. He contended this discovery was essential to his defense. The public policy of this State supports the nondisclosure privilege. See Code § 38-1102; Scull v. State, 122 Ga.App. 696, 700, 178 S.E.2d 720. Thus the lower court did not abuse its discretion in refusing to disclose the identity of this informant. None of the Federal cases cited by defendant is controlling on this court, so as to require a disclosure. The case of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, being a decision of the U.S. Supreme Court, is binding. But it simply holds that the informer's privilege is not absolute, and does not require a different ruling here. The lower court did not err in holding a mere in camera investigation into the defendant's contention and then denying disclosure of the informer.

6. During an...