Porter v. State

• Decision Date: 25 October 1977
• Docket Number: Nos. 54113,54114,No. 1,s. 54113,1
• Citation: 143 Ga.App. 640,239 S.E.2d 694
• Parties: Richard PORTER et al. v. The STATE. Allen D. SMITH et al. v. The STATE
• Court: Georgia Court of Appeals

Page 694

239 S.E.2d 694

143 Ga.App. 640

Richard PORTER et al. v. The STATE.

Allen D. SMITH et al. v. The STATE.

Nos. 54113, 54114.

Court of Appeals of Georgia, Division No. 1.

Oct. 25, 1977.

E. Kontz Bennett, Jr., J. Greg Wolinski, Waycross, King, Phipps & Associates, Herbert E. Phipps, Henry E. Williams, Albany, for appellants.

Richard Porter, pro se.

Allen D. Smith, pro se.

Dewey Hayes, Dist. Atty., Douglas, for appellee.

SMITH, Judge.

The appellants Richard Porter and James Mack in case no. 54113, Allen Smith in case no. 54114 were jointly tried for burglary. Smith and Porter were found guilty; Mack was found guilty of theft by taking. The convictions were based largely on confessions from Porter and Mack. The substantial enumerations of error in these appeals deal with the voluntariness of the confessions and their admissibility against co-defendants. We find that a full and fair hearing on voluntariness was not conducted, that Porter's confession was inadmissible, and that neither confession was properly admissible against co-defendants when the confessor did not testify. The judgments are reversed.

Case No. 54113

1. The appellants' challenge to the competency of the foreman of the grand jury which indicted them, not being raised for the first time until appeal, must be considered waived. See Hayes v. State, 138 Ga.App. 666(2), 226 S.E.2d 819.

2. The confessions of Richard Porter and James Mack were erroneously admitted. We are guided in this determination by Pierce v. State, 238 Ga. 126, 128-129, 231 S.E.2d 744, 747:

"It is now axiomatic that the defendant has the right to a hearing outside the presence of the jury on the question of the voluntariness of any in-custody statements or confessions that he has made. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Schneider v. State, 130 Ga.App. 3, 202 S.E.2d 238 (1973). At such a hearing, the state must prove voluntariness by a preponderance of the evidence (Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1971); High v. State, 233 Ga. 153, 210 S.E.2d 673 (1974)), and in order to make this determination, the judge must consider the 'totality of the circumstances' surrounding the statement (Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423, supra; Pierce v. State, 235 Ga. 237, 219 S.E.2d 158 (1975)). It is not merely an inquiry based solely on Miranda, although the presence of these warnings is significant in deciding the voluntariness question. The defendant has the right 'to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1969).' Jackson v. Denno, supra, 378 U.S. p. 377, 84 S.Ct. p. 1774. (Emphasis supplied.) We do not find that a hearing in which the defendant is allowed to present testimony only on the Miranda warnings and not on the surrounding circumstances meets this standard. State v. Fortner, 266 S.C. 223, 222 S.E.2d 508 (1976)."

It is apparent from the record in this case that the "totality of the circumstances" surrounding these confessions could not be appreciated without considering the testimony of Monroe Todd, who would present some evidence tending to vitiate the legal voluntariness of the confessions. Mr. Todd is a local tax commissioner who had befriended the appellants and, by persuading them that they could expect some leniency in return for their honesty, had encouraged them to confess their crime to the local authorities. Whether Mr. Todd's suggestion of benefit to them was adopted or perpetuated by the law enforcement authorities is a question of fact which can be faithfully answered only after full consideration of Mr. Todd's testimony. And this question must be considered, for Code § 38-411 requires "the exclusion from evidence of any confession that is induced by another by the slightest hope that the confession would make his punishment lighter." Turner v. State, 203 Ga. 770(2), 48 S.E.2d 522, quoted in Johnson v. State, 238 Ga. 27, 28, 230 S.E.2d 849.

The appellants made a pre-trial Brady v. Maryland motion to obtain any exculpatory evidence, and the District Attorney told them there was none. Later, when the state attempted to introduce the statement of Richard Porter, the officers present at the taking of the confession testified, at first, that no one else was present. A GBI agent later admitted that there was an unknown civilian present. Not until the following morning, when defense counsel was allowed to listen to an audio tape of the statement, did it become entirely clear that Mr. Todd had been present when the statement was taken and had played a role in inducing Porter to confess. It was also clear from the tape that the GBI agent and the local sheriff knew that Mr. Todd was there, knew his role, and knew his identity. Whether intentional or not, the combined effect of the witnesses' and the District Attorney's statements masked the role of Mr. Todd, and prevented the appellants from having him present at the time of the Jackson v. Denno hearing. The trial court should have delayed the proceedings long enough to allow Mr. Todd to be procured, for without his testimony the appellants were denied their right to a full investigation of all the circumstances surrounding both of their confessions. For this reason, the case must be remanded with directions for the trial court to afford a full hearing on the voluntariness of Mack's confession in light of all the surrounding circumstances.

As to Porter's confession, we find on the face of the record before us that it was inadmissible. The transcription of his confession shows that after reading him his Miranda rights, the GBI agent asked Porter to sign a written statement of those rights. At that point the sheriff said, "We don't want to get on the street and say anything about what he said now?" Mr. Todd responded, "No, that's right. That's what I've told him and the GBI explained to him this is just for his secretary in typing . . ." The remaining parts of this statement are inaudible, but...