Simmons v. State

• Decision Date: 07 January 1975
• Docket Number: No. 29338,29338
• Parties: Joe G. SIMMONS v. The STATE.
• Court: Georgia Supreme Court

Page 725

211 S.E.2d 725

233 Ga. 429

Joe G. SIMMONS v. The STATE.

No. 29338.

Supreme Court of Georgia.

Jan. 7, 1975.

Tom Strickland, Athens, for appellant.

Clete D. Johnson, Dist. Atty., Royston, Arthur K. Bolton, Atty. Gen., Lois F. Oakley, Atlanta, for appellee.

Syllabus Opinion by the Court

HALL, Justice.

Joe G. Simmons was convicted by a jury of murdering his ex-wife by shooting her with a rifle, and on this appeal he presents the single question whether there was probable cause for the search of his house which revealed the rifle in question. The search warrant was based upon affidavits and additional sworn oral testimony by Georgia Department of Investigation Agent Stone and Sheriff Smith. Simmons attacks the warrant on the ground that informants were the source of affiants' information, yet their reliability was nowhere adequately shown.

The trial evidence tended to show that Barbara Simmons, the victim, had arranged to meet one Walt McCannon in a wooded area on the afternoon of October 10, 1973. McCannon arrived in his truck, accompanied by three Negro employees to whom he was giving rides home. He testified that he saw Mrs. Simmons in her automobile, a 1970 Mercury, and leaving his employees to wait for him he joined her. A few moments later, hearing a suspicous noise, he checked the rear of the automobile, saw that the trunk lid was slightly open, and, opening it further, he saw a flash and 'a wallowing motion' at which point he ran away into the woods. He heard a scream and a shot, but continued running about a mile to a house from which he telephoned the sheriff. He told the sheriff he had seen a gun barrel protruding from the trunk, held by white gloved hands. The sheriff proceeded to the area but found neither the truck nor the Mercury. The testimony of the three Negro employees was that while they were waiting for McCannon's return Smimmons came up carrying a rifle and wearing white gloves, and embarked upon a course of terrorizing the three men over a period of some hours, compelling them to assist him in moving and damaging the truck, and moving the Mercury. He threatened their lives if they failed to cooperate. Finally Simmons, still accompanied by the three Negro men but now driving a third vehicle, picked up his two sons at school and in their presence dropped the three men off with $2 apiece to buy liquor and a threat to kill them if they told the law enforcement officers of his recent activities.

Simmons' son Joey, 14 years old, corroborated the testimony concerning Simmons' remarks while putting the three men out of the truck; and testified that his father brought his rifle out of the vehicle into the house, and that later that night he had heard his father praying, asking God's 'forgiveness for what he'd done.'

On the following, day, October 11, McCannon found his damaged truck in the woods, and the three employees led authorities to the place where the Mercury had been left. It had suffered gunshot damage to the trunk lid. Mrs. Simmons' body, with a gunshot wound, was discovered in the woods the next day, October 12, hidden beneath an automobile floor mat and a pile of brush. The application for the warrant to search Simmons' home was made, and the warrant was issued, prior to the discovery of the body.

Though the warrant itself was not made part of the record before the superior court either at the hearing on the motion to suppress or at the trial, the probable cause portion of it was read into the record as follows: 'Now, in the motion-in the search warrant, the probable cause states that on the 10th day of October, 1973, subject Joe Simmons, who is the defendant, had been identified, or was identified, as the person who kidnapped three colored subjects, and was responsible for the disappearance of Barbara Simmons, and bullet fragments were recovered from the trunk of Barbara Simmons' vehicle and are believed to have been fired by subject Joe Simmons. Subject Joe Simmons had in his possession at the time the crime was committed the M-15 automatic rifle, and removed from the truck owned by Walter McCannon, a 357 Magnum pistol, also owned by Mr. McCannon. Subject Joe Simmons was known to have placed the above items in his place of residence at approximately 9:30 p.m. on the night of October 10, 1973. Subject is known to have placed in his vehicle a blanket on the night of October 10, 1973.'

Simmons' attack on the warrant is based on the fact that the informants are not named therein, as a consequence of which he insists that their reliability must be sworn to under the standards of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and certain cases of this court, e.g., Johnston v. State, 227 Ga. 387, 389, 181 S.E.2d 42. Those rulings are inapplicable here.

The purpose of providing details of a confidential informant's reliability is to...