State v. Houston

• Decision Date: 02 July 1975
• Docket Number: No. 29901,29901
• Citation: 234 Ga. 721,218 S.E.2d 13
• Parties: The STATE v. Otis Willie HOUSTON.
• Court: Georgia Supreme Court

Page 13

218 S.E.2d 13

234 Ga. 721

The STATE v. Otis Willie HOUSTON.

No. 29901.

Supreme Court of Georgia.

July 2, 1975.

Lewis R. Slaton, Dist. Atty., R. David Petersen, gordon H. Miller, Asst. Dist. Attys., Atlanta, for appellant.

B. L. Spruell, Atlanta, for appellee.

NICHOLS, Chief Justice.

Certiorari was granted in this case to review the holding of the Court of Appeals in State v. Houston, 134 Ga.App. 36, 213 S.E.2d 139. On July 23, 1974, otis Willie Houston was indicted for the offense of robbery. Prior to indictment, on July 15, 1974, a preliminary hearing was held and as a result thereof, the defendant was bound over to the grand jury.

The decision of the Court of Appeals states (Hn. 2): 'The simple issue presented is whether the right to counsel extends to the accused at the preliminary hearing. Stated another way, the issue is whether the preliminary hearing is a 'critical stage' so as to entitle the accused to the right to counsel.' The opinion thereafter is based on the proposition that any preliminary hearing without counsel voids a subsequent indictment.

This case does not involve an unlawful waiver of the commitment hearing as did Manor v. State, 221 Ga. 866, 148 S.E.2d 305. Nor does this case involve the failure to hold a commitment hearing as was the situation in Phillips v. Stynchcombe, 231 Ga. 430, 202 S.E.2d 26. On the contrary, this case involves the question of whether a commitment hearing is a critical stage of a criminal proceeding, the effect of holding a commitment hearing where the defendant is not represented by counsel and whether an accused may waive the right to counsel at such a commitment hearing.

The decision of the Court of Appeals properly held that a defendant may competently and intelligently waive a constitutional right of counsel.

In Phillips, supra, it was held: 'The holding of a commitment hearing is not a requisite to a trial for commission of a felony . . . We know that cross-examination of the state's witnesses at a commitment hearing often results in an accused obtaining valuable information for trial of the case. However, it should be remembered that the purpose of a commitment hearing is to authorize the keeping in custody of one accused with probable cause of committing a crime until the grand jury determines whether he should stand trial. See Code § 27-407; Cannon v. Grimes, 223 Ga. 35, 36, 153 S.E.2d 445; Smith v. Brown, 228 Ga. 584, 585, 187 S.E.2d 142.'

Code § 27-210 requires that every officer arresting under a warrant shall exercise reasonable diligence in bringing the person arrested before a magistrate for hearing within 72 hours of arrest, and Code § 27-212 requires that those arrested without a warrant be formally charged within 48 hours after arrest.

In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54, the Supreme Court held: '(W)e do not imply that the accused is entitled to judicial oversight or review of the decision to prosecutive. Instead, we adhere to the Court's prior holding that a judicial hearing is not prerequisite to prosecution by information. Beck v. Washington, 369 U.S. 541, 545, 82 S.Ct. 955, 957, 8 L.Ed.2d 98 (1962); Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913). Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886). Thus, as the Court of Appeals (Fifth Circuit) noted below, although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause. (Pugh v. Rainwater), 483 F.2d (778) at 786-787. Compare Scarbrough v. Dutton, 393 F.2d 6 (CA 5 1968), with Brown v. Fauntleroy, 143 U.S.App.D.C. 116, 442 F.2d 838 (1971), and Cooley v. Stone, 134 U.S.App.D.C. 317, 414 F.2d 1213 (1969).'

Thus, there is no material difference in the prior holdings of this court and the recent decision of the Supreme Court in Gerstein v. Pugh, supra. See also Jones v. State, 232 Ga. 771, 775, 208 S.E.2d 825, and citations.

The Supreme Court then held in Gerstein that under Florida procedure the probable cause hearing was not a critical phase in the prosecution that would require appointed counsel. The distinctions between Florida's procedure and that of Alabama, dealt with in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, was then dealt with. It was held: 'In Coleman v. Alabama, where the Court held that a preliminary hearing was a critical stage of an Alabama prosecution, the majority and concurring opinions identified two critical factors that distinguish the Alabama preliminary hearing from the probable cause determination required by the Fourth Amendment. First, under Alabama law the function of the preliminary hearing was to determine whether the evidence justified charging the suspect with an offense. A finding of no probable cause could mean that he would not be tried at all. The Fourth Amendment probable cause determination is addressed only to pretrial custody. To be sure, pretrial custody may affect to some extent the defendant's ability to assist in preparation of his defense, but this does not present the high probability of substantial harm identified as controlling in Wade and Coleman. Second, Alabama allowed the suspect to confront and cross examine prosecution witnesses at the preliminary hearing. The Court noted that the suspect's defense on the merits could be compromised if he had no legal assistance for exploring or preserving the witnesses' testimony. This consideration does not apply when the prosecution is not required to produce witnesses for cross-examination.'

A comparison of the above holding with Chapter 27-4 of the Georgia Code, as amended, requires a holding that in Georgia a commitment hearing is a critical stage of the criminal proceedings and that the defendant is entitled to counsel.

The failure to provide counsel, however, does not void further proceedings in the case and, as was held in Coleman v. Alabama, supra, '(O)n the record it cannot be said whether or not petitioners were otherwise prejudiced by the absence of counsel at the preliminary hearing . . . The test to be applied is whether the denial of counsel at the preliminary hearing was harmless error . . . We accordingly vacate the petitioner's convictions and remand the case to the Alabama courts for such proceedings not inconsistent with this opinion as they may deem appropriate to determine whether such denial of counsel was harmless error . . . and therefore whether the conviction should be reinstated or a new trial ordered.'

The effect of a void 'probable cause' hearing is to make the detention under such hearing illegal. Under decisions exemplified by Stynchcombe v. Hardy, 228 Ga. 130, 184 S.E.2d 356, the legality of such confinement may be tested by habeas corpus petition. Such illegal confinement, however, will not preclude action by the grand jury.

Accordingly, it is now well settled that illegal detention (without a valid probable cause hearing) does not preclude indictment by the grand jury. It is equally well settled that an illegal arrest or detention does not void a subsequent conviction, and that the failure to provide counsel at a probable cause hearing may not be raised after conviction by petitioners for writ of habeas corpus.

This case, for the first time, raises the question of whether a defendant can be placed on trial after indictment where counsel was not appointed on the probable cause hearing without providing the defendant with a second probable cause hearing.

As was held in Coleman v. Alabama, supra, it is only where harmful error has occurred during the trial that a conviction will be set aside. In the present case there has been no trial and accordingly, no harm could be demonstrated at the pretrial hearing of the defendant's motion.

That part of the judgment of the Court of Appeals which holds that a preliminary hearing is a critical stage in the criminal prosecution in Georgia is affirmed; however, that part of the jdugment of the Court of Appeals which affirmed the judgment of the trial court quashing the indictment and requiring a second commitment hearing is reversed.

Judgment affirmed in part and reversed in part.

All the Justices concur except UNDERCOFLER, P.J., and JORDAN and HALL, JJ., who dissent.

INGRAM, Justice (concurring).

I fully agree with the majority's conclusion that a preliminary hearing is a critical stage of a criminal proceeding in Georgia and that the defendant is entitled to counsel at that hearing unless there is a waiver. The difficulty I have with the majority opinion is that it authorizes the prosecution of the case to go forward without pointing out the serious risk of reversal that may result if there is a conviction.

The majority opinion does acknowledge that the failure to provide counsel to an indigent defendant, where there is no waiver, will require a new trial if the absence of counsel causes harm to the defendant. See, also, Hunt v. Hopper, 232 Ga. 53, 55, 205 S.E.2d 303. I would add that there is always a very real possibility, where counsel has been denied at a preliminary hearing, for prejudice to ensue in the conduct of the defense at a subsequent trial. See Hightower v. State, 135 Ga.App. 92, 217 S.E.2d 325.

If the denial of counsel at a preliminary hearing causes prejudice to the defendant at a subsequent trial, resulting in conviction, I believe a reversal is required. My conclusion is grounded upon the reasoning of Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, and the Georgia Commitment Statutes. A preliminary hearing is an adversary proceeding and 'the guiding hand of counsel' is one of the basic ingredients of any fair adversary hearing. To...