State v. Thornton, 41199

• Decision Date: 21 November 1984
• Docket Number: No. 41199,41199
• Citation: 253 Ga. 524,322 S.E.2d 711
• Parties: The STATE v. THORNTON.
• Court: Georgia Supreme Court

Page 711

322 S.E.2d 711

253 Ga. 524

The STATE v. THORNTON.

No. 41199.

Supreme Court of Georgia.

Nov. 21, 1984.

Thomas J. Charron, Dist. Atty., Debra Halpern Bernesu, Charles C. Clay, Asst. Dist. Attys., Marietta, Michael J. Bowers, Atty. Gen., for the State.

Alan Manheim, Marietta, for Nathaniel Thornton.

Nathaniel Thornton, pro se.

WELTNER, Justice.

Thornton was indicted for the murder of Mary Francis Moss. The state appealed to the Court of Appeals from an order sustaining a motion to suppress evidence, which was entered prior to the impaneling of a jury. OCGA §§ 5-7-1(4), 5-7-2. The Court of Appeals transferred the case to this court.

1. The district attorney did not give timely notice to the defense that the state intended to seek the death penalty, Unified Appeal, § II. A. 1., 246 Ga. at A-7, and for this reason this is not a case "in which a sentence of death was imposed or could be imposed." Constitution of Georgia of 1983, Art. VI, Sec. VI, Par. III(8). Hence, this appeal was filed properly in the Court of Appeals.

As a matter of policy, however, we deem it appropriate, at the present time, that all murder cases be reviewed by this court. Accordingly, we adopt today the following order: "The Court of Appeals is directed to transfer to the Supreme Court all cases in which either a sentence of death or of life imprisonment has been imposed upon conviction of murder, and all pre-conviction appeals in murder cases, whether or not timely notice was given by the district attorney as required by Unified Appeal § II. A. 1., 246 Ga. at A-7. This order shall be effective as to cases docketed in the Court of Appeals after December 1, 1984." Collins v. State, 239 Ga. 400, 403(3), 236 S.E.2d 759 (1977).

2. More than a year after Thornton was indicted, the police authorities of Cobb County obtained search warrants in both Fulton and Cobb Counties which alleged in part: "Items needed are dental impressions, dental photographs, and dental examination of Nathaniel Thornton, and that said evidence is presently concealed on the person of the named accused and on the premises located at 2612 Bolton Road, Atlanta, Ga. Office of Dr. T.J. David...." Thornton was taken by the Cobb County police to the office of Dr. David in Fulton County, where dental impressions were made.

The trial court granted Thornton's motion to suppress the dental impressions based on the conclusion that the provision against incrimination of the Constitution of Georgia of 1983, Art. I, Sec. I, Par. XVI, had been violated because the police officers had required of Thornton the doing of an act for the purpose of producing evidence to be used against him, as opposed to merely taking evidence from him.

In Day v. State, 63 Ga. 667(2) (1879), this court held that the incrimination provision of the Georgia Constitution forbids compelling a defendant to place his foot in a track for the purpose of using the results of such a comparison in evidence against him. See, to the same effect, Elder v. State, 143 Ga. 363, 85 S.E. 97 (1915). In Aldrich v. State, 220 Ga. 132, 137 S.E.2d 463 (1964), a state statute which would require a motor vehicle operator to drive his vehicle upon a set of scales when ordered to do so by a state agent was held to violate the incrimination provision of the Georgia Constitution. In State v. Armstead, 152 Ga.App. 56, 262 S.E.2d 233 (1979), the Court of Appeals held that a defendant cannot be required to produce a handwriting exemplar to be used in evidence against him.

The holding in Creamer v. State, 229 Ga. 511, 192 S.E.2d 350 (1972) (where a defendant was required to submit to surgery to remove a bullet from his body to be used in evidence against him) exemplifies a "taking" from an accused of evidence which is not proscribed by our Constitution. See also Strong v. State, 231 Ga. 514, 202 S.E.2d 428 (1973) (where a blood sample was taken from the defendant to be used in evidence against him.)

The taking of dental impressions comes factually within the latter category of cases. Unlike Creamer, there is here no surgical foray into the body of an accused which would require the additional precaution of an evidentiary hearing before a superior court to assure safe medical procedures. We decline to extend our Constitution so far as would prohibit reasonable police practices, such as the taking of fingerprints, to which the taking of dental impressions is analogous.

Judgment reversed.

All the Justices concur, except HILL, C.J., who concurs specially, and SMITH, J., who dissents.

HILL, Chief Justice, concurring specially.

While I join the Court's opinion in this instance, I do not approve the police tactics utilized here.

The defendant was indicted for murder and freed on bond. He was taken into custody at his Cobb County home and transported to the dentist's office in Fulton County on the basis of search warrants issued in each county.

During the motion to suppress hearing, the trial court expressed the view that the procedure utilized should not be condoned, and that the officers should have applied to the trial court for authority to obtain the dental impressions. I agree. Upon motion and after hearing, the trial court could have rendered an appropriate order, which would have avoided the unusual use of a search warrant, issued ex parte, to enter the defendant's mouth and take dental impressions.

In the future, this writer will not approve the use of a search warrant to enter the body of the defendant other than to draw blood, except upon order or search warrant issued by a superior court, the procedure used in Creamer v. State, 229 Ga. 511, 512-514, 192 S.E.2d 350 (1972).

SMITH, Justice, dissenting.

Nathaniel Thornton, appellee, is a 60 year old black man with a third grade education who is a caretaker. He was accused of the May, 1982 murder of his common-law wife. He was indicted in September of 1982 and in November of that year released on $25,000 bond, that was posted by his long-time employer.

At the time of the murder a complete autopsy was conducted on the victim. There was no request to make dental impressions. One year later, the Cobb County police decided they needed to obtain dental impressions of appellee's teeth after they learned that based on examinations of photographs of the deceased that there was a reasonable expectation that marks on the deceased were teeth marks. The police wanted appellee's dental impressions to try to match them with the apparent teeth marks in the photographs of the victim. There was no direct evidence in the case, all of the evidence was circumstantial.

The Cobb County Police obtained two search warrants. One in Cobb County and the other in Fulton County, both had essentially the same wording in pertinent part: "Nathaniel Thornton has committed a crime against the laws of Georgia and that said accused has in his possession instruments, articles, papers, items, substance, objects, matter or things that constitute tangible evidence of the commission of the crime of murder that said tangible evidence is comprised of apparent teeth marks on the body of Mary Francis Moss which there is probable cause to believe were caused by the teeth of Nathaniel Thornton. Items needed are dental impressions, dental photographs, and dental examination of Nathaniel Thornton and that said evidence is presently concealed on the person of the named accused and on the premises located at 2613 Bolton Road, Atlanta, Ga., Office of Dr. T.J. David. The probable cause on which the belief of the affiant is based is as follows: On the 31st day of May, 1982, Mary Francis Moss was murdered in Cobb County by having been beaten to death. The murder occurred at 501 Chastain Road, Marietta, Georgia. In the autopsy, certain marks were noticed on the arms of the deceased. Further examination of photographs of the deceased by Dr. T.J. David, a dentist, has indicated that there is a reasonable expectation that these are teeth marks. Nathaniel Thornton was indicted for the murder of Mary Francis Moss by the Grand Jury of Cobb County on September 24, 1982. (further oral testimony given by affiant.)"

When the police officer swore under oath that there was evidence "presently concealed on the person of the named accused and on the premises located at 2613 Bolton Road Atlanta," he knew perfectly well that there was absolutely nothing in Atlanta but a dentist who under the direction of the police would force the appellee to do the "act" of pressing his teeth into the dental medium to provide police with allegedly self-incriminating evidence. There was "presently" no evidence in the premises located on Bolton Road and the only way any would get there would be by arresting Thornton and taking him there. Therefore, the allegedly self-incriminating evidence was not present until the appellee was arrested and taken by police force to Bolton Road and forced to do a self-incriminating act.

Our constitution provides that we are to be free from all unreasonable searches and seizures and "no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the person or things to be seized." Art. 1, § 1, Par. 13. See also OCGA § 17-5-23. The search and seizure was totally unreasonable, lacking in probable cause, and the trial court was correct when it held that "the face of said search warrants contain irregularities affecting substantial rights of the accused," in that he was illegally arrested and carried to the place described in the search warrant.

Also, when the Cobb County Police came over the fence where appellee worked as the caretaker and picked up the appellee, they told him that he was under arrest and that he must accompany them to the dentist to have the dental impressions made and a dental examination. They did so without an arrest warrant. This was an illegal arrest and under Dunaway v. N.Y., 442 U.S. 200, 99 S.Ct. 2248,...