Tarpkin v. State, 30325
| Decision Date | 08 January 1976 |
| Docket Number | No. 30325,30325 |
| Parties | Johnny TARPKIN et al. v. The STATE. |
| Court | Georgia Supreme Court |
Paris & Burkett, Richard J. Burkett, Winder, for appellants.
Nat Hancock, Dist. Atty., Jefferson, Arthur K. Bolton, Atty. Gen., B. Dean Grindle, Jr., Asst. Atty. Gen., Atlanta, for appellee.
Appellants, Johnny and Robert Tarpkin, were found guilty of the murder of Joseph Gillespie, automobile theft and armed robbery, and were sentedced to life imprisonment and two consecutive sentences of seven and twenty years. Their motion for new trial being overruled, they now appeal to this court.
However, the record reveals that appellants were arrested on January 16, 1975, and the next day brought before a justice of the peace, who after hearing the evidence committed appellants to the Jackson County Jail until their trial. Code Ann. § 27-210 (Ga.L.1956, p. 796) grants the right to a preliminary hearing, and that the accused at least be brought within 72 hours of his arrest before a committing officer to schedule the time and place for the hearing. Dodson v. Grimes, 220 Ga. 269, 138 S.E.2d 311 (1964). The procedures to be followed at the hearing are set forth at Code Ann. Chapter 27-4. Code Ann. § 27-401 provides that any justice of the peace may hold a court of inquiry to examine the accusation against a person legally arrested and brought before him, and Code Ann. § 27-407 provides that the court of inquiry's duty shall be to determine whether there is sufficient reason to suspect the guilt of the accused and to commit him where probable cause exists. The record shows that appellants' hearing was properly conducted pursuant to these statutory provisions.
The record reveals, however, that appellants were not represented by counsel at the preliminary hearing. In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1969), the U.S. Supreme Court held that the preliminary hearing pursuant to Alabama's statute was a critical stage of the state's criminal process, giving the accused the right to counsel at the hearing. This court has recently held that there is no substantial difference in the Alabama and Georgia preliminary hearing statutes, extending the right to counsel to Georgia commitment hearings. State v. Houston, 234 Ga. 721, 218 S.E.2d 13 (1975).
As directed by Coleman, we must determine whether or not the error is harmless pursuant to the standard in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966), where the court declared that before a federal constitutional error can be held harmless, the error must be found to be harmless beyond a reasonable doubt. Id., p. 24, 87 S.Ct. 824. We must therefore determine whether the lack of counsel at the commitment hearing 'might have contributed to the conviction.' Id., p. 23, 87 S.Ct. p. 827. The appellants' subsequent convictions render moot the possibility that counsel at the commitment hearing would have exposed a fatal weakness in the state's case which might have led the committing officer not to bind them over. We have been unable to discover from the record any vital opportunity to impeach state witnesses, or the need to preserve favorable testimony which was lost by a lack of counsel at the hearing. Appellants have not complained that a lack of knowledge of the state's case prevented them from preparing a proper defense, nor that insanity of one of them required that an early psychiatric examination be given. See Coleman, supra, 399 U.S. p. 9, 90 S.Ct. 1999. We are therefore unable to determine from the record how the lack of counsel at the commitment hearing might have contributed to appellants' conviction in this case, and find the error to be harmless beyond a reasonable doubt. See State v. Hightower, 236 Ga. 58, 222 S.E.2d 333.
The denial of appellants' motion for discovery did not deny the appellants a fair trial within the rule in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as they have not met their burden of showing how their case has been materially prejudiced. The evidence which they sought to inspect was introduced to the jury in its entirety, and therefore any favorable evidence was made available to the jury. See Hicks v. State, 232 Ga. 393, 396, 207 S.E.2d 30 (1974). Appellants' argument that the evidence was needed in order to prepare a proper defense has no merit since the evidence requested were statements made by appellants themselves.
3. In his charge on circumstantial evidence the trial judge instructed the jury as follows: 'When circumstantial evidence is relied upon to establish a fact, the evidence must be such as to reasonably establish the theory relied upon to preponderate to that theory rather than to any other reasonable hypothesis.' The trial judge then correctly charged the jury on circumstantial evidence pursuant to Code Ann. § 38-109 , and on the standard of proof beyond a reasonable doubt. Appellants contend that the charge as given would tend to mislead the jury into convicting them on the standard of a preponderance of the evidence.
In Woods v. State, 233 Ga. 495, 212 S.E.2d 322 (1975) and Pless v. State, 231 Ga. 228, 200 S.E.2d 897 (1973), identical charges given in similar circumstances were held to be harmless error. We reach the same conclusion here since a reading of the entire charge given to the jury discloses that they were correctly and completely charged on the standard of proof to be applied in a criminal case.
4. Appellant complains that the following charge to the jury instructed the jury to make a legal rather than factual determination: 'If you are legally satisfied, from the proof of acts and conducts submitted to you, that there was a conspiracy or common intent, proof of those acts and conduct would be just as effectual to establish the existence of a conspiracy as proof of expressed agreement.'
In considering the entire charge as we must do, it appears that the jury was fully instructed as to their duties as exclusive judges...
To continue reading
Request your trial
-
Ross v. Kemp
...to commit a robbery during which a person was killed regardless of whether murder was part of the original design. Tarpkin v. State, 236 Ga. 67, 222 S.E.2d 364 (1976) (defendant who was part of a conspiracy to commit armed robbery was equally responsible for the murder even though he was no......
-
Simmons v. State
...because the conversations on the tapes were carried on by appellants themselves with Special Agent Hayes. See Tarpkin v. State, 236 Ga. 67(2), 222 S.E.2d 364 (1976). We find no abuse of discretion under these circumstances. 11. In his twelth enumeration of error Simmons argues that the tria......
-
Howell v. State
...considered as a whole, the charge is perfectly sound." Clark v. State, 153 Ga.App. 829, 831, 266 S.E.2d 577 (1980); Tarpkin v. State, 236 Ga. 67(4), 222 S.E.2d 364 (1976); Harper v. State, 155 Ga.App. 764(4), 272 S.E.2d 736 (1980). Enumerations No. 6 and 7 are therefore without 7. The trial......
-
Tucker v. State
...72 hours after the arrest." Dodson v. Grimes, 220 Ga. 269(1), 138 S.E.2d 311 (1964) (Emphasis supplied). Accord, Tarpkin v. State, 236 Ga. 67(1), 222 S.E.2d 364 (1976); Beavers v. State, 132 Ga.App. 94(5), 207 S.E.2d 550 (1974); Whitfield v. State, 115 Ga.App. 231(1), 154 S.E.2d 294 (5) The......