West v. State

• Decision Date: 07 September 1972
• Docket Number: No. 27311,27311
• Citation: 192 S.E.2d 163,229 Ga. 427
• Parties: Johnny Lee WEST, Jr. v. The STATE.
• Court: Georgia Supreme Court

Page 163

192 S.E.2d 163

229 Ga. 427

Johnny Lee WEST, Jr. v. The STATE.

No. 27311.

Supreme Court of Georgia.

Sept. 7, 1972.

Glenn Zell, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Morris H. Rosenberg, Joel M. Feldman, Joseph J. Drolet, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., Thomas W. Greene, Deputy Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

MOBLEY, Chief Justice.

The appellant was convicted of armed robbery on two counts in November, 1967, and sentenced to ten years on each count, to run consecutively. His extraordinary motion for new trial, as amended, was denied, and from that judgment he appeals. The basis of filing the extraordinary motion was that he 'was denied assistance of counsel by not being notified of his right to an appeal.'

1. The appellant alleges that error was committed when a line-up was conducted without counsel being present and without his being advised of his right to counsel, all in violation of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. The record is silent as to this issue. There is no evidence that he was not told of his right to counsel at the line-up, and none that he requested counsel. The appellant relies upon United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, where the Supreme Court of the United States held that the accused has a constitutional right to have counsel present at a line-up, and that failure to allow the accused this right violates the Sixth and Fourteenth Amendments of the United States Constitution. However, since those decisions, the United States Supreme Court, in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, decided June 7, 1972, held that the per se exclusionary rule in those cases does not apply to pre-indictment confrontations. In the opinion, Justice Stewart, speaking for the court, said: 'In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 this Court held 'that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth (and Fourteenth) Amendment right to counsel and calls in question the admissibility at the trial of the in-court identifications of the accused by witnesses who attended the lineup.' . . . In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. (Emphasis ours.) In this case we are asked to import into a routine police investigation an abolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings. We decline to do so.'

The record in the present case discloses that the line-up occurred prior to any stage in the proceeding at which the appellant would be entitled to counsel under the ruling in Kirby v. Illinois, supra. The appellant was placed in the line-up on the same day he was arrested, October 6, 1967, was identified on that day by both victims...