Whitehead v. State

• Decision Date: 30 June 1972
• Docket Number: No. 47129,No. 1,47129,1
• Parties: Romeo WHITEHEAD v. The STATE
• Court: Georgia Court of Appeals

Page 336

191 S.E.2d 336

126 Ga.App. 570

Romeo WHITEHEAD v. The STATE.

No. 47129.

Court of Appeals of Georgia, Division No. 1.

June 30, 1972.

Bennett, Pedrick & Bennett, E. Kontz Bennett, Jr., Waycross, for appellant.

Dewey Hayes, Dist. Atty., Douglas, for appellee.

Syllabus Opinion by the Court

BELL, Chief Judge.

The defendant filed a motion to quash the indictment charging him with forgery in the first degree contending that it was returned wholly upon illegal evidence. After a hearing at which evidence was offered the motion was denied and the denial certified for direct appeal. Held:

1. In Meriwether v. State, 63 Ga.App. 667, 11 S.E.2d 816 we held that the defendant in seeking to quash an indictment has the burden to overcome the presumption that it was returned on legal evidence by showing there was no competent evidence upon which it could lawfully have been returned. The only evidence in this case which was shown to be illegal was an out of court identification of the accused conducted by the police. It appears that the forged instrument, a check, was endorsed by and uttered to the victim by a person having the same name as the defendant who furnished an address under his endorsement. Police officers went to this address and found the defendant. According to the testimony of a police officer, a Miranda warning concerning his right against self-incrimination and his right to have counsel present at a custodial interrogation was given the defendant. Thereafter, the police officer and the accused, without counsel, went to the business establishment where the check was allegedly uttered. The victim identified the defendant. Later this procedure was repeated and another witness identified the defendant. There is no evidence that the defendant was affirmatively advised of his right to have counsel present at this lineup or identification confrontation with the witnesses. There is no evidence in the record from which it could be concluded that the defendant intelligently waived his right to counsel at this identification process. A warning of his rights to counsel concerning custodial interrogation will not suffice as there is a decided difference between the right to counsel during police interrogation and the right to have counsel at a line-up, a critical stage of the proceedings. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Consequently, the evidence of the out of court identification would not be admissible upon trial of the case.

2. Despite the error discussed in Division 1, affirmance of the trial court's denial of the motion to quash the indictment is required. Under the holding in Meriwether, the defendant had the burden to show that the indictment was returned 'wholly' upon illegal evidence. The sufficiency of the legal evidence before the grand jury will not be inquired into. Buchanan v. State, 215 Ga. 791(2), 113 S.E.2d 609; Williams v. State, 222 Ga. 208, 212, 149 S.E.2d 449. It appears from the evidence at the hearing on the motion that the check itself which contained the endorsement of the defendant and his address, the testimony of the State's witness that the check was cashed, and the testimony of the witness whose name was forged as an endorsee on the check were all submitted to the grand jury and none of this evidence has been shown to be illegal. See Brown v. State, 121 Ga.App. 228, 173 S.E.2d 470. The defendant has not carried his burden of showing that the evidence on which the indictment was returned was based on wholly incompetent evidence.

Judgment affirmed.

STOLZ, J., concurs.

EVANS, J., concurs specially.

EVANS, Judge (concurring specially).

I concur in the judgment in this case. I do not agree with the statement that 'the sufficiency of the legal evidence before the grand jury will not be inquired into,' citing Buchanan v. State, 215 Ga. 791(2), 113 S.E.2d 609, supra, and Williams v. State, 222 Ga. 208, 212, 149 S.E.2d 449, supra. Any such suggestion in the cited cases is in conflict with and under the rule of stare decisis must give way to earlier full-bench decisions by the Supreme Court of Georgia, which have not been overruled, to wit: Lennard v. State, 104 Ga. 546(1), 30 S.E. 780; and Powers v. State, 172 Ga. 1(3), 157 S.E. 195, holding that inquiry may be made into evidence presented before the grand jury where the defendant has been compelled to testify before that body in violation of his constitutional rights against self-incrimination. Also see Jenkins v. State, 65 Ga.App. 16, 14 S.E.2d 594, where this court makes a like finding. As to whether there is any competent evidence under oath before the grand jury, etc., see Bradford v. Mills, 208 Ga. 198(1), 66 S.E.2d 58 and William v. State, 208 Ga. 704(2), 69 S.E.2d 199. While the district attorney may not be compelled to open up his file to defendant's counsel, he is required to testify as to what occurred in the grand-jury room. See Switzer v. State, 7 Ga.App. 7(2), 65 S.E. 1079.

BELL, Chief Judge, and STOLZ, Judge.

Addendum. The statements and conclusion enunciated in the special concurrence compel an answer in the interest of clarity.

1. Lennard v. State, 104 Ga. 546(1), 30 S.E. 780 and Powers v. State, 172 Ga. 1(3), 157 S.E. 195 cited there are not in contradiction to the cases cited in Division 2 of the majority holding but are themselves authority for it! In Powers in headnote 3 the Supreme Court stated 'It has never been the practice in this State to go into an investigation to test the sufficiency of the evidence before the grand jury.' That is precisely the holding in Division 2 of the majority opinion to which the 'special concurrence' is directed! Again, in Lennard the Supreme Court held that an indictment would not be quashed where it was not shown that the indictment was returned on the basis of testimony given by one witness who was not sworn as required by law as there may have been other witnesses properly sworn who may have appeared before the grand jury. Again, this is precisely in accord with the later and more modern Supreme Court cases cited by the majority!

As for the case of Jenkins v. State, 65 Ga.App. 16, 14 S.E.2d 594 cited in the special concurrence under the invitation to 'and see' concerns a proposition totally not involved in this case, i.e., the compelling of an accused to testify against himself before a grand jury! But we might just quote here the statement made in Jenkins at p. 23, 14 S.E.2d at p. 598 which is appropriate to that made in the majority opinion 'It is conceded that the court will not investigate as to the sufficiency of the evidence before the grand jury.'

2. The special concurrence suggests the need for another official statement since the theory has been advanced before in other 'special concurrences.' This statement in the 'special concurrence' is that the later and more modern Buchanan and Williams Supreme Court cases which the majority cites 'are in conflict with and under the rule of stare decisis must give way to earlier full-bench decisions by the Supreme Court of Georgia, which have not been overruled,' to-wit: Lennard and Powers which we of the majority have previously shown are not in conflict.

But let us assume, arguendo, that they are in conflict. What is the status of this court as to them? The answer is that the Court of Appeals and all inferior courts are bound by each and every one of those opinions of the Supreme Court. It is not our duty to 'second guess' the Supreme Court! It is our duty to presume that in each and every case the Supreme Court has done its duty and reconciled all of its holdings as its own duty demands! We of the Court of Appeals are free to follow any Supreme Court case enunciating a proposition on which we are ruling.

EVANS, Judge.

Addendum. The majority has responded to my special concurrence. I now respond to that response.

It is argued that two cases I cited, to wit: Lennard v. State, 104 Ga. 546(1), 30 S.E. 780, and Powers v. State, 172 Ga. 1(3), 157 S.E. 195, not only fail to support my position, but are themselves authority for the majority's position. Nothing could be more erroneous! Both of these cases clearly hold that if there is no proper evidence before the grand jury, inquiry will be made and the indictment will be quashed. Of course, if there is some proper...