Dukes v. State

Court of Appeals of Georgia

Dukes v. State

137 S.E.2d 532, 109 Ga. App. 825, 1964 Ga. App. LEXIS 1010

CourtCourt of Appeals of Georgia

DecidedJune 15, 1964

Docket40581

StatusPublished

Cited by16 cases

This text of 137 S.E.2d 532 (Dukes v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dukes v. State, 137 S.E.2d 532, 109 Ga. App. 825, 1964 Ga. App. LEXIS 1010 (Ga. Ct. App. 1964).

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Russell, Judge.

The first special ground of the motion for a new trial complains of the violation of Code Ann. § 27-212 which requires that any person not conveyed before a person authorized to issue a warrant within 48 hours shall be released, and no imprisonment shall be legal beyond a reasonable time allowed for this purpose. What is a reasonable time is a question of fact and it may well be less than 48 hours, the statutory outer limit of reasonableness. The uncontradicted evidence here is that the defendant was arrested without a warrant at about 4:30 p.m. on the afternoon of April 8, 1963, taken to the police station and booked “Loiter and hold” (described in the testimony as an investigative procedure) and from there to the city stockade. All personnel at the stockade had blanket instructions not to let persons so booked confer with anybody until the detectives were “through with them.” The defendant was permitted to attempt one telephone call which failed because there was no answer. Thereafter she asked that her lawyer be sent for and the request was refused. The attorney in question, apparently contacted by the family, came to the stockade to see her and was [827]*827refused admittance. No warrant for her arrest was ever taken out, and she was never taken before a committing magistrate. One week later, on April 15, she was released on habeas corpus. Several weeks afterward she was indicted by the grand jury.

On the same day that the Supreme Court published its opinion in Mapp v. Ohio, 367 U. S. 643 (81 SC 1684, 6 LE2d 1081) holding that the right to be protected from illegal searches and seizures embodied in the Fourth Amendment of the Bill of Rights should be channeled through the Fourteenth Amendment so as to protect defendants in State courts from the use of evidence against them thus unlawfully obtained, that court also published Culombe v. Connecticut, 367 U. S. 568 (81 SC 1860, 6 LE2d 1037) in which it was held that the due process clause of the Fourteenth Amendment could be directly invoked to suppress a confession as involuntary where no crude coercive methods were evident, no physical deprivation was practiced, questioning was not prolonged beyond physical endurance, nor any open trickery or third degree resorted to, but where illegal prolonged detention combined with lack of mental acuity to bring about the desired end. Culombe was detained a substantial portion of five days before the confession was obtained. It was held: “The very duration of such detention distinguishes this case from those in which we have found to be voluntary confessions given after several hours questioning or less on the day of arrest. . . [When] interrogation of a prisoner is so long continued, with such a purpose and under such circumstances, as to make the whole proceeding an effective instrument for extorting an unwilling admission of guilt, due process precludes the use of the confession thus obtained. Under our accusatorial system, such an exploitation of interrogation, whatever its usefulness, is not a permissible substitute for judicial trial.” The same opinion points out that the systematic exclusion by Federal courts of confessions obtained during periods of illegal detention was an innovation which derived from concern and responsibility for fair modes of criminal proceeding in the Federal courts originating in McNabb v. United States, 318 U. S. 332 (63 SC 608, 87 LE 819) (counsel for the defendants in that case later served as a judge of this court) and has been followed by no State court to date except [828]*828Michigan (People v. Hamilton, 359 Mich. 410, 102 NW2d 738). The question was touched in passing in Childers v. State, 100 Ga. App. 250, 253 (110 SE2d 703) where this court stated: “Even if, as contended by counsel for the defendant, the defendant had been held ‘incommunicado’ for four days, it does not appear from the evidence that the written statement or confession was given by the defendant and signed by him during that four-day period, or that the defendant was deprived of any of his rights in immediate connection with the giving of the confession.” In Pistor v. State, 219 Ga. 161, 165 (132 SE2d 183) the court said: “The fact that the alleged confession was made before a warrant had been executed does not render it inadmissible on the ground that it was made while the defendant was illegally detained. . . The fact that the alleged confession was made before the warrant was issued and was made in the absence of advice of counsel does not demand a finding that the statement of the defendant was not freely and voluntarily given. Such factors were circumstances to be considered by the jury in determining the question.”

Culombe excoriates the practice, followed here, of booking a defendant for some inconsequential misdemeanor or ordinance violation merely as a colorable device in connection with investigative procedure. The illegal detention under such circumstances constitutes a flagrant violation of law by the very persons sworn to uphold it, and renders the entire procedure from the arrest a trespass ab initio. Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672 (6) (72 SE 51). It can never be condoned. “[L]ong detention, while the prisoner is shut off from the outside world, is a recurring practice in this country—for those of lowly birth, for those without friends or status. We also know that detention incommunicado was the secret of the inquisition and is the secret of successful interrogation in Communist countries.” Douglas, J., concurring in Reck v. Pate, 367 U. S. 433, 446 (81 SC 1541, 6 LE2d 948). The sinister overtones of a practice having these connotations cannot be ignored by those pledged to the administration of justice, and the time may well be near when courts will hold not only that evidence obtained by illegal search is an unconstitutional denial of due process to be in [829]*829effect “punished” by suppression of the evidence, but that confessions obtained by illegal deprivation of liberty require imposition of like sanctions. It is, however, only the period between the arrest and the confession which is crucial, so far as a determination of the admissibility of the confession is concerned. This defendant made no admissions except those immediately coincident with her arrest. In this case, the statements were not inadmissible and the illegal detention cannot be made the basis of a new trial. “A motion for a new trial goes only to the verdict, and reaches only such errors of law and fact as contributed to the rendition of the verdict.” Ray v. Wood, 93 Ga. App. 763 (1) (92 SE2d 820). Jurisdiction of the court is not affected by the fact that the detention is illegal. French v. State, 99 Ga. App. 149 (5) (107 SE2d 890); Joiner v. State, 66 Ga. App. 106 (17 SE2d 101). In like manner, the investigation by police officers at the scene on their arrival, and the defendant’s statements to them, not being tainted by the overtones of coercion incident to prolonged illegal detention, are not objectionable because she did not at that time have counsel. See Blake v. State, 109 Ga. App. 636 (137 SE2d 49). The first special ground is without merit.

Error to be reversible must be harmful. Owens v. Service Fire Ins. Co., 90 Ga. App. 553 (83 SE2d 249). Special ground 2 of the amended motion for a new trial has been specifically abandoned.

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Russell, Judge.

The first special ground of the motion for a new trial complains of the violation of Code Ann. § 27-212 which requires that any person not conveyed before a person authorized to issue a warrant within 48 hours shall be released, and no imprisonment shall be legal beyond a reasonable time allowed for this purpose. What is a reasonable time is a question of fact and it may well be less than 48 hours, the statutory outer limit of reasonableness. The uncontradicted evidence here is that the defendant was arrested without a warrant at about 4:30 p.m. on the afternoon of April 8, 1963, taken to the police station and booked “Loiter and hold” (described in the testimony as an investigative procedure) and from there to the city stockade. All personnel at the stockade had blanket instructions not to let persons so booked confer with anybody until the detectives were “through with them.” The defendant was permitted to attempt one telephone call which failed because there was no answer. Thereafter she asked that her lawyer be sent for and the request was refused. The attorney in question, apparently contacted by the family, came to the stockade to see her and was [827]*827refused admittance. No warrant for her arrest was ever taken out, and she was never taken before a committing magistrate. One week later, on April 15, she was released on habeas corpus. Several weeks afterward she was indicted by the grand jury.

On the same day that the Supreme Court published its opinion in Mapp v. Ohio, 367 U. S. 643 (81 SC 1684, 6 LE2d 1081) holding that the right to be protected from illegal searches and seizures embodied in the Fourth Amendment of the Bill of Rights should be channeled through the Fourteenth Amendment so as to protect defendants in State courts from the use of evidence against them thus unlawfully obtained, that court also published Culombe v. Connecticut, 367 U. S. 568 (81 SC 1860, 6 LE2d 1037) in which it was held that the due process clause of the Fourteenth Amendment could be directly invoked to suppress a confession as involuntary where no crude coercive methods were evident, no physical deprivation was practiced, questioning was not prolonged beyond physical endurance, nor any open trickery or third degree resorted to, but where illegal prolonged detention combined with lack of mental acuity to bring about the desired end. Culombe was detained a substantial portion of five days before the confession was obtained. It was held: “The very duration of such detention distinguishes this case from those in which we have found to be voluntary confessions given after several hours questioning or less on the day of arrest. . . [When] interrogation of a prisoner is so long continued, with such a purpose and under such circumstances, as to make the whole proceeding an effective instrument for extorting an unwilling admission of guilt, due process precludes the use of the confession thus obtained. Under our accusatorial system, such an exploitation of interrogation, whatever its usefulness, is not a permissible substitute for judicial trial.” The same opinion points out that the systematic exclusion by Federal courts of confessions obtained during periods of illegal detention was an innovation which derived from concern and responsibility for fair modes of criminal proceeding in the Federal courts originating in McNabb v. United States, 318 U. S. 332 (63 SC 608, 87 LE 819) (counsel for the defendants in that case later served as a judge of this court) and has been followed by no State court to date except [828]*828Michigan (People v. Hamilton, 359 Mich. 410, 102 NW2d 738). The question was touched in passing in Childers v. State, 100 Ga. App. 250, 253 (110 SE2d 703) where this court stated: “Even if, as contended by counsel for the defendant, the defendant had been held ‘incommunicado’ for four days, it does not appear from the evidence that the written statement or confession was given by the defendant and signed by him during that four-day period, or that the defendant was deprived of any of his rights in immediate connection with the giving of the confession.” In Pistor v. State, 219 Ga. 161, 165 (132 SE2d 183) the court said: “The fact that the alleged confession was made before a warrant had been executed does not render it inadmissible on the ground that it was made while the defendant was illegally detained. . . The fact that the alleged confession was made before the warrant was issued and was made in the absence of advice of counsel does not demand a finding that the statement of the defendant was not freely and voluntarily given. Such factors were circumstances to be considered by the jury in determining the question.”

Culombe excoriates the practice, followed here, of booking a defendant for some inconsequential misdemeanor or ordinance violation merely as a colorable device in connection with investigative procedure. The illegal detention under such circumstances constitutes a flagrant violation of law by the very persons sworn to uphold it, and renders the entire procedure from the arrest a trespass ab initio. Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672 (6) (72 SE 51). It can never be condoned. “[L]ong detention, while the prisoner is shut off from the outside world, is a recurring practice in this country—for those of lowly birth, for those without friends or status. We also know that detention incommunicado was the secret of the inquisition and is the secret of successful interrogation in Communist countries.” Douglas, J., concurring in Reck v. Pate, 367 U. S. 433, 446 (81 SC 1541, 6 LE2d 948). The sinister overtones of a practice having these connotations cannot be ignored by those pledged to the administration of justice, and the time may well be near when courts will hold not only that evidence obtained by illegal search is an unconstitutional denial of due process to be in [829]*829effect “punished” by suppression of the evidence, but that confessions obtained by illegal deprivation of liberty require imposition of like sanctions. It is, however, only the period between the arrest and the confession which is crucial, so far as a determination of the admissibility of the confession is concerned. This defendant made no admissions except those immediately coincident with her arrest. In this case, the statements were not inadmissible and the illegal detention cannot be made the basis of a new trial. “A motion for a new trial goes only to the verdict, and reaches only such errors of law and fact as contributed to the rendition of the verdict.” Ray v. Wood, 93 Ga. App. 763 (1) (92 SE2d 820). Jurisdiction of the court is not affected by the fact that the detention is illegal. French v. State, 99 Ga. App. 149 (5) (107 SE2d 890); Joiner v. State, 66 Ga. App. 106 (17 SE2d 101). In like manner, the investigation by police officers at the scene on their arrival, and the defendant’s statements to them, not being tainted by the overtones of coercion incident to prolonged illegal detention, are not objectionable because she did not at that time have counsel. See Blake v. State, 109 Ga. App. 636 (137 SE2d 49). The first special ground is without merit.

Error to be reversible must be harmful. Owens v. Service Fire Ins. Co., 90 Ga. App. 553 (83 SE2d 249). Special ground 2 of the amended motion for a new trial has been specifically abandoned. The remaining special grounds, all of which complain of the ruling of the trial court unduly restricting the unsworn statement of the defendant, fail to show what the defendant’s answers would have been to questions propounded to her by her counsel and thus fail to show that the answers, if allowed to be made, would have been relevant or favorable to her position. The grounds therefore are too incomplete for consideration.

The trial court did not err in overruling the motion for a new trial.

Judgment affirmed.

Nichols, P. J., and Hall, J., concur. Hall, J., concurs specially in Division 2 of the opinion.

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137 S.E.2d 532, 109 Ga. App. 825, 1964 Ga. App. LEXIS 1010, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dukes-v-state-gactapp-1964.

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