Whitehead v. State

Court of Appeals of Georgia

Whitehead v. State

191 S.E.2d 336, 126 Ga. App. 570, 1972 Ga. App. LEXIS 1220

CourtCourt of Appeals of Georgia

DecidedJune 30, 1972

Docket47129

StatusPublished

Cited by6 cases

This text of 191 S.E.2d 336 (Whitehead 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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Whitehead v. State, 191 S.E.2d 336, 126 Ga. App. 570, 1972 Ga. App. LEXIS 1220 (Ga. Ct. App. 1972).

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Opinions

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 SE2d 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 line-up 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 [571]*571counsel at a line-up, a critical stage of the proceedings. See United States v. Wade, 388 U. S. 218 (87 SC 1926, 18 LE2d 1149). Consequently, the evidence of the out-of-court identification would not be admissible upon trial of the case.

Submitted May 1, 1972— Decided June 30, 1972. Bennett, Pedrick & Bennett, E. Kontz Bennett, Jr., for appellant. Dewey Hayes, District Attorney; for appellee.

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 SE2d 609); Williams v. State, 222 Ga. 208, 212 (149 SE2d 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 SE2d 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.

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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 SE2d 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 line-up 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 [571]*571counsel at a line-up, a critical stage of the proceedings. See United States v. Wade, 388 U. S. 218 (87 SC 1926, 18 LE2d 1149). Consequently, the evidence of the out-of-court identification would not be admissible upon trial of the case.

Submitted May 1, 1972— Decided June 30, 1972. Bennett, Pedrick & Bennett, E. Kontz Bennett, Jr., for appellant. Dewey Hayes, District Attorney; for appellee.

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 SE2d 609); Williams v. State, 222 Ga. 208, 212 (149 SE2d 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 SE2d 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.

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191 S.E.2d 336, 126 Ga. App. 570, 1972 Ga. App. LEXIS 1220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitehead-v-state-gactapp-1972.

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