State v. Houston , 234 Ga. 721 ( 1975 )

Undercofler, Presiding Justice,

dissenting.

The question here is whether Georgia’s statute providing for a preliminary hearing is a critical stage of a criminal prosecution. Code Ann. § 27-401 et seq. If it is, counsel must be appointed for an indigent accused. Coleman v. Alabama, 399 U. S. 1 (90 SC 1999, 26 LE2d 387).

The nature of the preliminary hearing determines whether it is a critical stage. If it is a limited non-adversary proceeding, it is not a critical stage. Gerstein v. Pugh, — U. S. — (95 SC 854, 43 LE2d 54) states, "Because of its limited function and its nonadversary character, the probable cause determination is not a 'critical stage’ in the prosecution that would require appointed counsel... In Coleman v. Alabama, where the court held that a preliminary hearing was a critical stage of an Alabama prosecution, the majority and concurring opinions identified two critical factors that distinguish the Alabama preliminary hearing from the probable cause determination required by the Fourth Amendment. First, under Alabama law the function of the preliminary hearing was to determine whether the evidence justified charging the suspect with an offense... Second, Alabama allowed the suspect to confront and cross examine prosecution witnesses at the preliminary hearing.” 43 LE2d 70.

The Alabama code provides, "The magistrate before whom any person is brought, charged with a public offense, must, as soon as may be, examine the complainant and the witnesses for the prosecution on oath, in the presence of the defendant; and after the testimony for the prosecution is heard, the witnesses for the defendant must be sworn and examined.” Code of Alabama, Title 15, § 133. "It shall be the duty of the magistrate to examine all witnesses having any knowledge of any facts relevant to such investigation, whether such witnesses were summoned in behalf of the state or the defendant.” Code of Alabama, Title 15, § 138. "If upon the whole evidence it appears to the magistrate that no offense has been committed, or that there is no probable cause for charging the defendant therewith, he must be discharged.” Code of Alabama, Title 15, § 139. Coleman v. Alabama, supra, held: "... that the Alabama preliminary hearing is a 'critical stage’ of the state’s criminal process at which the accused is 'as much entitled to such aid (of counsel) ... as at the trial itself.’ ” 399 U. S. 10. As stated in Gerstein v. Pugh, supra, "A full preliminary hearing of this sort is modeled after the procedure used in many states to determine whether the evidence justified going to trial under an information or presenting the case to a grand jury. See Coleman v. Alabama, 399 U. S. 1 (90 SC 1999, 26 LE2d 387) (1970) . . . The standard of proof required of the prosecution is usually referred to as 'probable cause,’ but in some jurisdictions it may approach a prima facie case of guilt. . . When the hearing takes this form, adversary proceedings are customarily employed. The importance of the issue to both the state and the accused justifies the presentation of witnesses and full exploration of their testimony on cross examination. This kind of hearing also requires appointment of counsel for indigent defendants. Coleman v. Alabama, supra. And, as the hearing assumes increased importance and the procedures become more complex, the likelihood that it can be held promptly after arrest diminishes... These adversary safeguards are not essential for the probable cause determination required by the Fourth Amendment. The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest. That standard — probable cause to believe the suspect has committed a crime — traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the court has approved these informal modes of proof.” 43 LE2d 68.

In my opinion Georgia’s preliminary hearing in criminal proceeding is a traditional limited nonadversary proceeding. The statute only requires the magistrate to hear,"... all legal evidence submitted by either party.. Code Ann. § 27-405 (Ga. L. 1962, pp. 453, 454; 1973, pp. 292, 293). "The duty of the court of inquiry is simply to determine whether there is sufficient reason to suspect the guilt of the accused, to require him to appear and answer before the court competent to try him; and whenever such probable cause exists, it is the duty of the court to commit.” Code Ann. § 27-407. I note that Code Ann. § 27-403 provides, ". . . in no event shall the defendant be forced to trial without the aid of counsel, if there be a reasonable probability of his securing counsel without too great delay.” In my opinion this refers to retained counsel. It does not elevate the hearing to an adversary proceeding requiring the appointment of counsel for indigents. This construction comports with the holdings of this court that: ". . . the purpose of a commitment hearing is to authorize the keeping in custody of one accused with probable cause of committing a crime until the grand jury determines whether he should stand trial.” Hunt v. Hopper, 232 Ga. 53 (2) (205 SE2d 303); Jackson v. State, 225 Ga. 39, 42 (165 SE2d 711). The federal courts have acknowledged that a preliminary hearing in Georgia is not a critical stage. Ardister v. Smith, 433 F2d 931 (5th Cir., 1970); Donlavy v. Smith, 426 F2d 800, 801 (5th Cir., 1970); Worts v. Dutton, 395 F2d 341, 342 (5th Cir., 1968).

The majority ruling here that Georgia’s preliminary hearing is a "critical stage” departs from Georgia’s traditional concept of the proceeding and further taxes the already overburdened district attorneys and criminal courts. As noted in Gerstein v. Pugh, supra, footnote 23, "Criminal justice is already overburdened by the volume of cases and the complexities of our system. The processing of misdemeanors, in particular, and the early stages of prosecution generally are marked by delays that can seriously affect the quality of justice. A constitutional doctrine requiring adversary hearings for all persons detained pending trial could exacerbate the problem of pretrial delay.”

All that is required to satisfy Fourth Amendment rights on a preliminary hearing is "... a fair and reliable determination of probable cause as a condition for any significant pretrial restraint on liberty, and this determination must be made by a judicial officer either before or promptly after arrest.” Gerstein v. Pugh, 43 LE2d 71, supra. In my opinion that is all the Georgia statute contemplates.

I am authorized to state that Justice Jordan and Justice Hall join in this dissent.