State v. Haynie

Jordan, Justice.

This court granted certiorari in Haynie v. State, 141 Ga. App. 688 (234 SE2d 406) (1977), to consider the question of whether the victim of a crime can be required to undergo surgery to remove a bullet from his body.

Haynie was convicted of the offense of aggravated assault by shooting. Prior to the trial he filed a motion to produce reciting that: the state has possession of the gun which was in his possession the night of the shooting; he has learned that the bullet which struck the victim is still in his person; if the bullet is removed, he believes that ballistic tests will verify that the bullet was not fired by the gun which he had in his possession that night; he is willing and able to bear the expense of the removal of the bullet and the ballistic tests. He prayed that the court issue an order requiring the removal of the bullet from the victim and the production of the gun, and that ballistic tests be made upon them. The trial judge denied this motion. The Court of Appeals reversed, with three judges dissenting, holding that hearings should be held to determine whether removal of the bullet would be dangerous to the victim, and, if production is required, whether the materials produced justify a new trial.

The Court of Appeals relied on the decisions of this court in Creamer v. State, 229 Ga. 511 (192 SE2d 350) (1972); and Brown v. State, 238 Ga. 98 (231 SE2d 65) (1976).

In Creamer v. State, supra, criminal warrants were issued for the arrest of Creamer for two murders. A search warrant was sought by the state to allow it to remove a bullet which Creamer admitted was in his body. The application was supported by affidavit of an agent of the Georgia Division of Investigation that an informer had given information connecting Creamer with the murders. The judge hearing the application for search warrant ordered that Creamer be given a physical examination to determine if his health would be substantially impaired by the removal of the bullet. The physician reported to the court that the bullet could be removed in a minor operation with no risk to Creamer. On appeal to this court, we determined, under the authority of Schmerber v. California, 384 U. S. 757 (86 SC 1826, 16 LE2d 908) (1965), and under the evidence in the case, that Creamer’s Fourth and Fifth Amendment rights would not be violated by the removal of the bullet.

The Court of Appeals in citing Creamer stated: "We fail to see why the state should be able to acquire such evidence against asserted violations of the constitutional protection of the Fourth and Fifth Amendments if a criminal defendant is denied the same privilege.”

The Fourth Amendment of the United States Constitution (Code § 1-804) guarantees the right of the people to be secure in their persons against unreasonable searches and seizures. A search for evidence by the intrusion into a person’s body against his will can be reasonable only under very limited circumstances. The Creamer case, and the Schmerber case on which it relies, authorized a search into a person’s body against his will in instances where the state had good reason to believe that the person had committed a crime, and where the manner of the search was reasonable.

The dissenting opinion of the Court of Appeals cites a decision of the Supreme Court of Florida in which that court held that it was a violation of the Fourth Amendment rights of witnesses of a crime to require that they take examinations for visual acuity, notwithstanding that the defendant’s case depended in whole or in part upon his identification by these witnesses. State v. Smith, (Fla.) 260 S2d 489 (1972).

We have the same view as to the rights of witnesses, and hold that it could not be a reasonable search, which would not violate the Fourth Amendment of the Constitution, to require the victim of a crime to undergo surgery against his will to remove a bullet lodged an inch from his spine, even if medical testimony could be produced that the operation would not be dangerous to his health.

InBrown v. State, supra, this court held that a person accused of crime can utilize the notice to produce provision of Code Ann. § 38-801 (g) (Ga. L. 1966, p. 502; 1968, pp. 434, 435; 1968, p. 1200). The state cannot, under any theory, be deemed to have in its possession a bullet lodged in the body of the victim of a crime. The state does not have any more right to require the removal of a bullet from the body of a living victim than does the accused.

The state could not be required to produce the bullet lodged in the victim’s body.under a "Brady” motion. Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). Such a motion does not reach material which is not in the state’s possession. Hicks v. State, 232 Ga. 393, 394 (207 SE2d 30) (1974); Rini v. State, 236 Ga. 715, 717 (225 SE2d 234) (1976); Watts v. State, 141 Ga. App. 127, 128 (232 SE2d 590) (1977).

The record does not indicate whether Haynie made any effort to persuade the victim to voluntarily submit to an operation to remoye the bullet. We note, however, that evidence that the bullet in the victim was not fired from the gun claimed by Haynie to have been in his possession at the time of the shooting incident would not be conclusive evidence of his innocence. Haynie did not give the gun in his possession to police officers on the Friday night of the shooting, but on the next Monday. The value of the evidence concerning the bullet would depend on the jury’s determination of Haynie’s credibility. We also note that eyewitnesses testified that they saw the defendant take a pistol from his sister’s purse and shoot the victim. Therefore the guilt or innocence of the defendant does not rest entirely on ballistic testimony concerning the gun and the bullet. Such testimony is expert opinion evidence which can be accepted or rejected by the jury.

The Fourth Amendment right of the victim to be secure against an unreasonable search must prevail over the right of the accused to obtain evidence for his defense. The holding of the Court of Appeals ordering a hearing on the question of the removal of the bullet from the victim is reversed, and the case is remanded for disposition consistent with this opinion.

Argued September 12, 1977 Decided February 7, 1978 Rehearing denied March 1, 1978. Richard E. Allen, District Attorney, Stephen E. Curry, Assistant District Attorney, for appellant. Sam B. Sibley, Jr., for appellee. Walker P. Johnson, Jr., District Attorney, Keenan & Calcagno, Don C. Keenan, Gerald E. Wilkerson, Tony H. Hight, Charles T. Shean, III, Johnny R. Moore, amicus curiae.

Judgment reversed.

All the Justices concur, except Hall, J., who concurs specially, and Bowles, J., who concurs in the judgment only. Marshall, J., disqualified.