*1 THE 60285. FLOYD v. STATE. Presiding Judge.
McMurray, Defendant was indicted and convicted of the offenses of burglary appeals, and theft of a motor vehicle. enu- Defendant merating trial of permitting as error the court’s the examination witness who remained in the courtroom after the rule of sequestration had been invoked and the trial court’s denial of his suppress. motion to Held:
1. The transcript record contains no of the hearing of pre-trial defendant’s motion suppress. the record does contain objection the trial at which an to the introduction of the evidence was renewed and another hearing, outside the jury, of the admissibility was held on the evidence. The trial judge was not the judge same who had ruled on the pre-trial motion to suppress. objection Defendant’s to the evidence by overruled judge trial after the hearing at trial as to its admissibility. The transcript of the hearing as to the admissibility of the evidence which occurred during trial contains evidence regard to an officer’s with reference to the fact that defendant was arrested for probation, violation of the reading of rights defendant, bedroom, and that while in the where the defendant asked dress, that he might go to the evidence was seized. The officer testified that the reason he went to the rear of the dwelling “ with the defendant while he dressed was my safety, own to not [f]or allow him a chance to obtain any type of weapon.” At that time a quantity seized, of silver change was and also a paper small bag lying floor, on the and pair sand, shoes “covered in grass grass seed ... very also wet.’’The [which defendant was then were]... allowed to testify and both the state’s counsel and defendant’s counsel were allowed to argue issue, the state that arguing the articles were in plain view and search; that this was not a and the trial court overruled objection.
The defendant has not complained any of the absence of transcript of pre-trial suppress. motion to Nor has argued that by evidence heard the trial defendant outside pr§sence of the jury, any was to degree different from heard another judge on the pre-trial Furthermore, the defendant’s brief in support of his appeal makes sole reference portions to certain trial as con- stituting specific complained error.
Under Davis v. (1) (252 443), Ga. SE2d Supreme Court citing Stephens (2) (247 Hopper, 241 reiterates age-old requirement on appeal prejudicial harmful or matter point must out the harmful error. occurred; is, only show not error but may have in this case. This has not occurred above, in his brief points defendant out
But in addition to the (before pre-trial had not heard the judge another who that at trial to the introduction suppress) objection “the motion was held on the renewed and another evidence was *2 objection the... was overruled.” admissiblity again, of the evidence... transcript pages (Emphasis supplied.) points The brief out of the room. jury where this occurred with the denying not err in upon the above the trial court did Based suppress. motion to has control of the court and judge
2. The trial at all times of the trial court to allow always witnesses. It is within the discretion in testify. The court here did not abuse its discretion witness to trial in remaining in after testify the officer witness to rebuttal allowing sequestration in the rule which had been the courtroom violation of (1) (197 367), Ga. 418 and invoked. See Larkins v. cases cited therein. Shulman, Banke, Deen, J., Birdsong, affirmed. C.
Judgment JJ., J., P. in the Carley Sognier, Quillian, concur. concurs and Shulman, opinion special and filed a concurrence majority JJ., Smith, J., Carley join. and dissents. Birdsong, Sognier, July 2, 5, Decided December 1980. Submitted Wilson, Jr., appellant. F. Bradford for III, Attorney, Sparks, W. B. Thompson, Donald District Willis Attorney, appellee. Assistant District for concurring specially. Presiding Judge, Quillian, I agree majority opinion While with all that is said in the I concur a further judge during reason. The record reveals that the trial course of the trial excused the in effect had another hearing and admissibility subject on the of the evidence which was the suppress fully hearing motion to which was transcribed. After judge objections evidence the trial overruled the to the admission of hearing ruling the evidence. The of the evidence and his thereon hearing suppress. was tantamount to a second on the motion to Therefore, superseded prior his order the motion to ruling on suppress prior hearing ruling and rendered the and the thereof moot consequence and as a the absence of the of the first would be harmless. Shulman, Carley and Birdsong, state
I authorized to am concurrence. special JJ., in this concur Sognier, dissenting part. Judge, concurring Smith, majority I the violation of the rule of agree While with reversal, I sequestration accept does cannot not necessitate respect conclusions with motion to reached his Appellant suppress contends that should have been were home granted because the items seized discovered as a result of an illegal response, argues warrantless arrest. the state that the ruling cannot be reviewed pretrial court since no Judge Johnson contends, included in the “This ruling,” record. the state “became binding upon law the case and was Judge Morgan presided who at trial.”
As can best be determined from the trial record the facts relevant to suppress September the motion are as follows: On a.m., approximately at 2:40 a Macon officer discovered what he burglary Binswanger believed to be a at Company. Glass Coins had been gasoline removed from soft-drink machine and had been pump. taken from a perpetrator apparently gained access *3 by scaling a foot high topped fence with barbed wire and made his escape by crashing through gate company with a A stolen truck. Binswanger spotted town, truck was driving about and a high-speed chase overturned, ensued. The truck escaped. but its driver On the truck, seat of the a wallet was discovered. It a contained driver’s license name, and other papers bearing appellant’s picture and grass address. Fresh from clippings the wet ground surrounding the truck adhered to the investigating officer’s shoes.
The police went to the address listed on the driver’s license. Appellant’s police sister informed appellant that had moved to a nearby address, address. going police Before to the new made a computer check of appellant telephone and were that a advised warrant was outstanding against him for probation a violation. police
The arrived at appellant’s at address 4:30 or 5:30 a.m. Appellant answered the door in his underwear. He had fresh several scratches and bruises on his arms and shoulders and stooped was over like he was “in some of type pain.” Appellant was advised he was that under probation arrest for a step violation and asked to outside and place his against hands the wall.
The testimony is in conflict as to what occurred point. at this police officer that appellant testified asked if he go could into the house put and me,” on some clothes. The officer said “it was fine with According him.” to go “I’d have to with appellant that but informed they appellant’s officer, “okay,” proceeded to appellant said and if he asked him wanted that the officer Appellant contends bedroom. that, affirmative, clothes, responded he on some put to so, him into the house. police do followed when he went to of bedroom, pile “a silver police large observed pair shoes They observed a change” sitting atop dresser. also police took grass cuttings. with The were wet and coated possession of these items. outstanding
Subsequently, it learned that there was no probation for a violation. against warrant contentions period reviewing appellant’s The crucial time preceding the time respect legality with of his arrest is Although Judge appellant’s arrival of the at residence.1 Morgan testimony heard outside the appellant’s at transpiring events after the arrived detailed residence, to occurring prior there was no as events “rehearing” preceding police.2 the arrival of the An the events evaluation of testimony offered at appellant’s depend arrest must therefore question of appellant’s guilt, trial. This was directed to the As I not the issues raised cannot presented complete insofar determine whether the evidence at trial suppress, it I must as relates the merits of motion that, agree transcript, with the to an absence a the denial state due by this adequately of the motion to cannot be reviewed court. I do not believe the lack of . who
suppression appellant. affirmance. . hearing mandates “[A]n conviction, appeal that a appeals felony and states his notice of record, has appellate is to be transmitted as duty 6-806, Ann. at the time continuing request, under [Code §] reporter files his notice of court to transcribe appeal, he Hart, 246 reported testimony.” State v.
(1980). requirement, “request he made a Appellant has met this as police “were contends a arrest was authorized because state warrantless *4 likely delay necessary would pursuit to obtain a warrant most fresh and the only period produce through the time justice.” an examination of a failure of It is Morgan v. See preceding appellant’s be addressed. arrest that these contentions can 458, 198) 485, (246 (1978); State, App. State, v. 150 Ga. 241 487 SE2d Creamer Ga. 212) (258 (1979). 461-463 SE2d 2 pre-arrest During “rehearing,” were actions the some references made clearly transpiring “rehearing” police. events was focus of occurring prior time appellant’s police home. events after the arrived at any were not examined detail.
745 motions,” pretrial “all transcript” of “all case” and by reporter. Appellant’s acknowledged which was official court appeal please states: “The Clerk will transmit notice of entire Appeals, nothing. copy record to the Court of omitting proceedings of evidence and will be filed for inclusion on Thus, appeal.” duty “it of the state to file the [was] guilty felony after a verdict been returned in case.” Wade ha[d] [this] State, (200 271) 131, (1973); v. 231 Ga. SE2d see v. also State (271 Graham, 627) (1980). 246 Ga. SE2d The failure of the so, “effectively appellant state to do denied the right appeal.” his (214 State, 160, 161 3) (1975); Parrott v. App. 134 Ga. SE2d McElwee State, (248 84, 85 162) (1978). v. App. 147 Ga. SE2d As has raised denial of his motion suppress his enumerations of error, I believe the absence of a transcript suppression Judge requires view, Johnson reversal. In my erroneous belief that the evidence adduced at trial was sufficient establish illegality of his arrest as a matter of law should not deprive him of meaningful appellate review.
However, assuming arguendo, the “rehearing” and ruling superseded thereon prior moot, I rendered it must conclude that should granted. have been (a)
Code
provides:
27-207
“An
may
arrest for a crime
§
be made
by
officer,
an
warrant,
either under a
or without a warrant
if the
offense is committed in
or the offender is endeavoring to
escape, or for other cause there is likely to be
justice
failure of
for want
of an officer to issue a
(Emphasis
warrant.”
supplied.) “An arrest
without a valid warrant
to detain places
defendant
the detention
in the same category as an arrest without a
State,
warrant.” Grant v.
(262
152 Ga. App.
553)
(1979).
SE2d
Appellant’s arrest at his home on an admittedly invalid warrant
must be deemed a warrantless
post
arrest. The
justification
facto
the warrantless arrest
state,
offered
“were in
pursuit
fresh
and the delay necessary to obtain a warrant would most
likely produce a
justice,”
failure of
unsupported
by the record. The
perpetrator had escaped, and the police were no longer “on his trail.”
There
reports
were no
that appellant had entered his residence.
Under
circumstances,
these
the warrantless arrest
justified,
was not
by the exigencies
pursuit.”
of “hot
Hayden,
See Warden v.
387 U. S.
294, 298-299 (87
1642, 18
SC
(1967);
LE2d
Scott,
United States v.
(9th
520 F2d 697
1975);
Cir.
State,
Hall
App.
687) (1975).
Furthermore,
no evidence
presented
substantiate
position
state’s
that a “failure of justice” would
likely occur if
had to obtain a warrant. See
Morgan v.
(fn.
supra
1). On the basis of the evidence
before this
it is clear
*5
warrant was the
procure a valid
for the failure to
that the sole reason
already
they
had one.
belief on
mistaken
—
—
(100
1371, 63
York,
SC
LE2d
v.
U. S.
Payton
New
that,
exigent
absent
Court held
(1980),
Supreme
United States
entry into the home
warrantless,
circumstances, a
non-consensual
exigent
No
Fourth Amendment.
is violative of the
an arrest
effect
circumstances of
here. Under the
have been shown
circumstances
record,
warrantless
arrest
case,
this
as shown
his home. See
entry
of an
into
product
should be considered
1978);
(2nd
United
v.
Reed,
Cir.
States
F2d
States v.
United
Williams,
1977);
v.
(6th
Commonwealth
Killebrew,
F2d 729
Cir.
1177) (1978).
record
(396
A2d
On
basis
McMurray, Defendants were convicted of obscene materials distributing (Ga. 498). 26-2101, p. Ann. L. violation of Code as amended § $1,000 pay Freeman fine and a Defendant was sentenced serve probation. term of 12 months on Defendant was sentenced Loveland $3,000 a fine of of 12 pay and be confined a term months and however, serve in jail, provided, 6 weekends that the confinement be probated probation. out on conditions set the order combined motion for trial was filed denied. Defendants new appeal, contending principal instruction to the erroneous, prejudicial, and pandering element of violative of process defendants’ due not obscene rights; materials are under standards; constitutional and the statute unconstitutional on its is defendants. Held: application face in its 1. Defendants’ is unconstitutional contention statute in Sewell v. adversely on its face has been decided them 187). Therefore, Ga. 495 their contention that the statute is completely unconstitutional its as to application them without merit. loading
2. The officers observed the of boxes in an they automobile which followed to an adult bookstore where the purchased unloaded then boxes were into the bookstore. The officers two separate magazines removed from the boxes believed have of the two Our been into the bookstore. examination carried the Code section same are violative of magazines discloses that obscene, describing, is, depicting or which defines material to be specifically defined way, offensive sexual conduct patently