*1 205) (1947). A Printers, 203 Ga. v. Commercial in a fine, inappropriate is as a sentence, such criminal or decree an order of obedience compel to proceeding fine was the suit. to party of a to enforce in this case. improper contempt in a fees attorney
A judgment Code is authorized. contempt of finding a where proper Balasco, (Ga. 292); Arm. Balasco 1947, p. L. § 30-219 attorney The award of here. fees authorized decree is reasons, contempt foregoing
For the amend its trial court direction affirmed with contempt of himself purge to appellant order to allow found arrearage attorney fees and by payment determines as the court thereof part or such be due to pay. is able All the Justices direction. Judgment affirmed concur. May 22, 1976. Decided June 17, 1976
Submitted Wayne Pressley, R. Brown, for appellee.
H. Eugene THE STATE. 30646. RILEY v. Justice.
Ingram, murder a appeal from an out-of-time This County Superior in Bibb jury a appellant by conviction of imprisonment. of life Court and from a sentence as a result was authorized during brought by corpus proceedings habeas his confinement under the sentence. murder trial shows the evidence at the
Briefly, deceased, events: On December following of a driver, payment over got disagreement bus into appellant, and co-defendant teenager bus fare awith Swarn separately. tried Swarn, who was Nathaniel Appellant driver. even” with "get threatened others also the bus. On the passengers several were night 4,1969, December the same driver was following again up bus and he driving stopped pick group an teenage passengers group intersection. One onto the stepped bus while another reached around the boy on the bus and driver. The steps shot the bus driver slumped was found in the over a police *2 and hospital. officer was taken the He was able to describe to police the the above incidents before he died a few later. The days person steps was of the who was having described as style, certain hair which was style same as appellant’s hair.
Appellant, who was then years of age, was arrested for aggravated assault and then charged murder after the bus driver died. The appellant gave the police an incriminating statement which he admitted with Nathaniel meeting person, Swarn and third Thomas, George bus, on the waiting street corner for the and agreeing that Thomas At would shoot the driver. trial, appellant produced alibi witnesses and denied any participation in the crime. He claimed that he gave police the incriminating after only being confronted Swarn police custody who was also after Swarn’s reading implicated statement which
We consider appellant’s first three enumerations error as similar and they be will considered together. Appellant’s first trial for this same crime in a resulted mistrial. He represented was by counsel who cross examined, or had an examine, cross opportunity to witnesses for the At state. the second trial counsel entered into stipulation with the district attorney regarding chain of custody bullet killed the deceased. This stipulation now enumerated However, as error appeal. new counsel this find we no It error, error. example, for counsel stipulate the chain of custody of heroin. See United States 1973). Martin, (9th 489 F2d Cir.
Similarly, prior testimony sworn of the two crime lab witnesses who identified the gun which was linked to Nathaniel Swarn as the murder admitted at weapon was the present trial fact, without objection. trial prior whether court open inquired
specifically this read at being was these two witnesses testimony of in the replied Defense by agreement. trial that, "I have no point at presence testimony the direct Additionally, both objection.” Durham, about who testified Alfred examination of cross incident, admitted fare of the bus nonpayment shown was also This witness objection. without Corps Marine U. S. in the serving be second aof the reach Carolina, beyond in South stationed Georgia subpoena. upon prior at a taken testimony
A witness’
substantially
issue between
the same
substantially
is inaccessible
if the
is admissible
witness
parties
same
testimony
prior
The
§Ann.
38-314.
Code
any cause.
time on
to for the first
objected
is now
crime lab witnesses
made.
"inaccessibility”
no
because
testimony
the prior
introduction
seeking
party
Whatley
"inaccessible.” See
that the
must show
witness
question
While witnesses, this does crime lab inaccessibility of the two reversal contends, lead to automatic not, now appellant as of the conviction. regard this we
Under the circumstances
matter
procedural
as a
of this evidence
admissibility
as a trial
be and were waived
errors could
alleged
which
clause of
counsel. The confrontation
tactic
defense
Constitution
to the U. S.
Sixth Amendment
Green, 399
California v.
offended
See
procedure.
(1967). Cf.
error to admit statement incriminating appellant years age because was at the time the statement given parents present. was and his At were (1964)), Jackson v. Denno U. S. hearing appellant evidence showed that was arrested his home on December 1969. His present mother was when appellant was advised of rights his constitutional as (1966). required by Arizona, Miranda 384 U. S. There is no evidence that appellant’s mother was separately appellant’s advised of rights.
Appellant was questioned denied any knowledge of the crime. The next day, after the died, victim had appellant was again advised of his which he stated rights he understood. He was told driver had died and the against him was now murder. Nathaniel Swarn brought was and Swarn’s implicating read to him. then Appellant police gave an incriminating statement. The trial found that understood and had voluntarily waived them.
It is argued Wilcox, Freeman v. 163) (1969) App. should control that, Freeman, outcome this case and under Freeman, statement was inadmissible. child 14-year-old custody for five before his days obtained in a juvenile confession was and used delinquency proceeding against him. Court of (Hn. 4): Appeals stated "In the Freeman’s present case confession was solicited out of court with neither counsel nor parent If present. Freeman was advised of his right if counsel and he it understood is clear from the right, record that his mother was not so advised. This is a crucial *4 deficiency under the Gault case. Both must ... he advised think, We under the circumstances, the confession suspect was too as to its procedural purity and its voluntariness to be allowed against into evidence Freeman.” of Ga., See also M. K. H. v. 135 App. State Ga.
128 Ga., 135 v. State (1975), and J. J.
565 SE2d cases all These App. (1970), a v. cite Daniels of his any was not advised case in which defendant have or right parent rights, including present. light raised question knowing there was a authority, is whether
controlling rights of constitutional intelligent waiver and and voluntary opinion, question In our of the totality on depends waiver knowing heavy has a burden the state circumstances did and waive understand juvenile (4th Miller, 453 F2d Cir. United States rights. See (8th 446 F2d Cir. 1972); States, Cotton v. United 1971). Fifth has Appeals U. S. Court of for the Circuit exclusionary rule to confessions apply per
refused to se presence statements outside the given short, alone parents. age of the juvenile’s rights. person can waive his determinative of whether by a analyzed must be Instead, question of waiver "(1) These of the age several factors. are consideration of (3) (2) accused; of the accused; knowledge education of and the of the ... accused as to both substance attorney to consult with an nature of (4) silent; is held remain accused whether relatives, or to consult incommunicado allowed (5) the accused was or an whether attorney; friends filed; or formal had been charges before after interrogated (7) (6) length interrogations; methods used (8) vel non the accused refused to interrogations; whether (9) occasions; and voluntarily give prior statements repudiated judicial an extra the accused has whether States, 399 F2d v. United at a later date.” West U. 1102. To the extent (1968), cert. den. 393 S. Wilcox, an require can be read supra, Freeman exclusion, separately if the parent automatic judge’s affirm the trial advised, disapproved. it in this case. ruling challenges
The next enumeration
error
proof
of the trial court on the state’s burden of
*5
elements of the crime
beyond
reasonable doubt. The
appellant contends that
the charge impermissibly placed
a burden
himon
to
prove
innocence
and cites
State,
Henderson v.
(216
134 Ga. App. SE2d
(1975),
in
support
this contention. The
in
Henderson confusing
shifted to the defendant
burden of
in
proving his contentions
order to secure an
in
acquittal.
charge given
appellant’s
taken
case
out
of context
if
required
jury
they
believed
acquit
appellant’s
contentions,
but,
context,
in
it was not
or
confusing
burden
in context
shifting.
required
prove
state to
element
every
of the crime
beyond
doubt,
a reasonable
reiterated that appellant both
denied
and contended
guilt
that
the state had not carried
the burden of proving
guilt.
The charge also restated
State,
the alibi
Patterson v.
in
charge approved
(213
612) (1974).
SE2d
whole,
When taken
aas
present charge did not shift the burden to
in
ruling Henderson is not applicable here. See Hilton
(1974).
The next two enumerations embrace the general grounds and state that the verdict was not authorized or supported by the evidence. There was sufficient evidence from which the could find jury that appellant conspired and aided in the murder of the victim. This was a jury question under the evidence and the resolved it jury against appellant. We find no error.
The final enumeration
of error
is that appellant’s
trial defense counsel was ineffective. Primarily
enumeration
is based on appellant’s
former counsel’s
failure to
to the
object
introduction into evidence of the
sworn testimony taken at the first trial. This
appears
have been a logical
tactic
purposefully
counsel. The standard of effectiveness
stated
this court
is not to be judged by hindsight
nor
the result
that
appellant was convicted.
Glass,
See Pitts v.
attorneys as to decisions tried and made certain it was which and her presently she her defense with which conduct of does not require now attorneys disagree, employed so petitioner their representation finding the effective to a denial to her of as to amount inadequate Perkins, 225 Estes v. assistance of counsel.” conclude, under the facts defense of this circumstances and there ineffective constitutionally counsel was of error. merit in this enumeration no *6 concur, except All the Justices Judgment affirmed. dissents, Hill, J., who dis- Gunter, J., who qualified. 1976. 1975 Decided June
Submitted December Davis, Jr., I. Burl Bolton, Arthur K. Hasty, Attorney,
Fred M.
District
Dunsmore, Jr.,
General,
Assistant
John W.
Attorney
Staff
General,
Attorney
appellee.
Justice, dissenting.
Gunter,
trial for
convicted at his second
had
for the same offense
murder
after his first
the trial
resulted in the declaration of a mistrial
to reach
on the case
jurors sitting
for failure of
on double
guilty. My position
verdict
or not
guilty
cases,
criminal
hung-jury
mistrials
jeopardy following
mistrial,
defendant does not consent to the
has
where the
my dissenting opinions
been made
clear. See
quite
(1974);
Caldwell,
My assessment counsel issue as raised assistance of the court. the conclusion reached agreement with I dissent. respectfully