Petition — Spivey v. Georgia

eeprerme eur. |. :

MICHAEL RODAK, JR..CLERx |

TO THE

SUPREME COURT OF THE UNITED STATES

No, 76-21 0

JANE SPIVEY,

PETITIONER

vs.

STATE OF GEORGIA,

RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI

TO THE STATE OF GEORGIA

COOK & PALMOUR

P, O,. Box 468

Summerville, GA 30747

ATTORNEYS FOR PETITIONER

INDEX

Opinions Below . «+++ +++ © © « » 1

Jurisdiction. . . « « © ««-e«-+eee e 1

Question Presented ....-+ +++. 3

Statement of the Case ....+ +. 2 « « » 5

Argument ..2ececceceeveceeee AG

Reason for Grant of Certiorari ..... 30

Comclusion ..cceccecevevevecerne

Appendix .

TABLE OF AUTHORITIES

Barber v. Page, 390 U.S. 719, 88

S.Ct. 1318, 20 L.Ed. 2d 255, . . 13, 15, 26

Brookhart v. Janis, 381 U.S. 1,

86 S.Ct. 1245, 16 L.Ed. 2d 314 . 13

Douglas v. Alabama, 380 U.S. 415,

85 S.Ct. 1074, 13 L.Ed. 2d 934 . 13

Dutton v. Evans, 400 U.S, 74,

8 8 ere ae ae ae ee ee 3, 13

19, 23, 24

California v. Green, 399 U.S.

149, 90S.Ct. 1930. . ~ «© «= « « 13, 15

26, 29

ii.

Page

Georgia Code, Sec. 38-306 - + + + 4,17, 27

Gov't. Virgin Is. ve Aquino,

(3d Cir. 1967) 378 F.2d 540- . . 28

Holman v. Washington, (5 Cir.

1966) 364 F.2d 618. - ..... 28

Mancusi v. Stubbs, 408 U.S. 204,

33 L. Ed, 2d 293, 92 S.Ct.2308. . 15, 25

Mattox v. United States, 156 U.S.

237, 15 S.Ct. 337, 39 L. Ed. 409. 15

Motes v. U. S., 178 U.S. 458, 7,

~ 20S.Ct. 993, 44 L.Ed. 1150 ° -16, 26, 28

Pointer v. Texas, 380 U.S. 400,

85 S.Ct. 1065, 13 L.Ed.2d 923 . 13

Roberts ve Russell, 392 U.S.

293, 88 S.Ct. 1921, 20 L.Ed. 2d 13

1100 > — . . .* . . * . . . . .

JURISDICTIONAL STATEMENT

OPINIONS BELOW:

The opinion of the Georgia Court of

Appeals affirming the conviction (No. 51778

dated March 18, 1976), its denial of motion for

rehearing, and the denial by the Supreme Court

of Georgia (not at this time officially reported)

are set forth in the appendix.

JURISDICTION :

This petition for certiorari is from a

decision of the Court of Appeals of Georgia ina

criminal (felony) case, in which that court denied

rehearing; and the Supreme Court of Georgia

denied certiorari. Defendant complained of

denial of her Sixth Amendment right to confronta-

tion at the trial, in the Court of Appeals of

Georgia, and in her application to the Supreme

2

Court of Georgia for the writ of certiorari

(denied June 9, , 976).

Defendant consistently contended through-

out the trial and appeals that she had been

denied her Sixth Amendment right of confronta-

tion; and that the Georgia court misapplied the

Dutton decision.

The jurisdiction of this Court to review

the Georgia appellate decisions here is

authorized by the provisions of 28 USCA 1257(3),

in that the right of confrontation by witnesses in

a criminal trial is set up and claimed under the

Sixth Amendment to the Constitution of the

United States.

QUESTION PRESENTED:

Did the Georgia court err in applying

the Dutton case (Dutton v. Evans, 400

U.S. 74, 91 S.Ct. 210) to reject

defendant's contention that her Sixth

Amendment right to confrontation had

been denied ?

The opinion of the Court of Appeals of

Georgia was based upon several different propo-

sitions said to have been enunciated in Dutton:

(a) The lack of confrontation by the wit-

ness (Pack) was due to the State's negligence,

but this was "harmless error."

(b) The statement of this absent witness

(presented to the jury by a police officer) was of

only "peripheral significance" and was neither

"crucial" nor devastating’ because " ... (t)he

State's case was not entirely dependent upon

Pack's statement, '' and supporting factual details

made it "highly unlikely" that cross-examination

of Pack would have shown his statement unreli-

4

able. (Emphasis added).

Pack's statement (portions of which

were related by the police officer from the

transcript of a tape-recorded interview) had

"indicia of reliability'’ because "voluntary, "

"spontaneous" and "against his (Pack's) penal

interest."

(c) Dutton permits these "declarations"

of co-conspirator Pack made against defendant

"during the pendency of the criminal project, "'

under Georgia Code, Sec. 38-306, ‘even where

the alleged accomplice did not appear as a

witness."

(All these quotations are from the

opinion of the Georgia Court of Appeals).

5

STATEMENT OF THE CASE:

Jane Spivey was sentenced in a Georgia

court on a jury verdict of burglary of her hus-

band's mobile home located in Murray County,

Georgia.

The burglars, and their roles, according

to the State's evidence was this: (The "T-" and

number refer to page of the transcript furnished

the Georgia Court of Appeals):

Defendant Jane Spivey conspired with one

Larry Pack to burglarize the home of her

estranged husband. Pack engaged two men from

Atlanta to burglarize the mobile home, who in

carrying out the burglary picked up yet a third

one. These men were Loggins, Gearin, and

Shelton.

Loggins and Sheiton had plead guilty to

their part in the burglary; and were awaiting

sentence when they testified at defendant's trial,

6

in which they implicated defendant Jane Spivey:

They said that they met her at the home of

Janie White (sister of Larry Pack), and that

defendant Jane Spivey showed them where the

trailer was located. Neither Pack nor Gearin

testified, but Pack had given a tape-recorded

statement to investigating officer McCumber,

which the State had transcribed and parts of

which McCumber related“to the jury. (This

testimony of McCumber is the focal point of

defendant's contention of denial of confrontation

right).

The State also introduced a statement the

officers had taken from defendant herself, the

phraseology of which implicated her in "the

burglary."

Defendant's version is set in the same

scenario, and with the same characters, but

with a completely different plot: -

7

Defendant's husband had taken numerous

valuable items from her (separate) home in

adjacent Gordon County, which she suspected

him of having given to the woman with whom he

was living in this mobile home. Larry Pack

volunteered to go with her and protect her in the

event she went to this mobile home to see her

husband about these things he had taken. Earlier

in the day of the burglary Janie White called and

told her that there were some boys at her (Mrs.

White's) home who were looking for Larry Pack

to collect a debt Pack owed them. Pack had

again told defendant earlier that morning that he

would go with her to the "trailer" (her husband's

mobile home) to protect her from her husband

(T-189); so she went over to Mrs. White's home

in the event Pack should arrive (T-189).

While defendant and Janie White were talk-

ing about going to her husband's house trailer to

8

see if she could recover some of her things, the

boys who had been looking for Pack volunteered

to go along to protect her (T-189).

She and Janie White then drove to a point

near the trailer, but when she saw that there was

no one there, they drove away (T-190, T-205).

She knew nothing of the burglary.

She never read the officer's resume of her

statement tohim, although she did sign it. Her

signature was obtained while she was being de-

tained to furnish bail (T-178-179). She pointed

out in detail the errors in the written statement,

which were basically the differences in the re-

spective evidentiary versions of the State and that

of herself (supra; also T-203-204). She gave an

explanation of all of the State's damaging evi-

dence; for instance, she explained her purchase

of gasoline for the "boys from Atlanta" as a

response to their complaint of lack of money and

9

that they were still looking for Larry Pack (T-

190).

Against the background of these conflicting

versions of the State and of defendant, we exam-

ine officer McCumber's testimony regarding

Pack and his statement to McCumber, toevaluate

its importance to defendant's claim of prejudice

for lack of confrontation by Pack:

When Pack gave this statement he was

under arrest for burglary of the home of defen-

dant Jane Spivey, who had sworn the affidavit for

the warrant for his arrest (T-112), Pack was

"furious" with defendant because of this (T-116).

McCumber tape-recorded and transcribed his

interview with Pack including both Pack's con-

fession to the burglary of defendant's home and

to defendant's involvement in the burglary of her

husband's house-trailer (T-98). Pack's state-

ment was that defendant first asked that he kill

10

or cripple L. D. Spivey, which Pack declined

(T-104); and failing in this, she offered him $100

to "rip off'' defendant's husband's house-trailer,

and also suggested her husband's TV shop as a

fruitful source of burglary (T-103). Pack de-

clined this, then she asked him to get someone

to do it; to which he agreed (T-104). Pack con-

tacted "two boys" in Atlanta. He knew the name

of one of them as "Russell Garrett" but did not

know the other (T-106-108). He told "Garrett"

to call his sister, Janie White, in Resaca, so

that ''Garrett'' could get in touch with defendant

(T-107). (Janie White was also the sister-in-law

of defendant, and they were acquainted). These

boys had never done a "job" for Pack, but he

knew of other jobs they had done (T-107).

Pack also told McCumber of an armed

robbery in Sandy Springs, which information did

not coordinate with the police records there (T-

11

119-120).

Through Murray County authorities, Mc-

Cumber learned of a person named "Russell

Gearin," (Pack's ''Garrett'') who was later

charged as a participant in the burglary (T-108).

McCumber also learned (independently of Pack)

that Pack had an extensive record of convictions

of larceny and counterfeiting totaling sentences

of over 50 years (with shorter terms actually

served - T-109, 110, 111); and that there were

then outstanding Federal warrants for his arrest

(T-109). Onthe Murray County charge (for theft

of L. D. Spivey's house trailer) Pack was

released upon his own recognizance (T-115).

Pack's burglary of defendant's home was

supported by a statement obtained by McCumber

from the son of Janie White (Pack's sister - T-

116), who had apparently told defendant Jane

Spivey that Pack had broken into her house (T-

12

117).

Officer Crisp of Murray County testified

that Pack was released upon his own recogni-

zance because "

.-. Without Larry Pack's help

there would be no case, and... I didn't know his

past record at that time" (T-174). Pack could

not be found to testify at the time of defendant's

trial (T-170).

Defendant made timely objection to McCum-

ber's testimony uf what Pack had told him,

invoking her Sixth Amendment right to confront

the witness Pack (T-99, 100).

The trial court's overruling of this objec-

tion was enumerated as error to the Georgia

Court of Appeals, which directly passed upon

this constitutional question (see opinion in

Appendix). Defendant's application to the Supreme

Court of Georgia (which was denied) asked that

court to review this constitutional point of law

13

decided by the Georgia Court of Appeals.

ARGUMENT:

DEFENDANT WAS DENIED HER SIXTH

AMENDMENT RIGHT OF CONFRONTA -

TION. THE GEORGIA COURT ERRED IN

APPLYING DUTTON AS A PRECEDENT.

Dutton v. Evans (400 U.S. 74, 91 S.Ct.

210) recognized the continued viability of Pointer

v. Texas (380 U.S. 400, 85 S.Ct. 1065, 13 L. Ed.

2d 923); Douglas v, Alabama (380 U.S. 415, 85

S.Ct. 1074, 13 L, Ed. 2d 934); Brookhart v. Janis

(381 U.S. 1, 86 S.Ct. 1245, 16 L, Ed. 2d 314);

Barber v. Page, (390 U.S. 719, 885S,Ct. 1318,

20 L, Ed, 2d 255); Roberts v. Russell, (392 U.S.

293, 88 S.Ct. 1921, 20 L. Ed. 2d 1100); and

California ve Green (399 U.S. 149, 90 S.Ct.

1930).

The multiple bases of the Georgia Court's

reliance on Dutton necessitates their analysis:

14

(a) Lack of confrontation due to_

State's negligence as "harmless

error.’

We do not find this specifically decided

by Dutton. The concurring opinion of the Chief

Justice and of Justice Blackmun gave as an

"additional reason" for concurrence that the

spontaneous utterance of Williams (given by

Shaw's testimony) was "harmless error if it was

error at all."' (This did not imvolve negligence

by the State in failing to have a witness present),

The minority concurrence in Dutton held the

error harmless, apparently because of the in-

consequential nature of the Williams utterance,

and because of the great weight of the State's

evidence of defendant's guilt.

In the case here the denial of confron-

tation was complete, i.e., defendant had had no

opportunity whatsoever to examine Pack (either

on direct or cross-examination) at any time.

15

Compare Mattox v. United States, 156 U.S. 237,

15 S.Ct. 337, 39 L.Ed. 409 (prior recorded

testimony); and California v. Green, 399 U.S.

149, 90 S.Ct. 1930, at p. 1932 (prior opportunity

to cross-examine),

The unqualified opinion of the Georgia

court here that Pack's absence was due to the

State's negligence makes inapplicable considera-

tion of cases involving the witness' unavailability,

such as those discussed in Mancusi v. Stubbs,

408 U.S. 204, 33 L.Ed,.2d293, 92 S.Ct. 2308, at

pp. 2311, 2312.

In Barber v. Page, 390 U.S. 719, 88

S.Ct. 1318, the statement of the absent witness

was submitted through the transcript of his sworn

testimony given at a preliminary hearing (88 S.Ct.

at p. 1319). At the time of defendant's trial ina

state court in Oklahoma, the witness was incar-

cerated 225 miles away in a Federal penitentiary

16

in Texas (88 S.Ct., at p. 1320), There, '(T)he

sole reason why Woods was not present to testify

in person was because the State did not attempt

to seek his presence.'' (88 S.Ct., at p. 1322).

"While there may be some justifica-

tion for holding that the opportunity for cross-

examination of a witness at a preliminary hearing

eatisfies the demand of the confrontation clause

where the witness is shown to be actually un-

available, this is not, as we have pointed out,

such a case." (Id., 390 U.S. 725-726; 88 S.Ct.

1322).

This case also cites Motes v. U. S.,

178 U.S. 458, 20S.Ct. 993, 44 L.Ed. 1150

(1900), which indicates that historically there

was an exception to the confrontation require-

ment, where the witness was excusably unavail-

able and the accused had had an opportunity to

examine the witness prior to the trial (20 S.Ct.

17

at pp. 998, 999).

The Georgia court here reaches its

conclusion that the error was "harmless" be-

cause of the other factors upon which it based

affirmance, such as the "'peripheral” signifi-

cance of Pack's statement, the weight of the

evidence, the spontaniety and voluntariness of

Pack's statement, and the Georgia statute which

permitted statements of co-conspirators (Ga.

Code, Sec. 38-306).

Under this logic, whether the error

was "harmless'' would depend upon the correct-

ness of these other propositions upon which the

Georgia court affirmed the conviction, which we

discuss below.

Prima facie, under the above cases,

defendant's confrontation right has been denied

because she had no opportunity to examine the

witness; and the absence of the witness was the

18

fault of the State.

(b) The Georgia court erred in

finding fact-wise that Pack's

statement was ‘voluntary and

“spontaneous”; was neither

devastating";

“crucial” nor

that it was of only ‘peripheral''

significance,

McCumber's resume of his conversa-

tion with Pack, which was that Pack stated that

his conversation with defendant had "rocked on"

for a couple of weeks (béginning with defendant's

original suggestion of murder of defendant's

husband and ending with their agreement that

Pack would get someone to burglarize the home

of her husband), contradicts the conclusion of

the Georgia court that Pack's statement came

within certain principles of Dutton:

Pack's statement to officer McCumber

was not "spontaneous" within the Dutton meaning,

because it was induced through extensive exami-

nation by McCumber, including questions and

19

answers, most of which were studied and calcu-

lated in nature. Pack at that time was under

arrest for the burglary of defendant's home, and

was in jail. It did not have Dutton's "indicia of

reliability"; and was of more than "peripheral

significance, '' because Pack had a reason for in-

volving defendant in the burglary of her husband's

home (Pack's own arrest at defendant's instance

for burglary of her own home). Defendant de@mied

that she conspired with Pack to burglarize her

husband's home.

In Dutton, "(T)he circumstances under

which Williams made the statement were such as

to give reason to suppose that Williams did not

misrepresent Evans' involvement in the crime."

(Dutton v. Evans, 400 U.S., at p. 89; 91 S. Ct...

at p. 219).

The stage and the actors of the respec-

tive versions of defendant and of the State are

20

practically the same: The principal difference

is in the dialogue between the actors - defendant

says that her dialogue with Pack was only that he

offered her protection from her husband in the

event she went to recover articles her husband

had stolen from her. Her dialogue with Loggins

and Shelton was that (Pack not having appeared)

they would accompany defendant and Janie White

to the trailer and render the same service.

Defendant says that, upon seeing that her husband

was not at the trailer, she and Janie White drove

on by. Again, there is only a difference in dia-

logue; Loggins and Shelton say that she showed

them the trailer so that they could burglarize it,

and admit that she did not go onto the premises.

They do say that she waited for them and there-

after inspected the fruits of the burglary; but

defendant denies all this.

McCumber's testimony of Pack's

21

statement to him was "crucial" and "devastating"

to defendant: The burglary plan originated at

defendant's suggestion. Only Pack and defendant

were present. Defendant at first wanted Pack to

murder her husband; but after the matter had

"rocked on for a couple of weeks" the two agreed

that Pack would get someone to burglarize his

house trailer. She also suggested her husband's

TV shop as a fruitful source of burglary. Pack

contacted "two boys in Atlanta’' to do the job. He

gave one of them the telephone number of his

sister (Janie White) in Resaca, Georgia; and told

him to call, that "this woman” (he did not mention

defendant's name) wanted to talk to him.

Loggins confirmed Pack's contact with

him; and Shelton confirmed Loggins' testimony.

Both basically confirmed Pack's version of his

conspiracy with defendant to burglarize her

husband's house-trailer, and that his TV shop

22

would also be a fruitful source of burglary. Mc-

Cumber's testimony of Pack's statement places

defendant and Pack at the center - rather than at

the periphery - of the offense.

The State court interprets Dutton as

approving lack of confrontation where "the State's

case was not entirely dependent upon (the absent

witness') statement" (emphasis added). Here,

the over-riding evidence was held to be the testi-

mony of the two co-defendants, plus ''Mrs.

Spivey's confession. "

(This same testimony was

held to make McCumber's testimony "of peri-

pheral significance at most,'' and to remove it

from the category of "crucial" or "devastating"

- which we have discussed above).

The Dutton majority pointed out that:-

"This case does not involve evidence

in any sence 'crucial' or 'devastating' as did all

the cases just discussed... It does not involve

23

any suggestion of prosecutorial misconduct or

even negligence, as did Pointer, Brookhart and

Barber ....'' (400 U.S., at p. 87; 91 S.Ct. 219,

emphasis added; majority opinion by Mr. Justice

Stewart).

"I am at a loss to understand how any

normal jury, as we must assume this one to have

been, could be led to believe, let along be in-

fluenced by this astonishing account by Shaw of

his conversation with Williams in a normal voice

through a closed hospital room door. I note,

also, the Fifth Circuit's description of Shaw's

testimony as 'somewhat incredible' and as pos-

sessing 'basic incredibility. ''' (concurring

opinion of Justice Blackmun and of the Chief

Justice, 400 U.S., at p. 91; 91 S.Ct., at p.

221).

Considered from the standpoint of

impact upon the jury, Pack's statement to Mc-

24

Cumber is clearly ina class different to that of

Williams' statement to Shaw in the Dutton case,

as clearly shown from the above evaluations by

the Federal appellate courts of the nature of

Williams' statement to Shaw,

(c) Defendant's Sixth Amendment

right to confrontation was denied

by application here of Sec. 38-

306, Georgia Code,

Dutton had this same code section

under consideration and held that "... (I)ts

application in the circumstances of this case

did not violate the Constitution ...'' (400 U.S.

88, 91 S.Ct. 219 - emphasis added), pointing

out that the statement there was neither ''crucial"'

nor "'devastating’; and that the State's case was

supported by 19 other witnesses (Id.). The

Dutton majority's opinion that ''The Georgia

statute can obviously have many applications

consistent with the confrontation clause ...

(400 U.S., at p. 88, 91 S.Ct. 219), suggests a

25

reluctance to accept it in all cases.

Does Dutton mean that the statement

of the absent witness must in each case be

weighed or measured against the testimony of

witnesses present at the trial; or does it mean

that the rules of evidence under which such

statements are made must remain under scru-

tiny for fairness, or does it mean a combination

of the two?

Mr. Justice Rehnquist, writing for the

majority in Mancusi v. Stubbs, 408 U.S, 204, 33

L, Ed, 2d 293, 92 S.Ct. 2308 (408 U.S., at pp.

213, 214), said:

"The focus of the Court's

concern has been to insure that there

are ‘indicia of reliability which have

been widely viewed as determinative

of whether a statement may be placed

before a jury though there is no con-

26

frontation of the declarant.' Dutton

v. Evans, supra, at p. 89, 91 S.Ct.

at 220, and to ‘afford the trier of fact

a satisfactory basis for evaluating

the truth of the prior statement, '

California v. Green, supra, 399 U.S.

at 161, 90 S.Ct. at 1936..."

Dutton also suggests the application or

formulation of rules under which non-confronting

statements may be submitted under the "indicia

of reliability" theory, noting several rules al-

ready in existence (400 U.S. at p. 80, 91 S.Ct.,

at p. 215, Div. 3 of opinion).

Barber v. Page, 390 U.S. 719, 88

S.Ct. 1318, seems to furnish precedent for a

rule applicable to the instant case; following the

principle enunciated in Motes v. U. S., 178 U.S.

458, 20S.Ct. 993, 44 L.Ed. 1150 (1900):

In Barber, the State had not made

27

adequate effort to have the witness present. In

disposing of the case, the Court '... remanded

for further proceedings consistent with this

opinion” (390 U.S., at p. 726, 88 S.Ct. 1322)

which Obviously meant that when the case went

back for trial the State shouid make adequate

effort to have the witness present.

In the instant case the Georgia court

did not interpret Sec. 38-306, Ga. Code, as

affording independent authority for introduction

of a co-conspirator's statement. It said that

'(T he admission of McCumber's hearsay testi-

mony (was) erroneous, since Pack's absence can

be attributed directly to the mishandling of the

investigating authorities ...'' (emphasis added),

We therefore have here basically the same State

negligence as that in Barber.

We do not find in Barber, nor in any

of the cases it cites (Motes v. U. S., supra;

28

Holman v. Washington (5 Cir. 1966) 364 F. 2d

618; Gov't. Virgin Is. v. Aquino (3d Cir. 1967)

378 F. 2d 540, any suggestion of a basis for de-

cision such as that made here by the Georgia

court; which is that the weight of the State's

evidence is measured against its own negligence

in failing to have the witness present, to deter-

mine whether or not the statement of the absent

witness is "harmless error.”

In Barber, denial of defendant's right

of confrontation was held complete upon establish-

ment of the fact that the witness might have been

available, without more: ‘''(W)e would reach the

same result on the facts of this case had petition-

er's counsel actually cross-examined Woods at

the preliminary hearing. See Motes v. United

States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed.

1150 (1900)..."' 390 U.S., at pp. 725-726; 88

S.Ct. 1322.

29

The Georgia court's decision is also

inconsistent with the Mancusi interpretation

(above) of Dutton; i.e., that the Court's concern

is to’... insure... ‘indicia of reliability ...'";

and is inconsistent with California v. Green

that it is to"... afford the trier of fact a satis-

factory basis for evaluating the truth of the prior

statement.'' (399 U.S., at 161, 90 S.Ct. at p.

1936).

"(W)e have more than once found

a violation of confrontation values even

though the statements in issue were

admitted under a recognized hearsay

exception." California v. Green, 399

U.S., at pp. 155-156; 90 S.Ct. 1934

(citing Barber and Pointer).

30

REASON FOR GRANT OF CERTIORARI:

(1) Dutton left uncertain the role of

the WEIGHT OF EVIDENCE in considering claims

of denial of confrontation; and the Georgia court

has here interpreted Dutton to permit dispensing

with confrontation when ''(T )he State's case was

not entirely dependent upon (the non-confronting)

statement.'' The Georgia court gives WEIGHT

OF EVIDENCE a dominant role in deciding the

confrontation question,

(2) This Court should reconcile the

"harmless error" and "indicia of reliability"

tests emanating from separate concurring

opinions which resulted in the Dutton majority.

These two concepts are not consistent: If

evidence has "indicia of reliability" it should not

be "erroneous, '' albeit harmless. The Georgia

court here has combined both concepts to reach

its affirmance of the conviction: It found that,

31

although admission of McCumber's testimony

was erroneous, it was harmless based upon the

predominant facts and logic by which Dutton was

decided. "'

(3) The Georgia court overlooked

crucial and substantial facts, (a) in concluding

that the McCumber testimony was neither

crucial" nor ''devastating, '' and that it was "of

peripheral significance at most;'' and that Pack's

statement to McCumber was ''spontaneous;" (b)

It overlooked the fact that the only (two) "eye-

witnesses"' had pled guilty to the same offense

but had not been sentenced when they testified;

(c) It overlooked Pack's admitted animosity

toward defendant and Pack's long criminal

record, in evaluating "indicia of reliability’ of

his statement to McCumber.

32

CONC LUSION :

The foregoing demonstrates the

importance to defendant of cross-examination of

Pack from the standpoint of developing facts.

The differences in the origin and nature of the

statement of WILLIAMS (in Dutton) to that of

PACK here demonstrate the absence here of the

elements held in Dutton necessary to excuse lack

of confrontation, 7

Respectfully,

COOK & PALMOUR

By: Abreck atAnanreEenrv

A. Cecil Palméur

P, O. Box 468

Summerville, GA 30747

33

CERTIFICATE OF SERVICE

I have served the foregoing application for

writ of certiorari upon the State of Georgia by

mailing a copy of it to the following officers of

said State:

Hon. Samuel J. Brantley

District Attorney - Conasauga Circuit

Whitfield County Courthouse

Dalton, GA 30720

Hon. Arthur K. Bolton

Attorney General of Georgia

132 Judicial Building

Atlanta, GA 30334

This August [| , 1976.

Counsel for Petitioner

298 JANUARY TERM, 1976. (138 Ga.

APPENDIX A

IN THE COURT OF APPEALS OF GEORGIA

~~

JANE SPIVEY, Appellant

vs.

STATE OF GEORGIA, Appellee

(unofficially reported: 138 Ga. App. 298)

WEBB, Judge.

Jane Spivey was indicted for burglary, tried and

convicted in the Superior Court of Murray County on June

18, 1975, and was sentenced to serve three years in the

penitentiary. Her motion for new trial was overruled, and

on appeal she enumerates two alleged errors, (1) that she

was deprived of due process and a fair trial guaranteed by

the Sixth and Fourteenth Amendments, and (2) the

evidence did not establish her guilt beyond a reasonable

doubt.

The state’s brief was not filed until 36 days after the

time for filing had expired. Our rules are equally applica-

ble to district attorneys. “This court cannot demand per-

App.) JANUARY TERM, 1976. 299

fect administration but does expect reasonable attention

to the processing of cases, and particularly in the case of a

criminal action fostered by the state against one of its

citizens.” State v. Weeks, 136 Ga. App. 637, 638 (222 SE2d

117). Here, however, we affirm the conviction and sen-

tence.

_ Upon the trial the prosecution contended that Jane

Spivey contacted an acquaintance, Larry Pack, to

arrange the burglary of a mobile home belonging to her

former husband L. D. Spivey. Two of the state’s witnesses,

Gary Loggins and Mike Shelton, were co-defendants who

had previously pled guilty to the burglary. Gary Loggins

testified that he was approached by Pack who told him “he

knowed this woman that wants to rip this trailer off that

belonged to her ex-husband, and said that she would pay

us $500 to do it; and we could have all the stuff out of his

trailer”; that at Pack’s direction he and Mike Shelton and

Russell Gearin drove to the Dalton area where they

attempted to reach Pack by telephone; that they went to

the home of Pack’s sister, Janie White (Mrs. Spivey’s

sister-in-law), but Pack was not there; that Mrs. White

called Mrs. Spivey who came to the house; and that Mrs.

Spivey “told us about the trailer, that she wanted us to

break into the trailer and steal the stuff, and she would

pay us $500 to do it, and she mentioned something about

shooting the man’s legs off, and breaking into his TV shop

and kidnapping him for two or three days.”

Mike Shelton’s testimony completely corroborated

Loggins’. Both men also testified that Mrs. Spivey and

Mrs. White led them to the trailer and waited at the

intersection of the highway and the dirt road where the

trailer was located until the burglary was completed.

Subsequently they returned all the stolen items to the

investigating officers.

Gearin and Pack did not testify. However, Edward

McCumber of the Gordon County Sheriffs Department

testified that he interviewed Pack while conducting an

investigation of another burglary in Gordon County. At

that time no one had been charged with or arrested for the

burglary of the trailer of L. D. Spivey, nor had any of the

stolen goods been recovered. The interview was record-

ed and transcribed and, over objection, was allowed in

300 SPIVEY v. STATE. (138 Ga.

evidence because Pack was unavailable to testify.

The state claimed that it made a diligent search for

Pack prior to the trial. The evidence showed that Pack had

been charged with the Spivey burglary and placed in the

custody of the Murray County Sheriffs office, but released

on an “own recognizance” bond before it was known that

he had a criminal record of 28 arrests and 11 convictions.

He was also on bond from Gordon County and a federal

bench warrant for his arrest was outstanding. After the

unsuccessful search of the county his name was placed on

the “NCIC” network computer as wanted in Murray

County.

The information volunteered by Pack to McCumber

during the interview, as read to the jury by McCumber,

was as follows: “At the conclusion of my talk with Larry

Pack, my first statement was ‘O.K., this is pretty well

cleared up, you indicated that you have some information

in reference to a burglary that happened out of this

County, and you said you wanted to tell me about it

because you felt it was an injustice what’s going on here

right now?’ Pack said ‘Yes sir, the same woman who has

got a warrant for me paid two boys out of Atlanta to come

up here and burglarize her ex-husband’s trailer, and told

them what they couldn't steal to tear up, and me and my

wife is a witness on that, and my sister went with this

woman out there, took the boys out there, and Jane and

my sister Janie sat on a dirt road watching for the County

Police, while these two boys burglarized the trailer, and

they got a shotgun, a rifle, a pistol, a tape deck, a box full

of tapes and two or three new sets of clothing that

belonged to her husband... And he owns a TV shop

in—what did I say the name was?’ Then I said

‘Chatsworth,’ and he said, ‘Yes, Chatsworth, he owns a TV

shop up there.’ Then I talked to him, I said, ‘O.K. What you

are saying in summary is that Jane Spivey and her

husband are separated, is that right, and you mentioned

to me before that she asked you to do her a favor, is that

correct? ‘Yes, sir.’ ‘What was the favor she wanted you to

do? “She asked me if I could get someone to kill her

husband,’ and I told her I couldn’t get nobody killed, but I

would get somebody to shoot him, you know, to mess him

up pretty bad, and she said she didn’t want him messed

App.) JANUARY TERM, 1976. 301

up, she wanted him dead, and I said ‘Well’. . . Q. Excuse

me again for interrupting, but now who is the ‘she’ that

Larry Pack keeps referring to? A. She is Jane Spivey. Q.

O. K. Continue, please. A. And I said, ‘Well, I can’t get

nobody to do that.’ And so it rocked on a couple of weeks,

and she asked me if—and she, Mrs. Spivey asked me if I

could get someone to burglarize, well, she asked me to do it

to start with, to go over there and burglarize the trailer

and she’d give me $100.00. And I told her I didn’t want to,

and she said, ‘Well, can you get someone to do it?’ And so!

called these two boys in Atlanta, they came up, they met

Jane Spivey at my sister’s house, Janie White, in Resaca,

Georgia.”

Agent W. E. Dodd of the Georgia Department of

Investigation testified that Mrs. Spivey signed a waiver

of rights form and confessed to her participation in the

burglary. Officer McCumber, the Sheriff of Gordon

County and a deputy testified that Mrs. Spivey’s

statement implicating herself was freely and voluntarily

given in their presence and that she waived her right to

remain silent or to have an attorney present. The

statement and two waiver of rights forms signed by Mrs.

Spivey were admitted in evidence.

Mrs. Spivey testified in her own behalf and re-

pudiated her previous statement, asserting that Larry

Pack had offered to protect her while she entered L. D.

Spivey’s trailer to retrieve some personal items Spivey

had stolen from her, and that the break-in and burglary

occurred without her knowledge. She also swore that she

had repeatedly requested to have present an attorney who

was representing her in other affairs before she was

questioned.

The jury found Jane Spivey guilty of the burglary of

the mobile home of L. D. Spivey. She contends that by

allowing Officer McCumber to read Pack’s statement

when Pack was not present and did not testify, she was

deprived of her right of confrontation and of cross

examination of Larry Pack, and was denied a fair trial

and due process of law. The essential question before us,

then, is whether under the circumstances of this case Jane

Spivey’s burglary conviction must be set aside because of

the admission of McCumber’s testimony as to Pack’s

302 SPIVEY v. STATE. (138 Ga.

statement. We conclude that the question has been

answered in the negative by the Supreme Court of the

United States in Dutton v. Evans, 400 U.S. 74 (91 SC

210, 27 LE2d 213) (1970).

Code § 38-306 provides that “After the fact of

conspiracy shall be proved, the declarations by any one of

the conspirators during the pendency of the criminal

project shall be admissible against all.” In Dutton v.

Evans, supra, the Supreme Court considered this

provision and concluded that it met the constitutional

requirements of the confrontation and due process clauses. _

even where the alleged accomplice did not appear asa

witness at the defendant’s trial. However, the court laid

down no ironclad validations, holding merely that “The

Georgia statute can obviously have many applications

consistent with the Confrontation Clause, and we

conclude that its application in the circumstances of this

case did not violate the Constitution.” Id., pp. 87, 88.

(Emphasis supplied.) ”

Although we view the admission of McCumber’s

hearsay testimony as erroneous since Pack’s absence can

be attributed directly to the mishandling by the

investigating authorities, based upon the predominant

facts and logic by which Dutton was decided, that error

was harmless. That there may be harmless constitutional

error where it does not adversely affect substantial rights

of the defendant is well settled. Cauley v. State, 130 Ga.

App. 278, 288 (203 SE2d 239) (U. S. cert. den. 419 U. S.

877) and cits.

Here the state’s case was not entirely dependent

upon Pack’s statement. It presented two co-defendant

eyewitnesses as well as Mrs. Spivey’s confession and this

evidence was clearly sufficient to sustain the conviction.

Therefore, McCumber’s testimony was “of peripheral

significance at most” and did not constitute “crucial” or

“devastating” evidence. Dutton, supra, pp. 86, 87.

It further appears that Pack divulged the

information to the Gordon County Sheriff's office

voluntarily while being questioned about an entirely

different matter. Thus his statement was spontaneous

and against his penal interest. These are “indicia of

reliability” which the Supreme Court viewed as

App.) JANUARY TERM, 1976. 303

“determinative of whether a statement may be placed

before the jury though there is no confrontation of the

declarant.” Dutton, p. 89. Also, the interlocking factual

details in the confessions of Loggins, Shelton, Mrs. Spivey

and Pack make it highly unlikely that a cross

examination of Pack could have shown the jury that his

statement, though made, was unreliable. Id.; See also in

this regard, Division 3 of Gale v. State, 138 Ga. App. 261.

While disapproving the use by the prosecution of

Pack’s statement with only the sketchiest showing of his

unavailability in court, we agree with the principle first

enunciated by Justice Cardozo! and quoted in part again

in Dutton: “The law, as we have seen, is sedulous in

maintaining for a defendant charged with crime

whatever forms of procedure are of the essence of an

opportunity to defend. Privileges so fundamental as to be

inherent in every concept of a fair trial that could be

acceptable to the thought of reasonable man will be kept

inviolate and inviolable, however crushing may be the

pressure of incriminating proof. But justice, though due to

the accused, is due to the accuser also. The concept of

fairness must not be strained till it is narrowed to a

filament. We are to keep the balance true .. . There is

danger that the criminal law will be brought into

contempt—that discredit will even touch the great

immunities assured by the Fourteenth Amendment—if

gossamer possibilities of prejudice to a defendant are to

nullify a sentence pronounced by a court of competent

jurisdiction in obedience to local law, and set the guilty

free.” Dutton, pp. 89-90.

Judgment affirmed. Veen, P. J., concurs, Quillian,

J., concurs in the judgment only.

ARGUED Fespruary 4, 1976 — Decipep Marcu 18, 1976 —

REHEARING DENIED APRIL 1, 1976 — CERT. APPLIED FOR.

Burglary. Murray Superior Court. Before Judge

Vining. ,

Mitchell, Mitchell, Coppedge & Boyett, Neil Wester,

‘Snyder v. Massachusetts, 291 U. S. 97, 122 (54 SC

330, 78 LE 674, 90 ALR 575).

304 JANUARY TERM, 1976. (138 Ga.

Cook & Palmour, Bobby Lee Cook, Bobby Lee Cook, Jr., for

appellant.

Samuel J. Brantley, District Attorney, for appellee.

APPENDIX B

COURT OF APPEALS

OF THE STATE OF GEORGIA

ATLANTA, April 1, 1976

The Honorable Court of Appeals met

pursuant to adjournment. The following order

was passed:

91778. Jane Spivey v. The State

Upon consideration of the motion fora

rehearing filed in this case, it is ordered that

it be hereby denied.

COURT OF APPEALS

OF THE STATE OF GEORGIA

CLERK'S OFFICE,

ATLANTA APR 1 1976

- | certify that the above is a true extract

from the minutes of the Court of Appeals of

Georgia.

Witness my signature and the seal of

said court hereto affixed the day and year

last above written.

/s/ Morgan Thomas CLERK

APPENDIX C

SUPREME COURT OF GEORGIA

ATLANTA, June 9, 1976

The Honorable Supreme Court met pursuant

to adjournment. The following judgment was

rendered:

Jane Spivey v. The State

Upon consideration of the application for

certiorari filed to review the judgment of the

Court of Appeals in this case, it is ordered that

the writ be hereby denied. All the Justices concur.

Bill of Costs, $30

SUPREME COURT OF THE STATE OF GEORGIA

CLERK'S OFFICE, ATLANTA July 2, 1976

I certify that the above is a true extract

from the minutes of the Supreme Court of Georgia,

and that Cook & Palmour paid the above bill of

costs.

Witness my signature and the seal of said

court hereto affixed the day and year last above

written.

/s/ Joline B. Williams, Clerk.