# Petition — Spivey v. Georgia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 429 U.S. 921

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0439%3A1. Public record. Not legal advice.