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Docket Number

58294.

Attorney(S)

Billy N. Jones, for appellants. Dupont K. Cheney, District Attorney, Kenneth R. Carswell, Assistant District Attorney, for appellee.

Judges

BANKE, Judge.

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Smart Summary

Summary: Arnsdorff et al. v. The State (Court of Appeals of Georgia, Oct. 17, 1979)

Factual and Procedural Background

Appellants Alan Arnsdorff and Robert Phillips were separately indicted and arraigned but tried jointly and convicted of possession with intent to distribute approximately 20 tons of marijuana. The contraband was associated with a shrimp boat referred to as the "Miss Carol J." Search warrants were issued after a justice of the peace was driven by police to the dock where the marijuana had been unloaded; the warrants led to seizure of the marijuana. Both appellants were arrested without warrants (Arnsdorff shortly after leaving the dock area in a vehicle; Phillips at his home) and pretrial statements were made. The appellants raised numerous enumerations of error on appeal, including challenges to joinder of their cases for trial, the trial court calling their cases out of docket order, juror questioning, the neutrality of the magistrate who issued the search warrants, denial of suppression motions, the admissibility of statements made after arrest, admission of certain witness testimony, and a claimed denial of a preliminary hearing. The trial court convicted them; this opinion affirms the judgment of conviction.

Legal Issues Presented

Whether the trial court abused its discretion by joining the separately indicted defendants for joint trial.
Whether calling the defendants' cases out of order on the criminal docket constituted reversible error.
Whether the trial court's questioning of prospective jurors regarding connections to defendants in related cases prejudiced the appellants.
Whether the justice of the peace who issued the search warrants was a neutral and detached magistrate given that he was driven to the dock by police to consider probable cause.
Whether the trial court erred in denying suppression of evidence seized pursuant to those warrants and otherwise related suppression claims.
Whether pretrial statements made by appellants after warrantless arrests were admissible.
Whether certain testimony (statements related by a witness, Mr. Stone) was improperly admitted.
Whether the appellants were entitled to a preliminary hearing after their warrantless arrests, and whether the absence of such a hearing required reversal.

Arguments of the Parties

Appellants' Arguments

They challenged the joinder of their separately indicted cases for a joint trial, asserting prejudice from the joint trial (enumerated as error).
They argued that calling their cases before other cases on the docket violated the statutory order for calling cases and possibly prejudiced them.
They suggested prejudice from the trial court's questioning of potential jurors about connections to defendants in companion cases.
They contended the justice of the peace who issued the search warrants was not a neutral and detached magistrate because he was driven to the dock by police and did not deliberate in his "home or some other place of solitude."
They sought suppression of the evidence seized and contended procedural defects related to the warrants/manner of their issuance.
They asserted the trial court erred in admitting statements made after their warrantless arrests.
They claimed certain testimony by a state witness (Mr. Stone) was prejudicially admissible hearsay or otherwise improper.
They argued they were entitled to a preliminary hearing following their arrests and that the absence of such a hearing was reversible error.

Appellee's (State's) Position

The State relied on established rules allowing joinder where defendants are charged with identical crimes or crimes part of a common plan and where joint trial does not prejudice fairness; here the defendants were charged jointly and the evidence was substantially identical.
The State defended the trial court's discretion in calling cases out of docket order as an accommodation to attorneys in related matters and asserted no prejudice resulted.
The State maintained that the justice of the peace acted properly and that there was no evidence he participated in the investigation or gained personal benefit from issuing the warrants.
The State contended the arrests were supported by probable cause and therefore statements made after arrest were admissible.
The State offered Mr. Stone's testimony to explain police conduct and the decision to arrest, and the trial court admitted it for that limited purpose.
The State pointed out that once an indictment is obtained, a preliminary hearing is not required and the lack of a commitment hearing does not provide a basis for reversal after indictment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Padgett v. State, 239 Ga. 556 (238 S.E.2d 92) (1977)	Permissible joinder: defendants charged with identical crimes or offenses part of a common scheme may be jointly tried in court's discretion if fairness is preserved.	Cited to support the trial court's discretion to join appellants' cases; court found evidence substantially identical and no showing of prejudice, so joinder was not an abuse of discretion.
Allen v. State, 144 Ga. App. 233 (240 S.E.2d 754) (1977)	Authority on joinder and discretionary joint trials in similar circumstances.	Used alongside Padgett to support the propriety of joinder here.
Code Ann. § 27-2101	Statutory authority referenced regarding joinder of defendants for trial.	Provided statutory support for joinder principles applied by the court.
Code Ann. § 27-1301	Statute governing the order in which cases on the criminal docket shall be called and the court's discretion to deviate.	Cited to explain that calling cases out of order is within the court's sound discretion; the trial court's explanation justified its action and no prejudice was shown.
Barrentine v. State, 136 Ga. App. 802 (222 S.E.2d 103) (1975)	Authority on the court's discretion in calling cases out of docket order.	Quoted as accord for the trial court's permissible exercise of discretion in calling these defendants' cases early.
Sassoon v. State, 138 Ga. App. 172 (225 S.E.2d 732) (1976)	Discusses trial court questioning of jurors and related prejudice considerations.	Referenced in support of finding no reversible prejudice from the court's juror questioning; court noted no harm was described.
Cuevas v. State, 151 Ga. App. 605 (1979)	Decision considering the seizure of the same contraband at issue.	Court relied on this prior decision resolving similar suppression issues in favor of the State and applied that resolution to the appellants' suppression contentions.
Robinson v. State, 93 Ga. 77, 87 (18 S.E. 1018) (1893)	Arrest without a warrant is permissible where officer has probable cause to believe a felony has been committed.	Cited to support the conclusion that the warrantless arrests of appellants were lawful because probable cause existed, making subsequent statements admissible.
Richardson v. State, 113 Ga. App. 163 (147 S.E.2d 653) (1966)	Another authority confirming that an officer may arrest without a warrant if probable cause exists.	Used with Robinson to uphold the propriety of the warrantless arrests and admissibility of statements.
Code Ann. § 27-207(a)	Statutory provision relevant to lawful arrest without a warrant when probable cause exists.	Referenced as governing authority for warrantless felony arrests; supported court's finding of probable cause.
Burrell v. State, 140 Ga. App. 900 (232 S.E.2d 172) (1977)	Permits admission of testimony explaining police conduct (limited purpose) such as what motivated an arrest.	Cited to justify admission of Mr. Stone's testimony for the limited purpose of explaining the conduct of the police in deciding to arrest the defendants.
Lundy v. State, 130 Ga. App. 171 (202 S.E.2d 536) (1973)	Similar authority allowing certain testimony to explain police conduct or motive.	Applied with Burrell to support limited admissibility of the testimony complained of by appellants.
State v. Middlebrooks, 236 Ga. 52 (222 S.E.2d 343) (1976)	Authority that a preliminary hearing is not required in a felony prosecution once an indictment has been obtained.	Cited to reject appellants' claim that denial of a preliminary hearing required reversal once indictment was obtained.
Sims v. State, 148 Ga. App. 733 (252 S.E.2d 910) (1979)	Also holds that once an indictment is obtained, failure to hold a commitment hearing is not reviewable and does not require reversal.	Cited alongside Middlebrooks to support the court's conclusion that appellants were not entitled to reversal for lack of a preliminary hearing after indictment.

Court's Reasoning and Analysis

The court considered each enumerated error in turn and applied relevant legal standards and precedent from Georgia law, concluding that none of the asserted errors warranted reversal:

Joinder: The court applied the rule that defendants charged with identical crimes or offenses that are part of a common scheme may be tried jointly in the trial court's discretion so long as fairness to each defendant is preserved. Because the appellants were charged with joint commission of the same criminal act and the evidence against them was substantially identical—and because appellants made no showing of prejudice—the court found no abuse of discretion in joining their cases.
Calling cases out of order: The court cited the statute governing the order of calling criminal docket cases and emphasized the court's discretion to deviate (e.g., when accommodating attorneys). The trial court explained on the record that it called these cases out of order to accommodate attorneys in related cases; there was no evidence of an ulterior motive or prejudice to appellants, so the court affirmed the exercise of discretion.
Juror questioning: The trial court had questioned prospective jurors about connections with defendants awaiting trial on related matters. Appellants suggested harm but did not describe any specific prejudice. The appellate court observed no perceptible harm and, citing precedent, found no basis for reversal.
Neutrality of magistrate issuing search warrants: Appellants argued the justice of the peace was not neutral because police drove him to the dock to consider issuing warrants and his deliberations did not occur in private. The court found no authority supporting appellants' contention that deliberations must occur in a magistrate's home or solitary place. Absent evidence the magistrate participated in the investigation or received personal benefit from issuing the warrants, the court found no impropriety in the circumstances of issuance.
Suppression and related pretrial issues: The court indicated that the suppression issues raised had been previously considered and resolved for the State in Cuevas v. State, which dealt with the seizure of the same contraband. The court thus found the suppression enumerations to lack merit.
Warrantless arrests and admissibility of statements: The court reviewed the law allowing warrantless arrest when an officer has probable cause to believe a felony has been committed. Given the investigative facts recited in the opinion (identifications linking appellants to the marijuana haul; knowledge that Phillips was the captain and that Arnsdorff had been on the boat and his wallet found on board), the court concluded the arrests were supported by probable cause and that incriminating statements made after arrest were properly admitted.
Admission of Mr. Stone's testimony: The state offered testimony recounting statements made to Stone linking appellants to the shrimp boat for the limited purpose of explaining police conduct in deciding to arrest. The trial court admitted this testimony for that limited purpose and admonished the jury accordingly; the appellate court found that admission proper under cited authority.
Preliminary hearing claim: The court relied on precedent establishing that a preliminary hearing (commitment hearing) is not a required step in a felony prosecution once an indictment has been obtained and that there is no judicial oversight on that ground after indictment. Because an indictment was returned two days after the arrests, appellants' claim failed.
Other enumerations: The court stated that remaining enumerations of error were considered and found to be without merit, but did not detail each one in the opinion.

Holding and Implications

Judgment affirmed.

Direct effect: The convictions of appellants Alan Arnsdorff and Robert Phillips for possession with intent to distribute the marijuana were affirmed by the Court of Appeals. The court rejected appellants' challenges to joinder, docket ordering, juror questioning, the neutrality of the magistrate issuing warrants, suppression of evidence, admissibility of statements after warrantless arrests, admission of witness testimony for the limited purpose of explaining police conduct, and the absence of a preliminary hearing following indictment.

Broader implications: The opinion applies and reiterates existing Georgia authorities on joinder, docket procedure, magistrate neutrality standards, probable-cause arrests without warrant, limited-purpose admissibility of testimony explaining police conduct, and the non-requirement of a preliminary hearing after indictment. The court did not announce a new rule of law.

Disposition: The appellate judgment affirming the convictions is affirmed. McMurray, P. J., and Underwood, J., concur.

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ARNSDORFF et al. v. THE STATE.

BANKE, Judge.

Appellants, Alan Arnsdorff and Robert Phillips, were separately indicted and arraigned but jointly convicted of possession with intent to distribute approximately 20 tons of marijuana. They enumerate as error, among others, the trial court's act in joining their cases for trial. Held:

1. When two or more defendants are charged with identical crimes or with different offenses which are part of a common scheme or plan, they may be jointly tried in the discretion of the trial court provided such a trial does not hinder a fair determination of each defendant's guilt or innocence. Accord, Padgett v. State, 239 Ga. 556 ( 238 S.E.2d 92) (1977); Allen v. State, 144 Ga. App. 233 ( 240 S.E.2d 754) (1977); see Code Ann. § 27-2101. Here, the appellants were charged with joint commission of the same criminal act and the evidence against them was substantially identical. In the absence of any showing of prejudice, we find no abuse of discretion in joining the cases for trial.

2. Next enumerated as error is the calling of defendants' cases before other cases on the docket. "The cases on the criminal docket shall be called in the order in which they stand on the docket, unless the defendant be in jail, or otherwise in the sound discretion of the court." Code Ann. § 27-1301. The trial court explained on the record that it had called the cases out of order as an accommodation to various attorneys involved in other, related cases. There is no evidence suggesting a contrary or ulterior purpose, nor is there anything to indicate that the appellants were prejudiced by the court's decision. Accordingly, we find no abuse of discretion. Accord, Barrentine v. State, 136 Ga. App. 802 ( 222 S.E.2d 103) (1975).

3. Also enumerated as error is the trial court's questioning of potential jurors as to any connection they might have had with certain defendants awaiting trial on companion cases arising from the same criminal activity. Although harm to appellants is suggested, none is described, nor are we able to perceive any. Thus, in the absence of some authority to the contrary, we find no ground for reversal. See generally Sassoon v. State, 138 Ga. App. 172 ( 225 S.E.2d 732) (1976).

4. Appellants enumerate as error the trial court's refusal to suppress the evidence upon which the convictions were based. This general enumeration is subdivided into five separate claims. The first complains that the justice of the peace who issued the search warrants which resulted in the seizure of the marijuana was not a neutral and detached magistrate. This complaint generally centers about the fact that the justice of the peace was driven by police to the dock where the marijuana had been unloaded. There he considered the evidence of probable cause and issued the warrants. Appellants argue that because the magistrate's deliberations did not take place in his "home or some other place of solitude," he was not authorized to issue the warrants. We are cited no authority for such a contention, and we know of none. In the absence of evidence that the magistrate was involved in the investigation or that he received some personal benefit from the issuance of the warrant, we find no impropriety in the circumstances under which his deliberations were made.

We have carefully considered the additional enumerations pertaining to the motion to suppress and find that each issue raised therein has previously been considered and resolved in favor of the state in Cuevas v. State, 151 Ga. App. 605 (1979), a case which considered the seizure of the same contraband.

5. In their next enumerations of error, appellants contend that the trial court erred in admitting into evidence pretrial statements made after their warrantless arrests. Appellant Arnsdorff was arrested shortly after he departed the dock area in a vehicle with his wife. Appellant Phillips was arrested at his home. Both arrests were accomplished without a warrant under circumstances where one could arguably have been obtained. Both appellants had earlier on the morning in question been identified as being involved in the marijuana haul of the shrimp boat, "Miss Carol J." Investigators had knowledge that appellant Phillips was the captain and last person to have the boat out. They also had knowledge Arnsdorff had been on the boat when it went out and when it returned, and that his wallet had been found on board.

An arrest may be made without a warrant if the officer has probable cause to believe that the defendant has committed a felony. Robinson v. State, 93 Ga. 77, 87 ( 18 S.E. 1018) (1893); Richardson v. State, 113 Ga. App. 163 ( 147 S.E.2d 653) (1966). See generally Code Ann. § 27-207 (a). The evidence in this case supports the conclusion that the arrests in question were made with probable cause, and the incriminating statements of appellants were thus properly admitted into evidence. These enumerations of error are without merit.

6. In Enumerations 7 and 8, appellants assert prejudicial error by the trial court concerning the admissibility of certain testimony given by a state witness. Over timely objection the witness, Mr. Stone, related statements made to him by others which linked each appellant to the shrimp boat, "Miss Carol J.," used to transport the marijuana involved in these convictions. The state's theory in offering the testimony was that it explained the conduct of the police in their decision to arrest the defendants. See Burrell v. State, 140 Ga. App. 900 ( 232 S.E.2d 172) (1977); Lundy v. State, 130 Ga. App. 171 (4) ( 202 S.E.2d 536) (1973). The trial court admitted the testimony for this limited purpose only and so admonished the jury. Admission of this testimony for this purpose was not error.

7. Appellants assign as error the trial court's failure to grant them a preliminary hearing. The arrest took place on March 14, 1978, and the indictment on March 16, 1978. Under the authority of State v. Middlebrooks, 236 Ga. 52 ( 222 S.E.2d 343) (1976), and Sims v. State, 148 Ga. App. 733 ( 252 S.E.2d 910) (1979), "a preliminary hearing is not a required step in a felony prosecution and ... once an indictment is obtained there is no judicial oversight or review of the decision to prosecute because of any failure to hold a commitment hearing."

8. The other enumerations of error have been considered and have no merit.

Judgment affirmed. McMurray, P. J., and Underwood, J., concur.