State v. Houston , 234 Ga. 721 ( 1975 )

Ingram, Justice,

concurring.

I fully agree with the majority’s conclusion that a preliminary hearing is a critical stage of a criminal proceeding in Georgia and that the defendant is entitled to counsel at that hearing unless there is a waiver. The difficulty I have with the majority opinion is that it authorizes the prosecution of the case to go forward without pointing out the serious risk of reversal that may result if there is a conviction.

The majority opinion does acknowledge that the failure to provide counsel to an indigent defendant, where there is no waiver, will require a new trial if the absence of counsel causes harm to the defendant. See, also, Hunt v. Hopper, 232 Ga. 53, 55 (205 SE2d 303). I would add that there is always a very real possibility, where counsel has been denied at a preliminary hearing, for prejudice to ensue in the conduct of the defense at a subsequent trial. See Hightower v. State, 135 Ga. App. 92, 93.

If the denial of counsel at a preliminary hearing causes prejudice to the defendant at a subsequent trial, resulting in conviction, I believe a reversal is required. My conclusion is grounded upon the reasoning of Coleman v. Alabama, 399 U. S. 1, and the Georgia Commitment Statutes. A preliminary hearing is an adversary proceeding and "the guiding hand of counsel” is one of the basic ingredients of any fair adversary hearing. To permit retained counsel but deny appointed counsel at a preliminary hearing results in unequal protection of the law.

Therefore, the appendage I would add to the majority opinion is simply this admonition: Why run the risk of a subsequent reversal by proceeding with the trial of this case in its present posture? If there is a conviction, the defendant needs only to show that his defense was prejudiced by the denial of counsel to him at the preliminary hearing but this built-in possibility of reversible error can be avoided by furnishing a preliminary hearing with counsel when there is no waiver of a preliminary hearing or counsel.

I am authorized to state that Justice Gunter and Justice Hill join in this concurrence.