Nolan v. State

RUSSELL, Judge.

OPINION

Guy Benjamin Nolan appeals his conviction of voluntary manslaughter and sentence to two to ten years in the State penitentiary. In his first two assignments of error Nolan claims he was denied a preliminary hearing and a polygraph test. His other assignments of error relate to the admission into evidence of a medical report and a witness’ written statement, and comments made by the District Attorney General during cross-examination of a witness and during closing argument. For the reasons set forth hereinafter we overrule the assignments of error and affirm the conviction.

The appellant first claims that he was denied a preliminary hearing. The two issues associated with this claim are (1) whether it was error to overrule the defense motion to abate the indictment, and (2) if it was error, whether it was harmless error.

The trial record is not complete because the appellant did not include a transcript of the hearing on the motion to abate the indictment. The State correctly points out that the trial testimony relating the date of Nolan’s arrest is not before us on this issue. See Leek v. State, 216 Tenn. 337, 392 S.W.2d 456 (1965); Francis v. State, 498 S.W.2d 107 (Tenn.Cr.App.1973). *839Nevertheless, the portion of the record which we may review does show that a warrant for Nolan’s arrest was issued on April 14, 1973. This arrest warrant contains the notation “O.K. for extradition R. P. McCully, ODA 5/18/’76” thus indicating that Nolan was arrested on May 18, 1976. On May 19,1976 Nolan was indicted and on June 2,1976 Nolan’s attorney filed a timely motion to abate the indictment for the reason that Nolan was denied a preliminary hearing.

As indicated above Nolan was arrested under an arrest warrant, not on a capias pursuant to an indictment. He was therefore entitled to a preliminary hearing under the provisions of T.C.A. § 40-1131. T.C.A. § 40-1131 further provides that if an accused is indicted at any time before he has been afforded a preliminary hearing on a warrant, he may abate the indictment upon motion to the Court. Nolan was indicted before he was afforded a preliminary hearing on the warrant. It was therefore error to overrule the motion to abate the indictment. Cf. Harris v. State, 534 S.W.2d 868, 870 (Tenn.Cr.App.1975) (accused was indicted and no arrest warrant was issued, therefore it was not error to refuse to abate the indictment.)

Given the conclusion that it was error to overrule the motion to abate, we next consider whether the error was harmless. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In order to answer this question we must consider the criminal proceedings in this case in light of the denial of a preliminary hearing.

Many cases have stated that the only purpose of a preliminary hearing is to determine whether there is probable .cause and to fix bail. State v. D’Anna, 506 S.W.2d 200, 203 (Tenn.Cr.App.1973); State v. Hudson, 487 S.W.2d 672, 674 (Tenn.Cr. App.1972). If determination of probable cause and fixing bail were the only elements of a preliminary hearing it would be difficult to establish that reversible error resulted from the denial of a preliminary hearing. Clearly probable cause was found by the grand jury which indicted Nolan. Moreover, the jury’s verdict of guilty supports the position that there was probable cause and more. However, the 1974 amendment to T.C.A. § 40-1131, which provided for the motion to abate if an accused is indicted before having a preliminary hearing, would be meaningless unless the Legislature was aware that preliminary hearings were sometimes useful to a defendant for discovery of the State’s case, including material for possible impeachment of witnesses at trial. This possible defense benefit from a preliminary hearing was recognized by our Supreme Court in McKeldin v. State, 516 S.W.2d 82, 84-6 (Tenn.1974). It is therefore appropriate for us to review the trial record to determine whether the improper denial of a preliminary hearing, including the denial of discovery of at least the prima facie portion of the State’s case necessary to establish probable cause upon a preliminary hearing amounted to reversible error.

We have carefully reviewed the record, especially the defense attorney’s detailed cross-examination of witnesses. We are certain that the defense attorney was well-prepared. He brought out some discrepancies between the trial testimony of Virginia Covey, who was an eye-witness to the homicide, and her prior statements to police and others. He made further attempts to impeach her by developing a possible inconsistency between her testimony and the medical report on the bullet’s path in the victim’s body. Finally, the attorney called a defense witness who contradicted part of Ms. Covey’s testimony. We conclude from our examining the record that the loss of a preliminary hearing with its limited opportunities for discovery did not hamper the defense in this case. It does not affirmatively appear that the error affected the result upon the trial. T.C.A. § 27-117. We hold that the error in overruling the motion to abate the indictment was harmless beyond a reasonable doubt. Chapman v. California, supra; Huffman v. State, 3 Tenn.Cr. App. 124, 458 S.W.2d 29 (1970).

In his second assignment of error the appellant argues that the denial of his *840request for a State administered polygraph examination violated his right to due process and equal protection. This assignment is overruled for two reasons. First, polygraph test results are inadmissible at trial. Grant v. State, 213 Tenn. 440, 374 S.W.2d 391 (1964); Hembree v. State, 546 S.W.2d 235 (Tenn.Cr.App.1976). Thus even a non-indigent defendant cannot introduce at trial any polygraph test results. Second, an indigent defendant is not entitled to state funds to pay for a polygraph test for the purpose of aiding investigation and pretrial negotiations. See Graham v. State, 547 S.W.2d 531 (Tenn.1977) (an indigent does not have a constitutional right to the services of a private psychiatrist at state expense). As stated in Ross v. Moffitt, the Fourteenth Amendment “does not require absolute equality or precisely equal advantages”. Ross v. Moffitt, 417 U.S. 600, 612, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974). The limited utility of polygraph test results fails to justify and mandate free polygraph tests for indigents. The appellant’s second assignment of error is overruled.

The appellant next contends that it was error for the trial judge to admit a medical report into evidence. This report was an admissible business record. T.C.A. § 24-714. Although this evidence was cumulative the trial judge certainly did not abuse his discretion in admitting it. Baggett v. State, 220 Tenn. 592, 421 S.W.2d 629 (Tenn.1967).

In a related assignment of error, the appellant claims that it was improper to admit a witness’ written statement to police. Again, the trial judge did not abuse his discretion in admitting the statement. Baggett v. State, supra.

Nolan’s next assignments of error complain that the prosecutor asked the defense witness, R. B. Tidwell, whether he was aware of a charge called accessory after the fact of murder. We hold that the trial judge did not abuse his discretion in controlling the scope of cross-examination.

Appellant finally argues that the prosecutor’s closing argument, which included two comments inappropriate to the proof in this case about a murder in “cold blood”, was illegal and prejudicial. We hold that the comment, though improper in this case, was not prejudicial because the trial judge gave curative instructions, there were no other errors in the record, and the evidence against the defendant was strong. Judge v. State, 539 S.W.2d 340 (Tenn.Cr.App.1976).

The appellant’s conviction is affirmed.

DWYER, P. J., and DAUGHTREY, J., concur.