Opinion
73496, 73497.
DECIDED DECEMBER 3, 1986.
Burglary. Floyd Superior Court. Before Judge Walther.
W. Terry Haygood, Jr., for appellants.
Stephen F. Lanier, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.
Barry Burke, Herbert Brown and William Holmes were indicted and accused of burglarizing a house in Floyd County. Burke pleaded guilty and he testified against Brown and Holmes at their trial. The jury found Brown and Holmes guilty and they were sentenced to serve five years on probation. These appeals followed. Held:
Appellants contend they were denied their Sixth Amendment right to counsel because the police used Burke to interrogate Brown surreptitiously during the investigation of the case. (Burke made a series of telephone calls to Brown before adversary judicial proceedings were initiated against appellants. The telephone calls were recorded by the police with Burke's knowledge and consent. Incriminating statements were elicited from Brown during the course of the conversations. The statements also implicated Holmes. They were introduced in evidence over Brown's objection.)
Pretermitting the question of Holmes' standing to assert the denial of his Sixth Amendment rights, we find no abridgment of either appellants' right to counsel. The Sixth Amendment right to counsel does not arise until adversary judicial proceedings are commenced. Ross v. State, 254 Ga. 22, 26-27 ( 326 S.E.2d 194); Spence v. State, 252 Ga. 338, 342 ( 313 S.E.2d 475); Drake v. State, 245 Ga. 798, 800 ( 267 S.E.2d 237). Since the telephone calls were made to Brown during the investigation of the case, it cannot be said that appellants were denied their right to counsel.
Judgment affirmed. Carley and Pope, JJ., concur.