Opposition — Stonaker v. Georgia

IN THE

. MICHACL RODAX, JA. CLERK

Supreme Court of the United States "

OCTOBER TERM, 1975

NO. 75-1866

ROBERT MAURICE SLONAKER.,

Petitioner,

\.

STATE OF GEORGIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE GEORGIA COURT OF APPEALS

BRIEF FOR THE RESPONDENT IN OPPOSITION

ARTHUR K. BOLTON

Please serve: \ttorney General

RICHARD L. CHAMBERS ROBERTS. STUBBS, II

132 State Judicial Bldg. Chief Deputy

40 Capitol Square, S.W. \ttorney General

\dlanta, Georgia 30334

(404) 656-3390 RICHARD L. CHAMBERS

Deputy Attorney General

JOHN C. WALDEN

Senior Assistant

Attorney General

HARRISON KOHLER

Staff Assistant

Attorney General

WILLIAM H. ISON

District Attorney

Clayton Judicial Circuit

QUESTIONS PRESENTED + « «© «© © «© « «

STATEMENT OF THE CASE -« -« « «© «© « -«

REASONS FOR NOT GRANTING THE WRIT

A. PETITIONER DID NOT MAKE

A TIMELY FILING OF HIS

PETITION FOR WRIT OF

CERTIORARI. « «© «© © «© «© « «

B. THE PETITION FOR THE WRIT

OF CERTIORARI IS NOT OF

SUCH AN EXTRAORDINARY

NATURE THAT IT REQUIRES

THIS COURT TO ISSUE SUCH

mWeeece eo ee ee eee CU

C. PETITIONER WAIVED HIS RIGHT

TO ENUMERATE AS ERROR THE

FAILURE OF THE TRIAL JUDGE

TO INSTRUCT CONCERNING

BATTERY AND CONFLICTING

STATEMENTS OF WITNESSES. .

D. THE STATE JUDGE'S FAILURE

TO INSTRUCT THE JURY ON

LESSER INCLUDED OFFENSES

IS NOT A FEDERAL CONSTI-

TUTIONAL QUESTION. «+ « « -«

3

5

6

8

E. THE STATE JUDGE'S FAILURE

TO INSTRUCT ON CONFLICTING |

STATEMENTS OF WITNESSES, | g

ABSENT A TIMELY WRITTEN | -aas

REQUEST BY PETITIONER, IS |

NOT A FEDERAL CONSTITUTIONAL

QUESTION. ....s.e-eeee 9

TABLE OF AUTHORITIES

Bonner v. Henderson, 517 F. 2d 135

(Sth Cir. 1975) ° ° . 7 . . . 7 . 9

CONCLUSION .. cc cc cece ce ee rere ell Dumont v. Estelle, 513 F. 2d 793

(Sth Cir. 1975) > . a * . 7 7. — * 7

4 et gy Pe a a a a a ee >

Flagler v. Wainwright, 423 F. 2d

| 1359 (5th Cir. 1970), cert.

denied, 398 U.S. 943 (1970) ...9

Francis v. Henderson, U.S. ’

19 Crim. L. Rptr. 1372 (1976). . 7

Grech v. Wainwright, 492 F. 2d 747

(5th Cir. 1974) . . 7 . + °. . . . 9

Ortiz v. United States, 358 F. 2d

107 (9th Cir. 1966), cert.

denied, 385 U.S. 861 (1966)... 9

Sica v. United States, 325 F. 2d

831 (9th Cir. 1966), cert.

denied, 376 U.S. 952 (1964). .. 9

State v. Stonaker, 236 Ga. l,

S.E. 2d (i97G)« © © 6 ©

United States v. Adams, 383 U.S.

39 (1966) 7. * * . _ - * >. > > 7. . 4

ii

iii

Page

United States v. Honneus, 508 F.

2d 566 (lst Cir. 1974), cert.

denied, U.S. » FF

Be Ge Bere ChOrel ea és wc ee ee eo 6

STATUTES CITED

Ga. ‘Code Ann. § 26-1304 . ...... e8

Ga. Code Ann. § 26-2020 . .....-s 8

Ga. Code Ann. § 70-207 . . . . . + . + 6,

RULES CITED

Rese 30, Pi Ry Crimi Be « és et 4 6 8

Rule 19, Revised Rules of the

Supreme Court of the United States

(1970) . ° - . e . . *. 7. ad — . . 7 . 5

Rule 22, Revised Rules of the

Supreme Court of the United States

(1970) ad . . . * * a . . < . . . . _ 3

iv

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

NO. 75-1866

ROBERT MAURICE STONAKER,

Petitioner,

Ve

STATE OF GEORGIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE GEORGIA COURT OF APPEALS

BRIEF FOR THE RESPONDENT IN OPPOSITION

QUESTIONS PRESENTED

1.

Did the superior court err by not

instructing the jury concerning a lesser

crime than that charged in the indictment

where Petitioner failed to request such an

instruction and failed to object to the

omission of such an instruction?

26

Did the superior court err by not

instructing the jury concerning conflicting

statements of witnesses where Petitioner

failed to make a timely written request

for such a charge?

STATEMENT OF THE CASE

Petitioner Robert Maurice Stonaker

was indicted for child molestation by

a Clayton County grand jury, and he was

tried in the Clayton County Superior Court

On December 10-11, 1973. A jury found

him guilty and sentenced him to twenty

years imprisonment; however, the trial

judge probated the last ten years of the

sentence.

REASONS FOR NOT GRANTING THE WRIT

A. PETITIONER DID NOT MAKE A

TIMELY FILING OF HIS PF TTTION

FOR WRIT OF CERTIORARI.

"A petition for writ of certiorari to

review the judgment of a state court of

last resort [emphasis added] shall be

deemed in time when it is filed with the

clerk within ninety days after the entry

of such judgment." Rule 22(1), Revised

Rules of the Supreme Court of the United

States (1970). Petitioner's conviction

was affirmed by the Georgia Supreme Court

on January 6, 1976, and a rehearing was

denied January 27, 1976. See State v.

Stonaker, 236 Ga. l, S.E. 2d

(1976). Since this decision reversed

the decision of the Georgia Court of

Appeals, the Georgia Court of Appeals

entered the mandate on February 17, 1976.

Petitioner attempted to present this

case again to the Supreme Court of Gcorgia

by arguing that the decision was not

applicable to Petitioner's trial. The

Georgia Supreme Court refused this second

application for certiorari, so Petitioner

moved to stay the remittitur in the

Georgia Court of Appeals. Now he petitions

for writ of certiorari to this Court, B. THE PETITION FOR THE WRIT

and he appeals from the Georgia Court of OF CERTIORARI IS NOT OF SUCH

Appeals, which is not the Georgia Court AN EXTRAORDINARY NATURE THAT

of last result. IT REQUIRES THIS COURT TO

ISSUE SUCH A WRIT.

Petitioner's 90 days began to run

from January 27, 1976, the date the "A review on writ of certiorari is not

Georgia Supreme Court denied Petitioner's | a matter of right, but of sound judicial

motion for rehearing. See United States discretion, and will be granted only where

v. Adams, 383 U.S. 39, 41 (1966). As there are special and controlling reasons

Petitioner has waited approximately five therefor." Rule 19, Revised Rules of the

months since that denial to petition for Supreme Court of the United States (1970).

certiorari, his petition is not timely This Court generally grants certiorari

and should be denied. from a state court decision under the

following circumstances: (1) if the state

court has decided a federal question of

substance not previously determined by

this Court or (2) if the state court has

decided a case in a way not in accord

with applicable decisions of this Court.

See Rule 19, Revised Rules of the Supreme

Court of the United States (1970).

Petitioner's questions for review

present no substantial federal question

not previously determined by this Court,

and the state court decision is fully in

accord with applicable decisions of this

age , Court.

C. PETITIONER WAIVED HIS RIGHT

TO ENUMERATE AS ERROR THE

FAILURE OF THE TRIAL JUDGE

TO INSTRUCT CONCERNING

BATTERY AND CONFLICTING

STATEMENTS OF WITNESSES.

Ga. Code Ann. § 70-207(b) provides:

"In all cases, at the close of the evidence

or at such earlier time during the trial as

the court reasonably directs, any party

may present to the court written requests

that it instruct the jury on the law as

set forth therein." By not making a timely

written request for jury instructions

concerning battery and conflicting state-

ments of witnesses, Petitioner waived his

right to enumerate the omission of such

instructions as error.

Georgia's rule is practically identical

to federal law. "[O]ne complaining about

an omitted instruction must have tendered

a request and objected to its omission."

United States v. Honneus, 508 F. 2d 566,

571 (lst Cir. 1974), cert. denied,

U.S. » 95 S. Ct. 1677 (1975). Peti-

tioner alleges that he was relying on

existing Georgia law that the judge should

give instructions, absent a request,

concerning lesser included offenses. Even

if such law existed, Appellant obviously

did not rely on it. If he had relied on

the judge's giving an instruction

concerning battery, he would have objected

to the omission of such an instruction;

and Petitioner made no such objection.

Petitioner did object to the fact

that the trial judge did not instruct the

jury concerning conflicting statements

(Trial Transcript 184); however, he had

made no timely written request for such

an instruction.

Federal law is clear that certain

rights can be waived by a failure to make

a timely challenge as provided under

state law. See e.g., Francis v. Henderson,

U.S. » 19 Crim. L. Rptr. 3072

(1976); Dumont v. Estelle, 513 F. 2d 793

(Sth Cir. 1975). Petitioner failed to

make timely written requests as provided

by Ga. Code Ann. § 70-207; therefore, he

has waived his right to enumerate omitted

jury instructions as error.

D. THE STATE JUDGE'S FAILURE TO

INSTRUCT THE JURY ON LESSE®

INCLUDED OFFENSES IS NOT A

FEDERAL CONSTITUTIONAL

QUESTION.

The Georgia Supreme Court held that

simple battery is not a lesser included

offense of child molestation. State v.

Stonaker, supra at 2-3. One commits

simple battery by either (1) intentionally

making physical contact of an insulting or

provoking nature with the person of

another or (2) intentionally causing

physical harm to another. Ga. Code Ann.

§ 26-1304. One commits child molestation

when he does an immoral or indecent act

to or in the presence of or with any

child under the age of 14 with the intent

to arouse or satisfy the sexual desires

of either the child or the person. Ga.

Code Ann. § 26-2020. Petitioner never

claimed to the trial court that he was

not guilty of child molestation and

guilty of battery. His defense was that

he was not guilty of any crime.

However, even if simple battery

were a lesser included offense of child

molestation, the state trial court's

failure to instruct the jury on this

alleged lesser included offense does not

raise a federal constitutional question.

Bonner v. Henderson, 517 F. 2d 135, 136

(Sth Cir. 1975); Grech v. Wainwright,

492 F. 2d 747, 748 (5th Cir. 1974);

Flagler v. Wainwright, 423 F. 2d 1359,

1360 (5th Cir. 1970) cert. denied, 398

U.S. 943 (1970). Since Petitioner's

enumeration presents no federal consti-

tutional question, this Court should not

grant a writ of certiorari.

E. THE STATE JUDGE'S FAILURE

TO INSTRUCT ON CONFLICTING

STATEMENTS OF WITNESSES,

ABSENT A TIMELY WRITTEN

REQUEST BY PETITIONER, IS

NOT A FEDERAL CONSTITUTIONAL

QUESTION.

Impeachment of a witness is a

collateral matter to the fundamental role

of the jury -- that of determining whether

the accused is innocent or guilty. There-

fore, the federal rule requires a timely

written request for instructions concerning

the impeachment of a witness, else the

failure of the judge to give cautionary

instructions is not reversible error.

Rule 30, F. R. Crim. P.; Ortiz v. United

States, 358 F. 2d 107, 109 (9th Cir. 1966),

cert. denied, 385 U.S. 861 (1966); see

Sica v. United States, 325 F. 2d 83l, 836

(9th Cir. 1963), cert. denied, 376 U.S.

952 (1964).

Since Petitioner failed to make a

timely written request for instructions

concerning conflicting statements of

witnesses, no reversible error was

created by the trial court's failure to

so charge, and Petitioner presents no

constitutional issue to this Court.

-10-

CONCLUS ION

This Court should refuse to grant

a writ of certiorari because no sufficient

reasons for review have been set forth by

Petitioner.

Respectfully submitted,

ARTHUR K. BOLTON

Attorney General

Please serve:

ROBERT S. STUBBS, II

RICHARD L. CHAMBERS Chief Deputy

132 State

Judicial Bldg.

40 Capitol Sq., S.W.

Atlanta, Ga. 30534

(404) 656-3390

Deputy Attorney General

2 WALDEN

Senior Assistant

Attorney General

4 ha+s0007) kihler

HARRISON KOHLER

Staff Assistant

Attorney General

: pellhiam HL! oer

WILLIAM H,. ISON

District Attorney

Clayton Judicial Circuit

-ll-

CERTIFICATE OF SERVICE

I, Richard L. Chambers, Attorney of

Record for the Respondent, and a member

of the Bar of the Supreme Court of the

United States, hereby certify that in

accordance with the rules of the Supreme

Court of the United States, I have this

day served a true and correct copy of

this Brief for Respondent in Opposition

upon the petitioner by depositing a copy

of same in the United States mail, with

proper address ana adequate postage to:

Paul S. Weiner

Attorney at Law

226 North McDonough Street

P. O. Box 698

Jonesboro, Georgia 30236

This 2lst day of July, 1976.

RICHARD L. CHAMBERS

ote