# Opposition — Stonaker v. Georgia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0152%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 833 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0152%3A2. Public record. Not legal advice.