Petition — Barraza v. Georgia

SEP 17 \979

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In the Supreme Court of the United States

OCTOBER TERM, 1979

No. EQ mA 4 5

ANTHONY BARRAZA,

Petitioner,

vs. GEORGIA

EPR OF ERTOT

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

GEORGIA COURT OF APPEALS

JOHN C. SWEARINGEN, JR.

BEN B. PHILIPS

233 12th Street - Suite LL1

P. O. Box 2808

Columbus, Georgia 31901

(404) 323-6461

Attorneys for Petitioner

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E. L. MENDBENBALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

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Constitutional Provisions Involved .........................--0---+---

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Reasons for Granting the Writ ............. SON eee

EES RSE yA ct a Cee

Appendix A—Opinion of the Court of Appeals of

I I cs candtcancacesesesaveccncecscocers

Appendix B—Order denying Petition for asa

dated April 30, 1979 ...........................

Appendix C—Denial of Application for Writ of Certio-

rari in the Supreme Court of Georgia .....................-..----

Authorities Cited

CASES

Beasly v. United States, 491 F.2d 687 (6th Cir. 1974) ....

Crowley v. State, 141 Ga. App. 867, 234 S.E.2d 700

SE RERTRTSAG SRSE R e

Dotson v. State, 144 Ga. App. 113, 240 S.E.2d 238

EEE ESAS SS ETERS RENEE TEISER VRS OY OS ee

Ellis v. Oklahoma, 430 F.2d 1352 (10th Cir. 1970) ..........

Gideon v. Wainwright, 372 U.S. 335 (1963) ....................

Glasser v. U.S., 315 U.S. 60 (1942) .......................cceccnceeceee

Hoard v. Wiley, 113 Ga. App. 328, 147 S.E.2d 782 (1966)

In re Winship, 397 U.S. 358 (1970) ...0.2.......eeeeeeeeeeeeeeeeeees

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MacKenna v. Ellis, 280 F.2d 52 (5th Cir. 1960), Cert.

ey Bs SRR noe ne NOR 9

McMann v. Richardson, 397 U.S. 759 (1970)... 4-5

Moore v. United States, 432 F.2d 730 (3rd Cir. 1970) .... 9

Mullaney v. Wilbur, 421 U.S. 684 (1975) 00 9

Pitts v. Glass, 231 Ga. 638, 203 S.E.2d 515 (1974) ........ 5

Powell v. Alabama, 287 U.S. 45 (1932) 0000. 4

Reece v. Georgia, 350 U.S. 85 (1955) 2... eee ene 4

Reid v. State, 235 Ga. 378, 219 S.E.2d 740 (1975) .......... 7

United States v. Yanishefsky, 500 F.2d 1327 (2nd Cir.

PIE hin nhisishsssts ahs necbidoantg ainda eecieaaeasousbuackuetbaah vod 8-9

United States ex rel. Williams v. Twomey, 510 F.2d 634

(7th Cir.), Cert. denied, 423 U.S. 876 (1975) ........... ere

OTHER AUTHORITIES

Sixth Amendment to United States Constitution .......... 2,8

Fourteenth Amendment to United States Constitution 2

Georgia Code Annotated §26-1802 2.0... cece 3

Georgia Code Annotated §26-1812 -............. cy

In the Supreme Court of the United States

OCTOBER TERM, 1979

ANTHONY BARRAZA,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

GEORGIA COURT OF APPEALS

Petitioner Anthony Barraza prays that a writ of certio-

rari be issued to review the judgment of the Georgia

Court of Appeals. i

OPINION BELOW

The published opinion of the Court of Appeals is ap-

pended to this Petition as Appendix A and is cited as

Barraza v. State, 149 Ga. App. 738, 256 S.E.2d 48 (1979).

JURISDICTION

The opinion of the Georgia Court of Appeals was

entered on April 9, 1979. Petitioner’s petition for rehear-

ing, timely filed, was denied on April 30, 1979. This order

is appended to this petition as Appendix B. Petitioner’s

2

application for certiorari to the Georgia Supreme Court

was denied June 20, 1979. This order is appended to

this petition as Appendix C. The jurisdiction of this court

is invoked pursuant to 28 U.S.C. §1257(3).

QUESTIONS PRESENTED

1. Whether the petitioner’s right to the effective assis-

tance of counsel as guaranteed by the due process clause

of the Fourteenth Amendment and the Sixth Amendment

of the United States Constitution has been denied in that

Petitioner’s counsel failed to object to testimony concerning

the basic element of “value” which was legally insufficient

to support a conviction for a felony and because said

issue was not raised by counsel on appeal.

2. Whether Petitioner’s rights under the due process

clause of the Fourteenth Amendment were denied when

the State of Georgia did not prove the elements of Theft

by Taking (felony) beyond a reasonable doubt in that

the element of “value” was not shown to exceed the amount

required by statute to support a felony conviction.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourteenth Amendment to the United States Con-

stitution provides in pertinent part:

Nor shall any State deprive any person of life,

liberty, or property, without due process of law; ...

| The Sixth Amendment to the United States Constitu-

tion provides in pertinent part: |

In all criminal prosecutions, the accused shall . . .

have the Assistance of Counsel for his defense.

STATEMENT OF THE CASE

This cause was initially tried before a jury in the

Superior Court of Muscogee County, Georgia on August

22, 1978. The Defendant was found guilty of theft by

taking pursuant to Ga. Code Ann. §26-1802 and sentenced

to serve three years in the penitentiary.

Following said conviction and sentence, Petitioner ap-

pealed his judgment of conviction and sentence entered

thereon to the Court of Appeals of the State of Georgia,

said appeal being denied in the case of Barraza v. State,

149 Ga. App. 738 (1979).

Petitioner timely filed a Motion for Rehearing on April

18, 1979, said Motion being denied on April 30, 1979.

Petitioner then filed an Application for Writ of Certio-

rari in the Supreme Court of Georgia on May 28, 1979.

This Application was denied on June 20, 1979.

STATEMENT OF FACTS

(a) On or about March 9, 1978, an empty gray cash

register was stolen from a restaurant in Columbus, Georgia.

A restaurant employee testified that she saw the Petitioner

and another man lifting a cash register into the van of

co-defendant Rodrigo Sewell near closing time (T-12-14).

(b) The co-defendant, Sewell, testified that he was

‘the driver of the van and that a third man came out

of the restaurant carrying the cash register and yelling

for help. Sewell then testified that the Petitioner got

out of the van and assisted the third man in loading

the cash register into the van (T-57, 58). Sewell stated

that there had been no prior discussions with the Petitioner

4

or the third man about taking the cash register. After

the three men were inside the truck, Sewell testified,

“We told him he was crazy, he shouldn’t have done it.

That’s what we told him.” (T-58).

(c) The owner of the restaurant testified that he

had a cash register in both the lounge and the restaurant

and that the cash register was taken from the restaurant

which was closed. When questioned concerning the value

of the cash register, Mr. Collazo (the owner) testified,

“Well, I think it was worth about $200.00.” (T-56).

(d) The co-defendant, Rodrigo Sewell, pled guilty

to theft by taking and received a misdemeanor sentence

on October 5, 1978 (R-5). Petitioner’s trial for theft by

taking occurred on August 22, 1978 and he was convicted

and sentenced on the same day. Petitioner was sentenced

for a felony and received three years in the penitentiary

(R-5).

REASONS FOR GRANTING THE WRIT

The instant Petition relates to standards for determin-

ing whether counsel is effective in a given case. Petitioner

submits that his right to effective assistance of counsel

has been denied regardless of the applicable standard.

It has long been recognized that the right to counsel

is the right to the effective assistance of counsel. See

Gideon v. Wainwright, 372 U.S. 335 (1963); Powell v.

Alabama, 287 U.S. 45 (1932); Reece v. Georgia, 350 U.S.

85 (1955) ; Glasser v. U.S., 315 U.S. 60 (1942).

However, this Honorable Court has not explicitly de-

fined what is meant by “effective assistance of counsel”

although it has provided us with some general language

concerning this grave issue. In McMann v. Richardson,

5

397 U.S. 759 (1970), it was stated that a defense attorney

must act

“within the range of competence demanded of attor-

neys in criminal cases. . . . defendants facing felony

charges are entitled to the effective assistance of com-

petent counsel. Beyond this, we think the matter

for the most part, should be left to the good sense

and discretion of the trial court with the admonition

that if the right to counsel guaranteed by the Constitu-

tion is to serve its purpose, defendants cannot be left

to the mercies of incompetent counsel, and that judges

should strive to maintain proper standards of perfor-

mance by attorneys who are representing defendants

in criminal cases in their courts.” 397 U.S. at 771.

The Georgia Supreme Court has stated that the effec-

tiveness of counsel cannot be measured only by the results

of a criminal trial or appeal, but only on the “reasonable

effectiveness” of counsel at the time services were ren-

dered. Pitts v. Glass, 231 Ga. 638, 203 S.E.2d 515 (1974).

This does not mean errorless counsel, and not counsel

judged ineffective by hindsight, but counsel reasonably

likely to render and rendering reasonably effective assis-

tance. MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir.

1960).

A careful examination of the record below shows that

the Petitioner was ineffectively represented at both the

trial and Appellate levels. Petitioner’s counsel failed to ob-

ject to opinion testimony as to the value of the stolen cash

register when the restaurant owner testified, “Well, I think

it was worth about $200.00” (T-6). Although this testi-

mony may show that the cash register had some value, it

was legally insufficient to support a felony conviction for

theft by taking.

6

The Georgia law on this point was clearly stated in

Dotson v. State, 144 Ga. App. 113, 240 S.E.2d 238 (1977).

“2. The value of the pistol was alleged to be in excess

of $100. The police officer testified that while he was

unfamiliar with current prices, the value of the pistol

was in the ‘neighborhood of $200’; and that he pur-

chased it three years ago for $160. There was no other

evidence of value. This testimony was admitted with-

out objection. In Hoard v. Wiley, 113 Ga. App. 328,

147 S.E.2d 782, it was held that an owner of property

may not testify as to his opinion of the value of the

property without giving his reasons therefor and an

opinion as to value based solely on cost price is in-

admissible in evidence as it has no probative value;

and if admitted without objection it cannot support a

verdict. This testimony thus is insufficient to autho-

rize a finding that the value of the pistol was more

than $100. However, the evidence authorized a find-

ing that the pistol was of some value which will

authorize a conviction of theft by taking and sentenc-

ing as for a misdemeanor under Code §26-1802 and

1812, respectively. Crowley v. State, 141 Ga. App.

867, 234 S.E.2d 700. We affirm the conviction of theft

by taking of property of some value but direct that the

sentence for this offense be vacated and the defendant

be re-sentenced as for a misdemeanor.”

At the date of the Petitioner’s arrest, the following

Georgia Statute was in effect.

Code §26-1812 A person convicted of violation of

Sections 26-1802, . . . shall be punished as for a mis-

demeanor except: (a) If the property which was

the subject of the theft exceeded $100.00 in value,

or was an automobile or other motor vehicle, by im-

7

prisonment for not less than one and not more than ten

years, or, in the discretion of the trial judge, as for a

misdemeanor...

However, at the time of the Petitioner’s trial, the stat-

utory amount required to support a conviction for a felony

had been raised to an amount in excess of $200.00. Ga.

Code Ann. §26-1812 (a) (Acts 1968, pp. 1249, 1295; 1972,

pp. 841, 842; 1978, pp. 1457, 1458, eff. July 1, 1978.)

If the latter statute was applicable, it is clear from

the face of the testimony that the Petitioner could not

have been convicted for a felony because it was not shown

that the item in question was of a value in excess of $200.00.

Petitioner’s conviction for a felony is equally unsup-

ported under the former statute which requires the value

to exceed $100.00. The only testimony concerning the

value of the cash register was the bald assertion made by

the restaurant owner that it was worth $200.00. Since this

testimony was legally insufficient to support the proposi-

tion offered, the Petitioner should have been sentenced

for a misdemeanor.

This error on the part of Petitioner’s counsel cannot

be construed as a “tactical” or “strategic” decision which

is the exclusive province of the lawyer after consultation

with his client. Reid v. State, 235 Ga. 378, 379, 219 S.E.2d

740, 742 (1975), quoting ABA standards relating to the

Administration of Criminal Justice (1974), the Defense

Function, §5.2 (b).

Petitioner submits that he is not making a judgment

based on mere hindsight or “Monday morning quarter-

backing”. The error complained of herein goes to the

very elements of the crime charged against the Petitioner.

Counsel’s inability to recognize that the element of value

necessary to support a conviction for a felony had not

8

been shown cannot be considered a harmless oversight.

This unpardonable error has resulted in the Petitioner’s

detainment for a crime he did not commit.

To compound the problems above, this glaring error

was not raised by Petitioner’s counsel on appeal. It is

noteworthy that the Appellant’s argument consumed all

of one and one-half pages in his original brief in the

Georgia Court of Appeals. Petitioner admits that his coun-

sel cannot be deemed ineffective on the basis of brevity

alone but submits that this is a factor to be considered

in evaluating Petitioner’s claim. In a case bristling with

arguable claims, Petitioner’s counsel adopted the ludicrous

approach of merely asserting on general grounds that

the evidence was insufficient to support a conviction in a

case where there was an eyewitness who positively iden-

tified the Petitioner. The effect of this meritless argu-

ment was an affirmation of an illegal conviction and sen-

tence.

The most compelling reason Petitioner can offer this

Honorable Court to grant Certiorari is to resolve the con-

flict among the lower courts as to the proper standard for

evaluating effective assistance of counsel. The time has

come to resolve the discrepancies among the various juris-

dictions and insure that all defendants throughout this

Country receive the full and adequate representation that

is guaranteed them by the Sixth Amendment of the Con-

stitution.

Many State Supreme Courts are adopting a “reason-

ableness” test for measuring effective assistance of counsel.

The United States Courts of Appeals apply different tests

in determining whether counsel is effective in a given

case, the least demanding of which is the “farce and moc'--

ery” of justice standard which is still used in the Second

and Tenth Circuits. United States v. Yanishefsky, 500

ma

9

F.2d 1327, 1333 (2nd Cir. 1974); Ellis v. Oklahoma, 430

F.2d 1352, 1356 (10th Cir. 1970).

The Third and the Seventh Circuits use a comparative

community standard in measuring the effectiveness of rep-

resentation while the Fifth and Sixth Circuits adhere to

the “‘reasonably likely to render and rendering reasonably

effective assistance” test which is followed in Georgia.

See Moore v. United States, 432 F.2d 730, 736 (3rd Cir.

1970); United States ex rel. Williams v. Twomey, 510 F.2d

634, 641 (7th Cir.), Cert. denied, 423 U.S. 876 (1975);

MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960), Cert. de-

nied, 368 U.S. 877 (1961); Beasly v. United States, 491 F.2d

687 (6th Cir. 1974).

The various nebulous standards which exist today

serve only to exacerbate the real problem that lies behind

this court-resurrected shield. Petitioner submits that this

lack of sufficient guidelines has served as an expedient

tool for timid courts who choose not to hear these most

serious claims. This is exactly what has occurred in the

case sub judice.

The dve process clauses of our great Constitution

serve to protect an individual when government or state

action adversely affects that person’s “liberty”. The

threshold requirement of due process is that there be

some fair procedure for determining whether an individual

has lawfully been taken into custody by the State. This

requirement mandates that the State prove beyond a rea-

sonable doubt every element which constitutes the crime

charged against a defendant. In re Winship, 397 U.S. 358

(1970); Mullany v. Wilbur, 421 U.S. 684 (1975). The

Petitioner has not been afforded this constitutional guar-

antee. The element of value has not been proved beyond

a reasonable doubt in the case sub judice and therefore

the Petitioner has been incarcerated illegally.

10

CONCLUSION

For all the foregoing reasons, Petition for Writ of

Certiorari should be allowed to review the instant de-

cision of the Georgia Court of Appeals.

Respectfully submitted,

JoHun C. SWEARINGEN, JR.

BEN B. PHILIPS

Attorneys for Petitioner

Al

APPENDIX

APPENDIX ‘‘A”’

BARRAZA

Vv.

The STATE.

No. 57454.

Court of Appeals of Georgia.

Submitted March 8, 1979.

Decided April 9, 1979.

Rehearing Denied April 30, 1979.

Certiorari Denied June 20, 1979.

Defendant was convicted in the Superior Court, Musco-

gee County, Land, J., of theft by taking, and he appealed.

The Court of Appeals, Deen, C. J., held that: (1) where

one of witnesses was proved to have made contradictory

statements, effect of such impeachment was solely for jury

decision; (2) evidence was sufficient to sustain conviction,

and (3) judge acted correctly in recalling jury in order

to read them definition of theft by taking which he had

inadvertently omitted from original instruction and, in

open court, charging on provisions of statute relating to

parties to crime in response to jury request for further

instructions on accomplices.

Affirmed.

A2

1. Criminal Lew (Key) 742(3)

Where one of witnesses in prosecution for theft by

taking was proved to have made contradictory statements,

effect of such impeachment was solely for jury decision.

Code, § 38-1803.

2. Larceny (Key) 55

Evidence was sufficient to sustain conviction for theft

by taking.

3. Criminal Law (Key) 863(1), 864

Court has right, after jury has retired to consider

its verdict, to call jury back into courtroom and either

give further instructions which have been omitted through

oversight or, on receiving request for further instructions,

to give such reply as facts may warrant; however, court

may not speak to one or more of jurors out of hearing

of parties and their attorneys.

4. Criminal Law (Key) 863(1)

In prosecution for theft by taking, judge acted cor-

rectly in recalling jury in order to read them definition

of theft by taking which he had inadvertently omitted

from original instructions and in charging jury on provi-

sions of statute relating to parties to crime in response

to jury request for further instructions on accomplices.

Code, § 26-801.

Allison W. Davidson, Ben B. Philips, Columbus, for

appellant.

William J. Smith, Dist. Atty., Douglas C. Pullen, Asst.

Dist. Atty., for appellee.

A3

DEEN, Chief Judge.

1. On the appellant’s trial for theft by taking, a res-

taurant employee testified that she saw him and another

man lifting a cash regisier into the van of the witness

Rodrigo Sewell. It was established that the register had

been stolen from within the restaurant. Sewell testified

that he was driving the van, that the third man came

out from the restaurant carrying the machine and the

appellant helped him put it in the vehicle; they went

to the other man’s house, and the appellant took the cash

register and threw it in a creek. Sewell further admitted

that he had originally, on being questioned, insisted that

he knew nothing about a cash register or about the defen-

dant having stolen one. Asked why he changed his story

he replied that he was tired of lying.

[1, 2] Based on this testimony, the appellant con-

tends that the evidence is insufficient to sustain the convic-

tion. Undoubtedly one of the witnesses was proved to

have made contradictory statements, a method of’ impeach-

ment under Code § 38-1803, the effect of which is solely

for jury decision. Scoggins v. State, 98 Ga.App. 360(7),

106 S.E.2d 39 (1958). The evidence was sufficient.

[3] 2. The court has a perfect right, after the jury

has retired to consider its verdict, to call the jury back

into the courtroom and either give further instructions

which have been omitted through oversight or, on receiving

a request for further instructions, to give such reply as

the facts may warrant. Central R., etc., Co. v. Neighbors,

83 Ga. 444, 447(2), 10 S.E. 115 (1889). What he should

not do is to speak to one or more of them out of the

hearing of the parties and their attorneys. Gibson v. Gib-

son, 54 Ga.App. 187(5), 187 S.E. 155 (1936).

A4

[4] In this case the judge recalled the jury in order

to read them the definition of theft by taking, which he

had inadvertently omitted from the original instructions.

Later the jury requested further instructions on “accom-

plices” and the judge, in open court, charged the provisions

of Code § 26-801 relating to parties to a crime. His

actions in both cases were entirely correct.

Judgment affirmed.

McMURRAY, P. J., and SHULMAN, J., concur.

A5

APPENDIX ‘“B”’

COURT OF APPEALS

of the State of Georgia

ATLANTA, April 30, 1979

The Honorable Court of Appeals met pursuant to adjourn-

ment.

The following order was passed:

57454. Anthony Barraza v. The State

Upon consideration of the motion for a rehearing filed

in this case, it is ordered that it be hereby denied.

A6

APPENDIX ‘“C”’

CLERK SUPREME COURT 2

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CLERK'S OFFICE, SUPREME COURT OF GEORGIA

Atlant. UN 20 1979 ae |

Dear Si

"eo i a ee anhage t fe Hs Lele, |

The Sigel Court ere denied the wrt of certiorari in ee wase.

All the jusices concur.

Very truly yours,

MRS. JOLINE B. WILLIAMS, Clerk

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