Petition — Wright v. Georgia

Supreme Court, U. S.

| ee eS

80-186

No. AUG 71980

| JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

ROBERT L. WRIGHT,

: Petitioner,

versus

THE STATE OF GEORGIA,

Respondent.

On Petition for Writ of Certiorari to

The Court of Appeals of Georgia

PETITION FOR CERTIORARI

LAW OFFICES OF

PAUL W. CALHOUN, JR., P.C.

Attorneys at Law

P. O. Box 1047

Vidalia, Georgia 30474

(912) 537-7933

SCOFIELDS' QUALITY PRINTERS, P. O. BOX 53096, N. O., LA. 70153 - 504/822-1611

QUESTIONS PRESENTED

Whether or not the presumption as established in

Georgia case law, which states that as between hus-

band and wife there is a presumption of law that con-

traband found in the home. . . belongs tothe husband,

violates the husband's right of equal protection under

the Fourteenth Amendment of the United States Con-

stitution.

TABLE OF CONTENTS

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Official Opinion of the Court Below ........

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Constitutional Provision Involved and State

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Reasons for Granting the Writ .............

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Appendix:

Opinion of the Court of Appeals of Georgia

Court of Appeals of Georgia’s Denial of

Motion for Rehearing ................4.

Supreme Court of Georgia’s Denial of

Application for Writ of Certiorari .......

Supreme Court of Georgia's Denial of

Motion for Reconsideration ............

PREVIOUS PAGE WAS Rl ANK

iv

TABLE OF AUTHORITIES

Page

Califano v. Webster, 430 U.S. 313, 316-317;

OF SCF. TIGE: TIGR CLOT OT 6 04 kb eve e vee oe 7

Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451

PFO) ORG a 43s dale «tian ba eee aes Lele oe 6-7

Harper v. State, 85 Ga.App. 252, 69 S.E.2d

LOR UROBEY i sic vivian 0 bc keks pede sieseas 3,6,7

Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102

Tg: MORRIE. teaner te ets Pe ay AE SBN 7

Reed v. Reed, 404 U.S. 71, 75; 92 S.Ct.

D2, BOR UAT RN ss o's ce RORS ova s edb a Wee eawld hela 6

Reed v. The State, 127 Ga.App. 458, 194

Ae RAE CRO: dics vhs 00:0 Raph oanae eae 6

Smith v. Berman, 8 Ga.App. 262, 271, 68 S.E.

TO14, FORE CGT ii kk vic agakens star toteees 7

Stanton v. Stanton, 421 U.S. 7, 95 S.Ct.

LOTS ANNE iss vo vcbie oss fds Mh a Sak REN 7

Young v. The State, 22 Ga.App. 111, 95 S.E.

AFOSR) 5S SA OS ES 61a ein CART ORT TRG Ra huis 7

United States Constitution,

PRUNE EN P50 ke roe ki ec nee noone 1,2,6

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

ROBERT L. WRIGHT,

Petitioner,

versus

THE STATE OF GEORGIA,

Respondent.

On Petition for Writ of Certiorari

To The Court of Appeals of Georgia

PETITION FOR CERTIORARI

Petitioner, ROBERT L. WRIGHT, respectfully prays

that a Writ of Certiorari issue to review the judgment

and opinion of the Court of Appeals of Georgia entered

in this proceeding on April 10, 1980.

OFFICIAL OPINION OF THE COURT BELOW

Wright, et al v. The State, Number 59513, ___ Ga. App.

SE 2d (1980).

2

JURISDICTION

The original decision and judgment in the case of

Robert L. Wright v. The State in the Court of Appeals

of Georgia was rendered and filed on April 10, 1980.

Within time provided by law, the Petitioner filed a Mo-

tion for Rehearing in the Court of Appeals of Georgia,

said Motion being overruled and denied by the Court of

Appeals on April 24, 1980. As provided by law and

within time, the Petitioner filed an Application for Writ

of Certiorari to the Supreme Court of Georgia, which

was denied May 28, 1980. Petitioner filed a timely Mo-

tion for Reconsideration of his Application for Writ of

Certiorari which was denied June 9, 1980. This Court’s

jurisdiction is invoked under Title 28, USC Sec.

1257(3).

THE CONSTITUTIONAL PROVISION INVOLVED

AND THE STATE LAW UNDER ATTACK

The Constitutional Provision involved: The Equal

Protection Clause of the Fourteenth Amendment:

. no state shall make or enforce any law

which shall ... deny to any person in its

jurisdiction the equal protection of the law.

The State Law under attack: Harper v. The State, 85

Ga.App. 252, 69 S.E.2d 102 (1952):

3

As between husband and wife there is a

presumption of law that (contraband) found

in the home . . . belongs to the husband.

STATEMENT OF THE CASE

Petitioner and his wife were indicted May 29, 1979,

by the Toombs County Grand Jury on a two-count In-

dictment charging Petitioner and his wife with posses-

sion with intent to distribute marijuana and possession

of cocaine (R. 4-5). Petitioner and his wife were found

guilty of the charges in the indictment (R. 4; T. 138-

139).

The police entered the residence of the petitioner

pursuant to asearch warrant (T. 8-9). The Petitioner as

well as his wife admitted at the trial that the residence

was their home since 1972 (T. 99). As police entered the

home through the front door, the Petitioner and athird

party were either in the living room (T. 54, 85) or ina

room next to the living room (T. 12).

The third party was observed to be smoking what

appeared to police officers to be marijuana (T. 27).

Petitioner admitted he was smoking marijuana at the

time of che police raid, however he claimed that the

marijuana ‘belonged to the third party and further

denied any knowledge of further marijuana in the

house (T. 110). The police officer further observed

aft

4

what appeared to be marijuana in an ashtray in the liv-

ing room (T. 53-54),

Upon searching what appeared to be a child’s

bedroom, a police officer found a quantity of marijuana

concealed under a pile of clothes in a chair (T. 13-14).

The Petitioner’s wife confirmed that this room was

normally occupied by their child (T. 7).

Upo searching another bedroom, which appeared to

be the master bedroom, marijuana was discovered in

plain view on the top of the dresser (T. 32-34; 40, 42). A

metric weighing device was also in plain view on the

dresser (T. 32, 34) The items on the dresser could be

easily observed from the door to the room (T. 49) and

from several positions in the nearby kitchen (T. 50).

The bedroom door was open when police arrived. (T.

51). Other items found on top of the dresser in-

cluded a quantity of plastic bags and small brown enve-

lopes (T. 33-37; 38). A tin can containing $1,399.00 (T.

35-36) and a cigar box containing $191.00 (T. 38-39),

and another box containing $688.00 was discovered in

a chest of drawers in the bedroom (T. 48). A small

spoon bearing residue of cocaine was found in the

closet in the same bedroom (T. 47). The Petitioner

testified that the third party present when the police

entered the room was the brother of the Petitioner and

that he lived with the Petitioner and his wife for

approximately a month and a half (T. 80-87; 109). They

5

further testified that he had a key to the house (T. 87;

109) and had full access to the house (T. 89). He alter-

nately slept on the living room couch and in the child’s

bedroom (T. 88; 109).

The Petitioner and his wife wer 2 found guilty of the

charges in the indictment (T. 138-139). Upon appeal,

petitioner’s wife’s conviction based upon the pre-

sumption of Georgia Law that as between husband and

wife it is presumed that the contraband found in their

home belonged to the husband (Appendix, p. 3a). The

jury was not charged as to the presumption (T. 123-

136). The presumption was first applied by the Court

of Appeals of Georgia in its original Opinion which

affirmed the Petitioner’s conviction.

REASONS FOR GRANTING THE WRIT

The Court of Appeals of Georgia in sustain-

ing Petitioner’s conviction on the presump-

tion of law that as between husband and wife

contraband found in the home. . . belongs to

the husband violated Petitioner’s right of

equal protection.

The Petitioner and his wife occupied a rented home

in which Petitioner’s brother also resided. (T 86-87, 88,

99, 109) The evidence showed the brother had full

access to the house. (T. 99). The Court of Appeals of

6

Georgia failed to reverse the Petitioner’s conviction

based on the “Equal Access” Doctrine as stated in Reed v.

The State, 127 Ga.App. 458, 194 S.E.2d 121 (1972). The

Court of Appeals in failing to reverse the Petitioner’s

conviction in regards to the equal access doctrine es-

sentially held that the contraband either belonged to

the petitioner or his wife.

As between the Petitioner and his wife, the Court of

Appeals states “it is presumed that contraband found in

their home ... belonged to the (Petitioner)”, since

there was no evidence linking the contraband to the

Petitioner’s wife. (See Appendix, p. 3a). Harper v. State,

85 Ga.App. 252, 69 S.E.2d 102 (1952). Thus, the Peti-

tioner’s conviction was upheld based on the presump-

tion that the contraband found in the home belonged to

the husband.

The presumption upon which the Court of Appeals

of Georgia used to uphold the Petitioner’s conviction is

unconstitutional in that it violates the Equal Protection

Clause of the Fourteenth Amendment. The presump-

tion of law as established by Georgia case law “ provides

that different treatment be accorded ... on the basis of

sex”. Since the case law establishes a classification bas-

ed on sex, it is subject to scrutiny under the Equal

Protection Clause. Reed v. Reed, 404 U.S. 71, 75;92 S.Ct.

251, 253 (1971). The ciassification is subject to scrutiny

even though it expressly discriminates against the male

gender rather than the female gender. Craig v. Boren,

7

429U.S. 190; 97S.Ct. 451 (1976). The classification by

gender will not withstand scrutiny under the Equal

Protection Clause unless it serves some “important

governmental objectives” and it is “substantially

related to achievement of those objectives.” Califano v.

Webster, 430 U.S. 313, 316-317; 97 S.Ct. 1192, 1194

(1970).

The presumption used insustaining Petitioner’s con-

viction is based on “the doctrine that when husband

and wife live together, the house in which they live and

all property in the house, are in the legal possession of

the husband as the head of the family”. Smith v. Berman,

8 Ga. App. 262, 271; 68 S.E. 1014, 1021 (1910); Young v.

The State, 22 Ga.App. 111; 95 S.E. 478 (1918); Harper v.

State, 85 Ga.App. 252; 69 S.E.2d 102 (1952). The objec-

tive of the presumption is to place the family responsi-

bilities upon the husband, with the wife playing the de-

pendent role. As has been held by this court in Stanton v.

Stanton, 421 U.S. 7; 95 §.Ct. 1373 (1975); Orr v. Orr, 440

U.S. 268, 99 S.Ct. 1102 (1979), the concept that gen-

erally it is the male’s primary responsibility to provide a

home and the essentials for his family can no longer

justify a law that discriminates on the basis of gender.

The presumption used to sustain the Petitioner’s con-

viction being based on such a concept is violative of the

Equal Protection Clause and unless the Decision of the

Court of Appeals of Georgia is reversed, the Court will

allow a manifest injustice to go unremedied.

CONCLUSION

In view of the controlling Supreme Court authority

cited above, the Court of Appeals of Georgia erred in

upholding the Petitioner’s conviction based on the un-

constitutional presumption of Georgia Case law that as

between husband and wife contraband found in their

home belongs to the husband.

It is respectfully submitted that the Opinion of the

Court of Appeals of Georgia was in error and

Petitioner’s conviction should be reversed.

Respectfully submitted,

LAW OFFICES OF

PAUL W. CALHOUN, JR., P.C.

Attorneys for Petitioner

Paul W. Calhoun, Jr.

P.O. Box 1047

Vidalia, GA 30474

(912) 537-7933

9

CERTIFICATE OF SERVICE

This is to certify that I have this day served three

copies of the foregoing Petition for Writ of Certiorari

to the Court of Appeals of Georgia upon:

Mr. Richard A. Malone

Assistant District Attorney

Middle Judicial Circuit

P.O. Box 286

Swainsboro, GA 30401

by depositing same, in a properly addressed envelope,

with adequate postage thereon, in the United States

Mail as per United States Supreme Court Rule 28.2 and

28.5(b).

This is to further certify that all parties required to

be servec have been served.

This _. day of August, 1980.

Paul W. Calhoun, Jr.

Law Offices of

Paul W. Calhoun, Jr., P.C.

P.O. Box 1047

Vidalia, GA 30474

(912) 537-7933

la

APPENDIX

Apr. 10, 1980

59513. WRIGHT et al v. THE STATE.

DEEN, Chief Judge.

Robert and Cynthia Wright were convicted by ajury

of two counts of violating the Georgia Controlled Sub-

stances Act. (Possession of marijuana with intent to

distribute and possession of cocaine.) Cynthia was

sentenced to seven years on each count to be served

concurrently with the last four years on probation and

a $500 fine to be paid six months after release from

prison. Robert was sentenced to nine years on each

count to be served concurrently with the last four years

on probation and a $500 fine to be paid six months after

release from prison. They bring this appeal following

the denial of their motion for a new trial.

1. They first assert the general grounds. The

evidence showed that a police officer had probable

cause to obtain a search warrant for a house rented by

Robert Wright. When the warrant was executed, the

Wrights and Robert Wright's brother were sitting in

the living room and the men were smoking marijuana.

During the ensuing search, two plastic bags containing

approximately two pounds of marijuana were found

beneath some clothing on achair in achild’s bedroom, a

small quantity of marijuana was discovered in plain

view on top of a dresser in the master bedroom along

2a

with a metric scale, some ziplock plastic bags, several

small brown “coin” envelopes, a tin can containing $1,-

399 and a cigar box containing $199. A box containing

$1,688 was found in a drawer containing women’s un-

derclothes and a small silver colored spoon bearing 1.5

grams of cocaine residue was found in the master

bedroom closet. Appellants testified that Robert

Wright's brother had resided with them for one and

one-half months, that he had full access to the house

including keys to the house, their car and their

barbecue business, and that he slept in the child’s

bedroom.

It is well established that “[a]s between husband and

wife there is a presumption of law that [contraband]

found in the home. . . belongs to the husband. . . But

such a presumption cannot be broadened to include all

relatives who may be living in the same house with the

defendant” and have equal access toit. Harper v. State, 85

Ga.App. 252, 254 (69 S.E.2d 102) (1952). The equal ac-

cess rule applies to contraband that is for the most part

in “open, notorious and easily accessible areas.” Kenerb-

ler v. State, 137 Ga.App. 618 (224 S.E.2d 476) (1976). In

the present case, appellants have affirmatively shown

that Robert’s brother had an equal opportunity to pos-

sess the marijuana found in the child’s room. Brown v.

State, 130 Ga.App. 11 (202 S.E.2d 268) (1973). How-

ever, as to the marijuaia found in plain view on top of

the dresser in the master bedroom, Robert Wright's ad-

mission that he occupied the room and that he was

3a

smoking marijuana when the police arrived would

authorize a jury to find that he possessed the contra-

band. Tuggle v. State, 149 Ga.App. 634 (___S.E.2d ___)

(1979). As between Cynthia and Robert Wright, it is

presumed that the contraband found in their bedroom

belonged to Robert, Harper v. State, supi 1, and there was

no evidence to link Cynthia to possession of either the

marijuana or the spoon bearing cocaine residue and her

conviction must be reversed.

While mere possession of contraband without more

will not serve as the basis for a conviction for possess-

ing contraband for purposes of sale, Crider v. State, 98

Ga. App. 164 (105 S.E.2d 506)(1958), Robert Wright's

testimony that the scale, plastic bags, coin envelopes,

and cash found on top of the dresser belong to him

would authorize a jury to infer that he possessed mari-

juana with intent to sell it. Bell v. State, 35 Ga. App. 465

(134 S.E. 120)(1926).

2. Appellants next contend that the amount of

cocaine (1/200th of an ounce) found on the spoon was

insufficient to constitute an offense under Georgia

law. As an expert witness from the State Crime

Laboratory was able to identify the residue on the

spoon as cocaine, a sufficient quantity of contraband

was present to support Robert Wright's conviction for

possession. Partain v. State, 139 Ga. App. 325 (228 S.E.2d

292)(1976).

4a

3. In their final argument, appellants contend that

the trial court erred by imposing a $500 fine upon each

as a condition of probation. Under Code Ann. §27-

2529, a judge may “by any law so authorizing, place on

probation any person convicted of a felony, such judge

may in his discretion fine such a person so convicted

not more than $2,000 as acondition to such probation.”

This enumeration is without merit as to Robert

Wright.

Accordingly, Robert Wright’s convictions are af-

firmed and Cynthia Wright's are reversed.

Judgment affirmed in part and reversed in part. Birdsong and

Sognier, ]J., concur.

COURT OF APPEALS

of the State of Georgia

ATLANTA, April 24, 1980

The Honorable Court of Appeals met pursuant to ad-

journment. The following order was passed:

59513 Robert L. Wright et al v. The State

Upon consideration of the motion for a rehearing

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

5a

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta, Apr. 24, 1980

I certify that the above is a true extract from the

minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court here-

to affixed the day and year last above written.

Is); MORGAN THOMAS

CLERK.

CLERK’S OFFICE

SUPREME COURT OF GEORGIA

Atlanta, May 28, 1980

Dear Sir:

Case No. 36420 Wright v. The State

The Supreme Court today denied the writ of cer-

tiorari in this case. All the justices concur, except Hill,

]., dissents.

Very Truly yours,

MRS. JOLINE B. WILLIAMS, Clerk

6a

CLERK’S OFFICE

SUPREME COURT OF GEORGIA

Atlanta, June 9, 1980

Dear Sir:

The motion for a reconsideration was denied today:

Case No. 36420. Wright v. State

Undercofler, C.J., Hill & Clarke, JJ., dissent.

Yours very truly,

MRS. JOLINE B. WILLIAMS, Clerk

60 days

Aug. 8