Petition — Mitchell v. Georgia

80-372 SEP8 1980

| | MICHAEL RODAK, JR., CLERK

on

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

FREDDIE FRANK MITCHELL,

Petitioner,

V.

STATE OF GEORGIA,

Respondent.

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS FOR THE

STATE OF GEORGIA

PETITION FOR A WRIT OF CERTIORARI

EDWARD D. TOLLEY

COOK, NOELL, TOLLEY & ALDRIDGE

Post Office Box 1927

Athens, Georgia 30603

(404) 549-6111

JOE SALEM

1200 First National Bank Tower

Atlanta, Georgia 30303

(404) 524-4373

Counsel for Petitioner

August 27, 1980

an

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

FREDDIE FRANK MITCHELL,

Petitioner,

V.

STATE OF GEORGIA, .

Respondent.

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS FOR THE

STATE OF GEORGIA

PETITION FOR A WRIT OF CERTIORARI

The Petitioner, Freddie Frank Mitchell, respectfully

prays that a writ of certiorari issue to review the judg-

ment and opinion of the Court of Appeals of the State

of Georgia in this case.

QUESTIONS PRESENTED

Whether Georgia Code Section 26-2910 (1968), a

criminal statute defining reckless conduct, is so vague

and indefinite that any penalty prescribed for its viola-

tion constitutes a denial of due process as required by

the due process clause of the Fourteenth Amendment.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED...................... i

OPINION BELOW...... EEE a a 1

FORE Tin os a iciecese... 1

CONSTITUTIONAL PROVISIONS AND

STATUTES S00 Ceca sade sicdeess...... 1

STATEMENT OF THE CASE.................... 2

REASONS FOR GRANTING THE WRIT......... 5

1. The decision below conflicts with decisions of

this Court as to the standards which a criminal

statute must meet to satisfy the requirements

of the due process clause of the Fourteenth

Arumminne. ii ee nea cn ot ncee. 5, 6

A. The Georgia reckless conduct statute,

Georgia Code Section 26-2910, is

unconstitutionally vague as written......... 6

B. Subsequent state court interpretations of

the statute have failed to provide standards

and guidelines that cure the statute’s

constitutional deficiencies.................. 9

CONCLUBBUIN 5 Swiss sau eee sae as ie... 11

APPENDIX (opinion and judgment of the Court

of Appeals of Georgia and Supreme Court of

Georgia’s denial of petitioner’s motion for

recomebareiah) ... cca sae een ee ees oc ce se la

TABLE OF AUTHORITIES

Page

United States Supreme Court Decisions:

Baggett v. Bullitt, 377 U.S. 360 (1964)................ 6

Beauharnias v. Illinois, 343 U.S. 250 (1952).......... 7

Boyce Motor Lines, Inc. v. United States,

ee a. Oe Co 5 An aaa hl ee 8

Giaccio v. Pennsylvania, 382 U.S. 399 (1966)........ 6, 8

Grayned v. Rockford, 408 U.S. 104 (1972)............ 6

Jordan v. De George, 341 U.S. 223 (1951)............ 8

Lanzetta v. New Jersey, 306 U.S. 451 (1939)......... 6, 8

Papachristou v. Jacksonville, 405 U.S. 839 (1972)..... 7,8

Screws v. United States, 325 U.S. 91 (1945)........... 8

United States v. Cohen Grocery Co.,

ee Os Oe I id ee ee hoo 4 ek haba 8

United States v. Harriss, 347 U.S. 612 (1954)........ 7,8

Georgia Decisions:

Crawford v. State, 245 Ga. 94, __. S. E.2d ____

fr ay ee ern nae wpe are Ur Ura an ay eae 9

Harshaw v. State, 134 Ga.App. 581,

AD Te Wied OT COO xs os ike Shes Gh wRE Coo bacds 9, 10

Hiatt v. State, 144 Ga.App. 298, 240 S.E.2d 894

Ce eS ty UIE. 6 backs a Sw aa esse ees ens 9, 10

Horowitz v. State, 243 Ga. 441,

DE ne Ce RRO O Di iv ns caw ee sek bed eek euedns 5, 9

McCane v. State, 147 Ga.App. 730,

Se eae EE CONE sinc dko kd cis xcue wen ednees 9, 10

ill

TABLE OF AUTHORITIES—Continued

Page

Georgia Decisions—Continued:

Smith v. State, 142 Ga.App. 814,

ee Ce CEE e oes Kia ec ececkeecensar 9, 10

Constitution and Statutes:

United States Constitution,

Fourteenth Amendment.................... a

Ga. Code §26-2910 (1968)........... 1, 1, 2, 4, 5, 6, 7, 9

Ga. Code §26-1103(a) (1968)........... 0... cc ea eee 2,4

Miscellaneous:

P. Kurtz, Criminal Offenses in Georgia(1980)........ 9

lV

OPINION BELOW

The opinion of the Court of Appeals of Georgia is

reported as Mitchell v. State, 154 Ga.App. 399, ——

S.E.2d (1980) and appears in the Appendix

hereto.

JURISDICTION

The judgment of the Court of Appeals of Georgia

was entered on April 9, 1980, affirming Petitioner’s

conviction dated July 25, 1979. A motion for rehearing

was denied on April 24, 1980. Petitioner then applied

for a writ of certiorari to the Supreme Court of Geor-

gia. The writ was denied on June 11, 1980. A motion

for reconsideration was filed and denied on June 24,

1980. This petition for certiorari was filed within 90

days of that date. The jurisdiction of this Court is

invoked under 28 U.S.C. §1257 (3).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Constitutional and statutory provisions are as

follows:

Umited States Constitution, Fourteenth Amendment:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State where-

in they reside. No State shall make or enforce any

law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person with-

in its jurisdiction the equal protection of the laws.

1

2

Georgia Code §26-2910 (1968):

A person commits a misdemeanor when he causes

bodily harm to or endangers the bodily safety of

another person by consciously disregarding a sub-

stantial and unjustifiable risk that his act or omis-

sion will cause the harm or endanger the safety, and

the disregard constitutes a gross deviation from the

standard of care which a reasonable person would

exercise in the situation.

Georgia Code §26-1103(a) (1968):

(a) A person commits involuntary manslaugh-

ter in the commission of an unlawful act when he

causes the death of another human being without

any intention to do so, by the commission of an un-

lawful act other than a felony. A person convicted

under this subsection shall be punished by imprison-

ment for not less than one year nor more than five

years.

STATEMENT OF THE CASE

As the facts reveal, one Geraldine Gaston Mitchell,

a Fulton County resident, died on or about May 9,

1979, between the hours of 5:00 P.M. and 6:00 P.M.

-(T-20, T-105, T-106). The Petitioner, Freddie Frank

Mitchell, was subsequently arrested and charged with

her death (T-86, T-142). The indictment charged Peti-

tioner with involuntary manslaughter and provided

in pertinent part that Petitioner:

did unlawfully and without any intention to do so,

kill Geraldine Gaston Mitchell, a human being,

while accused was engaged in the commission of

3

the following unlawful act, in that accused, having

possession of a pistol, did endanger the bodily

safety of the said Geraldine Gaston Mitchell who

was present by consciously disregarding a sub-

stantial and unjustifiable risk that his act would

cause harm and endanger the safety of the said

Geraldine Gaston Mitchell, the disregard consti-

tuting a gross deviation from the standard of care

which a reasonable person would exercise in said

situation, did allow said pistol to point in the

direction of the said Geraldine Gaston Mitchell,

and while so pointing did pull the trigger on

said pistol, causing it to fire and shoot the said

Geraldine Gaston Mitchell; thereby killing the said

Geraldine Gaston Mitchell

(T-2, T-3). Petitioner was subsequently tried and sen-

tenced to five years in prison on July 25, 1979.

Geraldine Gaston Mitchell was Petitioner’s common

law wife and had lived with him for two years prior

to her death (T-86). Gn May 9, 1979, Petitioner picked

up Geraldine Mitchell at work, at which time they re-

turned to their apartment (T-135, T-136). Upon reach-

ing their apartment, an argument ensued between the

two parties in their bedroom (T-136). Petitioner kept a

gun under the bed, which Mrs. Mitchell attempted to

grab (T-187). Petitioner grabbed the gun first (T-

187). Mrs. Mitchell then left the room (T-137). Peti-

tioner remained in the bedroom, but locked ,the door

(T-187, T-139). Mrs. Mitchell came back down the hall

and began beating on the door with a hammer and

grill (T-140). The door popped open; Petitioner pushed

it back to close it and again locked it (T-140). Peti-

tioner held the door closed, during which time he still

+

had the gun in his hand (T-140). The door again popped

open, and in the process of shutting it, the gun went off

(T-140, T-141). Mrs. Mitchell screamed that she had

been shot; Petitioner opened the door and found her

standing in the hallway bleeding (T-141). He immedi-

ately rushed her to the hospital where she died later

that same evening (T-141).

Prior to trial, Petitioner filed a demurrer to the

above quoted indictment (R.388). In the demurrer,

Petitioner challenged the constitutionality of the Geor-

gia reckless conduct statute, Georgia Code Section 26-

2910 (1968), on the grounds that the statute was vio-

lative of the due process clause of the Fourteenth

Amendment to the United States Constitution (T-6).

The trial court overruled the demurrer (T-6), and the

case proceeded to trial.

At the close of ail the evidence, the trial judge

charged the jury on involuntary manslaughter

(T-184), and several misdemeanors falling within

the scope of unlawful act involuntary manslaughter

under Georgia Code Section 26-1103(a) (1968)

(T-185). One of the misdemeanors charged on was

reckless conduct as defined by Georgia Code Section

26-2910 (1968) (T-186). The jury retired, and after

some deliberation, they were unable to reach a verdict

(T-189). Consequently, they returned to the Court and

asked the trial judge the following questions:

“on what primary charges can we find a verdict?

on what lesser charges can we render a verdict?

difference between the charged?”

(T-189, T-228). The jury was recharged (T-191-193),

subsequently returning 2 verdict of guilty but miscit-

5

ing the code section which they found Petitioner guilty

of violating (T-196). (The jury cited the code section

as “26-2190” when presumably they meant to cite

Georgia Code Section 26-2910, the reckless conduct

statute.) Upon the trial judge’s instructions, the code

section was struck from the verdict (T-203). Peti-

tioner was sentenced to five years imprisonment

(T-205).

Petitioner appealed his conviction to the Supreme

Court of Georgia on four enumerations of error by the

trial court. One of these enumerations was a challenge

to Georgia Code Section 26-2910, the reckless conduct

statute, on vagueness grounds. The Supreme Court of

Georgia transferred the case to the Georgia Court of

Appeals. The state court of appeals summarily re-

jected the challenge to the reckless conduct statute re-

lying on an earlier Georgia Supreme Court decision,

Horowitz v. State, 243 Ga. 441, 254 S.E.2d 828 (1979)

and affirmed Petitioner’s conviction on April 9, 1980.

A motion for rehearing was denied on April 24, 1980.

Petitioner then applied for writ of certiorari to the

Supreme Court of Georgia. The writ was denied on

June 11, 1980. A motion for reconsideration was filed

and denied on June 24, 1980.

Because of the substantial constitutional claims

raised by this proceeding, Petitioner has invoked the

jurisdiction of this Court under 28 U.S.C. §1257 (3)

to review the judgment of the court below.

REASONS FOR GRANTING THE WRIT

1. The decision below conflicts with decisions of

this Court as to the standards which a criminal

6

statute must meet to satisfy the requirements

of the due process clause of the Fourteenth

Amendment.

It is established that a law fails to meet the re-

quirements of the due process clause of the Fourteenth

Amendment if it is so vague and standardless that it

leaves the public uncertain as to the conduct it pro-

hibits or leaves judges and jurors free to decide with-

out any legally fixed standards what is prohibited and

what is not in each particular case. Giaccio v. Pennsyl-

vania, 382 U.S. 399 (1966); Baggett v. Bullitt, 377

U.S. 360 (1964); Lanzetta v. New Jersey, 306 US.

451 (1939). The Georgia reckless conduct statute,

Georgia Code Section 26-2910 (1968), is constitution-

ally defective in both senses. This criminal statute does

not provide fair warning of the type of conduct it pro-

hibits, nor does it provide an ascertainable standard

for judging guilt thereunder. Consequently, the Geor-

gia Court of Appeals, in its affirmance of the trial

court, subverted these fundamental principles of due

process by rejecting a vagueness challenge to the reck-

less conduct statute, Georgia Code Section 26-2910

(1968).

A. The Georgia reckless conduct statute, Georgia

Code Section 26-2910, is unconstitutionally

vague as written.

It is a basic principle of due process that an enact-

ment is void for vagueness if its prohibitions are not

clearly defined. Grayned v. Rockford, 408 U.S. 104

(1972). A statute must be sufficiently explicit in its

description of the acts, conduct or conditions required

or forbidden, to prescribe the elements of the offense

7

prohibited with reasonable certainty. Beauharnias v.

Illinois, 348 U.S. 250 (1952). Implicit within these

requirements is the premise that the law must be one

that carries an understandable meaning with legal

standards that courts can enforce. The Georgia reck-

less conduct statute, as written, does not even begin

to meet these constitutional requirements.

The statute states:

Reckless conduct

A person commits a misdemeanor when he

causes bodily harm to or endangers the bodily

safety of another person by consciously disregard-

ing a substantial and unjustifiable risk that his

act or omission will cause the harm or endanger

the safety, and the disregard constitutes a gross

deviation from the standard of care which a rea-

sonable person would exercise in the situation.

Ga. Code §26-2910 (1968). This criminal statute, on

its face, does not provide a description of the acts or

conduct forbidden, nor does it provide the elements of

the offense prohibited with reasonable certainty. The

language of the statute prohibits any reckless act which

might endanger the safety of another person. The con-

duct prohibited by this criminal statute is so all-inclu-

sive and generalized that it fails to give a person of

ordinary intelligence a reasonable opportunity to

know what is prohibited, so that he may act accord-

ingly. This Court has repeatedly stated that criminal

statutes which fail to give due notice that an act is

criminal before it is done are unconstitutional depriva-

tions of due process of law. Papachristou v. Jackson-

ville, 405 U.S. 889 (1972); United States v. Harriss,

8

347 U.S. 612 (1954) ; Jordan v. De George, 341 U.S.

223 (1951); Lanzetta v. New Jersey, 306 U.S. 451

(1939) ; United States v. Cohen Grocery Co., 255 U.S.

_ 81 (1921). However, this Court has upheld statutes

challenged on vagueness grounds where scienter is an

element of the offense. Boyce Motor Lines, Inc. v.

United States, 342 U.S. 387 (1952) ; Screws v. United

States, 325 U.S. 91 (1945). Measured by tuis stand-

ard, the statute again fails to pass constitutional scrut-

iny. Clearly, the crime of reckless conduct is not a

specific intent crime. Consequently, the statute cannot

be upheld on this basis.

Another aspect of the statute’s vagueness is that due

to its all-inclusive and generalized definition of reck-

less conduct, the statute is subject to arbitrary and

discriminatory enforcement. This risk of abuse in the

administration of the law is present in two forms. One

risk is that the law may be arbitrarily applied by police

and prosecution officials. Papachristou v. Jacksonville,

405 U.S. 839 (1972). A reckless conduct prosecution

may be merely the cloak for a conviction which could

not be obtained on the real, but undisclosed, grounds

for the arrest. The other risk is that the statute may be

so unclear that a trial court cannot properly instruct

a jury. A statute is unconstitutionally vague when it

leaves judges and jurors free to decide what is or is

not prohibited conduct in a particular case on an ad hoc

and subjective basis. Giaccio v. Pennsylvania, 382 U.S.

399 (1966). The Georgia reckless conduct statute con-

tains no standards at all, nor does it place any condi-

tions of any kind upon the jury’s power to find an ac-

cused guilty of reckless conduct. Under this statute,

jurors must make determinations of the crucial issue

9

of whether or not the statute has been violated based

upon their own notions of what reckless conduct is.

Thus, the statute leaves judges and jurors free to de-

cide, without any legally fixed standards, what is pro-

hibited and what is not in each particular case.

B. Subsequent state court interpretations of the

statute have failed to provide standards and

guidelines that cure the statute’s constitu-

tional deficiencies.

Prior to the statute’s enactment in 1968, no general

statute punishing reckless conduct existed. P. Kurtz,

Criminal Offenses in Georgia (1980). Since the stat-

ute’s passage, few cases construing Georgia Code Sec-

tion 26-2910 (1968) have been decided. Crawford v.

State, 245 Ga. 94, ___ S.E. ____ (1980) ; Horowitz v.

State, 243 Ga. 441, 254 S.E.2d 828 (1979) ; McCane v.

State, 147 Ga.App. 730, 250 S.E.2d 181 (1978) ; Hiatt

v. State, 144 Ga.App. 298, 240 S.B.2d 894 (1977),

cert. denied; Smith v. State, 142 Ga.App. 814, 237

3.E.2d 220 (1977); Harshaw v. State, 134 Ga.App.

081, 215 S.E.2d 337 (1975). However, the above cases

fail to provide any standards that cure the statute’s

unconstitutional vagueness. Crawford v. State, 245 Ga.

94, ___ §.E.2d ____ (1980) (use of a gun in self-de-

fense when such use is excessive force constitutes reck-

less conduct); Horowitz v. State, 243 Ga. 441, 254

S.E.2d 828 (1979) (upholding the statute on the

grounds that it is not void for vagueness. Reckless con-

duct was driving a car in a residential area in excess

of the speed limit. Defendant lost control of the car

and skidded towards a child standing in its front

yard) ; McCane v. State, 147 Ga.App. 730, 250 S.R.2d

10

181 (1978) (reckless conduct was shooting at and in

the direction of an occupied mobile home) ; Hiatt v.

State, 144 Ga.App. 298, 240 S.E.2d 894 (1977) cert. de-

nied (reckless conduct was pulling an auto in front of

traffic) ; Smith v. State, 142 Ga.App. 814, 237 S.E.2d

220 (1977) (reckless conduct was entering a trailer un-

der circumstances where the defendant had to break a

window to obtain entrance) ; Harshaw v. State, 134 Ga.

App. 581, 215 S.E.2d 337 (1975) (reckless conduct

was endangering the safety of individuals present

when defendant shot someone).

The state courts’ opinions in these cases were framed

to apply the statute to the defendants in the case then

under consideration. On the whole, these cases cannot

be purported to provide any interpretation of the stat-

ute which would be generally applicable. Consequently,

the statute is constitutionally invalid both as written

and explained by the Georgia courts.

11

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Court of Ap-

peals of Georgia.

GraMAE Dope submitted,

EDWARD D. HD. cbde

Cook, Noell, Tolley & Aldridge

Post Office Box 1927

Athens, Georgia 30603

(404) 549-6111

¢ Dade,

JOE SALEM

COUNSEL FOR PETITIONER

1200 First National Bank Tower

Atlanta, Georgia 30303

(404) 524-4373

APPENDIX

GEORGIA COURT OF APPEALS

Mitchell v. State, case no. 59424

decided April 9, 1980

59424. MITCHELLv. THE STATE. 29-45

DEEN, Chief Judge.

The defendant was indicted, tried and convicted of

involuntary manslaughter in the commission of an un-

lawful act in that he pointed a pistol at another (a mis-

demeanor violation of Code § 26-2908) and was guilty

of reckless conduct (as specified by Code § 26-2910,

another misdemeanor) in the course of which he caused

the pistol to fire, killing a person on the other side of his

bedroom door. His appeal, challenging the constitu-

tionality of Code § 26-2910, was transferred by the

Supreme Court to this court. Held:

1, The issue of constitutionality of this statute was

decided contrary to the contentions of the appellant in

Horowitz v. State, 248 Ga. 441 ( SE2d )

(1979). This also disposes of the remaining demurrers

because the indictment did charge a violation of crim-

inal law, specifying the unlawful acts of reckless con-

duct and pointing a pistol at another, as a result of

which the victim was fatally wounded.

2. Although the unlawful acts of pointing a gun and

reckless conduct were alleged conjunctively in the in-

dictment, proof of the homicide as a result of either

of them is sufficient to authorize a conviction. “Where

under a penal statute an offense may be committed by

the doing of any one of several forbidden acts, a con-

viction may be had upon an indictment which in a sin-

gle count charges the accused with the commission of

la

2a

two or more of them, if there be satisfactory proof

that he committed at least one of the acts therein spec-

ified.” Brazil v. State, 117 Ga. 32 (48 SE 460) (1902).

The court properly instructed the jury that they could

return a verdict of guilty if either of the unlawful acts

charged was supported by evidence.

3. One may not put questions even to an expert wit-

ness so as to call for his opinion un the exact ultimate

issue before the jury. Hamilton v. United States, 73

F'2d 357. While such an expert may give aid to the jury

he cannot, under the guise of giving testimony, state

a legal conclusion as to a matter at issue. Travelers Ins.

Co. v. Thornton, 119 Ga. 455 (46 SE 678) (1904);

Hartford Accident & Indemnity Co. v. Camp, 69 Ga.

App. 758 (26 SE2d 679) (1943). The witness may not,

on a vital matter, enter the domain of the jury, whose

right and duty it is to form its own conclusions un-

influenced by the opinion of others. Harris v. State, 188

Ga. 745, 746 (1) (4SE2d 651) (1939). See also Harris

v. State, 221 Ga. 398 (144 SE2d 769) (1965); Gar-

rett v. State, 147 Ga. App. 500 (249 SE2d 315)

(1978). It was not error to exclude on objection an

opinion of a member of a city police department who

was not present at the time of the homicide as to

whether the shooting, in his opinion, was accidental.

Judgment affirmed. Birdsong and Sognier, JJ., con-

cur.

3a

SUPREME COURT OF GEORGIA

Mitchell v. State

case no. 86412

Motion for Reconsideration was denied on June 24,

1980.

Clerk’s Office, Supreme Court of Georgia

GUN 24 1980

DEAR SIR: ATLANTA

The motion for a reheating was denied today:

Case Nota. YrcLehell, V. Male

Yours very truly,

MRS. JOLINE B. WILLIAMS, Clerk