# Petition — Mitchell v. Georgia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 1011

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0391%3A1. Public record. Not legal advice.