# Petition — Balkcom v. Goodwin

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 460 U.S. 1098

## Text

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Wy FEB 26 1993

ae

ALEXANDER L. STEVAS,

IN THE CLERK

Supreme Court of the United States
OCTOBER TERM, 1982

CHARLES BALKCOM, WARDEN,
GEORGIA STATE PRISON,
Petitioner,
v.

TERRY LEE GOODWIN,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Wii B. Hirt, Jr.

Senior Assistant

Attorney General

Counsel of Record for the
Petitioner

MICHAEL J. BowERS
Attorney General

Rosert S. Stusss, II
Executive Assistant
Please serve: Attorney General

Wruam B. Hit, Jz, Manton O. Gorpon

~_ First Assistant
132 State Judicial Bldg.
40 Capitol Square, 8.W. Attorney General
Atlanta, Georgia 30334 Susan V. BoLteyn
(404) 656-3359 Assistant Attorney General

QUESTIONS PRESENTED

WHETHER THE DECISION BELOW CONFLICTS
WITH NUMEROUS DECISIONS OF THE
SUPREME COURT OF GEORGIA REGARDING
THE CONSTITUTIONALITY OF SENTENCING
CHARGES SIMILAR, IF NOT IDENTICAL,

TO THE CHARGE IN ISSUE?

WHETHER THE COURT BELOW, BY
ORDERING THE GRANTING OF FEDERAL
HABEAS RELIEF, EXCEEDED ITS
AUTHORITY AS A FEDERAL HABEAS COURT
SITTING IN REVIEW OF A STATE
CONVICTION AND SENTENCE, THEREBY
CREATING A CONFLICT BETWEEN THE
OPINIONS OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH
AND FIFTH CIRCUITS REGARDING THE

PROPER STANDARDS TO BE UTILIZED

(a)

IN EVALUATING INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIMS,
PERTAINING TO THE PROPER EXTENT OF
PRETRIAL INVESTIGATION AND

PREPARATION?

. (b)

TABLE OF CONTENTS

Page

OPINIONS BELOW . . « « «© «© «© «© « « 2

JURISDICTION . . «© «© «© © © © © @ 3

QUESTIONS PRESENTED ... «+ « « « 4

CONSTITUTIONAL AND
STATUTORY PROVISIONS . . . «4. « « 6

STATEMENT OF THE CASE . .. 6 « « 9

REASONS FOR GRANTING THE WRIT

l.

THE DECISION BELOW CONFLICTS

WITH NUMEROUS DECISIONS Or

THE SUPREME COURT OF GEORGIA
REGARDING THE CONSTITUTION-

ALITY OF CAPITAL SENTENCING
CHARGES SIMILAR, IF NOT
IDENTICAL, TO THE CHARGE IN

See 6 6 ie 8 a eee eee 13

THE COURT BELOW, BY ORDERING
THE GRANTING OF FEDERAL
HABEAS RELTEF, EXCEEDED I'S
AUTHORITY AS A FEDERAL
HABEAS COURT SITTING IN
REVIEW OF A STATE CONVICTION
AND SENTENCE, THEREBY
CREATING A CONFLICT BETWEEN
THE DECISIONS OF THE COURT
OF APPEALS FOR THE ELEVENTH
& FIFTH CIRCUITS REGARDING
THE PROPER STANDARD TO BE

- UTILIZED IN EVALUATING

INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIMS PERTAINING TO

THE PROPER EXTENT OF

PRETRIAL INVESTIGATION AND
PREPARATION . « «© © © «© «© © 29

(Continued)
CORCLUSION . «© e e eo

CERTIFICATE OF SERVICE .

ii

TABLE OF AUTHORITIES

Cases Cited: Page (s)

Baker v. State, 243 Ga. 710,
Bar escmeea a2. (2879). « « « 14

Baldwin v. Blackburn,
653 F.2d 942 (5th Cir. 1981) 31

Baty v. Balkcom, 661 F.2d 391
(5th Cir. 1981), cert. denied,
__ ~iU.S. __, 102 S.Ct. 2307,
73 LeBd.2d 1308 (1982) ... 31,32

Bell v. Ohio, 438 U.S. 637
(1978) 7 . . . 7 . 7 7 . . o20,22,23

Cervi v. State, 248 Ga. 325,
282 S.E.2d 629 (1981) a ee

Collier v. State, 244 Ga. 553,
200i 8.8. 4a 364 (1979) « « « « 44

Corn v. State, 240 Ga. 130,
Dam mamcad 694: tLOT7}. «0 « 14

Cunningham v. State, 248 Ga. 558,
264 S.E.2d 390 (1981) .... 13
Davis v. McAllister, 631 F.2a 1256,
0 (5th Cir. 1980),
cert. denied, 452 U.S. 907
DIE ey Sow 6 ee ee 26

Dobbs v. State, 236 Ga. 427,
224 8.8.20 3 (1976) « « « « «© 24,15

Finney v. State, 242 Ga. 582,
250 S.E.2d 388 (1978) . . « « I4

iii

Ford v. Strickland, No. 81-6200
(llth Cir. decided 1-7-83) 30

Gaddis v. State, 239 Ga. 238,
~) a Oe a ee) bs ee ©

Gibson v. State, 236 Ga. 874,
Zao 8.8.40 G63 (1976) .-«.- - 15

Goodwin v. State, 236 Ga. 339,
223 S.E.2d 703 (1976),
cert. denied, 431 U.S. 989
Tee fis «is - is eae 0 «0 8&5

Goodwin v. State, 240 Ga. 605,
242 S.E.2d 119 (1978) . ... 10

Goodwin v. Hopper, 243 Ga. 193,
253 S.E.2d 156, cert. denied,
442 U.S. 947 (1979) « « «© © « 1

Goodwin v. Balkcom, 501 F.Supp.
3i7 (M.D. Ga. 1980) « « © « © © Shh,27

Goodwin v. Balkcom,
684 F.2d 794
(llth Cir. 1982) . . 2,3,16,20,21,33

Gregg v. Georgia, 428 U.S. 153
(1976) . . * - . . 7 . . . . 16, 22

High v. State, 247 Ga. 289,
27/6 S.E.2d 5 (1981) ..... 414

Hill v. State, 246 Ga. 402,
271 S.E.2d 802 (1980) .... 14

Jurek v. Texas, 428 U.S. 292
(1976) . . . . . . . . eo ° . 22

iv

Lockett v. Ohio, 438 U.S. 586
(1978) . . . . 7 . . . . . oL9, 22, 23

Morgan v. State, 241 Ga. 485,
246 &S.5.40 198 (1978) . .- « « L4

Mylar v. State, 671 F.2d 1299
(Lith Cir. 1982) 7 7 . 7 . ° 32

Peek v. State, 239 Ga. 422,
re a Be eel es ee <

Proffitt v. Florida,
Cae Usems. 2ee ALDIO) « «-« « « &2

Roberts v. Louisiana, 428 U.S.
325 (1976) * . _ - - >. . _ . . Zz

Ross v. State, 233 Ga. 36l,
a2ha See ae 356 (1974) « « 2 @ 4S

Spivey v. State, 241 Ga. 477,
246 S.E.2d 288, cert. denied,
439°0.8. 1639 (i976) « «s+ 14,25

Spivey v. Zant, 661 F.2d 464
(5th Cir. 1981), cert. denied,
_._—~*U.S. sg 102 S.C. 3495
eee bw eo ek ee ee ke ee

Tyler v. State, 247 Ga. 119,
276 Sco aw 5349 (19GL) . 2 « «= kb

Washington v. Strickland,
No. 81-5379 (5th Cir. decided
12-23-89) 7. © © © @© @ - 34, 36,37,40,41

Washington v. Watkins,
655 F.2d 1346 (5th Cir. 1981) 30,36

Waters v. State, 248 Ga.
283 S.E.2d 238 (1981)

355,

Westbrook v. State, 242 Ga.

249 S.E.2d 524 (1978)

Woodson v. North Carolina,

428 U.S. 280 (1976) .

Zant v. Gaddis, 247 Ga.
279 S.E.2d 219 (1981)

717,

15l,

13,14

14

18,22

25

NO.

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

CHARLES BALKCOM, WARDEN,
GEORGIA STATE PRISON,

Petitioner,
Vv.

TERRY LEE GOODWIN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Petitioner Charles Balkcom
respectfully prays that a writ of
certiorari issue to review the

judgement and opinion of the United

States Court of Appeals for the
Eleventh Circuit entered in this

proceeding on September 3, 1982.

OPINIONS BELOW

The opinion of the Court of Appeals
for the Eleventh Circuit is reported

at Goodwin v. Balkcom, 684 F.2d 794

(llth Cir. 1982). A copy of the
opinion is set forth in the Appendix
at Appendix l.

Set forth at Appendix Number 2 is
a copy of the Eleventh Circuit's Order
of December 27, 1982 denying the
petition for rehearing en banc.

The opinion of the District Court
denying the application for habeas

relief is reported at Goodwin v.

Balkcom, 501 F.Supp. 317 (M.D. Ga.
1980).

JURISDICTION

The judgment of the Court of
Appeals for the Eleventh Circuit was
entered on September 3, 1982. See

Goodwin v. Balkcom, 684 F.2d 794 (llth

Cir. 1982). A timely petition for
rehearing en banc was filed, but the
same was denied on December 27, 1982.
See Appendix :2.

This petition for a writ of
certiorari has been timely filed
within the allowable ninety days.

This Court's jurisdiction is

invoked under 28 U.S.C.§ 1254(1).

QUESTIONS PRESENTED

WHETHER THE DECISION BELOW
CONFLICTS WITH NUMEROUS
DECISIONS OF THE SUPREME
COURT OF GEORGIA REGARDING
THE CONSTITUTIONALITY OF
SENTENCING CHARGES SIMILAR,
IF NOT IDENTICAL, TO THE

CHARGE IN ISSUE?

WHETHER THE COURT BELOW, BY
ORDERING THE GRANTING OF
FEDERAL HABEAS RELIEF,
EXCEEDED ITS AUTHORITY AS A
FEDERAL HABEAS COURT SITTING
IN REVIEW OF A STATE
CONVICTION AND SENTENCE,
THEREBY CREATING A CONFLICT
BETWEEN THE OPINIONS OF THE

UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH &
FIFTH CIRCUITS REGARDING THE
PROPER STANDARDS TO BE
UTILIZED IN EVALUATING
INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIMS, PERTAINING TO
THE PROPER EXTENT OF PRETRIAL

INVESTIGATION AND PREPARATION?

CONSTITUTIONAL AND
STATUTORY PROVISIONS

UNITED STATES CONSTITUTION

Section I, Fourteenth

Amendment:

Section No. l. 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 wherein 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, without
due process of law; nor deny to any
person within its jurisdiction the

equal protection of the laws.

UNITED STATES STATUTUES

28 U.S.C. § 2254(a):

- « « fA) district court shall
entertain an application for a writ of
habeas corpus in behalf of a person in
custody pursuant to the judgment of a
state court only on the ground that he
is in custody in violation of the
Constitution or laws ... of the

United States.

STATEMENT OF THE CASE

Respondent Terry Lee Goodwin was
convicted on August 27, 1975 in the
Superior Court of Walton County,
Georgia of murder and armed robbery.

A sentence of death was imposed on
August 28, 1975. The evidence that
was before the jury, is concisely
reported in the opinion of the Supreme
Court of Georgia affirming
Respondent's convictions and sentence,
and in the interest of brevity will

not be repeated herein. See Goodwin

v. State, 236 Ga. 339, 223 S.E.2d 703

(1976), cert. denied, 431 U.S. 909

(1977).
Following the affirmation of his

convictions and sentence on direct
appeal Respondent unsuccessfully

pursued an extraordinary motion for a

new trial in the trial courts, the
denial of which was affirmed on direct

appeal at Goodwin v. State, 240 Ga.

605, 242 S.E.2d 119 (1978).

Respondent next sought to
collaterally attack his convictions
and sentence via a petition for relief
in habeas corpus filed in the Superior
Court of Tattnall County, Georgia.

The state habeas court denied the
petition after conducting an
evidentiary hearing, and the Supreme
Court of Georgia affirmed the state

habeas court's decision at Goodwin v.

Hopper, 243 Ga. 193, 253 S.E.2d 156,
cert. denied, 442 U.S. 947 (1979)

Respondent next sought habeas
relief via a petition filed in the

United States District Court for the
Middle District of Georgia. On

-10-

November 22, 1980 the district court
rendered its Order and Judgment
denying Respondent's application for

federal habeas relief at Goodwin v.

Balkcom, 501 F.2d 317 (M.D. Ga. 1980).
On appeal to the United States
Court of Appeals for the Eleventh
Circuit, the appellate court set aside
Respondent's sentence of death and
reversed the judgment of the district
court and remanded. The appellate
court opined that relief was warranted
because Respondent was allegedly
denied the effective assistance of
counsel at his state trial, in
violation of the Sixth Amendment, and
because the trial court's capital
sentencing instructions allegedly were

constitutionally inadequate.

etie

The federal appellate court, on
December 27, 1982 denied Petitioner's
timely filed petition for rehearing en

banc. (Appendix 2).

-12-

REASONS FOR GRANTING THE WRIT

l. THE DECISION BELOW CONFLICTS
WITH NUMEROUS DECISIONS OF
THE SUPREME COURT OF GEORGIA
REGARDING THE CONSTITUTION-
ALITY OF CAPITAL SENTENCING
CHARGES SIMILAR, IF NOT
IDENTICAL, TO THE CHARGE IN

ISSUE,

This case presents a clear and
direct conflict, as the same is
contemplated by this Court's Rule
17(1) (a) &(c), between the Court of
Appeals for the Eleventh Circuit and
the Supreme Court of Georgia in at

least the following cases; Cunningham

v. State, 248 Ga. 558, 284 S.E.2d 390
(1981); Cervi v. State, 248 Ga. 325,

282 S.E.2d 629 (1981); Waters v.

olde

State, 248 Ga. 355, 283 S.E.2d 238
(1981); High v. State, 247 Ga. 289,

276 S.E.2d 5 (1981); Tyler v. State,

247 Ga. 119, 274 S.E.2d 549 (1981);

zant v. Gaddis, 247 Ga. 717, 279

S.E.2d 219 (1981); Hill v. State, 246

Ga. 402, 271 S.E.2d 802 (1980);
Collier v. State, 244 Ga. 553, 261

S.E.2d 364 (1979); Baker v. State, 243

Ga. 710, 257 S.E.2d 192 (1979); Finney
v. State, 242 Ga. 582, 250 S.E.2d 388

(1978); Westbrook v. State, 242 Ga.

151, 249 S.E.2d 524 (1978); Spivey v.

State, 241 Ga. 477, 246 S.E.2d 288

(1978); Morgan v. State, 241 Ga. 485,

246 S.E.2d 198 (1978); Corn v. State,

240 Ga. 130, 240 S.E.2d 694 (1977);

Peek v. State, 239 Ga. 422, 238 S.E.2d

12 (1977); Gaddis v. State, 239 Ga.

238, 236 S.E.2d 594 (1977); Dobbs v.

-14-

State, 236 Ga. 427, 224 S.E.2d 3

(1976); Gibson v. State, 236 Ga. 874,

226 S.E.2d 63 (1976); Goodwin v.

State, 236 Ga. 339, 223 S.E.2d 703

(1976); Ross v. State, 233 Ga. 36l,

211 S.E.2d 356 (1974).

The issue presented for this
Court's consideration is concise;
having found the Defendant guilty of
murder after having heard all of the
Defendant's evidence both in defense
to the crime charged and in mitigation
of his role played in its commission,
and after listening to argument of
Defendant's counsel on the sentencing
phase of trial wherein counsel
stressed the Defendant's evidence in
mitigation of punishment, does the
trial court's pre-sentencing and

post-sentencing phase charge, as set

#1 Se

forth in Appendix 1, properly focus a
reasonable juror's discretion to
choose life or death as a punishment
upon the particular characteristics of
the Defendant and the specific
circumstances of the crime? See

Goodwin v. Balkcom, 684 F.2d, at

799-800, 802.
In Gregg v. Georgia, 428 U.S. 153

(1976) this Court found Georgia's
Statutory scheme for the imposition of
capital punishment to pass
constitutional muster. Id., at 207.
Describing Georgia's statutory scheme

in Gregg, supra, this Court stated

that:

The new Georgia
sentencing procedures,

by contrast, focus the

jury's attention on the

@16=

particularized nature of
the crime and the
particularized
characteristics of the
individual defendant.
While the jury is
permitted to consider
any aggravating or
mitigating
circumstances, it must
find and identify at
least one statutory
aggravating factor
before it may impose a
penalty of death. In
this way the jury's
discretion is
channeled. No longer
can a jury wantonly and

freakishly impose the

olFa

death sentence; it is
always circumscribed by
the legislative
guidelines.

Id., at 206-207.

In Woodson v. North Carolina, 428

U.S. 280 (1976), a case in which this
Court reviewed the constitutionality
of a state statute making the death

penalty mandatory for first degree

murder, this Court found the subject
statute not to pass constitutional
muster for it failed to allow for the
consideration by the sentencing
authority of the "relevant facets of
the character and record of the
individual offender or the
circumstances of the particular

offense." Id., at 304.

-18-

In Lockett v. Ohio, 438 U.S. 586

(1978), a case in which this Court
examined a state statute which limited
the mitigating factors which could be
considered by the sentencing
authority, this Court found the
subject statute not to pass
constitutional muster. In Lockett,

Supra, at 604, this Court stated that:

(T)he Eighth and
Fourteenth Amendments
require that the
sentencer, in all but
the rarest kind of case,
not be precluded from
considering as a

mitigating factor, any

aspect of a defendant's
character or record and

any of the circumstances

-19-

of the offense that the
defendant proffers as a
basis for a sentence

less than death.

Accord, Bell v. Ohio, 438 U.S. 637

(1978).

This instant case is not one in
which the jury's authority to consider
mitigating circumstances was in any
manner limited or circumscribed as the
trial court charged the Respondent's
jury that they were ". . . authorized
to consider all of the evidence
received by you in open court in both
phases of this trial. You are
authorized to consider all of the
facts and circumstances of this

case." Goodwin v. Balkcom, 684 F.2d,

at 799,

Like the charge in Spivey,
Goodwin's jury was never
affirmatively precluded from
considering any mitigating

circumstances.

Goodwin v. Balkcom, 684 F.2d, at 801.

Neither is this a case in which
the jury's discretion to impose a
sentence of life imprisonment was
improperly circumscribed as
Respondent's jury was charged that it
lay within their discretion to
recommend the imposition of a sentence
of life imprisonment or death, but
before a sentence of death could be
recommended they had to find to exist
beyond a reasonable doubt at least one
of the statutory aggravating

circumstances given in charge.

“2l-

It is the Petitioner's contention
that the charge on sentencing in this
instant case passes constitutional
muster as that standard has been
articulated by this Court in Gregg,

supra; Proffitt v. Florida, 428 U.S.

242 (1976); Jurek v. Texas, 428 U.S.

292 (1976); Woodson, supra; Roberts v.

Louisiana, 428 U.S. 325 (1976);

Lockett, supra and Bell, supra.

Notwithstanding the foregoing, the
Court of Appeals for the Eleventh
Circuit has sought to impose
requirements in capital cases that
neither this Court nor the United
States Constitution demands. Citing

Lockett, supra, Bell, supra, and

Spivey v. Zant, 661 F.2d 464 (5th Cir.

1981), cert. denied, U.S. , 102

S.Ct. 3495 (1982), immediately after

-22-

noting the narrow nature of this

Court's holding in Lockett, supra, and

Bell, supra, the court stated that it

has read into these opinions the
requirement that a trial court recite
a magic litany in apprising the jury
of their authority to consider those
facts particular to the offender and
the circumstances of the offense in
reaching their decision on punishment,
and the trial court must likewise
utilize this litany in apprising the
jury of the extent of their discretion
in recommending the appropriate
punishment to be imposed.

Contrary to the position taken by
the Court of Appeals for the Eleventh
Circuit, the proper standard by which
to judge the constitutionality of the

subject charge is not by whether a

=23-

magic litany is contained therein, but

rather:

(T)he ultimate test is
whether a reasonable
juror, considering the
charge as a whole, would
know that he should
consider all the facts
and circumstances of the
case as presented during
both phases of the trial
(which necessarily
includes any mitigating
and aggravating facts),
and then, even though he
might find one or more
of the statutory
aggravating
circumstances to exist,

would know that he might

~24<

recomuend life

imprisonment.

The test is substantive
rather than formalistic
and conforms with the
mandate of the Supreme
Court of the United
States that ‘a single
instruction to the jury
may not be judged in
artificial isolation,
but must be viewed in
the context of the

overall charge.' (Cites

omitted).

Spivey v. State, 241 Ga. 477, 481,

246 S.E.2d 288, cert. denied, 439 U.S.

1039 (1978). Accord, Zant v. Gaddis,

247 Ga. 717, 279 S.E.2d 219 (1981).

-25~

Davis v. McAllister, 631 F.2d 1256,

1260 (5th Cir. 1980), cert. denied,

452 U.S. 907 (1981).

Further, the trial court's
instruction properly apprised the jury
that their decision to recommend life
or death as a punishment rested solely
within their discretion, but that as a
prerequisite to a recommendation of
death they had to first find the
existence beyond a reasonable doubt of
at least one of the statutory
aggravating circumstances given in
charge. Of particular importance is
the fact that an examination of the
actual words spoken to the jury
reveals that they were charged that
they were authorized to impose a
sentence of life imprisonment

notwithstanding any other factors, but

-26-

only if they were inclined to
recommend a sentence of death was it
incumbent upon them to ascertain
whether any statutory aggravating
circumstance existed beyond a
reasonable doubt. Having found the
existence beyond a reasonable doubt of
at least one statutory aggravating
circumstance, the jury was
specifically charged that they were
then "authorized," not required to
recommend a sentence of death.

Goodwin v. Balkcom, 684 F.2d at 799,

In this instant case the trial
court's instruction passes
constitutional muster as it properly
focused the jury's discretion to
choose life or death as a punishment
upon the particular characteristics of

the defendant and the specific

o2T@

circumstances of the crime. Having
complied with the substantive concerns
of this Court as expressed in the
cases cited herein, the subject charge
is not rendered unconstitutional for
failure to recite therein a
formalistic litany not heretofore
required by this Court or the United
States Constitution.

Because of the direct conflict
between the decision of the Court of
Appeals for the Eleventh Circuit in
this instant case and the numerous
decisions of the Supreme Court of
Georgia cited herein, Petitioner
respectfully requests that this Court
grant this petition for a writ of
certiorari and ultimately and finally
adjudicate this constitutional

question in favor of the Petitioner.

-28-

THE COURT BELOW, BY
ORDERING THE GRANTING OF
FEDERAL HABEAS RELIEF,
EXCEEDED ITS AUTHORITY AS
A FEDERAL HABEAS COURT
SITTING IN REVIEW OF A
STATE CONVICTION AND
SENTENCE, THEREBY
CREATING A CONFLICT
BETWEEN THE DECISIONS OF
THE COURT OF APPEALS FOR
THE ELEVENTH & FIFTH
CIRCUITS REGARDING THE
PROPER STANDARD TO BE
UTILIZED IN EVALUATING
INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIMS PERTAINING
TO THE PROPER EXTENT OF
PRETRIAL INVESTIGATION

AND PREPARATION.

-29-

In reviewing ineffective
assistance of counsel claims federal
courts do not sit to second guess
considered professional judgments with
the aid of 20/20 hindsight.

Washington v. Watkins, 655 F.2d 1346,

1355 (5th Cir. 1981). Speaking of the
role of federal habeas courts, in Ford

v. Strickland, No. 81-6200 (llth Cir.

decided 1-7-83) slip op. at 1269, the

court stated that:

We have consistently
held that counsel will
not be regarded
constitutionally
deficient merely because
of tactical decisions.
(Cites omitted). Even

where an attorney's

-30-

Strategy may appear
wrong in retrospect, a
finding of
constitutionally
ineffective
representation is not
automatically mandated.

Baty v. Balkcom, 661

F.2d 391, 395 n. 8 (5th
Cir. 1981), cert.

denied, U.S. °

102 S.Ct. 2307, 73
L.Ed.2d 1308 (1982);

Baldwin v. Blackburn,

653 F.2d 942, 946 (5th

Cir. 1981).

The constitutional standard by
which counsel's representation is
judged is not that of errorless

counsel nor counsel judged ineffective

aIhe

by hindsight, but rather counsel
likely to render and rendering
reasonable effective representation.

Baty v. Balkcom, supra. Counsel's

performance must fall within the range
of competency generally demanded of
attorneys in criminal cases. Mylar v.
State, 671 F.2d 1299, 1301 (llth Cir.
1982). As correctly noted by the

court below:

(T)he methodology for
applying the standard
involves an inquiry into

the actual performance

of counsel conducting
the defense and a
determination of whether
reasonably effective
assistance was rendered

based upon the totality

-32-

of circumstances and the
entire record.

Goodwin v. Balkcom, 684 F.2d, at

804.

With specific reference to the
granting of federal habeas relief,
Petitioner notes that the United
States Court of Appeals for the Fifth
Circuit has stated that the same would
be proper only where the applicant had
(1) made out a prima facie case of
ineffective assistance of counsel, by
a preponderance of the evidence, (2)
demonstrated by a preponderance of the
evidence, that the ineffective
assistance created not only a
possibility of prejudice, but that it
worked to his actual and substantial
disadvantage, and (3) the state fails

to prove that counsel's

«33<

ineffectiveness was harmless beyond a

reasonable doubt. Washington v.

Strickland, No. 81-5379 (5th Cir.

decided 12-23-82), slip op. at 15848,
15862.

In cases such as the instant case,
where Respondent contends that trial
counsel did not conduct a proper
investigation prior to trial, the
Court of Appeals for the Fifth Circuit

has opined that:

The amount of pretrial
investigation that is

reasonable defies

precise measurement. It
will necessarily depend
upon a variety of
factors including the
number of issues in the

case, the relative

o34=

complexity of those
issues, the strength of
the government's case,
and the overall strategy
of trial counsel.

(Cites omitted). In
making that !
determination, courts
should not judge the
reasonableness of
counsel's efforts from
the omniscient
perspective of
hindsight, but rather
‘from the prospective of
counsel, taking into
account all of the
circumstances of the
case, but only as those

circumstances were known

-35-

to him at the time in

question.’ Washington

v. Watkins, 655 F.2d at

1356.

Washington v. Strickland, supra,

Slip op. at 15849,
In Washington v. Strickland,

Supra, at 15852-15855, the court
considered the situation, as is
presented by this case, where counsel
fails to conduct a substantial
investigation into one plausible line
of defense because of his reasonable
strategic choice to rely upon another
plausible line of defense at trial.
In such a situation the Court of
Appeals for the Fifth Circuit has

opined that:

In sum, an attorney who
makes a strategic choice
to channel his
investigation into fewer
than all plausible lines
of defense is effective
so long as the
assumptions upon which
he bases his strategy
are reasonable and his
choices on the basis of
those assumptions are

reasonable,

Washington v. Strickland, supra,

Slip op. at 15855,

In this instant case the court

below, with the benefit of seven years

of hindsight honed by continuous

appellate litigation, disregarded the

totality of the circumstances as known

o37«

to defense counsel at the time of
trial, and improperly substituted its
judgment for that of trial counsel in
determining counsel to have rendered
ineffective assistance. Thus the
Court of Appeals for the Eleventh
Circuit improperly exceeded its
authority in determining trial counsel
to be ineffective in an opinion which
creates a conflict between the Court
of Appeals for the Eleventh and Fifth
Circuits regarding the proper
standards to be utilized in evaluating
ineffective assistance of counsel
Claims pertaining to the proper extent
of pretrial investigation and
preparation.

Assuming arguendo, that a prima
facie case of ineffective assistance

was made out, in its opinion the court

-38-

below has ordered that habeas relief
be granted notwithstanding the absence
of proof by a preponderance of the
evidence that counsels' ineffective
assistance worked to Respondent's
actual and substantial disadvantage.
The court below, as indicia of
ineffective representation, cites
trial counsels' failure to challenge
the composition of Respondent's grand
jury, however, the evidence reflects
that approximately twenty-five percent
of Respondent's trial jury was of
Respondent's race, and that trial
counsel testified that he saw no
necessity to pursue such a challenge.
The court below cites trial counsel's
failure to challenge the illegality of
Respondent's arrest, however, no

reviewing court, not even the court

below, has ever ruled that Respondent

was ever actually under arrest when he

was invited to the police station for
guestioning. The court below cites
trial counsel's failure to interview
certain of the prosecution's witnesses
prior to trial, however, counsel
testified that he reviewed the
prosecution's file during his pretrial
preparation and that the file
contained copies of these individual's
statements made to police.

Petitioner states that a review of
the decision of the court below
readily reveals that the court
improperly equated the term

“prejudice,” as defined in Washington

v. Strickland, supra, as the

demonstration by the applicant in

habeas corpus by a preponderance of

-40-

the evidence of actual and substantial
disadvantage to his case, with the
term “possibility of success," as
envisioned by the district court, had
trial counsel pursued what hindsight
arguably reveals to have been
potentially favorable lines of inquiry.
Because the Court of Appeals for

the Fifth Circuit in Washington v.

Strickland, supra, slip op. at 15862

has opined that habeas relief is
warranted on an ineffective assistance
of counsel claim only where the
applicant has demonstrated by a
preponderance of the evidence that the
ineffectiveness of counsel resulted in
actual and substantial disadvantage to
the course of his defense, and because
in this instant case habeas relief has

been ordered notwithstanding

-41-

Respondent's failure to demonstrate an
actual and substantial disadvantage to
his defense caused by counsel's
alleged ineffectiveness, there exists
a conflict between the Circuits that

warrants the attention of this Court,

-42-

CONCLUS ION

For all of the foregoing reasons
this petition for a writ of certiorari

should be granted.

Seniofg Assista
Attorney Gene
Counsel of Record
for the Petitioner

MICHAEL J. BOWERS
Attorney General

ROBERT S. STUBBS II

Executive Assistant
Attorney General

rd
4,
MARION O. GORDON
First Assistant
Attorney General

(Signature continued)

-43-

ae Uo wf

SUSAN V. BOLEYN
Assistant Attorney
General

Please serve:

WILLIAM B. HILL, JR.

132 State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334
(404) 656-3359

-44-

CERTIFICATE OF SERVICE

I, William B. Hill, Jr., Attorney
of Record for the Petitioner and a
member of the Bar of the Supreme Court
of the United States do hereby certify
that in accordance with the rules of
the Supreme Court of the United States
I have served two copies of this
petition for a writ of certiorari upon
the Respondent by depositing the same
in the United States mail with
sufficient first class postage affixed
thereto and addressed to counsel for

Respondent as follows:

Mr. Frank L. Derrickson
Attorney at Law

Broome Legal

Assistance Corporation
13-15 South Broad Street
Norwich, New York 13815

(Continued on next page)

-45-

Mr. Thomas M. West
Attorney at Law

230 Peachtree Street, N.W.
Suite 900

Atlanta, Georgia 30303

This /Y \ ray of February, 1983.

VLLIAM B. HILL, JR.

-46-

Terry Lee GOODWIN, Petitioner
Vv.

Charles BALKCOM, Warden,
Respondent.

No. 81-7132

United States Court of Appeals
Eleventh Circuit

Sept. 3, 1982

State Prisoner under death
sentence was denied relief in habeas
corpus by the United States District
Court for the Middle District of
Georgia, at Athens, Wilbur D. Owens,

Jr., Chief Judge, 501 F.Supp. 317.
Prisoner appealed. The Court of
Appeals, Hatchett, Circuit Judge, held
that where trial counsel's ineffective
assistance evidenced by his lack of
thorough investigation deprived

defendant of potential defense and,

additionally, decision to raise what
would have been ratte la ‘elias iienge to
composition of grand jury was
unperceived, prisoner was entitled to

relief in habeas corpus.

Death sentence set aside, and

judgment reversed and remanded.

+
Before INGRAHAM , HATCHETT and

ANDERSON, Circuit Judges.
HATCHETT, Circuit Judge:

Terry Lee Goodwin appeals the
district court's denial of his habeas
corpus petition challenging his state
convictions for murder and armed
robbery. The petition alleges, in
addition to other things, that Goodwin
was denied effective assistance of

counsel at his state trial in

violation of the sixth amendment, and
that the state trial court's capital
sentencing instructions were
constituionally inadequate. Agreeing
with Goodwin on these allegations, we

reverse and remand.

I. FACTS

On Wednesday evening, April 9,
1975, eighteen-year-old Terry Lee
Goodwin and seventeen-year-old Brad
Studdard played pool at the Snack and
Rack Recreation Parlor in Monroe,
Georgia. After leaving the poolroom
in Studdard's car about 10:30 p.m.,
the youths drove to a convenience
store to purchase beer. As they drove
into the country, they talked, drank

beer, and smoked marijuana. Finishing

the beer, Studdard parked the car
along a dirt road to urinate. Goodwin
exited the vehicle, pulled a butcher
knife from his pocket, and demanded
that Studdard give him the car. When
Studdard refused, Goodwin marched
Studdard into the woods nearby and
repeated his demand. Studdard again
refused and attempted to flee but
tripped and fell to the ground.
Goodwin pursued Studdard and stabbed
him approximately eighteen times.
Goodwin left Studdard in the woods

where he died from loss of blood,

Goodwin drove the car back to town
and abandoned it near his residence.
Sheriff's deputies discovered the car
on Thursday afternoon. On Friday,

Goodwin phoned the Studdard residence

to inquire about Brad's
disappearance. Although he did not
identify himself, Goodwin claimed to
be a friend of Brad's and asked if a
reward was being offered. The
victim's sister told Goodwin that
money could be raised for information
concerning her brother's whereabouts.
Goodwin phoned again later and,
claiming to be “John Smith," told
Brad's sister he had heard something
about Good Hope Road (a road near the
dirt road where the killing
occurred). A local radio station
received several calls that same day
from Goodwin, again identifying
himself as John Smith, asking about a
reward, and advising the search party
to look near Good Hope Road. At

approximately 12:30 a. m. on Saturday,

sheriff's deputies, acting on a tip
from an unidentified woman who
purportedly overheard Goodwin admit to
the killing, went to Goodwin's house,
Goodwin's mother came to the:door and
the deputies told her they wanted to
talk to Terry. After she let them in,
one deputy went into Goodwin's bedroom
and, awakening him, told him “to get
up and get your clothes on," and to
accompany them to the station for

questioning. He complied,

Upon being advised of his
constitutional rights, Goodwin told
the deputies that a friend had told
him to look for Studdard's body near
the same dirt road where Goodwin and
Studdard had stopped on Wednesday

evening. On Saturday afternoon,

Goodwin accompanied deputies to this
location, and the deputies discovered
the body. That same afternoon,
deputies secured a search warrant for
Goodwin's house and upon executing it,
found a bloodstained coat containing
items belonging to Studdard. The
deputies found the keys to the
victim's car under a rug. When
confronted with this physical evidence
on Saturday evening, Goodwin confessed
to the killing. The next morning
(Sunday), deputies returned to the
scene of the crime and found the
butcher knife across the road from

where Studdard's body had been located,

The Walton County, Georgia, grand
jury indicted Goodwin on charges of

murder and armed robbery. Because he

was indigent, the court appointed him
counsel. At trial in the Walton
County Superior Court, the defense
presented evidence to show that
Goodwin's reduced mental capacity made
it impossible for him to knowingly
waive his fifth amendment rights prior

to confessing to the crimes.

1 Eleven days after Goodwin
confessed to the crimes, the Walton
County Superior Court ordered Goodwin
confined to the Central State Hospital
at Miledgeville, Georgia, for a
psychiatric evaluation. Goodwin
remained at the hospital approximately
three months. An examining
psychiatrist testified that Goodwin's

I.Q. was SASnty-c08 and diagnosed him
to be "borderline mental

retardation." He classified Goodwin's
mental age at approximately fourteen
years. A school psychologist who

exmained Goodwin a few days before
trial testified that, in her opinion,

Goodwin's mental age was nine years

six months. Her examination placed
Goodwin's I.Q. at fifty-eight.

The trial court rejected this
approach, and Goodwin was convicted of
the offenses and sentenced to death.
On appeal and mandatory death sentence
review, the Supreme Court of Georgia
affirmed his conviction and sentence.

2 Goodwin v. State, 236 Ga. 339,

223 S.E.2d 703 (1976), cert. denied,

432 U.S. 911, 97 S.Ct. 2961, 53
L.Ed.2d 1085 (1977).

Represented by different counsel,
Goodwin filed an extraordinary motion
for new trial in Walton County
Superior Court. The Georgia Supreme

Court affirmed the denial of this

2 Georgia's capital sentencing
procedure requires all death sentences
be reviewed by the Gergia Supreme
Court. Ga. Code Ann. § 27-2537.

motion. Goodwin v. State, 240 Ga.

605, 242 S.E.2d 119 (1978). Goodwin
then petitioned the Superior Court of
Tattnall County for a writ of habeas
corpus alleging that errors of
constitutional magnitude rendered his
trial fundamentally unfair. The court
denied the petition after an
evidentiary hearing, and the Georgia
Supreme Court affirmed the denial.

Goodwin v. Hopper, 243 Ga. 193, 253

S.E.2d 156 (1979)

Having exhausted all available

state remedies, Goodwin sought habeas
corpus relief in the United States
District Court for the Middle District
of Georgia under 28 U.S.C.A. § 2254
(1976). “he district court 501

F.Supp. 317 ordered Goodwin's execution

10

Stayed pending resolution of the
habeas corpus action. The court
referred the petition to a magistrate
who, without holding an evidentiary
hearing, submitted proposed findings
of fact and conclusions of law to the
district court. Believing the jury
instructions regarding the imposition
of the death penalty were
constitutionally infirm, the
magistrate recommended that Goodwin's
death sentence be vacated, but in all
other respects, Goodwin's conviction

should stand.”

3The magistrate was not the
first to attack the infirmities of the
trial court's sentencing charge. In
the appeal of his state habeas corpus
petition to the Georgia Supreme Court,
Justices Hill and Marshall, troubled
by the lack of instruction on the
option to recommend life imprisonment,
dissented

11

Both parties filed objections to the
magistrate's recomendations. The
district court adopted the majority of
the magistrate's recommendations, but
reached a different conclusion on the
jury instructions issue and denied
habeas corpus relief. This appeal
followed.

II. ISSUES ON APPEAL

On appeal, Goodwin urges us to
consider a number of issues which,
either standing alone or in

conjunction with his predominate claim

"in the belief that (Goodwin) should
be given a retrial as to sentencing."

Goodwin v. Hopper, 243 Ga. 193, 197,
253 S.E.2d LF 159 (1979) (Hil, J.

dissenting).

12

of ineffective assistance of counsel,
require the vacating of his conviction
and death sentence. Goodwin contends
(1) that he was illegally arrested;
(2) that his confession was not the
product of a knowing and intelligent
waiver of his fifth amendment
rights;(3) that four veniremen were
improperly excluded in violation of
Witherspoon v. Illinois, 391 U.S. 510,

88 S.Ct. 1770, 20 L.Ed.2d 776 (1968);
(4) that he was denied effective
assistance of counsel at his state
trial; (5) that the state trial
court's jury instructions shifted the
burden of proof to Goodwin and failed
to define "capital felony" thus
depriving him of a jury adequately
guided in its deliberation; (6) that

the state trial court's capital

13

sentencing instructions were
unconstitutional because they failed
to instruct on the consideration of
mitigating circumstances and the
option to recommend against death;

(7) that his federal habeas corpus
petition was improperly denied without
the benefit of an evidentiary hearing
because the state habeas corpus
proceeding did not adequately develop
the factual issues in a full and fair
hearing; and (8) that the death
penalty violates the eighth amendment
because it is administered in an
irregular and capricious fashion,
Addressing only those contentions we
deem dispositive of the case, we must
decide whether the trial court's
capital sentencing instructions were

constitutionally insufficient and

14

whether Goodwin was denied effective
assistance of counsel in violation of
the sixth amendment. Our resolution
of these two issues makes discussion

of other issues unnecessary.

III. CAPITAL SENTENCING INSTRUCTIONS

In the sentencing phase of
Goodwin's trial subsequent to the
jury's verdict of guilty on the murder
and armed robbery charges, the trial
court allowed presentation of evidence
of aggravating and mitigating
circumstances. The state presented
documentary evidence of Goodwin's 1974
forgery convictions. Goodwin
presented no evidence at this phase of

the case. Following jury arguments by

15

counsel for both sides, the trial

court instructed the jury:

Ladies and Gentlemen of
the Jury, you having found
the defendant guilty of the
offenses of murder and armed
robbery, it is now your duty
to determine within the
limits prescribed by law, the
penalty that shall be imposed
as punishment for that
offense.

In reaching this
determination, you are
authorized to consider all of
the evidence recieved by you
in rg court in both phases
of this trial. You are
authorized to consider all of
the facts and circumstances
of the case.

Under the laws of this
state, every person guilty of
the offense of murder or
armed robbery shall be
punished by life in the
penitentiary or death by
electrocution. And under the
laws of this state, every
person guilty of the offense
of armed robbery shall be
punished by life in the
penitentiary or death by

16

electrocution or by from one
to twenty years in prison,

In the event that your
verdict is life in prison,
the punishment the defendant
would receive would be
imprisonment in the
penitentiary for and during
the remainder of his natural
life. If that be your
verdict, you would add to the
verdict already found by you,
an additional verdict as
follows:

"And we fix his punishment as
life imprisonment."

If you decide - excuse
me, let me begin again. If
you should decide to sentence
the defendant for the offense
of armed robbery, then the
form of your verdict would
be, "We, the Jury, sentence
the defendant to 'blank'
years," and where the court
has used the term 'blank',
you would insert the term of
years to which you sentence
this defendant for the
offense of armed robbery.

You may, however, if you

see fit and if that be your
verdict, fix his punishment

as death for murder, which
would require a sentence by

17

the court of death by
electrocution.

I charge you that before
you would be authorized to
find a verdict fixing a
sentence of death by
electrocution, you must find
evidence of statutory
aggravating circumstances as
I will define to you later in
the charge, sufficient to
authorize the supreme penalty
of the law.

I charge you that a
finding of statutory
4, 3 pind eng. circumstances or
circumstances [sic] shall
only be based upon evidence
convincing your minds beyond
a reasnable doubt as to the
existence of one or more of
the following factual
conditions in connection with
the defendant's perpetration
of the act for which you have
found him guilty. They are:
Number one, the offense of
murder was committed while
the offender was engaged in
the commission of another
capital felony.

Two, the offender

committed the offense of
murder for himself or

another, for the purpose of
receiving money or any other

thing of monetary value.

18

The statutory
instructions that you are
authorized to consider will
be submitted in writing to
you, the Jury, for your
deliberations. If your
verdict should be a
recommendation of death, you
would add to the page
already found by you,
additional vosdint as
follows: “And we fix his
punishment as death."
Additionally, you must
designate in writing the
aggravating circumstance or
circumstances which you find
beyond a reasonable doublt.

Your verdict should be
agreed to by all twelve of
your members. It must be in
writing, entered upon the
indictment, dated, and signed
by your foreman or forelady
and returned into court for
publication.

Now if you fix a

sentence for murder, the
offense of armed robbery

would merge with the offense
of murder and you would not

need to specify any sentence
for the offense of armed

robbery.

You could not set a
sentence for both offenses of

19

armed robber and murder, but
must select which offense you
desire to sentence - to which
you desire to sentence the
defendant.

You may now retire to
the Jury Room, elect one of
your number as foreman or
forelady, and begin your
deliberations. These
instructions, by law, are to
be sent out by you. At the
last minute, I made some
changes in my own
handwriting. I do not mean
to be facitious at this
gravestage of this trial, but
it might be that you cannot
read my writing. And if so,
if you will please tell the
Bailiff, I will have them
typed.

You may now retire to

the Jury Room and begin your
deliberations,

{1} Goodwin argues that this
charge runs contrary to the guidelines

established in Lockett v. Ohio, 438

U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d
973 (1978) (Plurality opinion), and
Bell v. Ohio, 438 U.S. 637, 98 S.Ct.

20

2977, 57 L.Ed.2d 1010 (1978) (plurality
opinion), and adhered to by this

court's predecessor in Chenault v.

Stynchcombe, 581 F.2d 444 (5th Cir.

1978). Specifically, Goodwin contends
that these instructions did not
adequately focus the jury's attention
on the consideration of mitigating
circumstances and the option of
recommending a life sentence even if
aggravating circumstances were

found. According to

4 Goodwin cites as mitigating
circumstances his age, race, reduced
mental capacity, social, economic, and
family background. Evidence of these
circumstances was presented during the
guilt ort of trial through testimony
of Goodwin's mother, a school
psychologist, and the state's
psychiatrists.

21

Goodwin, these inadequacies violate
the eighth and fourteenth amendments
to the United States Constitution. We
review Goodwin's contentions in light
of the standard by which skave court
jury instructions are judged in
federal habeas corpus proceedings.
Singular aspects of the charge may not
be viewed in isolation. Cupp v.
Naughton, 414 U.S. 141, 146-47, 94
S.Ct. 396, 400, 38 L.Ed.2d 368

(1973). Instead, the federal
appellate court must examine the
charge as a whole to determine the
adequacy of the instructions. Davis

v. McAllister, 631 F.2d 1256, 1260

(Sth Cir. 1980), cert. denied, 452

U.S. 907, 101 S.Ct. 3035, 69 L.Ed.2d

409 (1981); Stephens v. Zant, 631 F.2d

397, 405 (5th Cir. 1980), modified on

22

other grounds on panel rehearing, 648

F.2d 446 (5th Cir. 1981), cert
granted, U.S. , 102 S.Ct.

575, 72 L.Ed.2d 222 (1982) (case

certified to Georgia Supreme Court).

Our resolution on the
constitutionality of these
instructions is significantly aided by
the discussion given this topic in

Spivey v. Zant, 661 F2d 464 (5th Cir,

1981), cert. denied, U.S. ’

102 S.Ct. 3495, 73 L.Ed.2d

(1982). In Spivey, an almost

Sspivey v. Zant is binding on
this circutt aS a post-September 30,
1981, decision of a Unit B panel of
the Former Fifth Circuit. See Stein
v. Reynolds Securities, Inc., 667 F.2d

33 (llth Cir. 1982).

23

identical charge was found deficient
because it failed to guide the jury in
the consideration and understanding of
the nature and function of mitigating

circumstances.°

6The trial court charged the
jury in Spivey v. Zant as follows:

Ladies and gentlemen, you have
found the defendant guilty of the
offense of murder. It is now your
duty to determine within the
limits prescribed by law, the
penalty that shall be imposed as
punishment for that offense. In
reaching this determination you
are authorized to consider all the
facts and circumstances of the
case.

Under the laws of this State,
every person guilty of the offense
of murder, shall be punished by
life in the penitentiary, or death
by electrocution.

I charge you that before you
would be authorized to find a
verdict fixing a sentence of death
by electrocution, you must find
evidence of statutory aggravating

24

circumstances, as I will define to
you later in the charge,
sufficient to authorize the
supreme penalty of the law.

I charge you that a finding of
Statutory aggravating circumstance
shall only be based upon evidence
convincing your mind beyond a
reasonable doubt as to the
existence of one, or of the
factual condition in connection
with the defendant's perpetration
of acts for which you have found
him guilty. (sic)

Now, the law provides certain
aggravating circumstances which
you may consider for this
purpose. If the offense of muder
was committed while the offender
was engaged in the crime of
another capital felony, in this
case, the capital felony charged
by the State is that of armed
robbery. I have given you in
charge, you have received the
definition of armed robbery.

The statutory instructions that
you are authorized to consider
will be submitted in writing to
you the jury for your
consideration. If you fix his
punishment as death, you must also
designate in writing that
aggravating circumstance which you
find beyond a reasonable doubt.

Your verdict must be agreed to
by all twelve of your members, it
must be in writing, entered upon
the indictment, dated and signed

25

by your foreman, and returned into
Court for publication.

You may retire and begin your
deliberations, after you have
received the indictment and
documented evidence adduced in the
pre-sentence hearing, and then
determine the penalty or
punishment that shall be imposed
in this case. You must first
consider and find beyond a
reasonable doubt that the
aggravating circumstance, or the
murder happening while in the
perpetration of another capital
felony, armed robbery; armed
robbery is a capital felony, you
must find that beyond a reasonable
doubt.

If you find that to exist, then
you shall so indicate in writing,
then you will determine whether or
not you will impose the death
penalty, and your verdict then
will be one of two: "We the jury
recommend the death penalty," or
“We the jury do not recommend the
death penalty." That is a matter
for your determination, ladies and
gentlemen,

You will have this in writing to
carry out with you to assist you
in preparation of your verdict.

You may retire at this time and
fix punishment in this case,

Spivey, 661 F.2d at 468.

26

Holding that the eighth and fourteenth
amendments require clear instructions
which do not preclude the
consideration of mitigating
circumstances, the Spivey panel
explained that,

{[iJnm most cases, this will
mean that the judge must
clearly and explicitly
instruct the jury about
mitigating circumstances and
the option to recommend
against death; in order to
do so, the judge will
normally tell the jury what a
mitigating circumstance is
and what its function is in
the jury's sentencing
deliberations,

Spivey, 661 F.2d at 471 (emphasis

added, footnote omitted).

The imposition of the death
penalty under Georgia's current death
penalty statute has been upheld by the
United States Supreme Court. Gregg v.
Georgia, 428 U.S. 153, 96 S.Ct. 2909,

27

49 L.Ed.2d 859 (1976) (plurality
opinion). In Gregg, the Court
approved of Georgia's revised statute
because although “some jury discretion
still exists, ‘the discretion to be
exercised is controlled by clear and
objective standards so as to produce
nondiscriminatory application, '"
Gregg, 427 U.S. at 198, 96 S.Ct. at
2936, quoting Colley v. State, 231 Ga.

829, 834, 204 S.E.2d 612, 615 (1974).
The Gregg plurality further noted that
discretion is not fully accorded the
sentencer unless it is exercisable in

an informed manner. "“[(W]here

discretion is afforded a sentencing
body on a matter so grave as the
determination of whether a human life
should be taken or spared, that

discretion must be suitably directed

28

and limited so as to minimize the risk
of wholly arbitrary and capricious
action." Gregg 428 U.S at 189, 96
S.Ct. at 2932.

Subsequent announcements from the
Supreme Court have amplified the
constitutional strictures on
sentencing instructions. In Lockett

v. Ohio and Bell v. Ohio, a plurality

held the Ohio death penalty statute
unconstitutional because it precluded
the sentencer from considering

individualized, mitigating factors as

required by the eighth and fourteenth
amendments. Like the charge in
Spivey, Goodwin's jury was never
affirmatively precluded from
considering any mitigating

circumstances. This is not, however,

the extent of our interpretation of
Lockett and Bell. The rule from those
decisions requires explicit
instructions on mitigation and the
option to recommend against death, In

Chenault v. Stynchombe, the court

concluded:

This constitutional requirement
to allow consideration of
mitigating circumstances would
have no importance, of course, if
the sentencing jury is unaware of
what it may consider in reaching
its decision. We read Lockett and
Bell, then, to mandate that the
Judge clearly instruct the jury
about mitigating circumstances and
the option to recommend against
death.

Chenault, 581 F.2d at 448.

{2)] In this circuit, then, the

state of the law is well settled,

30

Capital sentencing instructions which
do not clearly guide a jury in its
understanding of mitigating
circumstances and their purpose, and
the option to recommend a life
sentence although aggravating
circumstances are found, violate the

eighth and fourteenth amendments. /

7as did the petitioner in

Spivey. Goodwin rage alge so the jury
nstructions given in this case, not
the validity of the Georgia death
penalty statute. The relevant statute
provides in pertinent part that, “the
judge shall consider or he shall
include in his instructions to the
jury for it to consider, any
mitigating circumstances or
aggravating circumstances otherwise
authorized by law." Ga. Code Ann,

§ 27-2524.1(b). As noted in Spivey,
the trial court is not
constitutionally required to use the
words “mitigating circumstances" in
its capital sentencing charge. "So
long as

31

{3, 4) After the guilty verdict
was recorded, but prior to the receipt
of any evidence in the sentencing
phase, the court explained to the jury
what would occur at this stage of the
trial. The Court stated:

Now, Ladies and Gentlemen,
having convicted the

defendant of the offenses of

murder and armed robbery, it

is necessary that the court

resume the trial and conduct
a presentence hearing before

the instruction clearly
communicates that the law
recognizes the existence of
circumstances which do not
quatecy or excuse the offense,
but which, in fairness or mercy,
may be considered as extenuating
or reducing the degree of moral
culpability. . . the
constitutional requirement is
satisfied." Spivey, 661 F.2d at
471 n.8 (citation omitted).

32

you, the only issue to be the
determination of the
punishment to be imposed.

Subject to the laws of
evidence, you, the Jury,
shall hear additional
evidence in extenuation,
mitigation or aggravation of
punishment, including the
record of any prior crimes,
convictions or pleas of
guilty or pleas of nolo
contendere of the defendant,
or the absence of any such
prior crimes convictions and
pleas.

You Jurors shall hear
arguments by the defendant or
his counsel and the
prosecuting attorney as
provided by law regarding the
punishment to be imposed.

At the conclusion of
evidence and argument, the
court will give you
instructions, after which,
you will retire to determine
the punishment to be
imposed. It will be your
duty to fix the sentence
within the limits prescribed
by law and the court will
impose the sentence fixed by
you in the way and in the
manner you prescribe.

The state contends that the district

court was correct when it found the

33

instructions, taken as a whole, would
lead a reasonable juror to fully
understand the duties and options
under the charge considering the
statement set out above. We
disagree. Even if this explanatory
statement can be considered part of
the capital sentencing charge - which
we seriously doubt it can - it still
does not meet the requirements
specified in Spivey. The reference to
“evidence in mitigation” in no way
told the jury what a mitigating
circumstance is, nor explained its
function in the jury's deliberation

process. Spivey, 661 F.2d at 471.

The Spivey jury instructions were
found lacking because adequate

guidance as to the function of

34

mitigating circumstances was not
provided. That part of the Spivey
charge authorizing the jury “to
consider all the evidence received by
you in open court and [sic] both
phases of the trial . .. [and] all
the facts and circumstances of the
case" was held not to be the type of
clear instruction that the
Constitution requires. Spivey, 661
F.2d at 472. Goodwin's charge is
similarly infected with this
insufficient passage. On this ground
alone, his death sentence is required
to be vacated. The trial court's
charge in this case, however, is
doubly fatal. Nowhere does the charge
even slightly hint about the option to
impose life imprisonment even though

aggravating circumstances are

35

found.® We agree with Justices

8 In holding the capital
sentencing charge contitutional, the
district court noted that the district
attorney in his closing argument to
the jury during the sentencing phase
of the trial stated: "So you are going
to determine whether or not Terry Lee
Goodwin is to be sentenced for the
offense of murder, either to life or
death." What this implies, of course,
is that even if the trial court's
instructions did not make it perfectly
clear, the district attorney certainly
did. During oral argument before this
panel, counsel for the state made a
Similar evaluation. While not
specifically contending that argument
of counsel suffices if it informs the
jury about the mitigating
circumstances, state's counsel
reasoned that it's impractical for a
trial court trying to ascertain if a
jury is aware of the scope of its
authorization to totally ignore
argument of counsel, especially where
counsel relies on diminished capacity,
race, and economic background in his
closing argument. Any suggestion that
counsel's argument can fesasct an
otherwise faulty jury charge is
totally erroneous. Arguments of
counsel can never substitute for the
instructions given by the court.
Taylor v. Kentucky, 436 U.S. 478,
488-89, 98 S.Ct. 1930, 1936, 56
L.Ed.2d 468 (1978)

36

Hill and Marshall who, in their dis-
sent to the denial of Goodwin's state
habeas corpus petition commented that
“the judge did not instruct the jury
in any way, even unclearly, about the
option to recommend against death as

required by Lockett." Goodwin v. Hop-

per, 243 Ga. 193, 197-98, 253 S.E. 2d
156, 160 (1979) (Hill, J., dissenting).

Because this charge fails to
adequately describe the nature and
function of mitigating circumstances
and lacks any discussion on the option
to recommend against death, we hold

the charge unconstitutional.”

9Since ruling on this issue in
Goodwin's state habeas corpus petiton,
the Georgia Supreme Court has
apparently taken a different position
on the constitutionality of a
sentencing charge identical to
Goodwin's insofar as the option to
recommend against death is unclear.
In Zant v. Gaddis,

37

Accordingly, Goodwin's sentence of
death must be vacated.
IV. THE EFFECTIVENESS OF
GOODWIN'S TRIAL COUNSEL
Goodwin claims that his sixth
amendment right to assistance of
counsel was denied by the

ineffectiveness of his court-appointed

trial counsel. To bolster this claim,

247 Ga. 717, 279 S.E.2d 219 (1981),
the court affirmed the granting of
habeas corpus relief as to sentence
where the charge failed to adequately
inform the jury of its option. "(T)he
trial court's charge failed to...
inform the reasonable juror that he
could recommend life imprisonment even
if he should find the presence of one
or more of the statutory aggravating
circumstances. Nowhere in the charge
is this option made clear: to the
jury." Zant, 247 Ga. at 720, 279
S.E.2d at 222 (emphasis added).

38

he raises a plethora of allegations
regarding the failings of counsel.
Goodwin submits that his
court-appointed attorneys (*1) failed
to interview crucial witnesses; (2)
failed to effectively challenge the
legality of Goodwin's arrest; (3)
failed to challenge grand and petit
jury composition; (4) failed to

object to Witherspoon violations in

the exclusion of certain veniremen;
(5) failed to request an instruction
on mitigation of circumstances at the
at the sentencing phase and failed to
object to the trial court's failure to
give such an instruction charge as
required by Ga. Code Ann.

§ 27-2534.1(b); (6) failed to object
to the admission of the records of

prior convictions introduced during

39

the sentencing phase of his trial
where the state had failed to give
notice as required by Ga. Code Ann.
§ 27-2503; (7) failed to request an
instruction regarding Goodwin's
diminished mental capacity; and

(8) failed to object to the victim's
family being seated inside the bar of
the court. Goodwin suggests that
these failings were generated by
counsel's overall attitude
concerningtheir representation of an

unpopular client.?°

10counsel originally appointed
to defend Goodwin was a relative of

the victim. This prompted his
disqualification. The Walton County
Superior Cout then appointed Goodwin's
trial counsel and co-counsel who
represented him at trial and on appeal
to the Georgia Supreme Court.

40

In response, the state insists
that considering the formidable task
in representing a defendant accused of
brutally stabbing his victim,
Goodwin's appointed counsel rendered
reasonably effective assistance. The
state cites the interviewing of
Goodwin, his mother, and various state
witnesses, the availability of the
district attorney's files, visiting
the scene of the crime, attempts to
plea bargain, the filing of pre-trial
motions to quash the indictment and
supress the confession, and the
pursuit of a defensive theory that
Goodwin was too mentally incapacitated
to give a knowing and voluntary
confession as examples of the
effectivenss of Goodwin's trial

counsel.

41

[5-7] We address these
contentions in the light of this
circuit's legal standard for reviewing
ineffective assistance of counsel
claims, noting initially that whether
a defendant has been denied effective
assistance of counsel is a mixed

question of fact and law. Cuyler v.

S.Ct. 1708, 1714, 64 L.Ed.2d 333

(1980); Washington v. Watkins, 655
ll

F.2d 1346, 1354 (5th Cir. 1981).

The clearly erroneous rule does not

11 sn Bonner v. City of
Prichard, 661 F.2d 1206 TTTEh Cir.

en banc), this court adopted as

binding precedent all of the decisions
of the former Fifth Circuit handed

down prior to the close of business on
September 30, 1981.

42

apply to such questions. Baker v.
Metcalfe, 633 F.2d 1198, 1201 (5th
Cir.), cert denied, 451 U.S. 974, 101

S.Ct. 2055,68 L.Ed.2d 354 (1981).
Consequently, a state habeas corpus
court's resolution of this question is
not entitled to a presumption of
correctness under 28 U.S.C.A. :

§ 2254(d) (1976). Harris v. Oliver,

645 F.2d 327, 330 n.3 (5th Cir.

1981). Therefore, we are not bound by
the state court's finding that
Goodwin's trial counsel rendered
effective assistance. We have no real
disagreement, however, with the state
habeas corpus court's factual findings
on historical matters, that is,
findings concerning what counsel
actually did in preparation for

trial. Here, the state habeas corpus

43

court entered such findings after full
and fair consideration of the issue in
the state habeas corpus

proceeding. -? This eliminated the
need for an evidentiary hearing in the

district court. West v. Louisiana,

478 F.2d 1026, 1031-32 (5th Cir.
1973), panel opinion aff'd and adhered

to in relevant part, 510 F.2d 363 (5th

Cir. 1975) (en banc). As stated in

West:

Where state factfinding
procedures are adequate,
comity and judicial economy

12 We explicitly refrain from
any intimation as to the fullness or
fairness of the consideration given to
other issues raised by Goodwin in his
state habeas corpus petiton.

44

dictate that the federal
courts should not hold
separate evidentiary
hearings. To hold a federal
hearing is to call state
factfinding procedures into
question. But comity does
not govern the appliation by
federal courts of their
independent judgment as to
federal law. That is their
obligation in all cases. ...

West, 478 F.2d at 1032.

{8} As to the hsitorical, or primary
factual findings made by the state
court, section 2254(d)'s presumption
of correctness is appropriate ina
federal habeas corpus proceeding.

Mason v. Balkcom, 531 F.2d 717, 722

(Sth Cir. 1976). Accordingly, we
accept the historical findings made by
the state court concerning what
Goodwin's trial counsel did to prepare

for his trial. This acceptance,

45

however, does not limit our
examination of the state habeas corpus
transcript for its revelations of
trial counsel's inactions and the
reasons therefor. We apply our own
judgment to decide whether the actions
taken in preparation and investigation
of Goodwin's defense were “so minimal
as to constitute ineffective

assistance." Baty v. Balcom, 661 F.2d

391, 394 n.7 (5th Cir. 1981).

A. Standard for Effective Asistance of
Counsel

{[9, 10) The oft-cited
constitutional standard by which
counsel's assistance is evaluated is
well established. The sixth

amendment, through the fourteenth,

46

entitles a state criminal defendant
the right to counsel reasonably likely
to render and rendering reasonably
effective assistance. See e.g.,

United States v. Burroughs, 650 F.2d

595 (5th Cir. 1981); Clark v.
Blackburn, 619 F.2d 431 (5th Cir.

1980); Easter v. Estelle, 609 F.2d 756

(5th Cir. 1980). “Rather, the
methodology for applying the standard
involves an inquiry into the actual
performance of counsel conducting the
defense and a determination of whether
reasonably effective assistance was
rendered based upon the totality of
circumstances and the entire record."
Nelson, 642 F.2d at 906 (emphasis in

Original). See also, United States v.

Gibbs, 662 F.2d 728 (llth Cir.

47

1981) (determination must come from
entire record rather than specific
actions). In applying this standard,
no distinction is to be drawn between
retained and appointed counsel.

Cuyler v. Sullivan, 446 U.S. 335, 100

S.Ct. 1708, 64 L.Ed.2d 333 (1980).

[12] Every case involving a
constitutional claim of ineffective
assistance of counsel turns on the
facts and the conduct of those

involved. King v. Beto, 429 F.2d 221,

222 n.1l (5th Cir. 1970). While
counsel's performance need not be
errorless, it must “fall within the
range of competency generally demanded
of attorneys in criminal cases."

Mylar v. State, 671 F.2d 1299, 1301

48

(llth Cir. 1982). See also, Beckham

v. Wainwright, 639 F.2d 262, 267 (5th

Cir. 1981). The determination of
whether the assistance rendered by
counsel is reasonably effective,
however, is not to be based solely
upon his performance at trial.
Consideration of the “totality of
circumstances" encompasses the quality
of counsel's assistance from time of
appointment or retention through
appeal. At the heart of effective
representation is the independent duty
to investigate and prepare.

"[C]ounsel have a duty to interview
potential witnesses and ‘make an
independent examination of the facts,
circumstances, pleadings, and laws

involved.'" Rummell v. Estelle, 590

49

F.2d 103, 104 (5th Cir. 1979) quoting

von Moltke v. Gillies, 332 U.S. 708,

721, 68 CS.Ct. 316, 322, 92 L.Ed. 309
(1948). Thus, “[a]Jn attorney does not
provide effective assistance if he
fails to investigate sources of
evidence which may be helpful to the

defense." Davis v. Alabama, 596 F.2d

1214, 1217 (5th Cir. 1979), vacated as
moot, 446 U.S. 903, 100 S.Ct. 1827, 64
L.Ed.2d 256 (1980). "“"{[T])he
cornerstones of effective assistance
of counsel" are the “[i]nformed
evaluation of potential defenses to
criminal charges and meaningful
discussion with one's client of the

realities of his case." Gaines v.

Hopper, 575 F.2d 1147, 1149-50 (5th
Cir. 1978).

50

[12] The assistance rendered may
be deemed ineffective although the
proceedings were not a farce or a
mockery. Herring, 491 F.2d 125, 128
(5th Cir. 1974). Nevertheless,
federal habeas corpus relief is proper
only where a showing of prejudice
accompanies the initial and distinct
determination of ineffective
assistance. This is true even in
those cases where counsel's
preparation and investigation have

been adjudged woefully inadequate.

Washington v. Watkins, 655 F.2d 1346,

1356. Turning now to the specific
contentions, we address them in

sequence.

51

B. Assistance Rendered b
Goodwin's Trial Counsel

1. Counsel's General Attitude

To better understand the reasons
for trial counsel's ineffective
preparation, investigation and
handling of this case, an examination
of the testimony presented to the
State habeas corpus court and comments
made during trial is revealing. The
Walton County Superior Court appointed
counsel and co-counsel to represent
Goodwin. Addressing the jury during
opening argument and again in the
sentencing phase of trial, both
counsel and co-counsel alerted the

jury to the fact of their appointed

52

status.!? Counsel justified the

reasons for doing so in his state

habeas corpus deposition:

13 In his opening argument,
trial counsel stated, "I hae been
appointed by the court to defend Terry
Goodwin." At the close of the state's
presentation of documentary evidence
in the sentencing phase of trial,
co-counsel told the jury:

Well if you decided to impose a
death penalty today and you decide
to sentence him, Terry Goodwin, to
the electric chair, historically
speaking, you fiave got a very
likely candidate. He is a little
old nigger boy, he would not weigh
a hundred and fifty pounds. He
has got two court appointed
lawyers appointed by this court to
represent him to do the very best
we can for him. He is poor. He
is broke. He is probably mentally
retarded. I dare say he has not
got an I.Q. of over 70. He is
uneducated. Probably just
unwanted. This is the kind of
people that we have historically
put to death here in Georgia.

53

Q.

I notice that either you or
[co-counsel] in your argument
made it clear to the jury
that you were appointed.

Yes, sure,
Why did you do that?

Well, you have to live out
here,

I'm not sure I understand,
sir.

Well, as I say - if you're
not a country boy - you live
in the community and you get
a reputation of representing,
I got that around here for a
while, of representing
everybody that killed
somebody. Well, they don't
like you. They don't realize
that everybody's entitled to
a defense. It's just human
nature, I suppose.

{13, 14] The state inteprets the

references to appointed status as

nothing more than a legitimate trial

tactic aimed at soliciting sympathy

from the jury. This interpretation

54

is difficult to accept in light of the
reason given by trial counsel.
Goodwin, on the other hand, submits
that this type of attitude explains
why counsel failed to challenge the
composition of the grand and petit
juries, neglected to object to

Witherspoon violations, and failed to

object to the use of leading questions
by the prosecution. We tend to agree
with Goodwin, but our reasoning goes
further. Admitted concerns over
community ostracism do more than
inhibit a lawyer's actions at trial
where his performance is visible by
fellow citizens. An attitude such as
this impairs the vitality of
investigation, preparation, and
representaton that all cleints

deserve, indigent or otherwise. Fears

55

of negative public reaction to
thethought of representing an
unpopular defendant surely hamper
every facet of counsel's functions.
Moreover, reminding a jury that the
undertaking is not by choice, but in
service to the public, effectively
stacks the odds against the accused.
Although we deplore the sentiments
expressed by Goodwin's trial counsel,
we cannot overemphasize that the
culpability of counsel is not the
issue. Rather, our concern centers on
the sixth amendment right of the

defendant.

Goodwin asserts that his trial
counsel's attitude and concerns over

community pressure prevented him from

56

challenging the composition of the

grand jury pool and the composition of

the petit jury pool. In response

toinquiry from Goodwin's present

counsel in the state habeas corpus

proceeding, trial counsel explained

why such a challenge was not

considered,

Why didn't you file a

challenge to the composition
of the grand jury?

I didn't think it wuld be to
any avail.

What do you base that opinion
on?

I suppose its because I'm a
native of this part of the
country and I just don't
think about the thing.

What do you mean? Do you
think that the grand jury was
properly com osed with a
sufficient number of blacks
and women and so on?

57

At that time?
Yes.

I suppose I thought that's
what it was, yes.

You suppose you thought it
was?

Subsequent events have proved
that it wasn't.

What led you to believe that
it was at that time?

Just my knowledge of the
people. I didn't give any
thought to how many blacks
and how many women and that
sort of thing.

Have you ever filed a
challenge to the composition
of the grand jury before, in
other cases?

No.

Has that ever been done in
this county?

Not until six months after
the Goodwin trial.

That was in a civil case, I
believe?

Yes.

58

Q. Why haven't jury challenges
been filed before, do you
know?

(District attorney]: I object.
That's calling for speculation.

THE WITNESS [trial counsel]: I
can't answer that, unless its
like I said while ago; you
live here, you know
everybody. And when you know
somebody pretty well, you're

very gise to get them on jury
except in this particular

case it didn't work out so
well.

Q. Would you have felt any
pressure in the community if
you had challenged the
composition of the jury?

A. Its possible. I mean, that's
speculative.

Q. Do you remember we had a
conversation earlier in which
you stated that there would
be that kind of community
pressure if you challenged
the jury?

A. I think there would be. But

as I said, I don't know.
Just like I told you while

ago, the school kids were
wanting to know why I was

taking that Terry Goodwin

59

case. The parents told me
about it later on. I mean,
that sort of thing goes on in
this community, any community
in the South,

Q. So the same reason that you.
wanted people to know that you
were appointed in the case
would lead you not to
challenge the jury?

A. Sure,

In Jones v. Brooks, No. 75-52

(M.D.Ga. Mar. 29, 1976), the plaintiff
class of black men and women of Walton
County brought suit against the jury
commissioners claiming
underrepresentation on juries in

violation of the thirteenth and

fourtgeenth amendments ot the United
States Constitution. In response to
the district court's order to show
cause why relief should not be

granted, the jury commissioenrs

60

furnished the court and counsel for
plaintiffs copies of new and revised
grand jury and traverse jury lists,
Because blacks and females were
underrepresented on voter
registrationlists in Walton County,
the jury commissioners, utilizing a
number of methods aimed at discovering
the names of black and female citizens
in the county, supplemented the jury
lists with the names of black and
female citizens not found on the voter
registration lists. The ratio of
blacks and females on the revised list
was more statistically in line with
the population breakdown reported in
the 1970 census. Advising the
district court that they intended to

continue using procedures which

61

faciliated proper representation of
blacks and females on future jury
lists, the plaintiff class
acknowledged their satisfaction.
{15} The facts established in

Jones v. Brooks indicate the amount of

minority representation in the grand
and petit jury pools in Walton County
at the time Goodwin was indicted and
tried. According to the 1970 census
report, 27.7% of the Walton County
population were black and 52.4% were
female. Of the thirty grand jurors
summoned in February, 1975, the term
in which Goodwin was indicted, twenty
were white males (66.7%), two were
black males (6.7%), and eight were
white females (26.7%). Of the 108

people summoned for criminal jury duty

62

in August, 1975, the month of
Goodwin's trial, ninety-eight were
white (90.7%), ten were black (9.3%),
eighty-three were male (76.85%), and
twenty-five were female (23.5%). Thus,
the disparity between the female
population of Walton County and those
on the grand jury list was 25.7% and
29.25% with respect to the petit jury
list. The disparity between the black
population of Walton County and those
on the grand jury list was 21%,
whereas an 18.44% disparity existed
with respect to the percentage of

blacks on the petit jury list.?4

14 More difficult to discern is the
number of blacks on Goodwin's trial
jury. Goodwin's trial counsel
testified in the state habeas corpus
proceeding that he recalled only one
black on the jury. Goodwin's

63

In Castaneda v. Partida, 430 U.s.

482, 97 S.Ct. 1272, 51 L.Ed.2d 498
(1977), the Supreme Court reiterated
the requirements for proving
discrimination in grand jury selection
within the context of an equal
protection argument. Drawing support
from earlier cases, the Court

summarized the process:

Thus, in order to show that an
equal protection violation has
occurred in the context of grand
jury selection, the defendant must
show that the procedure employed

co-counsel remembered one or two
blacks being on the jury. The
district attorney's recollection
placed three blacks on Goodwin's

jury. From our examination of the
record, we can only be certain that of
the twelve jurors, at least nine were
white.

64

resulted in substantial
underrepresentation of his race or
of the identifiable group to which
he belongs. The first step is to
establish that the group is one
that is a recognizable, distinct
class, singled out for different
treatment under the laws, as
written or as applied. . . .Next,
the degree of underrepresentation
must be proved, by comparing the
proportion of the group in the
total population to the proportion
called to serve as grand jurors,
over a significant period of
trime. . .. Finally, as noted
above, a selection procedure that
is susceptible of abuse or is not
racially neutral supports that
presumption of discrimination
raised by the statistical

showing. . . . Once the defendant
has shown substantial
underrepresentation of his group,
he has made out a prima facie case
of discriminatory purpose, and the
burden then shifts to the State to
rebut the case.

Castaneda, 430 U.S. at 494-95, 97

S.Ct. at 1280 (citations omitted).

The record through the statistics

adduced in Jones v. Brooks and those

65

prepared by Goodwin in connection with
his habeas corpus petition in state
court, indicates that a prima facie
case of discrimination in grand jury
selection, violative of the equal
protection clasue of trhe fourteenth
amendment, could have been
established, and in the absence of a
showing of no discriminatory intent by
the state, relief would have been
granted. It is undisputed that women
and blacks are a recognizable,
distinct class under the first element
of the prima facie tested. United

States v. Perez-Hernandez, 672 F.2d

1380, 1387 (llth Cir. 1982).
Moreover, the statistics disclose
racial and gender disparities existing

in Walton County juries over a

66

Significant period of time, and

therefore satisfy the second criteria

of disproportionate representation. >

15 According to Goodwin's
Statistics, of the potential] jurors in
the 1971 Walton County petit jury
pool, 1,219 or 74.47% werre white, 153
or 9.4% were black, and 265 or 16.2%
were unidentified. Of this number,
1,349 or 78.8% were male, and 362 or
21.2% were female. With the
unidentified persons as to race not
distributed, the disparity for black
representation on the 1971 petit jury
pool was 66%. When the 265
unidentified persons are distributed
according to race based on the census
ratio for the county, the disparity
for black representation was 49%. The
disparity for female representation in
the 1971 petit jury pool was 31.4%.
The same classifications for the
potential jurors in the 1973 Walton
County petit jury pool indicate that
of the 1,090 summoned, 808 or 74.2%
were white, 189 or 17.3% were black
and ninety-three or 8.5% were
unidentified. Of this amount, 568 or
52.1% were male and 522 or 47.9% were
female. The disparity for black

67

The Supreme Court has never fashioned
precise guidelines for gauging
disparate representaiton. See

Alexander v. Louisiana, 405 U.S. 625,

630, 92 S.Ct. 1221, 1225, 31 L.Ed.2d
536 (1972). Nevertheless, Supreme
Court and former Fifth Circuit

precedent provide some guidance as to

representation in 1973 was 10.4%, with
the unidentified persons as to race
not distributed. The disparity for
black representation was 7.7% when the
unidentified are distributed according
to race based on the 1970 census ratio
for Walton County. The female
disparity for the time period was
4.5%. In Jones v. Brooks, the
district cOurt’sS Order eStablishes
that of the 407 potential jurors
summoned over the period beginning
August, 1974, through August, 1975,
358 or 87.96% were white, forty-nine
or 12.04% were black, 301 or 73.96%
were male, and 106 or 26.04% were
female.

68

the magnitude of disparity needed to
establish a prima facie
underrepresentation claim. The
variance here is sufficiently
disproportionate to fall within the
approximate boundaries delineated in
those cases holding that statistical
disparities establish prima facie

violations. See, e.g., Hernandez v.

Texas, 3247 U.S. 745, 74 S.Ct. 667, 98

L.Ed. 866 (1954) (14%); Preston v.

Mandeville, 428 F.2d 1392 (5th Cir.

(1970) (13.3%). Finally, as the

outcome of Jones v. Brooks indicates,

the selection procedure utilized by
Walton County officials prior to and
at the time of Goodwin's trial was
susceptible to abuse. The county

officials, in effect, conceded the

69

racial inequalities in their system
and took action to correct the

imbalance.

To excuse Goodwin's failure to
timely challenge the composition of
the grand and petit jury pools at this
late day, the cause and prejudice

requirements of Francis v. Hendedson,

425 U.S. 536, 96 S.Ct. 1708, 48
L.Ed.2d 149 (1976), must be
satisfied. The state maintains that
Goodwin has demonstrated neither the
cause of, nor the prejudice resulting
from this inaction. In Francis, the
Supreme Court held that where a state
prisoner fails to make a timely
challenge to the composition of the

grand jury that indicted him and his

70

right to do so has been waived under
State law, he can collaterally attack
the unconstitutional composition in
federal court only if he can show both
cause for failing to make the
challenge and actual prejudice
resulting therefrom. 425 U.S. at 542,
96 S.Ct. at 1711. Applying the state
law in effect at the time of Goodwin's
trial as directed by the Francis
Court, failure to raise any objection
to the composition of the grand or
petit jury at or before trial
constitutes a waiver of the right to
challenge the composition of those

juries. +® Because Goodwin

16 Ga. Code Ann. § 50-127(1)
was amended by 1975 Ga.Laws 1143 and
became effective April 24, 1975,
approximately four

71

waived his right to challenge the
composition of the grand and petit
juries under state law, normal
procedure would require us to
determine whether he has demonstrated
both cause and actual prejudice.

Goodwin, however, argues that the

months before Goodwin's trial. The
section reads in pertinent part:

The right to object to the
composition of the grand or
traverse jury will be deemed
waived under this Section, unless
the person challenging the
sentence shows in the petition and
satisfieies the court that cause
exists for his being allowed to
pursue the objection after the
conviction and sentence has
otherwise become final.

Prior to amendment, confusion existed
as to whether the right to challenge
grand and petit jury composition in a
collateral proceeding was available,
given the petitioner's failure to do
so before trial. See Stewart v.
Ricketts, 451 F.Supp. 911 (M.D.Ga.1978)

72

state's reliance upon Francis v.

Henderson is misplaced and explains

that his argument attacking the
alleged unconstitutional composition
of the juries was not raised as a
substantive issue. Rather, Goodwin
stresses that the argument is an
element asserted for the purpose of
bolstering his claim of ineffective
assistance of counsel.

{16} Accordingly, Goodwin does
not assert the merits of this argument
in an attempt to seek relief

thereunder. ~”

17 Because of this position,
Goodwin has made no effort to
demonstrate cause and prejudice as
mandated by Francis v. Henderson.
Nevertheless, a plausible argument can
be asserted that, in fact, both the
cause of the waiver and the prejudice
resulting therefrom exist in the

73

instant case. The cause for the
failure to make the timely challenge
is evidenced by the testimony of trial
counsel adduced in the state habeas
corpus proceeding. Trial counsel
filed no object to the composition of
the grand and petit jury lists because
he was a “native” of that part of the
country, and just “didn't think about
the thing." Moreover, the reason for
making known his appointed status -
concerns over his reputation - was
again cited as a reason for not
challenging the jury. This is not the
kind of hollow claim alleged in
Lumpkin v. Ricketts, 551 F.2d 680
(sth Cir. 1977). Faced with a bare
allegation of ineffective assistance
of counse as the cause for failure to
challenge a grand jury's composition,
the Lumpkin court refused to sanction
such a meager contention as
demonstrating a legitimate cause. 551
F.2d at 682-83. The argument in
Goodwin's case, however, draws its
support from the testimony of the
individual whose duty it was to
investigate the propriety of such a
challenge. As for the wavier's
prejudicial effects, the statistics
reveal that a prima facie case of
discriminatory purpose in the grand
inury selection process could have
been established. Goodwin would not
necessarily have prevailed in such a
case, but enough evidence could have
been produced in order to shift the
burden to the State.

In Lumpkin v. Ricketts, the
petitioner assigned error to the

74

district court's determination finding
a waiver of the right under state law
to contest the constitutionality of
the composition of the grand jury that
indicted him. Primarily concerned
with the allegation that the right had
not been waived under state law, the
former Fifth Circuit relied on Georgia
case law existing at the time of the
petitioner's trial to hold that a
failure to challenge the grand jury
arcay before trial resulted ina
waiver. See, e.g., Dennis v. Hopper,
548 F.2d 589 F.2d (Sth Cir. 1977);
Blevins v. State, 220 Ga. 720, 141
S.E.2d 426 (1965). Thus, the court
next addressed the question of whether
cause and prejudice had been
deomonstrated. The petitioner
contended that his indictment was the
product of a venire that suffered from
the same defect disapproved by the
Supreme Court in Whitus v. Georgia,
385 U.S. 545 897 S.Ct. 643, 17 L.Ed. 2d
599 (1967). The court rejected this
contention and noted that prior to
trial, counsel for both parties had
agreed on the identity of the grand
jury pool. 551 F.2d at 682 n.3. As
alluded to above, petitioner claimed
sufficient cause for the failure was
present in his trial counsel's
ineffective representation. The facts
disclosing the existence of cause and
the prejudice in the instant case
undeniably form a more legitimate
basis for examining the jury
discrimination issue than those
advanced in Lumpkin.

75

Moreover, the State of Georgia has
never had the opportunity to rebut
Geoodwin's apparently prima facie
case. For these reasons, we refuse to
grant substantive relief on this
claim. We address the merits however,
within the framework of Goodwin's
sixth amendment allgation as
representing an example of trial
counsel's ineffective assistance.
Combined with trial counsel's other
failings discussed herein, his reasons
for not challenging the composition of
the grand and petit juries reveal the
assistance he was “reasonably likely"
to render. We disagree with the
state's interpretation of trial
counsel's testimony as indicating "a

conscientious and studied decision not

76

to file a jury challenge." On the
contrary, we view trial counsel
assertions as indicating a divided
allegiance. These assertions exhibit
the lack of vitality attributed to
Goodwin's defense and strongly suggest
the location of his loyalties. Our
adversarial system of justice will be
quickly eroded if attitudes such as
the one evinced by Goodwin's trial
counsel are allowed to dictate when
action on behalf of an accused is to

be undertaken.

2. The Failure to Interview
Crucial Witnesses

In this capital murder case,
Goodwin's trial counsel failed to

interview at least five prosecution

77

witnesses who testified at trial.
Among the five were the deputy whotook
Goodwin from his home in the early
morning hours, the victim's sister,
and three other witnesses, all of whom
entered incriminating statements
against Goodwin. Deputy Nathaniel
Rakestraw testified at trial that he
met with another deputy. Livingston
O'Kelly, the evening before Goodwin
was taken to the station house.
Rakestraw explained why he went to

Goodwin's house.

Q. All right. Where were you
when you got that information?

A. I was at the shopping center
- I met Deputy O'Kelly out
there at the shopping center.

Q. All right. And what

information did he give you
concerning the defendant?

78

A. He told me that a lady had

told him that she was walking
past a bunch of boys in a
group talking and Terry
Goodwin was one of them. And
she heard him make the
statement he had killed a man
and left him down near Social
Circle.

Acting on this information, Rakestraw

then went to Goodwin's residence and

brought him in for questioning.

In the state habeas corpus
proceeding, trial counsel stated that
these deputies were never interviewed
because the files containing their
statements were made available to him
by the sheriff of Walton County and by
the prosecution. Hence, he saw no
need to challenge them. Deputy

O'Kelly was not called upon to testify

79

at trial. Counsel confirmed this in
response to questioning by Goodwin's
state habeas corpus counsel.

Q. Okay. Do you remember
whether or not you talked to
an Officer O'Kelly?

A. I don't believe I interviewed
him, no. I know O'Kelly very
well. He's deputy sheriff.
If I remember correctly, that
may be the one that Goodwin
was supposed to - some woman
told O'Kelly that Goodwin had
said that he committed this

crime.
xx«e*te«eek

Q. But you did not talk to
Officer Rakestraw?

A. I don't recall it.

Q. Okay. Did you talk to office
[sic] O'Kelly? You may have
already answered this. Did
you talk to O'Kelly about
this case?

A. I don't remember.

Q. Do you think that you
probably did?

A. I talked to him yeah. I

didn't have any formal
interview that I can remember.

80

x*ke** tk
Q. Okay. How did you find out

that Officer O'Kelly had
talked to a woman about it?
A. One of the deputies told me.
Q. Who was that that told you?
A. I don't remember that.
Q. Did you find out the name of
the woman that had told
Officer O'Kelly?

A. I never did learn that.

Ed Mitchell, a listed potential
prosecution witness who testified at
trial, was not interviewed. While
visiting Mitchell at his home some two
weeks before the killing, Mitchell
Claimed that Goodwin, without
provocation or apparent reason,
impetuously remarked "I oughta kill
somebody and take their car."

Mitchell testified that he considered

Goodwin to be kidding, and did not pay

81

much attention to the statement. As

for Mitchell's testimony, trial

counsel thought it unnecessary

tochallenge its veracity. He explains:

Q.

Let's get over to some of
those other witnesses that
testified. One of the black
boys you talked about, I
believe, was Ed Mitchell?

Yeah, he testified at trial.

Were you able to talk to him
prior to trial?

No.

Was he on their list of
witnesses that you were given
from the state as a potential
prosecution witness?

I think he was.

Okay. Now, he made a ratner,
if I remember, a rather
damaging statement at trial.
I believe tnat it was to the
effect that he -

Told him he was going -
Terry had told him that he

was going to kill and rob
some boy that operated the

82

Q.

Q.

pool hall. When did you
first find out that Mitchell
was going to testify to that?

I think I read his statement
in the police files, in the

Geputy sheriff's office.
x * * *

Okay. In Mitchell's written
statement that you saw - I
believe you said that this
was part of the statement the
DA turned over to you, you
were able to see?

They made it available to
me. I didn't take copies of
it, but I read them.

In that statement, did
Mitchell say that Terry had
said what he testified to at
trial?

Yes.

Why didn't you go out and
talk to Mitchell about that
Statement prior to trial?

I didn't think it was
necessary.

Do you think that Mitchell

had any ulterior motive in
testifying to the police?

83

[District attorney]: Object to
that. I think it's just
speculation

THE WITNESS: I couldn't say. I
never believed any of them,
any of those colored boys,
because it seemed like,
appeared at the time, that
they were doing that to help
themselves with the sheriff.

Trial counsel also did not

interview Benny Cooper, a listed
potential prosecution witness whose
testimony placed Goodwin at the scene
of the crime the afternoon after the
killing. Cooper explained that while
traveling on his employer's bus, the
driver stopped to pick up a hitchhiker
near the dirt road where the victim's
body was later discovered. At the
courthouse the following day, Cooper

told Sheriff Franklin Thornton that

his bus had picked up a hitchhiker

84

along the side of the particular

road. Thornton then showed Cooper a
photograph of Goodwin and asked Cooper
if this was the hitchhiker. Cooper
answered affirmatively. He also made
an in-court identification of Goodwin
as the hitchhiker. Regarding Cooper's
testimony and his damaging
identifications, trial counsel again
thought it unnecessary to raise any

doubts.

Q. Did you interview Benny
Cooper?

A. No.

Q. My recollection of the
transcript is that Mr.
Cooper, when he was there in
the police station, said that
he'd seen a man out on the
road, and the sheriff handed
him a picture and said, ‘Is
this the man that you saw?'
Did you consider filing a

motion to challenge the
procedure that that
identification was made by?

No.
Why not?

I didn't think it was
necessary.
Did you think it would lose?

Huh?

Did you think it wouldn't be
a successful motion?

Well, I didn't think that the
testimony, as he gave it was
important enough to make any
objections to it.

(The prosecuting attorney]
thought it was important
enough to use in the trial,
use in his closing argument?

Yea, that's right. Course,
I'll tell you how I am about
things like that. Unless I
think they'll accomplish
something, I don't make an
objection. Course I know as
fac as you fellows are
concerned, that's very
important but the only thing
that I seriously tried to get
thrown out was the
confession, which, if I have

87

been successful in that,
they'd have never had a
conviction. The evidence
they gathered from that
confession --
Trial counsel indicated in his state
habeas corpus deposition that, in his
opinion, Mitchell and Cooper were
"“snitches," informants for the
sheriff's department in return for
leniency in other crimes or
investigations. His opinion was based
upon what deputies had told him. He
characterized the witnesses as
unreliable, capable of fabricating a
story to remain in good standing with

the law. No effort, however, was made

to question their versions.

Q. Do you share my feelings that
those little tidbits seem to
be a little bit too pat?

A.

And, if so, what did you do
to find out whether or not
they were fabricated or
placed in someone's ear?

Well, actually, I didn't know
definitely before we went to
trial what they were going to
testify to. I knew the
association, and I knew of no

way to counteract that.
oe 8.8 8.9

Do you think that these were
crucial? Do you think that
these statements were, in
your opinion, were crucial in
terms of the conviction for
robbery? .

No, no. I still don't think
he robbed him. And I don't
think they proved it.

But you don't think that the
statements that he was going
to rob somebody were crucial
in the conviction of the
robbery?

No, I don't. I think it was
just bragging to his buddies,
is what I thought at that
time; still believe it.

But you made no effort
personally to contact any of
these people?

No.

89

3. Failure to Effectively challenge the
Events trhough which Goodwin was

Brought into Custody

Upon receiving the information
from deputy O'Kelly, deputy
Rakestraw,accompanied by Deputy
Wiggams, went to Goodwin's home. When
he arrived sometime after midnight,
Goodwin's mother answered the door and
let Rakestraw in. On
cross-examination at trial, Rakestraw

explained the situation this way:

Q. Okay. Now when you knocked
on the door, did you tell
Mrs. Goodwin what you wanted?

A. She first asked who it was,
and I told her the deputy
sheriff.

Q. When she opened the door?

A. Right.

90

Q.

You went in. Where was Terry?

He was in the back bedroom,
in bed.

Was he undressed?

Yes, sir.

Did you tell him to get up
and get dressed.

I told him....

What did you tell him? Just
teil me what you told him,

I told Terry I wanted to talk
to him down to the office, to
get up and get his clothes on.
And did he not ask you what
you wanted to talk with him
about?

No, Sit.

You did not have a warrant?
No, Sir.

Is it customary to go out to
people's houses without a
warrant or without seeing
some crime committed and go
in?

Well I was invited in.

You were invited in?

91

A. Plus, I wasn't suspect of
anything.

Rakestraw Claims that he did not
arrest or intend to arrest Goodwin at
the time, rather, he was a suspect in
the case and he accompanied him
willingly to the sheriff's office.
Goodwin was taken to another deputy
who advised him of his rights.
Although Goodwin was subsequently
transferred to different offices, he
remained in the custody of sheriff's
deputies until his confession wa

obtained on Saturday evening.

Goodwin now contends that
Rakestraw's statement was not merely a
request to accompany the deputy for

guestioning. To the contrary, Goodwin

92

asserts that at the moment deputy
Rakestraw told him "to get up and get
your clothes on" he was under
arrest,and because probable cause did
not exist to support it, the arrest
was illegal. Goodwin further claims
that the state has the burden of
proving voluntary consent and the
testimony of the seizing officer in no

way satisfies this burden.

According to Goodwin's trial
counsel, the defensive strategy was
two-pronged: The first objective was
to suppress the confession and failing
that, to obtain a life sentence.
Attempts to bargain for a plea were
halted when trial counsel learned that

the district attorney was steadfastly

93

seeking the death penalty. On the day
of trial, trial counsel attacked
Goodwin's confession by filing a
broadly worded motion to suppress.

The motion was framed in a manner so
as to challenge deputy Rakestraw's
actions as constituting an illegal
arrest. The motion states: “On the
12th day of April, 1975, at about 2:00
a.m., defendant was rousted from his
bed at home and arrested by deputies
Rakestraw and Palmer without warrant
and carried to the Walton County
Sheriff's Office." In his argument in
support of the motion to suppress,
trial counsel never proceeded with the
theory that the circumstances amounted
to an illgal arrest and in denying the

motion, the trial court made no

94

specific finding as to whether Goodwin
was illegally arrested or as to the
existence of probable cause.
Similarly, on appeal to the Georgia
Supreme Court, Goodwin's trial counsel
did not enumerate as error the
admission of the contession because of
an illegal arrest, rather, he asserted
that Goodwin's mental capacity
effectively prevented him from
knowingly waiving his rights. Goodwin
asserts a number of reasons why no
challenge to the deputies’ actions was
taken, all of which are supported by
the record. Because trial counsel
never interviewed deputy Rakestraw,
the deputy who took Goodwin to the
sheriff's office, trial counsel never

learned how the deputies obtained

95

sufficient information to arrest him
nor did he find out the name of the
person who allegedly told deputy
O'Kelly the contents of the
conversation she had overheard.
Moreoever, trial counsel was unaware
that under the parameters of the
poisonous tree doctrine, an illegal
arrest may affect the admissibility of
a subsequent confession. Trial
counsel's response to questioning
regarding this issue in the state
habeas corpus proceeding is

enlightening:

Q. Okay. Did you think back on
the case and what you knew
about it, do you think that
the arrest was a legal arrest?

A. No, I =

(District attorney]: Object.

96

Q.

THE WITNESS: I don't really

What

A.

believe that.
do you base that opinion on?

Well, to get the warrant in
the first place, they had to
have a reasonable ground to
believe that he was involved
in it. And I never did think
that they had that. I never
had found out how they,
except for the so called
statement by O'Kelly and the
other officer that this woman

Rakestraw?

Rakestraw, yeah. I never did
know how they really got out
there to get into his house
and pick him up.

You never found out how they
got enough information to go
out and arrest him in the
first place?

Yeah, that's right.

Now, what you're talking
about is when they went out,
I believe it was like
twelve-thirty in the morning
on the 12th.

That's right.

97

Explain that a little bit.
What do you mean, you never
found out?

Well, they kept talking about
the telephone calls-

Right.

-and tracing them out to

him. They never, at any time
did they ever identify,
positively identify, that it
was Goodwin.

That it was Terry?

But they must of had some
information, because he
admitted it.

What efforts did you make to
try to get the information?

No more than asking the
deputies and the officers how
they happened to go out there.

eo ' 8 ROOF

Are you familiar with the
Wong Sun case?

The what?

Wong Sun v. United States,

No.

Never heard of that case?

98

A. No, I haven't.
Q. Are you familiar with the doctrine
of the Fruit of the Poisonous Tree?

A. Yes, I know that. In fact
[defense co-counsel]} in his,
1 believe in arguing before
the jury, he brought that
out. I've got a bad memory
in late years.

Q. You said before that you
thight that the arrest was
illegal?

A. Yes.

Q. Do you think, in your
professional opinion, under
the doctrine of poisonous
triee, that might have nad an
effect on the admissibility
of the confession.?

A. No, sir.

Q. I'm sorry?

A. No, sir.

In Wong Sun v. United States, 371 U.S.

471, 83 S.Ct. 407, 9 L.Ed.2d 441
(1963), the Supreme Court, expounding

on the contours of the exclusionary

99

rule, declared that the rule not only
prohibited from use at trial tangible
evidence obtained as a direct result
of an unlawful invasion, but barred
the use of verbal statements by the
accused as well. 317 U.S. at 485, 83
S.Ct. at 416. "Thus, verbal evidence
which derives so immediately from an
unlawful entry and an unauthorized
arrest. . . is no less the ‘fruit’ of
official illegality than the more
common tangible fruits of the
unwarranted intrusion." 317 U.S. at
485-86, 83 S.Ct. 416 (footnote
omitted). According to Goodwin, this
lack of understanding of the legal
principles set out in Wong Sunmostly

likely explains trial counsel's

100

inaction. 2°

4. Other Failings by Trial Counsel

Goodwin enumerates other instances
where he claims trial counsel's
actions or inactions fell below the
requisite standard. He cites as
ineffective assistance his counsel's
failure to object at trial and on
motion for new trial and on appeal the
improper exclusion of veniremen in

violation of Witherspoon v. Illinois,

18 In his argument to the trial
court on Goodwin's motion to supress
evidence obtained from the search
warrant, co-counsel stated "that under
the rules of the fruit of the poison
tree doctrine, 371 U.S. 471, 83 S.Ct.
407, 9 L.Ed.2d 441, all testimony
concerning these articles is, as well
as the articles themselves, should be
scratched." Obviously, co-counsel was
aware of the Wong Sun_ decision; he
did not understand, however, its
reasoning and proper application
regarding the suppression of evidence
obtained via an illegal arrest.

101

391 U.S. 510, 88 S.Ct. 1770, 20
L.Ed.2d 776 (1968). During voir dire,
the veniremen were asked collectively
if they conscientiously opposed
capital punishment, and, if so, to
stand up. Four veniremen stood up.
The district attorney then asked these
four, “Are your reservations about
capital punishment such that you could
not vote truly and fairly and
impartially on the issue of whether or
not a person charged is guilty or not
guilty of the crime charged? If so,
raise your hand.“ Mr. Hayes
responded, “Well I could not vote."
The district attorney then stated,
"Could not vote at all? Your honor,
it appears that Mr. Hayes and Ms,

Malcom are disqualified." The trial

102

court agreed and directed Hayes and
Malcolm to take a seat in the
courtroom. When Goodwin's trial
counsel asked permission to ask
questions of Hayes and Malcom, the
trial court informed counsel they had
been disqualified. Trial counsel then
asked, "Did they say they were
unalterably opposed to capital
punishment?" The trial court replied
affirmatively. Notably absent,
however, is any statement from the
mouth of Ms. Malcom regarding her
reservations about capital
punishment. She was never asked to

explain her position.

{17} The Supreme Court's mandate

in Witherspoon is well known. It

103

teaches that "(ujnless a venireman
states unambiguously that he would
automatically vote against the
imposition of capital punishment no
matter what the trial might reveal, it
simply cannot be assumed that that is
his position." 391 U.S. at 515 n.9,
88 S.Ct. at 1773 n.9(emphasis added).
The state may validly implement the
sentence of death only where the

jury from which the only veniremen

who were in fact excluded for

cause were those who made
unmistakably clear (1) that they

would automatically vote against
the imposition of capital

punishment without regard to any
evidence that might be developed
at the trial of the case before
themn, or (2) that their attitude
toward the death penlty would
prevent them from making an
impartial decision as to the
defendant's guilt.

391 U.S. at 522 n.21, 88 S.Ct. at 1771

104

n.2l1 (emphasis in original). A
raising of the hands fails to satisfy

Witherspoon's calling for an

unambiguous statement on the question
of whether a venireman “would
automatically vote against the
imposition of capital punishment no
matter what the trial might

reveal. . .." 391 U.S. at 516 N.9.
The law in this circuit demands strict

adherence to Witherspoon's

requirements. See, e.g., Granviel v.

Estelle, 655 F.2d 673 (Sth Cir. 1981);

Burns v. Estelle, 626 F.2d 396 (5th

Cir. 1980) (en banc).

In its consideration of this
issue, the district court adopted the
proposed finding of the magistrate

which concluded that Malcom had made

105

it unmistakably clear that her

attitude toward the death penalty

would have prevented her from making

an impartial decision as to Goodwin's

guilt or innocense. Trial counsel

offered the following explanation at

the state habeas corpus hearing as to

why no objection to Malcom's removal

was filed.

Q.

Now, as a result of those
proceedings there were, I
believe, four jurors
disqualified.

Disqualified, I think so.
Three men and a woman.

Alright. And you did not
object to their
disqualification. I want to

know why.

Because they said they were
unalterably opposed,

Okay.

106

A.

A.

According to my question,

Did you object to the judge's
not allowing you to question
them to rehabilitate them?

No, not after they made the
statement.

But you wanted to ask them a
few questions to rehabilitate
them?

I didn't understand what they
said, was the reason I was
asking them.

I see. Is it your legal
opinion that you could or
could not, that you should or
should not, have an ability
to rehabilitate the jurors?

Not after they made the
statement.

It's your legal opinion that
you have to right to
rehailitate the jurors?

[District attorney]: I
object to that.

THE WITNESS: I don't think so, no

Q.

Sir.

Some of these people didn't
make a statement at all, they
just raised their hand or

stood up.

107

A.

Q.
A.

SS 8-R SF

The only one I remember on my
reading that, was the woman
that didn't answer the
question.

What about her?

I don't know about her. At
that time if she didn't, I
didn't catch it. But after
reading what you read there
while ago, it seemed that she
didn't make any statement.
Did you want to question her?

No, not after the judge said
what he did.

You thought that barred you
from asking any questions?

No, it didn't bar me, but I
didn't see any necessity. If
they'd make the statement
that they were unalterably
opposed to it and there
wasn't any changing their
minds, why, I didn't see what
I'd accomplish by going on
and doing it further.

Trial counsel was unaware that Malcom

had not affirmatively stated her

108

position on capital punishment. When
questioned if he had noticed the
Malcom omission upon review of the
trial transcript in preparation of the
motion for a new trial and direct
appeal, trial counsel informed that
his co-counsel reviewed the transcript

for Witherspoon violations.

Co-counsel testified that he did not

review the transcript for Witherspoon

violations.

In short, trial counsel simply
failed to notice that Malcom never
affirmatively stated her unalterable
opposition to the death penalty,
hence, no objection to her excusal was
entered. Complete fault, however,

cannot be placed upon trial counsel

109

because of the apparent obstruction by
the trial court in refusing the
request to question the excluded
veniremen further. Contrary to the
trial court's statement, Malcom did
not say she was unalterably opposed to
capital punishment. Nevertheless,
this glaring omission in the record
was not discovered in the
investigation and preparation of
Goodwin's motion for a new trial and

subsegent appeal.

Among the other instances where
Goodwin contends counsel was
ineffective during his trial, he cites
his trial counsel's failure to object
to the victim's family being allowed

to sit inside the bar of the court.

110

Trial counsel explains why no

objection was raised.

Q. Can you tell us where the
Studdard family sat during
the trial?

A. Inside the rail, right back
of defense counsel's table,

A. Approximately how far is that
from thge jury?

x~kek*kitk

A. It would be twenty, twenty or

twenty-five feet. Maybe not
that much, Well, you know

where the jury was.

zx ekek

Q. Did you object to that
procedure?

A. No, I didn't object to it.
Q. Why not?

A. I didn't think it was
important.

111

Trial counsel failed to object to
the trial court's failure to charge
the jury on mitigating circumstances
as required by Ga. Code Ann,

§ 27-2534(b). See footnote 6.
Moreover, trial counsel failed to
request a charge on Goodwin's
diminished capacity, the focal point
of the entire defense. No explanation
was give why such a request was not
tendered to the trial court. Trial
counsel also failed to object to the
admission of Goodwin's prior
conviction records for forges, which
were introduced during the penalty
phase of the trial. By statute in
Georgia, evidence of prior criminal
convictions are admissible in the

penalty phase provided the state has

112

informed the defendant of its
intention to use such evidence. Ga.
Code Ann. § 27-2503(a),(b). For
purposes of the motion to suppress the
confession hearing only, the district
attorney introduced records of
Goodwin's 1974 forgery convictions in
an attempt to demonstrate Goodwin's
ability to knowingly and intelligently
waive his rights as he had allegedly
done in conjunction with the 1974
convictions. Goodwin's trial counsel
did not object to their
introductions.The records were labeled
State's exhibits number twenty-nine
and thirty. Later, in the sentencing
phase, the district attorney tendered
into evidence for the pupose of the

trial the conviction records. Defense

113

counsel did not object. The record is
devoid of any document giving notice
of the intention to introduce the
prior conviction records at the
presentencing hearing. The record
does reflect, however, that in the
forgery convictions, Goodwin was
represented by one of the two
attorneys appointed to represent him
in the murder trial in question.
Obviously then, his trial counsel was
well aware of the prior convictions.
Awareness, however, is not tantamount
to knowledge of the state's intended
reliance upon those convictions as

evidence in aggravation. See Gates v.

State, 229 Ga. 796, 194 S.E.2d 412
(1972).

114

Trial counsel failed to object on
more than one occasion to the
prosecution's use of leading
questions. A conspicuous example: "Do
you recall having any conversation
with Terry Goodwin concerning a
robbery or asics prior to the time
this man [the victim] got [sic]
missing?" The witness asked the
prosecutor to repeat the question,
which he did. The witness answered
affirmatively. Queried if he thought
this was a fairly leading question,
trial counsel thought so but did not
object because, in his opinion,
thewitness was of low intelligence.
No evidence was ever presented as to

the intelligence of this witness nor

115

did defense counsel use
cross-examination to reveal that the
witness's intelligence was other than

normal,

D. Goodwin's Trial Counsel

Rendered Ineffective
Assistance

{18} Adopting the recommendation
of the magistrate, the district court
concluded that Goodwin's two trial
attorneys provided reasonably
effective assistance of counsel
throughout all phases of his trial.
We disagree. Assessing the
effectiveness of trial counsel by the
standards set forth herein, we hold
that trial counsel fell below that

level of effectiveness mandated by the

116

interpretation of the sixth amendment
right. Our examination of the areas
in which Goodwin contends his counsel
provided ineffective assistance
compels us to conclude that this
counsel was not reasonably likely to

render, and did not render, reasonably

effective assistance. MacKenna v.
Ellis, 280 F.2d 592, 599 (Sth Cir.

1960), adhered to in pertinent part on

rehearing en banc, 289 F.2d 928 (5th

Cir.), cert. denied, 368 U.S. 988, 82

S.Ct. 121, 7 L.Ed.2d 78 (1961). In
the totality of circumstances of this
case, counsel's lack of investigation
and general attitude, when taken
together, deprived Goodwin of the
zealous representation due any client,

even those accused of committing

117

atrocious acts. Trial counsel
neglected an examination of the grand
and petit jury selection procedures in
Walton County at the time in
question. Such an exmaintion would
have revealed glaring disparities in
racial and gender representation,
Additionally, trial counsel failed to
make an informed evaluation of a
potential defense, namely, that
Goodwin was illegally arrested. see

Gaines v. Hopper, 575 F.2d at 1149-50

(habeas corpus relief proper where
failure to investigate deprived
petitioner of defense otherwise
assertable). By his own admission,
trial counsel's lack of investigation
into the circumstances surrounding the

taking of Goodwin from his bedroom

118

prevented an evaluation as to the
existence of probable cause. On
behalf of Goodwin's defense, we glean
from the record that trial counsel
interviewed Goodwin at least five
times prior to trial. Co-counsel
visited the scene of the crime on two
occasions. Attempts to plea bargain
with the district attorney proved
unsuccessful. Pre-trial motions to
quash the indictment and supress the
confession and evidence obtained from
the search of Goodwin's home were
filed. At one point, trial counsel
considered filing a motion requesting
a change of venue but ultimately
decided otherwise. Counsel filed a
timely motion for new trial and, upon

its denial, argued Goodwin's appeal in

119

the Georgia Supreme Court. When
counsel's performance is placed in the
balance of the entire record, however,
we can only conclude that his failures
were grossly disproportionate to the
positive aspects of his representation
and in our view amounted to

ineffective assistance.

[19-20] Finding the assistance
rendered by Goodwin's trial counsel
constitutionally inadequate does not

complete the inquiry. As Washington

v. Watkins emphasizes, "(t]he law of

[the former Fifth Circuit) is as yet
unclear as to the precise degree of
prejudice that a defendant must
demonstrate before he is entitled to

habeas corpus relief on grounds that

120

he received ineffective assistance of
counsel, although it is clear that
some degree of prejudice must be
shown.” 655 F.2d at 1364 (footnote
omitted, emphasis in original) .)?
Goodwin maintains that a sufficient

degree of prejudice flows from

19 See Washington v. Watkins,
655 F.2d at 1362 n.32 and cases cited
therein. The obscurity surrounding
the prejudice aspect of ineffective
assistance claims should soon be
clarified by this court sitting en
banc. We note that the issue of the
degree of prejudice which must be
demonstrated in an ineffective
assistance of counsel case is involved
in the case of Washington v.
Strickland, 673 F.2d 879 (5th Cir.

n B) which was orally argued

before the en banc court on June 15,
1982. We need not await the decision
of the en banc court, however, because
we conclude in the instant case that
the prejudice is so obvious that a
sufficient degree of prejudice exists
under any standard that the en banc
court might adopt.

121

the existence of both a meritorious
grand jury discrimination claim and a
viable defense that went unheeded due
to the lack of investigation. Had
counsel investigated, Goodwin claims,
he would have discovered that at the
time Goodwin was considered under
arrest, no probable cause existed to
effectuate the seizure. The record
appears to bear Goodwin out. Sheriff
Franklin Thornton was asked during
cross-examination if he knew
personally or if his records indicated
when Goodwin was placed under arrest,
He testified that when the deputies
brought him from his home to the
sheriff's office, after midnight and
detained him in the jail, Goodwin was
counted as arrested. As noted

previously, it is Goodwin's contention

122

that he was under arrest for fourth
amendment purposes the monment deputy
Rakestraw told him to get up and get

dressed. “?

20Goodwin contends that the
circumstances in this case are
undistinguishable from those found in
Dunaway v. New York, 442 U.S. 200, 99
S.Ct. 2248, 60 L.Ed.2d 824 (1979). In
Dunaway, the Supreme Court was
confronted with a situation where
police officers acting on less than
probable cause located a suspect at a
neighbor's house. The officers then
took the suspect into custody and
although he was never told he was
under arrest, he would have been
restrained had he sought to leave.
While in custody and after Miranda
warnings, the suspect made”
incriminating statements Linking
himself to the crime. The Court held
that whether or not the seizure was
technically characterized as an
arrest, it was so indistinguishable
from a traditional arrest that it must
be supported by probable cause. 422
U.S. at 216, 99 S.Ct. at 2258.
Additionally, the Court concluded that

123

Rakestraw's decision to pick up
Goodwin was precipitated by deputy

O'Kelly's information concerning

the connection between the illegal
police activity and the incriminating
statements was not sufficiently
attenuated so as to permit their use
at trial. 422 U.S. at 219, 99 S.Ct.
at 2260.

Regarding Goodwin's factual
argument, he maintains, although he
has never testified as to its truth,
that a dispute exists as to whether he
accompanied the deputies willingly.
While the event as testified to by
deputy Rakestraw unquestionably lends
itself to such an inquiry, the
inadequacy of the record prevents us
from addressing this contention. No
deputy has testified whether Goodwin
would have been free to remain in bed
despite the statements made to him by
deputy Rakestraw. Accordingly, we
refrain from reaching the merits of
this factual claim.

124

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0511%3A1. Public record. Not legal advice.