Petition — Corn v. Zant

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na. Cunreme Court, US.

Office -sup

FILED

Nov 4 1983

ALEXANDER L STEVAS,

NO, RL

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

CHARLES THOMAS CORN,

Petitioner,

WALTER ZANT, WARDEN,

GEORGIA DIAGNOSTIC AND

CLASSIFICATION CENTER,

Respondent

PETITION FOR WRIT OF CERTIORARI

THE UNITED STATES COURT

FOR THE ELEVENTH CIRCUIT

APPEALS

RONALD J. ALLEN

University of Iowa

College of Law

Iowa City, Iowa 52242

353-3502

HAROLD A. MILLER, III

116 East Howard Avenue

Decatur, Georgia 30030

373-5515

COUNSEL FOR PETITIONER

be wos doen FREON ALRY

1 = “OURT'C TwemppticnrtroNe mr meee ee ——

} ( s S S } I

he WHhhisMit 4 VUU Na ne] ANDO IRULCLLIUNDS iV no vwuUuNL Ad

, TANEDIC MnATAT RAs asttemt r yTUAPrnuUTeerT: ap oT HeNEe m

FR's R \ FE ( Milt s VPER CCTR Ly ]

PETITIONER'S TRIAL FOE IURDER IMPERMISSIBLY SHIFTED THE

. DREN OT r PTO MuE pDemrmrTawer . vv mere r =f :

DURYEN Ul mvUuUs aU 46h FPHszsis sUVUNELe NR Ao + 2sinme Hooks 4 4A

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Vint AVUINO.

- mers ~pOD? c _ PIPIT TO? sI'L m=

(D) tig ARZA OF CUNSTITULION DURUEN OF

ARAAP HOoAMTAeariume Tay avis er Ar

I 1s 9) . Cc re }

PROOF REQUIRE! S IS IN NEED OF

AMMEOMT TON ny my sATIRT Nir =,

Ailsshni.isiUN BY COURT VU sav

—_ wnTerrms aC RERFOTIPNR NY

~ vib \ . A be + } y

440 AMDBDLGUIIL AS FERCLIVEYU b 4

met , AGI AAI TmMe

Lit OWF r c

THE LOWER JUNLO.

(E) THIS COURT HAS RECENTLY GRANTED

CERTIORARI IN

THE PRESENT CA ES

BUT IS INCONSI ITH

BELOW IN L CORDINGLY, THIS

COURT SHO G RTIORARI SET

THIS CASE T WiTH KOE °

ASSISTANCE OF COUNSEL WHERE HIS APPOINTED TRIAL COUNSEL

FAILED TO PRESENT AT THE SENTENCING PHASE OF TRIAL,

CRITICAL, AVAILABLE EVIDENCE IN MITIGATION OF SENTENCE.

TABLE OF CONTENTS

QUESTIONS PRESENTED . .. « « «© © © © © © © © © © © © «

CITATIONS TO GPINIONS BELOW ..... «2+ 6 © «© © © «

JURISDICTION . . 2. «© «© «© «© © «© © © © © © © © ©

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...

HOW THE ISSUES WERE RAISED BELOW ......+2+. -

STATEMENT OF THE CASE ... +. « «© © © © © © © © © © »

REASONS FOR GRANTING THE WRIT . «24. +s+«<s+-oe «

(A) THE HOLDING OF THE COURT BELOW IS

IN DIRECT CONFLICT WITH THE HOLDING

CF THIS COURT IN SANDSTROM v.

MONTANA, 442 U.S. 510 (1979).

(B) THE COURT SHOULD GRANT CERTIORARI IN

THIS CASE IN ORDER TO CLARIFY TWO

CRUCIAL AMBIGUITIES IN CONNECTICUT v.

JOHNSON, ___-U.S. __, 103 S.Ct. 969

(1983). DOING SO WILL ALSO PERMIT

THIS COURT TO RESOLVE A SIGNIFICANT

SPLIT IN THE LOWER COURTS CONCERNING

THE MEANING OF SANDSTROM v.MONTANA. . .

ENTIRETY CLEARLY INDICATES THAT THE

NSTRUCTIONS ARE VIRTUALLY INCOMPRE-

HENSIBLF, THUS NOT ONLY VIOLATIN

SANDSTROM'S MANDATE FORBIDDING

INSTRUCTIONS THAT COULD BE INTERPRETED

AS SHIFTING THE BURDEN OF PERSUASION,

BUT ALSO VIOLATING DEFENDANT'S DUE

PROCESS RIGHT TO COMPREHENSIBLE JURY

INSTRUCTIONS. THIS COURT SHOULD GRANT

CERTIORARI TO VINDICATE DEFENDANT'S

SANDSTROM RIGHTS AND HIS RIGHT TO

CCMPREHENSIBLE JURY INSTRUCTIONS ... .

(D) THE AREA OF CONSTITUTIONAL “URDEN OF

PROOF REQUIREMENTS IS IN NEED OF

ATTENTION BY THIS COURT DUE TO

ITS AMBIGUITY AS PERCEIVED BY

THE LOWER COURTS . . 2. « «© «© © © © «© © «@

(E) THIS COURT HAS RECENTLY GRANTED

CERTIORARI IN KOEHLER v. ENGLE, #83-1.

THE PRESENT CASE RAISES SIMILAR ISSUES,

BUT IS INCONSISTENT WITH THE OPINION

BELOW IN KOEHLER. ACCORDINGLY, THIS

COURT SHOULD GRANT CERTIORARI AND SET

THIS CASE FOR ARGUMENT WITH KOEHLER.

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An appeal and cross-appeal were taken to the United States

Court of Appeals for the Eleventh Circuit. A panel of that court

reversed the District Court's grant of the Writ ot Habeas Corpus

and affirmed the District Court in all other respects, thus

denying relief to Petitionez on all issues presented. Corn v.

Zant, 708 F.2€ 849 (iith Cir. 1983). Rehearin en banc was

denied by the Eleventh Circuit on August 11, 1983.

Petitioner's convictions and sentence of death arise from

his robbery of a convenience store in Clayton County, Georgia and

the killing of an employee of the convenience store.

Petitioner pleaded not guilty by reason of insanity. His

court appointed trial counsel had never previously participated

in a capital trial nor had he employed an insanity

criminal trial.

At the guilt/innccence phase of trial, Petitioner's trial

counsel presented only the testimony of one psychiatrist whose

testimony was narrowly directed to whether or not Petitioner knew

the difference between right or wrong at the time of the crime.

None of Fetitioner's extensive history of severe psychiatric

problems was presented at either phase of trial.

l. Petitioner's extensive history of psychiatric problems was

documented at the evidentiary hearing before the United States

Magis=rate. Included in this material was a_ psychological

evaluetion conducted by Dr. Thomas E. Butcher. His report

concluded:

Charles [Petitioner] is a thin, tremulous,

dissheveled young man initially extremely

anxious, stumbling in his presentation of the

events leading to his arrest but eventually

saying as much as he could recall of what

happened.

The Wechsler Adult Intelligence Scale yields

a Full Scale 1.Q. of 68 indicating mental

defective intellectual functioning. There is

an intellectual deterioration here of 14

percent which is considerably larger than the

zero deterioration expected at thas

chronological age level. In addition we find

a reading grade level of 1.7 suggesting that

Charles has not been able to absorb school

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knowingly") Petition for Writ f Certiorari Appendix at 34=35

7 2 ;

There are other critical similaritie DEetwee! 1 tnStruct ns in

jury was instructed that the presumptic 9£ innocenc as the

weight and effect of evid in the defendant's bk Ae 5 Wee

appears to be quite beneficial to the defendant. Id Moreover

both discuss the state's burden of proving the element of ti

Crime beyond reasonable doubt. Both use the word "presume"

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eviagence against tne aeren ° at 904 O/.

More important, this case in addition presents a vehicle for

resolving another ambiguity concerning harmless error enalysis

that has generated yet another split in the circuits.

Johnson dealt with whether a conviction may ever be affirmed if

there is a Sandstrom violation in the the instructions. The

related question that needs to be resolved is whether ant:

curative instructions can rectury the harm done by an instruction

to the effect that "the law presumes intent."

In this case, the court beclow found that curative

instructions did cure the Sandstrom error... In Sandstrom

though, this Court suggested that curative instructions most

likely could not offset the harm engendered by "the law presumes"

clear guidance on that point has generated ancther split in the

} ai . ay ; - Tr Fl-s ye y Re eremanr p

lower courts in need of resolution. In Burton v. Bergman, 649

F.2d 428 (1981), the Sixth Circuit held that the use of the word

" " 11 yc 1} ; mal ’ \¢ roet+rannm nora: . ~ + + -

presume 1S unconstitutional under Sandstrom because of its

Mandatory tone, while the Eleventh Circuit in the present case

held that the word "presume" or its derivations may be employed

in instructions. Moreover, these two cases are inerely

representative of the great difficulty the lower courts are

having in Getermining how to apply Sandstrom to jury

; : . 4 Th ~ ra + - ‘ 3 a _— ‘ : 3

instructions. Thus, this Court should grant certiorari in order

to give further guidance to the lower courts on this important

matter.

3. Indeed, a more complete analysis of the jury instructions

demonstrates how contradictory and confusing the instructions as

a whole. See Part C, infra. Indeed, as is pointed out in Part

C, infra, the instructions relied on by the Court below to "cure"

the Sandstrom error exacerbated it.

4. Other courts have held, for example, that “curative language"

exacerbates rather than ameliorates the constitutional problems.

See, e.g., Dietz v. Solem, 640 F.2d 126 (&th Cir. 1981); Baker v.

Munay, 619 F.2d 327 (4th Cir. 1980).

INDICATES THAT THE INSTRUCT

INCOMPREHENS NOT

MANDATE FORBII TRI

”

INTERPRETED

= es <a

ALSO ViOQLA

oe SPEAMARIMIOC Nee ne _— +

ING BE El Lied DUE PROCESS RI

4 ~~

IMPREHENSIBLE JURY INSTRUC

erste A ene -PDTTADAT Se on

SHOULD GRANT CERTIORARI TO )

° om mee Toute a She T t 1 4

DSTRO RIGHTS AND HIS } suck JURY

CIilUNDS.

A clenaant uly! 4 riamina na a JU I { riqnt t

. vy y a? . . - uM y * '

comprenenslble¢ ury LnSTZUCcti ° i ré f P tn ( . 2

noiain ns tLoO naate pre LDb1¢ ) tCructico

eiement I Che OF xr é tnat erie Stat pr Db na

ro: ~ +1} r . ~~» ' + +

reasonabie GOundt. atid 1 i ] ye 1 thn

pe a reaSOnadie jur x UiaG A ter ret a A i bh Ue we i as

directing a verdict r llfting a burder tr per sion, thar

Lie ee aS} us i si 4 a Ne he av 4 + Ai4 . is + 4 4 , a

ycnr y > - r . } " + rry q- r r nr ;

reasondabat pus’ s COuUaiG a p a t A + Jape ao O12) OS-— & OF & =

. - . ers ¢ Aakr $ :

instruction, because by hypotl i he i : 1 1 incapable

ner y + r 4 > cf ? } f b 4 1 7

Ol MELNG rationailidl Ui 42oliolvovuu ail a ALadLiII Ca 4 °

m+ ty lon + bh | , a: + r wv + . . 249 ‘ ~

LO rary ti tne ruslng oO iC EBACVE Ci whaGUL di s ( CS»

+k y > ‘ + . a nctryr + y + Wwe a ,Y . at a oes

Lit Sate Gssil Jui y Rsismesa Ulla slo ais i a\ Aca ia a 4 waid ~ A + wULiLl

yy + y " wi R + } + 4+ , ,

cone ana content (UG £&.42G Cc oU. Ratner, tne are irtualily

. ~ ~ v kh } " . rea A) ’ < bh "+

LNCOMpre ensidie at LUCLads polnt 1ic@ailt Wit! i€ e jo O42 wig t

+ 7 my > ae oe 7 Y . * y . ‘ +

orrense. sne LOL1LiOW1ILNG passage i! ate Vasa’ u ¢ SLis

‘y* } t , . “Fr ‘Fr + n+ , ms )

The law presumes every intentional

- . + = = _ ee ~ ) + } Ath en oe

homicide to be malicious until the contrary

- - . w AyImat Valet + - lawia ~ 4 }

appears from circumstances of alleviation and

.] £ - ~_ i + 1) ™}

jyustirication mitigation or excuse. ne

J ’ 3

ACCIEG | wy AAW ~h . "IME nenac +o Ke

accused may SNOW sucn Circumstances oO tne

Jury unless such circumstanc: appear fro

+he wid — Sica aaa 2 er } a ee

the eviaence proaucea against the accused,

ad i. ae _ ae Cee we nig mT 1007

av See, ©€.g., Agnew v. United States, 165 U.S. 36 .) (1897)

» 52

(a charge should not be misleading); Bollenbach v. United States,

326 U.S. 607, 615 (1946) (Conviction should not rest on ambiguous

and equivocal instructions to the jury on a basic

Polansky v. United States, 332 F.2d 3, 236 (lst Ci

(jury should not be required to determine which part of a

contradictory charge is correct). See also, United States v.

Bagby, 451 F.2d 920 (9th Cir. 1971). 7

]

S sentence tells

Sire +h a+ ha > ea? Drecimec wary y Ime iAn triads

jury Chat wet. iaw presumes ever 4H:C0ONnCilioONnal nNOoOMLCLICEe CO

4 4

malicious " TT a vy. Aa snaan+ €ns1« + - DYroaniicea swidan

aul Aad US inus, a4 sic MOeLeUaaNne -*Aliiund LU rP-VuUUCce Cv isael ,

the jury apparently 1S instructeaq to convict, wh1icn acain is an

_ sa es la a hn —- ra ' - ’ c Kh, c oe - Y }, } ~

obvious violation of the defendant's rights. The same probler

£ wi P a Ce . rae ‘ ae? ae ~— cenit

inrtects tne iast two sentences oO; tne paragrapn.

3 t

The _ oes Tipe. se 2 ae ; ond oe

she SEcona paragrapn reziects tne propdoiel USt cescrlvpvec Huet

bh fiir ris + + ; “; c , ae h = r ern ) is ha “> -~ranh r

has a further difticulty as well that highlights that problen.

The last sentence informs the jury that “if the evidence

introduced shows the homicide to have been committed as charged

in the indictment, the Defendant may, but 1S not required to,

show mitigation or excuse." But, the State ! to “show" things

beyond reasonable doubt; could a “reasonable” juror conclude that

if that is what "to show" means, then the cefendant has "to show"

"mitigation or excuse" beyond reasonable doubt? Sbviocusly so.

6. It is instructive to compare this instruction with the trial

court's instruction on insanity:

I charge you that the question of

whether or not the Defendant has cessfull

rebutted the presumption of sanity in this

case is for you to Gecide. It is not

necessary that the Detendant introduc

evidence of his insanity sufficient tc

convince you beyond a reasonable doubt, but

rather it is only necessary or hir to

introduce some competent evidence of his

insanity. And when he has done eae, the

burden shifts to the State to prove his

sanity beyond a reasonable doubt. Under

Georgia law, a person will not be presumed to

act with criminal intent but the triers oi

the facts, the Jurors, may find such

intention or the absence thereof upon

consideration of the words, conduct,

demeanor, motive, evidence of Sanity or

insanity and all other *. 5 s

onnected with the acts for which

S prosecuted.

Here the trial court does define the defendant's burden as “some

evidence." That definition can only generate more confusion in

those sections of the instructions lacking such definitions. If

" '‘ .

—

this “presumption” may be "rebutted" by "some evicence,'

be rational to assume that the other “presumptions" that are not

so qualified cannot be rebutted in the same fashion. Were that

not the case, it is rational to conclude, the jury would have

been so instructed. The confusion generated by these

instructions is obvious.

- . é rtheay ’ vr + y y re + ne +

4sita a Jal ~eea La - : 4. a4 Aa ¥ Asie *Uv Lu : > LU

AF - +} ¢ . 7h 4 +} . mr } y } a ‘ )

I 2uer esiadl NIGHslants Cilt jeonerx 4 il mprene LD1Li1€ Oi urit

+ ‘ ‘

rag > +} +h, r+ ‘ nercaoyr

¢ P , , = y = ‘ y y mre >; +

r : L 4 inc ari Gl r LO! x Dresu

} he > > Ney ' es } + +

1S ‘ pi 4 D a f{ s Wisi, Dut sep"

, P eo ’ - > ++ » ’ - y 4

» > s ~/ - ‘ ‘ 4 . . » \a A * ‘ ~~ * » ‘ +

~ A ‘ ~ a as 4 ~ s s aa a = \ a * s 4 =

¥ a ¥ ar r > ¥ y y M4 ‘ . “a Y c¢

£ : "+o é ~+ _ y . : y

+ ~ aw - . ~-* — . 4 > A ‘ a we - Jae ~s

ea lr r } : ; + } , + } ra . ,

‘ 1, + } ¢ } . . . ‘ — ,

- aN CA Wa a . as GA ae ‘ ~* “— sy sat . aw » wee «

the baw 4 + L t CVE? + }

LUCTCNHtL ~liie C ry sep!

~~ WwW A mm wae . cS > . we et aA*e é »/t . . i |

, + rr + + ‘ rir ,

ran , } + + + - ‘ + ‘ »

a ~-CNCION, Du ricci Z = 2a ’ ana

+ > ¢ - . + P , sy

na ) 5 l, = it ’ i 1 | , iI ; rind

b neon y , + , ‘

e VY ~+ , ‘ 7 é

wWOrcs, ncuct, i I i : Li ’ li Ye

. ‘ + . f + 4

ur + + + ¢ b rhea : p

> ~ — -‘ ae

’ ~ _+ . ¥ > . v > + i + > , ,

aise -eresOoveLUr 4 ‘ asia P : « ad sak aut 4 =. ‘ ca r4eoi OUI

- SN ssa asia Asie A ~Ced aa As i 4 4 s sc a ala he - a

<i Gieutsteetemncncaremesas

~ - m= 0 aed " + } + > y 4 - » As ? . +

Person's Wlid, Sol ” Le é I ai in Mina anc ais rection Lé

CO iAncend Cue na ITas 2.GQ probabie 4 2S

~4 " +* + + + + “- > Ws} ]

‘ ‘ ‘ r

aCt, anc Chat unaer Che i ,il ~itCunstances, = Lay

= ’ + + tan + + } " . _ + ry 4 - ; ‘ sy1S ey

me Ce ae . ess ~* = L c i ee © ee | 4 Ve c ~-* - ~~ — wae “Ve

J 2

sr tne 9 . 7 + Ws + r + * sneon+t

‘ } r A r e

Cl 4n a SiNnGdi Paragrapn that n saw pi sume LNCeNnec,

+ he bm waarmee ¢ me +h, . *r wo, Nn wi? - wr, ry Y¢ 7 + act

ws ed mee _. - | ss we tee ae - ~ ‘> » ~ ss veu - ~ . Y L ~ » + ~ ae Cu —. ‘<< Xu

2 i t

. ~ ’ ¥ . " t -~- ¥ . . ~

‘ 4 l é a t l

re! Criminad A2nvcenction ° ° e vi til i sU x r bs & 2 it >

—_—T } Ary _ yw make y c, < +} _+ Tt a:

4NiVMOssidiec +OL UZLes LO nidAe il SChns i 9p &- at Saas 4tiLsd

Y= y r a lina +} . >» ~ ) mon + ‘ snton+ + da tc

arag Awl, GCALING Lai CHIC CIUCLlaLl element I 2eNlCenvrlonailcty, is

e $ mer vy eel feront ranicr? Te

eaiipsayY SeCirr-Contracdictor °

Traninr ley + - ry) + r Hho re ‘ > hv +hac

2420UulLCalily, sic eile OU oh = +e jC -alea cChese

$rIICH A ANKNe sc -t7-3— Tr nha Ary, _ ry * om mDWr+ } > ,

2nstructions is re ied n Cne Opinion ope court below.

hRfter - <e mm }

AtTeLr

instructions mean is that

mae o tame To pymit ectih? : . \ hae «& defendant

at most, there was a permissible ilerence tnat the daerendcant

¥.f- nak ~

Sa oVUUMaAYLCS

nonrncen }

enmgagea =

J J

Sturi the

NOtCW1ItNS

- fey ma >

= matters,

-ae sama ok me t

al Ctsvul ™

+> jing -

tanding Lne

= *-? ) r er

Linc pe

~~. +

a as ++

i ase

_— _ +

ea aad

dade

’ ass

ubt is ery unclear. I f , ‘ ) find l ist t

ie . 4 P , ‘ 4 y Rey

>a y = ’ ¥ . > . . . - ‘ >/

exXal pic, COmpare, \ r i ° ’ t F.éU “4 (6tT! whe « J U)

= me A AS

iself-aqefense is an affirmativ ie fen ; there re ti liefendant

ae ° a prety lerance of t evidence) wit Holl

, O5S<£ Fe dh ( = wit eo i ° a Cr» + 4 ee

L028 (1981) (seli-ceczer egates the unlawfulne element I

w ‘are + y +} + + ‘ + . ° ‘ . + ° »

muraer; tnererore tne tate ust ret x it l 3 1SO

V. Harris, 6 Fee 2Ut (end Cir. 1982) (langqu . ; 2h

r ’ hla y } > Y ; + by

MeL. tao. wall aa 4& © du & Ai A 4 4 4 v “ oe

"1? *. ne } , + tT + +? Q+ *s >

C * + : +. ' ~ > + +

1952) (eve! Wil juUaLLIYy.YI i qua ’ i cru ] oe So |

.Y + + i anh } > + , . GS >

MMOCOMSLACULILS cit UisGCl . I } > . i ’ >I e «GU

sO 7+} in , c 4 ry) y » * +r * + . + ~+ 4 r

45 \ (7t! nn Sa LYol) {(oOuracen Le Gae ~encenc rt l Cru 10Mn

: . 1 y y , & yy) ~4 ‘ + + ' } " - ‘ . o ?

Culou wy Yoenelia.s 2isiotl lu h si \ t WUT Cé da e7 ae 4 aiiG

+ ~ >~ ~~, " . , . , ‘ y y + ; y < + +

chat a ot jury must 4 i 4AUCTL hia cCructlons as Ww i Vit sZ

, < } , A t IA 7 4.) Ys rf 7 {>} y ’ -+ ¥ ‘ Ned

Vis Solem, 6 4( F«4G Lat [Stn Cixz, 1981) (burde} Snirting or

OnciuSlive presumption 1: ty f presumption sontemplated in

ar ’ ° + ’ - + & ay ; . - bv + |

Vv. Naughte as constitutional error } Ltseli}:; Burton vv.

. )

1} ~evy ( { { +} %S ri } : . | "wy, - . "

Bergman, 649 F.2d 42 Oth Car. 1981) (use of word presunie

——__ a_ aad

nHe +> + + 4 > ] rn - e ‘ - ) 1+ cry “> + C >

white Vas Olea LULA IGS wsshKslan ~ a X ‘ i Aus = a 43+ Manaato} cone

+ ; ~ + ik on wat ; + t ; y + IAC ° y ( r ) AA

to instruction) with Wilson v. Zant, 24 Ga. 3/3, 290 S.E.2G 442

19292 > . miccih } + r-Ark Won we mae 1 er

(1982) (presumption permissible despite word "presume because

7} , + i+ r . + . eyir + ’ " Riyet . , ve "rar

jury toia it may infer or presume intent"); urton v. Bergman,

£AQ . 5A a> c .. eon Q21 Co Ic -nAr Se rR APS , h ~ ~ ++

649 F.2d 428 (6th Cir. 1981) (Sandstrom retroactive because it

> c ; ~w110C+ 3 . - } } ~ ay . ry} 1+ + ;

raises serious questions about accuracy of ullty verdicts in

trials) with

criminal

Waa

compels that Sandstr

rael, 503 F.Supp. 1170 (E.D. Wis.

ice system, witnesses and families

om be applied).

presumec

+ +

Versae -~ ut

+he Flex

Lic mi

‘ . + <

nec 1S

certiora

asbaae a erat is. beivadasl

y. , . . ft »

Ais 3 Bsthaseed tik, =

RATS} 1p ‘ t

ALOKO Odi Aw. | oP :

cormt TuC ADTNT . por

ten aba ik WF sieaVis Dlx ve

ITs 4 RA

afiic S 4 woh aod WiINsA.e a

THIS : ; R ARGI MEN’ |

a see as . J PVE eka ’

K - ‘* t °

‘ Jrssata ‘ee ash iis , \

cot ¢ mows s _ +» +

a seve Jd. a 2cd asit Luc +

. +} +t “re , ‘fo y

L Vas iaw wlLOVAGe> 4 I

+ onreana + ToTt,

CO LNCcenc cn natural

Wal ' ,< > m4 ’ + -~ tok

~~ ~~“ ~* wir s ~ » we aaa

t 4

rc a TA + tt tT}.

cisOli, LUe atv Pi 4 aut

. « _+ yy rar

ns Vvioiatec Sancstrom,

+ 17S = ~y, a | ¥ AY Yr

alive Assn elUcClLiOlis. wiOlt

,Y -~y+ “+ 5 , WA a, }

‘ m eae s+ Ws ~~ +‘ ‘To ) »

- + “4 introns y Mma é

20018 J. aii Saal JI sidai

jae ‘ + + > + rr

QUeciaiica « 44,4i1U sit Saad

- + ~ mY nm + a,

WLCSOCmne Case CSCI vt

‘+ : y + _> .

aii AssDLCITUCLIOTIS AiCc 4

“arate 1 ,Y + . r

UlaLILY 2hinat MUL LOIS.

m+} er + + »~ Ff Farr 7.) +

silal Vi ~ULL a2ziiLiied Li

> + + } - —— y

+ > F

fia Wate AUC ad ~-* ‘ _*

_— tha nro nt 1c

1 aii Lite PplOCosoeitcl Cds

—" “a — or rm le +

adi ULUC.L LU AC oOUAYV L

Yr ¢

> é

‘

a a

ana

, 4 Ae

b t

Vinmhia

“

‘ial i

ts 2 &\

ust

~ 7

~Waa

4a y

. :

-~7

+ y

avs

“ale

wel

die

roid pt (LN Wete Wasise i Tul afis | Ps He aaVS

. cCmaurt r 2Ar > y - arr _ e

AsososAWNL! Ut LULL Ons a a art hiv i DL

mr : : . r ratTrr rr 7 —<- ay ar ner

LN 4 sha CUUMOonL PA.why 4 rriie awa FAL aria

-DAITDOATC T DraAact r HTAT mHIMITe?

oid iv 2.8 riiwaAok i A Miathiy \ 4 ALAA,

STIR TIRE r murmnrwer: vr. sIMIPAMT .

AVALLADSDLE EVV ale aN sibs LGALIL ‘ £

oGivs hive iie

, ™ > ‘yy ~ - ~e + . a ~~, i +

Sept LOULIrTC ids 4ial ea ~CTULOLaALIL be revicyv ~ oil “ pe 4 *

eho fin ¢ 3 C+ a4 . + - Ary ‘ +h, t f+} *i + + —

— 4 — wet & — wt ALC. we we ~ <)>» . i> ~ Ja wae > ~~ —-* — + “ws & 7)

was 7t e wot ri1caAlal » OFS F~24G i463 | mn Cir. L962) ( Lt &

) Et. jra he ae P ius. we ‘ 2451 tiv pe

é m4 te é

y ‘ > : + r “Ancor? > + y 7 + ,

-~* . ~+- *& wee we ~ ~- 6 ~~ -* am what ‘ . - oak . = mae aware + > st

eé + uP ne é 7. y + +}

Sad = >* iSSistdai c Oa UNSe i Li i absacaa ridad Waicre ie

t + y ' . . . +

rcr + sifea La c watiista da ~ui-c & & ue sucoevd 2

y ’ _. +h e112 = é , + + 3 ’ ‘ - + 44 nor

— we ae > ‘+ ~ ss ~~ ein es ee & - a * - aa 4 ~ - - - a — > ee ee | ~*

> “¢ - + > YY ry + > + — P - + se .

w Ls OuULre ipposncea at ri 2 ~¢ G4 iv . oe Se ae 4

< . “yy y . € +} — _ ;

2Cai nCili Piliadse pe Cease, we ~-CeQa ili .

- - — + 3 + } €¢ . . *} my 3

raa CC 9" Gate pa Cie ~LOCMSC , ~NAILCS CLOrn Naa a M ig

} — = + y ; + é - 9 +

‘i - > ’ ~ ‘ Vase - a a ssid . . sate - ~~ — ~ ‘ hae . - > - . /* ~ As 2

~/s ¥ . LLCalsiilill » Aisa AGS A 2 - — ss . Lao J+ ¥ Cam

ay ever} ee eb y “nAiatr +c (" - y 7 AD. ai r¢

¥ —- 4? 4 42444 sit r> witb ba Gas o i.e ae ys a b/ © pe 20, se i ae

’ 22)

Naw JI} e

Re - rial ar y rons > + . : 4 motu to. - ad roa

be. Cc rlai, One psycniatris anc a psycnoliogist were

-+hHhea ‘eletbbabe t wo > vr aS ah Tho . +} , rict

ets COuUuULec LU CAaNLINC wil .« LOLI. atic eo}. YCulatlistl,

_ hae a eile a+ My Corn _ sane al a? San

DOUsCil, COnNCLUGeaG Liat wil. Orn Was ne ala LCSLIsscCu

1re ra

ure ana

ecora

oras ~rom

Lolar.

These

Corn's

introauce

recoras

mental

cle

on q

c#hoaw

o.wUw

1tion

e jury by testimony or by

+3) Mant¢al

laj} Mental

—— ‘ t

a eirwve as ~~

Dise ~ ~

butcner ana

+ 7 m ron

. & a7 ae re .

72 imantoadq

ve gaocumentea

- ~* C+ +

A Ot Lasf ~lale

rcurmt ' +

Py Od 745 Pr |

sr + . fian y

Sapp, ce¢ eisledc I

ria + + y

\ .* > > A» = ‘ = - . _—

oot Sap ’ yr >

CeStil ’ nor “ 3 i

€¢ ron + +h vr) +

V/s +» a. ¢ — “ was ae’

> vor r

1 iic MoyCilatri

+ ‘ \+ y ,Y “ar

Va 4.44eh 4 4 VY mahbe Cai

- - . +

be i HmOLU - @

y . + +hoa +

wiOlMd atl ei = .

rea. mab. « "4

rr Wartir

’ ; ~ a >» °

aia CimOvcd i + > Abd

\IA + . a, * +

WO’ bad ‘ Ls

MOGI 2 ea Ue rq ida eich

y . + ; ++ Key . .

AC OLLI A — ¢ 4 / 4a Aa c

te + +, nev + + .

+ mMeuvochiatr . y

Ol wMoyYyCMmiatrlic =a i

Nor} . y ,nHa

WOrUN Lal aiila.

Doari+ Le - ~—Y y

Fecslloinie.: 2° we os i aa

tho ; cC1le ‘ . ;

Lilie 4525UC OL. GULSL

- heer y laws + +

saa (O) =3 = 20" 4 AC vast \<

tT c ac a =

5 »AY

Vee FD /3), ear

> 7 + . + } ae’

hearing LO zaCli -ALC

F lara c y

aaa ~~ ~~ ‘

> 1 - c alatal 1+ > <

at4sNneGss eWilol i’ & Ce

. = +

U ;

ear . 7

a@pitaia ° . i

I ¥ + ~ F . ¥ .

VeESplte rie Sie

+ + ’ t + ~4

4 2 l 4 aah eeovcratctda Ca

AU. vada. LOdCE SZ

—_

- »

= oe §

was

Was

sta

-boarnar ‘ .

} + ‘ .

: niatri — wee Waba ul

+ he wg * finnnaray: }

wae ~_ ain es & am eee A a = . At

7 > r rake r + : —_——

4 iat « mw 2b ALS A a ws ae

- - =

) Cad cA 4 Sestas ri’ wad

sy ‘ . ‘ mm 4 ne

4 CU Cu Wass at Vas a ef!

ie sm @ pv 93so™= Js a-«

; - . + -} P .

Ae wae - aw 440s 4 < ba 2 tM

sentencing, invo.sving i»

Moya 4 4 , ¢ als wr Ueer- F!

€ +, mn 4 eT ‘

—_ \ & - as oat , ‘ ar

p= 1 , ; is

iOSsplitais in rloridca ind

7) « Lng eviacence i

- , : we ea

a properiy >xc LUdec n

; rartaini.« 4 ee -

Cercainiy, 1i Orrer Ly

re }

— i ul ’ ‘ea

6 ch iwmee 4 > ae

ltaigating tiactors.

F é

- + sia ‘ As ~%

> 4 ss + t ‘ , i"

ce y ¢ )

GSI2 Ue ° ] 2, id (i ).

p ee ‘ i

s §1 ae pi 7 Be

a7 ~ + , no + , + ry + + + rr ‘

r e ‘ é é é

eV ienc Of ni LONG z mei iu prooiel ’ a riad IT COT’r! \

r nm las ne ro ir —— a ee , Vy THA rr te — ha ahr

= 4 Ty Jin ‘ am wee . ~~) mse ‘ ~— > 404 att 7 +s . ee . - wae’ ve sa

+ a 7 Kr + er; - - - mroce nr + 14 €¢2 y ~ — 7

~-OColLAs sts WisaOiday Wasi sica Aisi presi COO AV il. / ita a2stitc casils meClLad

s+ate (7 Ty | 44)

oLaG . a. aie we s4vU"%% .

m+ +r ++ -~neyv ; ; ’ + r + — ror 4

Sets tCrlast attcrney Gqiagd not sSubml an I A41CaGi report rmn

evid Yr 2 ™ fT OQr beak 1 | +¢ } rw ++ +, en ry *4 * r ’

~v Aus - We ta Ca 4 Adee As Corsi iy at Lait i] ss UCase = es> aol

a + +r - KH 4 AL nMNitrte *} stra ae a , «

opt Criai. sMhis, AeSVit Ls avalianiiltly . Luli

werhiatric recor franr ‘ . + sc wher t + ‘ y »- kh 1 anh ; )

wo yet ea aes an at -YVL vid a a7) -~Avidsa -~ co Wa ‘a= FeLA LAY as 6a WIslaiiscou

t eat ent ( E¢ Da+i+ ¢ tc ryt < ) r ‘ ee » 165

LCaliiClice LOCC ESCs GsVilead > BALI eo 4 ye be Ae blab e We a Ij e

mh +w~a-e -_- , _ : + . ak! + , mY ‘ coc: , . ——

ait oo a Oo & Vi si Ks a a s tana Gaaiy / » 4 44 = ~42zUisaae sili, ad

_ = |} +} ' + +y, - + + “a eer 4 + = + .

22 cc é ¢ ¢ ; e

BCAAs 244140 5905 a A Wo = =F! AVaAs Gia ind 4 AL 4 a. . - 4

mrn* + y c + a ran he + 4 len ‘ ’ Hho + rr +

DrO.s Sl10OnaiS, Lal Vd NaLeCU & Cth aC 2.@3) AmG et= C Pt inctea

+ - + : — + 7 + e+ r . ’ * . v a - + ° + 5 ¢

~~ -i.& Jr\Ah & ino - Was s . Am NA sicay < ps ‘ —~o\a ee a eee

1 t ~

art no o+ + 1,4 + "

evisaceciice. {re 2LLOIC. eA LAL a3

oe t t » | c + ’ . t . + * . . > 4 ~

(ie Fea. Had. ° LOD) « Ur. Magqgueli BO: bl, rie ; niatrist Caiseg

+hea m—re . + > + +h, + ’ “Aner y . ’ Fann le

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CORN v. ZANT

549

Cite as 708 F 24 548 (1983)

For the reasons stated, we retain jurisdic-

ton and remand for an evidentiary hear-

g'* The district court shall certify its

findings and the record of its proceedings

on remand to us within 60 days of the

issuance of this opinion

REMANDED WITH INSTRUCTIONS

Charles Thomas CORN, Petitioner-Appel-

lee, Cross-Appellant,

Walter ZANT, Warden, Jackson Diagnos-

tic and Classification Center, Respon-

dent-Appellant, Cross-Appellee.

No. 81-7649.

United States Court of Appeals

Eleventh Circuit.

June 15, 1983

Rehearing and Rehearing En Banc

Denied Aug. 11, 1983.

State prisoner, who was incarcerated

on conviction and death sentence for mur-

der and conviction for armed robbery, filed

petition for writ of habeas corpus. The

United States District Court for the North-

ern District of Georgia, Robert L. Vining,

Jr. J., granted writ, and appeal and cross

appeal were taken. The Court of Appeals,

Albert J. Henderson, Circuit Judge, held

that: (1) petitioner did not suffer any con-

Sututional deprivation when trial court in-

formed jury of state’s automatic appeal rule

with regard to death sentences; (2) jury

instructions on presumption of intent did

not unconstitutionally shift burden of proof

teenth Amendment's due process clause; and

(3) whether the trial court's sentencing instruc-

tons adequately informed the jury as to its

duty to consider mitigating circumstances

1S. Petutioner is “entitled to careful considera-

Uon and plenary processing” of his claims “in-

Cluding full opportunity for presentation of the

relevant facts.” Harris v. Nelson, 394 U.S. 286,

to petitioner ‘n violation of due process

rights, (3) refusa: to provide transcnpts of

counrel’s opening and closing arguments

and counsel's failure to order record of

opening and closing remarks did not deprive

petitioner of effective assistance; (4) evi-

dence of victim's injury and subsequent

death more than justified instruction on

aggravating circumstance, as prerequisite

to imposing death sentence, that jury find

there was aggravated battery to victim; (5)

it was not constitutional error to rely on

right/wrong insanity defense under Geor-

gia law; (6) petitioner had no standing to

exclude wife's testimony under interspousa)

privilege; and (7) introduction of petition-

er’s confession at trial was not constitution-

al error.

Affirmed in part, reversed in part and

remanded with direction

1. Habeas Corpus @25.1(8)

Federal habeas court does not sit as

State appellate court to correct violations of

state evidentiary rules. 28 U.S.C.A § 2254.

2. Habeas Corpus *92(1)

It is not role of federal habeas court to

analyze every infirmity that might have

been reached on direct appeal; rather, in-

quiry is restricted to those aspects of trial

affecting petitioner's federal constitutional

rights. 28 U.S.C.A. § 2254.

3. Habeas Corpus #25.1(1)

Generally, failure to object precludes

subsequent consideration of issue unless de-

fendant can satisfy Wainwright cause and

prejudice test.

4. Habeas Corpus @25.1(4)

Where state court does not rely on

procedura! default in its decision on appeal

of conviction, but reaches merits of issue,

federa) habeas court may review substan-

298, 89 S.Ct. 1082, 1090, 22 LEd.2d 281 (1969)

In view of the “demand for speed, flexibility,

and simplicity,” Hensley v. Municipal Court,

411 U.S. 345, 350, 93 S.Ct. 1571, 1574, 36

LEd.2d 294 (1973), petitioner shall proceed

promptly to expedite the hearing and submit a

prompt request for discovery if desired

APPENDIX A

5950

tive question, notwithstanding failure of pe-

titioner to object during trial. 28 U.S.C.A.

§ 2254

5. Habeas Corpus = 25.1(4)

Where state courts reached constitu-

tional issue as to whether state trial judge

improperly informed jury of state’s auto-

matic appeal rule with regard to death sen-

tences, federal habeas court was not fore-

closed from reviewing it, net withstanding

petitioner's failure to object to judge’s com-

ments during trial. 28 U.S.C.A. § 2254;

Ga.Code, § 27-2537; 0.C.G.A. § 17-10-35.

6. Habeas Corpus @45.2(4)

In federal habeas action, petitioner's

entitlement to relief had to be predicated

on due process grounds although state ha-

beas court, in considering same claim of

error, was not required to consider the con-

stitutional impact of the alleged error but

confined itself to state law resolutions. 28

7. Constitutional Law =270(1)

Defendant did not suffer any constitu-

tional deprivation when state trial judge

of state’s automatic appeal

rule with regard to death sentences, view-

ing remark in light of whole sentencing

procedure, where there was no indication

that mere knowledge of petitioner's poten-

tial appeal diminished jury’s sense of re-

sponsibility for its sentence. 28 U.S.C.A.

§ 2254; Ga.Code, §§ 26-3102, 27-2537;

0.C.G.A. §§ 17-10-31, 17-10-35; U.S.C.A.

Const.Amend. 14.

8. Criminal Law 790

No rule requires that jury be kept to-

tally ignorant of appellate process.

9. Homicide 231

Under Georgia law, malice, éither ex-

press or implied, is essential element of

murder and must be established by prosecu-

tion beyond reasonable doubt. Ga.Code,

§ 26-1101; 0.C.G.A. § 16-5-1.

fe toe

informed jury

10. Habeas Corpus = 92(1)

In examining instructions on presump-

tion of intent for possible constitutional in-

firmity, federal habeas court had to deter-

708 FEDERAL REPORTER, 2d SERIES

mine whether reasonable jury might have

failed to understand, from entire charge,

that there was rebuttable presumption of

intent or malice and that they were free to

weigh all evidence. 28 U.S.C.A. § 2254;

Ga.Code, § 26-1101; 0.C.G.A. § 16-5-1.

11. Constitutional Law @=268(11)

In determining whether instructions

shifted burden of proof to petitioner in vio-

lation of due process clause of Fourteenth

Amendment, federal habeas court does not

scrutinize discrete portions of charge but

must evaluate it in its entirety. 28 U.S.

C.A. § 2254; U.S.C.A. Const.Amend. 14.

12. Constitutional Law @=268(11)

Jury instructions on presumption of in-

tent, which included language to effect that

law presumes every intentional homicide to

be malicious until contrary appears, that

person of sound mind is presumed to intend

natural and probable consequences of his

acts, and that law presumes every person to

be sane unless it is shown to contrary, did

not shift burden of proof to defendant to

demonstrate lack of malice in violation of

due process rights where instructions were

clear that accused “may” show circumstanc-

es to negate intent but was not required to

do so, instructions were fair and balanced in

both tone and content, and untoward effect,

if any, was entirely vitiated by statement of

state's responsibility to prove intent beyond

reasonable doubt. 28 U.S.C.A. § 2254;

U.S.C.A. Const.Amead. 14; GaCode, § 26-

1]01; 0.C.G.A. § 16-5-1.

13. Constitutional Law *=266(7)

Ultimate test in determining whether

presumption in criminal case is valid under

due process clause of Fourteenth Amend-

ment is that device must not undermine

fact-finder’s responsibility at trial, based on

evidence adduced by state, to find ultimate

facts beyond reasonable doubt. U.S.C.A.

Const.Amend. 14.

14. Criminal Law *=633(1)

Constitution guarantees each defend-

ant a fundamentally fair trial, not a perfect

one. U.S.C.A. Const.Amend. 14.

CORN v. ZANT

551

Cite as 708 F.2d S49 (1983)

15. Habeas Corpus = 25.1(6)

Neither trial court’s refusal to provide

-ranseripts of nor counsel's failure to order

-ecord of opening and closing remarks of

counsel at trial deprived defendant of effec-

ve assistance of counsel so as to require

.acation of death sentence where there was

no statutory duty to transcribe arguments

of counsel, state appellate court found that

death penalty was not imposed under influ-

ence of passion, prejudice or any other arbi-

trary factor, and defendant did not object

to any part of opening or closing statements

>; point to any infirmities during those

phases of trial. 28 U.S.C.A. § 2254; Ga.

Code, §§ 27-2401, 27-2537(aHeX1); O.C

G.A. §§ 17-8-5, 17-10-35(a)-(c(1).

16. Habeas Corpus = 25.1(4)

Absent any showing of harm by peti-

tioner, failure to transcribe counsel's argu-

ments is not constitutional violation requir-

ing vacation of sentence on petition for

habeas corpus. 28 U.S.C.A. § 2254; Ga

§§ 27-2401, 27-2537(aWeK1); O.C

G.A. §§ 17-8-5, 17-10-385a)4-W(1).

17. Constitutional Law c= 268.2(3)

Where defendant, who alleged that he

was deprived of opportunity for fair hear-

ng in that he could not afford cost of

transcribing opening and closing remarks of

counsel, did not make demand for transcrip-

tion of arguments of counsel, there was no

constitutional error in failure to transcribe.

2 US.C.A. § 2254; Ga.Code, §§ 27-2401,

27-25387(a}-(eX1); O.C.G.A. §§ 17-85, 17-

10-35(a)4eX 1).

18. Criminal Law @=641.13(1)

In determining whether assistance of

counsel was ineffective, appropriate inquiry

's whether accused was represented by

counsel reasonably likeiy to render and who

in fact rendered reasonably effective assist-

ance. 28 U.S.C.A. § 2254; U.S.C.A. Const

Amends. 6, 14.

Code

19. Constitutional Law ¢>268.1(6)

When general due process claim is

raised under Fourteenth Amendment, test

for constitutionally ineffective assistance of

counsel is whether whole proceeding was

fundamentally unfair. 28 U.S.C.A. § 2254;

U.S.C.A. Const.Amends. 6, 14

20. Habeas Corpus 25.1(6)

In determining whether assistance of

counse! was ineffective, federal habeas

court determines whether effective service

was rendered based on totality of circum-

stances rather than taking isolated instanc-

es out of context. 28 U.S.C.A. § 2254: U.S.

C.A. Const.Amends. 6, 14.

21. Criminal Law @=641.13(1)

Sixth Amendment right to reasonably

effective counsel does not mean erroriess

assistance or counsel judged ineffective by

hindsight. U.S.C.A. Const.Amends. 6, 14

22. Criminal Law 641.13(2)

Defendant's counsel was not ineffective

for failure to pursue “delusional compul-

sion” defense in homicide prosecution in-

stead of “right/wrong” insanity defense

where defendant insisted that he remem-

bered absolutely nothing about murder. 28

U.S.C.A. 3 225; U.S.C.A. Const.Amends

6, 14

23. Habeas Corpus @25.1(6)

To warrant grant of habeas corpus on

ground of ineffective assistance of counsel,

petitioner would have to prove that assist-

ance, even if ineffective, created not only

possibility of prejudice but that it worked

to his actual and substantial disadvantage.

28 U.S.C.A. § 2254; US.C.A. Const.

Amends. 6, 14.

24. Habeas Corpus 85.5(11)

Petitioner had failed to show that trial

counsel's strategic decisions as to whether

to pursue certain defenses, file additional

motions, and make specific objections so

prejudiced him as to violate any constitu-

tionally protected right 28 USCA

§ 2254; U.S.C.A. Const.Amends. 6, 14

25. Homicide 311

Under Georgia law, evidence that

homicide victim's nose and ear cartilage

were severed, that her face was cut, that

four of many stab wounds punctured her

chest and back muscles, reaching her heart,

and that victim died from wounds in three

to fifteen minutes, thus suffering pain and

disfigurement before dying, more than jus-

tified instruction on aggravating circum-

stance, as prerequisite to imposing death

sentence, that jury had to find aggravated

battery to victim. Ga.Code, §§ 26-1305,

27-2534.1(b\2, 4, 7); O.C.G.A. §§ 16-5-24,

17-10-30 b\(2, 4, 7).

26. Homicide 311

Sentencing instructions contained ade-

quate guidelines to lead reasonable juror to

fully comprehend duties and choices in-

volved in sentencing procedure and were

not constitutionally infirm in instructing

jurors of their option to impose life impris-

onment instead of death. GaCode, § 26—

3102; O.C.G.A. § 17-10-31.

27. Habeas Corpus *85.2(1)

In habeas corpus context, petitioner

bears burden of producing substantive evi-

dence to support such a claim as that sen-

tence is cruel and unusual because adminis-

tration is based on prisoner’s race, sex and

economic status. 28 U.S.C.A. § 2254

28. Habeas Corpus 85.5(15)

Where petitioner had not pointed to

any acts evidencing intentional discrimina-

tion on basis of sex or wealth in administra-

tion of death penalty, federal habeas court

was without basis to evaluate complaint

that death sentence was cruel and unusual

because administration of death penalty

was often based on prisoner’s race, sex and

economic status. 28 U.S.C.A. § 2254.

29. Habeas Corpus = 45.2(4)

Fact that Georgia had not adopted

Model Penal Code test for insanity was not

cause to overturn murder conviction on pe-

tition for habeas corpus. 28 U.S.C.A.

§ 2254: US.C.4 Const.Amend. 14; O.C

G.A. §§ 16-3-2, 16-3-3; Ga.Code, §§ 26-

702, 26-703 .

30. Constitutional Law 2 268.2(2)

It was not constitutional error to rely

on right/wrong test for insanity under

Georgia law where defendant was unable to

deseribe any delusion that afflicted him at

time of murder and recalled nothing about

death of victim. 28 US.C.A. § 2254; US

708 FEDERAL REPORTER, 2d SERIES

C.A. Const.Amend. 14; 0.C.G.A. §§ 16-3-2.

163-3; Ga.Code, §§ 26-702, 26-703

31. Homicide 237

Evidence was sufficient to support de-

termination that state had proved defend-

ant’s sanity at time of murder and at time

of trial. 28 US.C.A. § 2254; OCGA

§§ 16-3-2, 16-3-3; GaCode, §§ 26-702,

26-703.

32. Mental Health 434

State provided defendant, who was

treated by psychiatrist at state hospital for

56 days, who was then granted continuance

so that he could gather further psychiatric

evidence, who was subsequently examined

by psychiatrist and psychologist, and who

was thereafter required to undergo fourth

psychological evaluation at state expense

when he entered plea of insanity, with ade-

quate psychiatric evaluation. 0.C.G.A.

§§ 16-3-2, 163-3; GaCode, §§ 26-702,

26-703.

33. Jury 108

Potential juror can be excused from

panel in homicide prosecution if he or she is

irrevocably committed to vote against death

penalty. Ga.Code, § 26-3102; 0O.C.G.A.

§ 17-10-31.

HM. Jury 108

If potential juror, who responded twice

in the negative when asked whether she

could impose death penalty, had been tenta-

tive or equivocal in answer, there would not

have been sufficient basis to exclude her for

cause, but inasmuch as responses were firm-

ly and definitely negative, she was properly

excluded on finding that she would auto-

matically vote against death penalty. Ga

Code, § 26-3102: 0.C.G.A. § 17-10-31.

35. Constitutional Law 2267

Jury 33(2.1)

Exclusion of death-scrupled jurors

from panel in homicide prosecution did not

result in prosecution-prone jury i: violation

of defendant's Sixth and fourteenth

Amendment rights where record did not

reveal that any juroms w@> so biased in

favor vi death penalty that they would

CORN v. ZANT

553

Cite as 708 F.2d $49 (1983)

-3,e imposed it without reasonably weigh-

+g and considering evidence and veniremen

-iicated that they were prepared to per-

teem their civic obligations and would obey

she Jaw. U.S.C.A. Const.Amends. 6, 14;

Ga Code, § 26-3102; 0.C.G.A. § 17-10-31.

36. Witnesses @52(1)

Defendant had no standing to exclude

wife's testimony at trial under interspousal

pnvilege U.S.C.A. Const.Amend. 4; Ga.

Code, § 38-1604; O.C.G.A. § 24-9-23.

37. Witnesses 52(1)

Privilege against spousal! testimony is

available only to witness spouse. U.S.C.A.

Const.Amend. 4; Ga.Code, § 38-1604; O.C

GA. § 24-9-23.

38. Criminal Law @1153(1)

Witnesses = 79(1)

Tria! court is afforded broad discretion

in determining admissibility of witness’ tes-

timony, and its determination will not be

disturbed absent clear showing of abuse

US.C.A. Const.Amend. 4; Ga.Code, § 38-

1604: 0.C.G.A. § 24-9-23.

39. Criminal Law e=393(3)

Defendant suffered no constitutional!

deprivation as result of blood test per-

formed by serologist, who testified at tral

that she matched defendant's blood type

and that of victim with stains found on

murder weapon, a rag, and defendant's

clothing, where record indicated that police

informed defendant that sample of his

blood was needed as evidence, and defend-

ant willingly agreed to go to hospital for

purpose of taking blood sample and volun-

tarily consented to procedure. U.S.C.A.

Const.Amends. 4, 14.

40. Criminal Law ©- 1169.9

Error, if any, . admission of serolo-

@st's testimony tha onalyzed samples

of defendant's blood -rd mauhed his blood

type and that of victim with stains found

om murder weapon, a rag and defendant's

clothing was harmless where, having con-

fessed to killing, defendant's only defense

was insanity, and evidence of defendant's

guilt was overwhelming. U.S.C.A. Const.

Amends. 4, 14

41. Criminal Law 339.6

When identification is challenged on

other than Sixth Amendment grounds, ap-

propriate analysis emerges from Fifth and

Fourteenth Amendments’ proscription

against procedures which are unnecessarily

suggestive and conducive to irreparable

mistaken identification. U.S.C.A. Const.

Amends. 5, 6, 14.

42. Criminai Law e=339.11(5)

If clear and convincing evidence dem-

onstrates independent origin for witness’

identification, testimony is admissible not-

withstanding impermissibly suggestive line-

up. U.S.C.A. Corst.Amends. 5, 6, 14

43. Criminal Law = 339.10(8)

Witness’ identification of defendant at

trial was independent of lineup evidence

and there was no likelihood of irreparable

misidentification, and thus testimony was

properly admitted, where witness, who had

been shopping in convenience store shortly

before clerk's corpse was discovered, had

observed defendant there for approximately

ten minutes, and defendant waited on wit-

ness, told witness that someone had robbed

store, and failed to charge witness for his

purchase. U.S.C.A. Const.Amends. 5, 6, 14.

44. Constitutional Law =266.1(1)

Introduction of defendant's confession

at trial was not constitutional error where

approximately four hours elapsed from mo-

ment of defendant's first contact with po-

lice officers until his confession, testimony

of + ‘ice officers disclosed that defendant

was advised of and voluntarily waived his

rights, there was no evidence that defend-

ant’s detention was unreasonable, and, al-

though defendant was of below-average in-

telligence, he admitted that he was familiar

with criminal process and understood police

officers’ statements to him. U.S.C.A.

Const.Amends. 4 5

45. Criminal Law 412.1(1), 525

Although statements or confessions

made during time of mental! incompetency

or insanity are involuntary and hence inad-

missible, mere emotionalism and confusion

do not necessanly invalidate them.

708 FEDERAL REPORTER, 2d SERIES

Law ©5191)

ariness of confession is premised

on totality of circumstances.

47. Criminal Law #338(7)

Trial court has broad discretion in pass-

ing on admissibility of evidence, including

testimony that may be calculated to create

prejudice against or sympathy for accused.

48. Criminal Law #=338(7)

It is for trial court to determine wheth-

er probative value of evidence is vut-

weighed by possible prejudicial impact.

49. Criminal Law = 986.6(3)

Trial court did not abuse its discretion

in admitting testimony of victim's mother,

who testified briefly and unemotionally as

to her deceased daughter's age, employment

and manta! status, and her identification of

vietim’s son at sentencing hearing where

evidence was neither inflammatory nor

prejudicial.

50. Habeas Corpus 59

Refusal to grant new evidentiary hear-

ing on habeas corpus petition was not error

where petitioner had already had full and

fair federal evidentiary hearing on claims

bearing upon ineffective assistance of coun-

sel] and there were no questions of fact

pertaining to any other allegations that

would require further development. 28

U.S.C.A. § 2254; U.S.C.A. Const.Amends.

6, 14.

W. Davis Hewitt, Atty. Gen., Atlanta,

Ga., for respondent-appellant, cross-appel-

lee.

Harold A. Miller, III, Decatur, Ga., for

petitioner-appellee, cross-appellant.

Appeal from the United States District

Court for the Northern District of Georgia.

Before HILL and HENDERSON, Circuit

Judges, and GARZA‘*, Senior Circuit

Judge.

*Honorable Reynaldo G. Garza, U.S. Circuit

Judge for the Fifth Circuit, sitting by designa-

HENDERSON, Circuit Judge:

The petitioner-appellee, Charles Thomas

Corn, filed a writ of habeas corpus pursuant

to the provisions of 28 U.S.C. § 2254 (1976)

seeking to overturn his conviction and

death sentence for murder and his convic-

tion for armed robbery in the Superior

Court of Clayton County, Georgia. He al-

leged twenty-one grounds for relief in the

district court, although some of these issues

were not raised in the state trial or habeas

corpus court. However, by supplemental

brief to this court, the state has expressly

waived the exhaustion requirement. See

Lamb v. Jernigan, 683 F.2d 1332, 1335 n. 1

(11th Cir.1982), cert. denied, —- U.S. ——,

103 S.Ct. 1276, 75 L.Ed2d 496 (1983). Of

the perceived twenty-one errors asserted in

the federal district court, all but one were

rejected by that court. The district court

did find merit in Corn’s challenge to the

sentencing procedure in the state trial

court, a: ' granted his application for a writ

of habeas corpus. The respondent in the

state and federal habeas proceedings, Wal-

ter Zant, appeals the grant of the writ and

Corn cross-appeals the denial of his other

grounds of relief.

Charles Thomas Corn was convicted of

murdering a “Stop and Go” convenience

store employee and stealing $17.00 from the

cash register in Clayton County, Georgia in

1975. The shop attendant, Mary Long, was

dragged into the storage area where she

was stabbed to death with a steak knife.

After he killed Long, and with her blood on

his hands and shirt, Corn waited on custom-

ers, telling them he had been the victim of

an attempted robbery. These customers

subsequently identified Corn. When Corn

was arrested a few days later, his wife

came to the police station and asked if he

had killed the woman at the Stop and Go

store. He answered, “Yes, I killed the girl,

but I didn’t mean to.”

Upon his conviction, a superior court jury

sentenced him to death on May 26, 1976.

tion.

\- a mandatory review of the death sen-

sence in accordance with Ga.Code Ann.

5 27-2587 (recodified as Off.Code Ga.Ann.

s 17-10-35 (1982)), the Supreme Court of

Georgia upheld Corn's sentence of death for

murder but suspended its imposition for the

armed robbery conviction. Corn v. State,

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

denied, 436 U.S. 914, 98 S.Ct. 2255, 56

L Ed.2d 415 (1978). Corn then filed a peti-

tion for a writ of habeas corpus in the

Superor Court of Tattnall County, Georgia.

The state habeas court denied relief, which

denial was subsequently affirmed by the

Georgia Supreme Court. Corn v. Hopper,

244 Ga. 28, 257 S.E.2d 533 (1979). Corn

then instituted this federal habeas corpus

action in the United States District Court

for the Northern District of Georgia. The

application was referred to a magistrate

under 28 U.S.C. § 686(bX1XB) (West Supp.

1983). The magistrate in turn reviewed the

transcript of the state trial proceedings and

conducted an evidentiary hearing on Corn’s

neffective assistance of counsel claim. In

an exhaustive report and recommendation

to the district court, the magistrate recom-

mended the Genial of all the petitioner's

claims except one—that the trial cour:’s

ins.ructions on malice and intent impermis-

sibly shifted the burden of proof to the

jefendant in violation of the due process

clause of the fourteenth amendment to the

United States Constitution. Sandstrom v.

Montana, 442 U.S. 510, 99 S.Ct. 2450, 61

L.Ed.2d 39 (1979). Upon review, the dis-

trict court adopted the bulk of the report

and recommendation but disagreed with

‘wo of the magistrate’s findings. The dis-

tnct judge first rejected the conclusion that

the instructions on intent unconstitutionally

shifted the burden of proof. However, as

1. In Bonner v. City of Prichard, 661 F.2d 1206

(11th Cir.1981) (en banc), the Eleventh Circuit

adopted as precedent the decisions of the Fifth

Circuit rendered prior to October 1, 1981.

2. Corn did not object during the trial to the

judge's comments. Generally, failure to object

precludes subsequent consideration of an issue

uniess the defendant can satisfy the cause and

Prejudice test set forth in Wainwright v. Sykes,

433 US. 72, 97 S.Ct. 2497, 53 LEd2d 594

706 F 26—14

CORN v. ZANT 555

Cite as 708 F 24 S49 (1963)

writ based on his belief that the state trial

judge impermissibly disclosed to the jury

that Corn had an automatic appeal of the

death sentence to the Supreme Court of

Georgia.

(1,2) Before turning to Corn's specific

allegations of error, we again emphasize

that a federal court does not sit as a state

appellate court to correct violations of state

evidentiary rules. Bryson v. Alabama, 634

F.2d 862 (5th Cir.1981); Meyer v. Estelle,

621 F.2d 769, 771 (5th Cir.1980); Woods v

Estelle, 547 F.2d 269, 271 (5th Cir.), cert.

denied, 434 U.S. 902, 98 S.Ct. 207, 54

L.Ed.2d 188 (1977). Nor is it our role to

analyze every infirmity that might have

been reached on direct appeal. Our inquiry

is restricted to those aspects of the tral

affecting the petitioner's federal cunstitu-

tional rights, see, Donnelly v. DeChristofo-

ro, 416 U.S. 687, 94 S.Ct. 1868, 40 L.Ed.2d

431 (1974); Passman v. Blackburn, 652 F.2d

559, 567 (5th Cir.1981) cert. denied, 455 U.S.

1022, 102 S.Ct. 1722, 72 L.Ed.2d 141 (1982);

Martin v. Wainwright, 428 F.2d 356. 357

(5th Cir.1970), cert. denied, 400 U.S. $18, 91

S.Ct. 179, 27 L.Ed.2d 157 (1970)

[3-5] We address first the alieged error

which led the district court to grant the

writ. Corn maintains that the state trial

judge improperly informed the jury of

Georgia's automatic appeal rule Ga Code

Ann. § 27-2537 (recodified as Off.Code Ga.

Ann. § 17-10-35 (1982)). He says, and the

district court agreed, that such a remark

had the effect of diminishing the jurors’

sense of responsibility in making their lif

or death decision at this crucial stage of the

trial? This problem arose during a break

in the jury's deliberations when some of the

jurors questioned the trial judge about his

(1977). However, as we stated in Rogers v

McMullen, 673 F.2d 1185, 1188 (11th Cir.1982),

where a state court does not rely on a proce-

dural default in its decision, but reaches the

merits of the issue, this court may review the

substantive question on appeal. See also

Thompson v. Estelle, 642 F.2d 996 (Sth Cir.

1981). The Georgia courts reached this consti-

tutional ground, and thus, we are not foreclos-

ed from reviewing it

556

authority to change the sentence imposed

by that body. The relevant portion of the

colloquy between the court and the jurors is

as follows:

Juror Deaton: Yes, your Honor, if the

death penalty is invoked, does that au-

tomatically mean that the defendant

will be placed in the electric chair?

Court: I don’t know how to answer that,

except I will say this. In the event

there is a death penalty, the law pro-

vides for mandatory appeal and the

case must be appealed by law. And if

upon affirmance by the higher court,

then the matter is as it is provided by

law. [sic] I hesitate to say much more

to you because for fear that I may

make some judicial error in the case

and I can only tell you that I have

already told you about as much as I can

under the law. Now is there anything

else bearing on your mind?

Juror Randall: One thing that has been

going through >ur minds is if we in-

voke the death penalty and that speci-

fies the electric chair, can you as the

overriding judge mght now say, come

in and say that he is going to get the

electric chair or that he can have death

by prison, or life imprisonment? That

he is to die in prison and never to get

out?

Court: Now the—

Juror Randall: Could you yourself do

that?

Court: The Court by law in this particu-

lar case fix [sic_ a7 imposes sentence

that you provide in your sentence. I

cannot change your sentence.

Juror Randall: That's what we wanted to

know, if you could do that.

Court: The only sentence that I would

pass is as I told you if you find no

aggravating circumstances in connec-

tion with Count 1 pertaining to armed

robbery, then I would set that sen-

tence.

Juror: Not to repeat yourself, but if we

did say life imprisonment, we have no

idea about parole at all, right?

708 FEDERAL REPORTER, 2d SERIES

Court: That's nght. This is something

that the Court is not authorized to com.

ment on.

Trial Transcript at 1077-78.

added).

The jury then retired to the jury room

and shortly thereafter returned with their

recommendation of the death penalty. The

trial judge imposed the sentence of death as

required by law. Ga.Code Ann. § 26-3102

(recodified as Off.Code Ga.Ann. § 17-10-31

(1982)).

In reviewing the denia! of Corn’s state

habeas corpus petition, the Supreme Court

of Georgia considered whether the trial

judge’s reference to the appellate process

was so prejudicial as to necessitate granting

post-conviction relief. The court affirmed

the state habeas court, stating:

Viewing the court’s sentencing charge as

a whole, we find that the jury was in-

structed 1 decide on their sentence from

the evidence and law presented at the

sentencing hearing, taking the full re-

sponsibility of determining ' fe or death

for the defendant. No remarks by the

court could be consirued as encouraging

the jury to attach diminished conse-

quences to their verdict.

Corn v. Hopper, 244 Ga. 28, 31, 257 S.E.2d

533, 536 (1979). We agree with the Georgia

Supreme Court. The court explicitly held

that this determination did not conflict with

its prior decisions in which the death penal-

ty was set aside when prosecutors, in their

arguments, had referred to the mandatory

review procedures. In Prevatte v. State,

233 Ga. 929, 214 S.E.2d 365, 367 (1975), the

death sentence was vacated because the

“inevitable effect” of the prosecutor’s em-

phasis on the defendant's right to an auto-

matic appeal was “to encourage the jury to

attach diminished consequence to their ver-

dict.” Similarly, where the district attor-

ney stressed to the jury that “the State

executes only guilty persons after they've

been tried and convicted and appealed and

everything exhausted,” Georgia's highest

court did not hesitate to invalidate the

death penalty. Hawes v. State, 240 Ga.

327, 240 S.E.2d 833, 889 (1977). See also,

(Emphasis

CORN v. ZANT

557

Cite as 708 F.2d 549 (1983)

Fleming V. State, 240 Ga. 142, 240 S.E.2d 37

:a77) (death sentence set aside due to pros-

ecutor’s improper prediction of the conse-

quences of the jury's verdict). However, in

Coker v. State, 234 Ga. 555, 216 S.E.2d 782

,1975), a death sentence was affirmed when

tne trial judge's curative instruction allevi-

ated the harmful effect of the prosecutor's

reference to mandatory review in capital

cases. In the case at bar, the districi court

observed that because “of the unique posi-

tion occupied by the trial judge” the com-

ments of the court at Corn’s trial might

nave been more prejudicial than similar

statements made by prosecutors in other

instances.

Our problem with this reasoning is not so

much the propriety of the state trial judge’s

statement within the framework of state

trial procedure as the implication that it

rises to the level of constitutiona! error.

Here, the brief mention of the right to

eppellate review was not the prejudicial

argument of a district attorney, but the

misinterpretation of a question

posed by one of the jurors. It is obvious

that the jury was not concerned with the

appellate process when it made its initial

inquiry of the court. Rather, its sole inter-

est was whether the court could legally

disregard its verdict and change the recom-

mended sentence. The trial judge, perhaps

understandably, failed to recognize the im-

port of the jury’s question and inadvertent-

ly mentioned the right of automatic appel-

late review. Only when a jury member

repeated the original question did the judge

correctly respond that he could not overturn

the jury's recommendation.

aniuprt

courts

(6,7] It is within this narrow factual

setting that we address Corn’s due process

claims. At the outset, we note that the

death sentences in Hawes, Prevatte and

Fleming were set aside on direct appeal

rather than in habeas corpus proceedings.

3. See Passman v. Blackburn, 652 F.2d at 567

where, in discussing the standard for reviewing

prosecutorial misconduct in habeas corpus pro-

ceedings, the court stated, “Further, not every

trial error or infirmity which might on direct

appeal call for application of our supervisory

Powers correspondingly constitutes a denial of

Consequently, the Georgia court was not

required to consider the constitutiona] im-

pact of the alleged error but confined itself

to state law resolutions. By contrast, in a

federa! habeas action, Corn's entitlement to

relief must be predicated on due process

grounds? A reference to the automatic

appeal of the death penalty in a different

context might have resulted in fundamental

unfairness. However, on these facts, view-

ing the judge's remark in light of the whole

sentencing procedure, we conclude that

Corn did not suffer any constitutional dep-

rivation.

{8] The jurors were obviously uncertain

ahout the mechanics of the sentencing pro-

cedure, and the court was attempting to

explain the process in which they played

such a criticai role. The judge did little

more than reiterate parts of his earlier

charge to the jury to weigh al! the evidence

and return a verdict on which “it would

then be the duty of the Judge to sentence

the Defendant as provided by law.”

Trial Transcript at 1616. No rule requires

that the jury be kept totally ignorant of the

appellate process. There is no indication

that mere knowledge of Corn’s potential

appeal diminished the jury’s sense of re-

sponsibility for its sentence.

We find little federal precedent that di-

rectly bears on this issue. The decision of

the United States Court of Appeals for the

Second Circuit in United States v. Green-

berg, 445 F.2d 1158 (2d Cir.1971), a review

on direct appeal of a non-capital case, es-

pouses the same reasoning that we find

persuasive in the case at bar. In Green-

berg, the court stated,

It might have been better procedure

not to have told the jury that if they

convicted upon an erroneous charge they

did not ‘have to worry’ because this court

would reverse if there were error. This

might have lessened the jury’s sense of

due process necessary to support granung ha-

beas corpus relief. Donnelly, supra, 416 U.S.,

at 642-43, 94 S.Ct., at 1871: Cobb v. Wain-

wright, 609 F.2d 754 (5th Cir.), cert. den., 447

U.S. 907, 100 S.Ct. 2991, 64 LEd2d 857

(1980).”

508 708 FEDERAL REPORTER, 2d SERIES

lity but such a reaction would

view was expressed by the

nth ircuit Court of Appeals in United

States v. Fiorito, 300 F.2d 424 (7th Cir.1962)

where the court held that it was reversible

error for the judge to tell the jury, “[TJhat’s

we have a court of appeals, they will

‘everse me if I'm wrong

ANY

This is not the

final judgment, there is a court of appeals

to review me and a Supreme Court to re-

view them.” Id. at 426. Unlike this case,

Fiorito involved the direct appeal of a fed-

era] narcotics conviction rather than a col-

lateral attack on a state court judgment

In addition, the judge's statements in Fior-

to were clearly aimed at iessening the sig-

nificance of the jury's decision, whereas in

the case at bar, the court’s remarks dealt

with the limited scope of the judge's own

power

Our holding today should not be broadly

interpreted to apply to all such comments in

other cases but, as stated earlier, is limited

the peculiar facts this

particular instance, the prejudice to Corn, if

any, did not reach the magnitude of a due

violation. Thus, this claimed error

is no basis for habeas corpus relief

before us. In

process

[9] As pointed out earlier, the magis-

trate in his report and recommendation

found that during the guilt determination

phase of Corn’s trial, the jury instructions

on presumption of intent impermissibly and

unconstitutionally shifted the burden of

proof to the defense. The critical language

used by the trial court is “[{t]he law pre-

sumes every intentional homicide to be ma-

licious until the contrary appears from cir-

cumstances of alleviation and justification,

mitigation or excuse.” * Corn also objects

to that portion of the charge that “{a] per-

son of sound mind and discretion is pre-

sumed to intend the natural and probable

consequences of his acts” and that “(t]he

law presumes every person to be sane un-

less it is shown to the contrary that he is

4. The complete quotation of this portion of the

charge of the court is reproduced as Appendix

‘A” at the end of this opinion

insane or of unsound mind.” Record, vol. &

at 1534; 1536-37. He ciaims that this sani-

ty charge. when taken in conjunction with

the instruction on intent, could have caused

the jury to believe that the defendant had

the duty to negate the element of malice

Under Georgia law, malice, either express

or implied, is an essential element of mur-

der and must be established by the prosecu-

tion beyond a reasonable doubt. Ga.Code

Ann. § 26-1101 (recodified as Off.Code Ga

Ann. § 165-1 (1982)); Davis v. State, 237

Ga. 279, 227 S.E.2d 249 (1976)

(10] In examining the instructions for

possible constitutional infirmity, we must

have failed to understand. from the entire

charge, that there was a rebuttable pre-

sumption of intent or malice and that they

were free to weigh all the evidence. Sand-

strom v. Montana, 442 US. 510, 99 S.Ct

2450, 61 L.Ed.2d 39 (1979). This court has

recently addressed the constitutionality of

purported burden-shifting jury instructions

See Goodwin v. Balkcom, 684 F.2d 7% (11th

Cir.1982), cert. denied, —- U.S. ——, 108

S.Ct. 1798, 76 L.Ed.2d 364 (1983); Lamb

Jernigan, 6835 F.2d 1332 (11th Cir.1982),

cert. deniec, —— U.S. ——, 103 S.Ct. 1276,

75 L.Ed.2d 496 (1983); Hearn v. James, 677

F.2d 841 (11th Cir.1982); Mason v. Balkcom,

669 F.2d 222 (5th Cir. Unit B 1982), cert.

denied, —- US. 103 S.Ct. 1260, 75

L.Ed.2d 487 (1983).8 While the analysis in

these opinions is helpful, the cases are not

dispositive because each set of instructions

differs in length and phraseology, and none

is identical to the charge given at Corn’s

trial

{11] Our inquiry focuses on whether

these instructions shifted the burden of

proof to the petitioner on the issue of intent

to kill, in violation of the due process clause

of the fourteenth amendment. Mason, 669

F.2d at 225. Under this test, the court does

ath

5. Mason v. Balkcom is binding on the Elevent!

Circuit as a post-September 30, 1981 decision

of a Ur.: B panel of the Former Fifth Circuit

See Stein v. Reynolds Secunties, inc., 667 F 2¢

33, 34 (11th Cir. 1982)

CORN v. ZANT 559

Cite as 708 F 24 549 (1963)

scrutinize discrete portions of the

-harge but must evaluate it in its entirety:

It is well established that ‘[i]n deter-

mining the effect of [an) instruction on

the validity of [a] conviction, a single

instruction may not be judged in artificial

‘solation, but must be viewed in the con-

text of the overall charge.’ Cupp v.

Naughten, 414 U.S. 141, 146-47, 94 S.Ct.

396, 400, 38 L.Ed.2d 368 (1973). ‘[TIe

question is not whether the tral court

failed to isolate and cure a particular

ailing instruction, but rather whether the

ailing instruction by itself so infected the

entire trial that the resulting conviction

violates due process.’ Id. at 147, 94 S.Ct.

at 400. Accord Henderson v. Kibbe, 431

U.S. 145, 154, 97 S.Ct. 1730, 1736, 52

L.E4.24 203 (1977). The approach man-

dated by the above cases requires courts

to consider the effect even of patently

erroneous instructions in light of the re-

mainder of the charge and the entire

trial

Lamb, 683 F.2d at 1339

[12-14] In light of the overall charge of

the court, we do not believe that the burden

{ proof was shifted to Corn to demonstrate

a lack of malice. The instructions found to

he unconstitutionally burden-shifting in

Sandstrom contained no curative language

to the effect that the presumption of intent

could be rebutted.§ The charge in tnis case,

however, unequivocally stated “but this

oresumption may be rebutted,” and “[a)

6. The Supreme Court specifically noted that

the jurors in Sandstrom “were not told that the

presumption could be rebutted by the de-

fendant’s simple presentation of ‘some’ evi-

dence, nor even that it could be rebutted at

all.” 442 U.S. at 517, 99 S.Ct. at 2455, 61

L.Ed 2d at 46

This conclusion is consistent with the Su-

preme Court of Georgia's characterization of a

Similar instruction. That court, at the request

of the United States Supreme Court, reconsid-

ered an analogous jury charge and held that

such instructions, “taken together, created

merely a permissive presumption of the type

considered in County Court of Ulster v. Allen

(442 U.S. 140, 99 S.Ct. 2213), 60 L.Ed.2d 77

(1979), and not a mandatory and unconstitu-

tional presumption. Whisenhunt v. State, 152

Ga. App. 829, 264 S.E.2d 271 (1979) cert. de

person will not be presumed to act with

criminal! intention.” Record, vol. 8 at 1535.

Moreover, the instructions were clear that

the accused “may” show circumstances to

negate intent, “[b]ut he is not required to

do so”, and that he “may” show that the

killing was done without malice, “{b)ut he is

not required to do so.” Record, vol. 8 at

1533. The charge is replete with cautious

explanations that refute Corn’s claim that

an irrebuttable presumption weighed

against him. By way of exampie the court

stated “[i]f such evidence produced against

the accused, if there be such, discloses the

homicide was done without malice, then this

presumption that the homicide is malicious

does not exist.” The instruction continued,

“this presumption ... does not arise

against the slayer unless it be first shown

to a moral and reasonable certainty and

beyond a reasonable doubt the defendant

was the intentional slayer.” Record, vol. 8

at 1533. In contrast, the charge in Lamb

contained the damaging pl.rase, “(t]he law

presumes that every homicide is malicious

until the contrary appears from circum-

stances and it is incumbant [sic] upon

the accused to make out such circumstances

to your satisfaction ..." Lamb, 683 F.2d

at 1337 n. 8 (emphasis added). There was

no comparable language in this case to sug-

gest a shift in the burden of proof to Corn.

At most, there was a permissible inference ’

that the defendant could, if he sc chose,

introduce mitigating evidence. The United

States Supreme Court has recognized that

nied, 449 U.S. 886, 101 S.Ct. 241, 66 LEd2d

112 (1980). Accord Huffman v. State, 153 Ga.

App. 203, 265 S.E2d 603 (1980); Skrine v.

State, 244 Ga. 520, 260 S.E.2d 900 (1979)

8. As we stated in Lamb, “[t)he Supreme Court

has recognized that inferences that operate to

shift only a low burden of production—and not

the burden of persuasion—to the defendant are

constitutionally acceptable if there is a rational

connection between the inference and the un-

derlying facts. See Ulster County Court v.

Allen, 442 U.S. at 157 n. 16, 99 S.Ct. at 2225 n.

16; Mullaney v. Wilbur, 421 U.S. [684] at 701-

02 & nn. 28, 30-31, 95 S.Ct. [1881] at 1891 &

nn. 28, 30, 31 (44 L.Ed.2d 508]."" Lamb, 683

F.2d at 1338 n. 9. See also. Hammontree v.

Phelps, 605 F.2d 1371 (5th Cir.1979).

360

‘fi]nferences and presumptions are a staple

of our adversary system of factfinding.”

County Court of Ulster v. Allen, 442 U.S

140, 156, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777,

791 (1979). The “ultimate test” in deter-

mining whether a presumption in a criminal

case is valid under the due process clause of

th. fourteenth amendment is that “the de-

vice must not undermine the factfinder's

responsibility at trial, based on the evidence

adduced by the State, to find the ultimate

facts beyond a reasonable doubt.” Jd The

instructions in this case were fair and bal-

anced in both tone and content. Whatever

untoward effect any part of the instruction

may have had was entirely vitiated by the

clear statement of the state's responsibility

to prove intent beyond a reasonable doubt.

The Constitution guarantees each defend-

ant a fundamentally fair trial, not a perfect

one. The charge as a whole did not imper-

missibly shift the burden of proof to Corn

in violation of his due process rights

Corn next urges that he was denied ef-

fective assistance of counsel in that (1) the

trial court refused to provide transcripts

and additional funds for his defense and (2)

his trial counsel furnished ineffective repre-

sentation. The magistrate conducted an

evidentiary hearing, Record, vol. 10, and

found that Corn was not deprived of his

sixth amendment nght to effective co’.nsel,

which finding was adopted by the aistrict

court

(15,16] Neither the court's refusal to

provide transcripts nor counsel's failure to

order a record of the opening and closing

remarks at the trial deprived Corn of effec-

tive assistance. There is no statutory duty

to transcribe those statements. Under Ga.

Code Ann. § 27-2401, (recodified as Off.

Code Ga.Ann. § 17-8-5 (1982)), the court

reporter records the entire trial “except the

argument of counsel.” Corn contends, how-

ever, that tne Supreme Court of Georgia

could rot properly assess the fairness of his

death sentence without considering the

opening aid closing remarks. The court

reviewed the record and determined that

the death penalty was not imposed under

the infiuence of ‘‘passion, prejudice or any

708 FEDERAL REPORTER, 2d SERIES

other arbitrary factor.” Corn v. State, 249

Ga. 13), 240 S.E.2d 694 (1977), cert. denied.

436 U.S. 914, 98 S.Ct. 2255, 56 L.Ed.2d 415

(1978); Ga.Code Ann. §§ 27-2537(aHew]

(recodified as Off.Code Ga.Ann. § 17-10

3H a)4eh1) (1982)). The appellant insists

though, that there is no greater opportunit)

for prejudice than in the arguments of

counsel, and that the failure to preserve

»f the proceedings was error of a

constitutional magnitude. He did not, how.

ever, object to any part of the opening or

closing statements, nor does he point to any

infirmities during those phases of the tria!

Absent any showing of harm by a petition-

er, it is settled that failure to transcribe

counsel's arguments is not a constitutional

violation requimng vacation of a death sen-

tence. Stephens v. Zant, 631 F.2d 397, 402-

04 (5th Cir.1980), reh. denied and modified,

648 F.2d 446 (1981), certified to the Su-

preme Court of Georgia on other grounds,

456 U.S. 410, 102 S.Ct. 1856, 72 L.Ed.2d 222

(1982

that part

{17] Corn also alleges that because of

his indigency he was deprived of the oppor-

tunity for a fair hearing in that he could

not rd the cost of transcribing the open-

ing and closing remarks. However, as the

magistrate correctly observed, there is no

indication that the transcription would have

been denied, despite Corn's lack of funds, if

he had but asked for it. Since Corn did not

make such a demand, there is no error in

the failure to transcribe. See Lyle v. State,

131 Ga.App. 8, 205 S.E.2d 126 (1974); Ellis

v. State, 137 Ga.App. 834, 224 S.E.2d 799

(1976).

(18-21] The other contentions concern-

ing ineffective assistance of counsel are

equally without ment. The appropriate in-

quiry is whether the petitioner was repre-

sented by counsel reasonably likely to ren-

der and in fact rendered reasonably effec-

tive assistance. United States vy. Phillips,

664 F.2d 971, 1040 (11th Cir.1981), cert. de-

nied, — USS. , 103 S.Ct. 208, 74

L.Ed.2d 166 (1982). Accord, Kemp v. Leg-

gett, 635 F.2d 453 (Sth Cir.1981); Herring v

Estelle, 491 F.2d 125, 127 (5th Cir.1974);

quoting MacKenna v. Ellis, 280 F.2d 592.

CORN v. ZANT

Cite as 708 F.2d 549 (1983)

cert

©C:. 121, 7 L.Ed.2d

solated instances out of

368 U.S. 877, 82

aqenied,

78 (1960). Rather than

king context, we

whether effective service was

rendered based on the totality of the cir-

Gibbs, 662

Corn complains

: United States \

F 2d 728 (11th Cir.1981)

™stances

his attorney failed to pursue certain

file additional motions, and make

However, such matters

* objections

f trial strategy are, of necessity, the deci-

f the attorney, and the sixth amend-

ment mght to reasonably effective counsel

ioes not mean errorless assistance or coun-

sdged ineffective by hindsight. Ford

Strickland, 696 F.2d 804 (11th Cir.19&3) (en

inc); Washington v. Strickland, 693 F.2d

1243 (5th Cir. Unit B 1982) (en banc), cert

granted US 103 S.Ct. 2451, 77

L.Ed.2d 1332 (1983)

22) Corn's counsel cannot be casligat-

r example, for failing to pursue a

na mpuision defense nstead of

rignt/ wre ng” Insanity ae fense when the

nt insisted that he remembered ab

é nothing about the murder. It

have been difficult. at best. for his

r to have shown that Corn was suffer

g irom a certain delusion when the de-

nt could not even recal] the chain of

Moreover, to warrant the grant of

as corpus, Corn would have to prove

that the assistance, even if ineffective, “cre-

ated not only a possibility of prejudice, but

worked to his actua/ and substan-

Washington v. Strick-

quoting United

152, 102 S.Ct

tia! disadvantage.’’

693 F.2d at 1258

Slates \ Frady, 456 U.S

9. As the distnct court noted. when a genera!

recess claim is raised under the four

renin amendment. the tect for constitutionalls

is whether the

fundamental,

\® assistance of counse

* proceeding was unfair

Estelie. 642 F 2d 903. 907-08 (5th

% Mills \ Henderson, 529 F 2d 397

4 and n § (5th Cir cert denied sub nom

| Maggio, 429 US 850.97 SCt 139 %

'G2d 124 (1976)

9 Code Aun § 27 2534 !(bW7) (recodified

Mme GaAnn § ; } 30d 7 ee

pertinent part

1584, 1596, 71

n omginal). As stated in Adams \

com, 688 F.2d 734 (1]th Cir.1982)

dice

preju-

does not embrace errors which are

merely detrimental to appellant's case." Id

at 739, citing Washington v. Watkins, 655

F.2¢ 1346, 1360 (5th Cir.1981), cert. denied.

4S€ U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474

( 1982)

[24] In summary, we find that Corn’s

trial counsel made strategic decisions rea-

sonably calculated to afford effective repre-

sentation, and Corn has not shown that

those choices so prejudiced him as t ale

any constitutionally _ protected

right

Therefore, we agree with the district court

that

dering and actually did render reasonably

effe totality of

Phillips, 664 F.2d at

Estelle, 642 F

Corn's attorney was “capable of ren-

ective assistance, based on the

the circumstances.”

Nelson \ 2d 903 (5th

]

% iC q

Cir.198]

[25] Corn also claims that his sentence

Was determined in an arbitrary and capri-

cious manner and in violation of Godfrey 1

Georgia, 446 US. 420, 100 S.Ct 64

Ed.2d 398 (1980). In Godfrey, the United

States Supreme Court construed one «

Statutory aggravating

f the

circumstances, Ga

Code Ann. § 27-2534.1(b)\7),'* and stated

that the death penalty for murder cannot

be imposed absent specific findings of tor-

ture, depravity of mind, or aggravated bat-

tery to the victim. Id., 446 U.S. at 431-32,

100 S.Ct. at 1766-67, 64 L.Ed.2d at 408-09

In Corn's case, the jury was instructed that

it must find Statutory aggravating circum-

Stances as a prerequisite to imposing a

In all cases of other offenses for which the

death penalt, may be authonzed. the udge

shall consider or he shall include in his in

structions to the for it to consider any

mitigating circumstances or aggravating cir

umstances otherwise authorized by law and

any of the following statutory aggravating

circumstances which may be supported by

the evidence (7) the offense of murde

rape, armed robbery. or kidnaping was outra

jury

geousiy or wantonly wile. hornble or :nhu

man in that it involved torture. depravity of

rund an aggravated battery to the ctim

ath sentence!’ The jury did find that

tnere was aggravated Dattery to the victim

iefined as when “{a} person

lily harm to another by depnving

maliciously

him of a member of his body, or by render-

ng a member of his body useless, or by

seriously disfiguring his body or a member

§ 26-1305 (revised

and recodified as Off.Code Ga.Ann. § 16-5

24 (1982 victim's nose and ear carti-

thereof.’ Ga.Code Ann

This

were severed, her face was cut, and

age

four of the many stad wounds punctured

ner chest and back muscles, reaching her

a : “4

foctor testified

heart. A that she must

jied from those wounds in

, thus suffering the pain and

jisfigurement before dying

that these facts cannot support a section

) charge because any one of the stab

nave three to

Corn claims

‘

1 -

byu7

wounds could have been fatal, and thus the

victim was not “in too much pain for very

ong.” Such an argument is clearly spuri-

ous. The sordid evidence of the victim's

njury and subsequent death more than jus-

tities an instruction on this aggravating

aeges that the tma

ot clearly instructing the

enten Ing pnase tnat even

f aggravating circumstances were present,

the jury life imprisonment

A reading of the charge

tself refutes contention. After in-

structing the jury on statutory aggravating

circumstances, the court stated, “{i]f you do

not find that at least one of the statutory

aggravating circumstances existed, or if

you so find but do not determine to impose

could impose

nstead of death

11. Corn’s death sentence was based on a find-

ing of three statutory aggravating circumstanc

es. GaCode Ann 9§ 27-2534.1(bx2), 27

25344D4). and 27-2534 (D7) (recodified as

Off Code GaAnn § !7-10-30(bM2), (4). (7

1982 Qn this appeal. he challenges only the

§ (DM7) charge

12. The charge. when read as a whole. would

make it unmistakably clear to the jurors that

they have the option to umpose a sentence of

either death or life impnmsonment Other por

ons of the court s charge reinforces this con

susion

authonzed to consider all of the

facts and circumstances, if you find any. in

708 FEDERAL REPORTER, 2d SERIES

the death penalty, the form of your verdict

shall be: We, the jury, fix punishment of

the Defendant at life imprisonment as to

Record,

This

apparently evolves from

Murder

emphasis added).

Number Twe

1616

ground of error

recent cases which hold that charges which

explicitly the

option to recommend against death are un-

constitiitionally deficient Goodwin

Balkcom, 684 F.2d 794 (11th Cir i982) cert

1798, 76

L 364 (1983); Spives v. Zant, 66)

F.2d 464 (Sth Cir. Unit B 1981), cert. denied,

I 3495, 73 L.Ed.2d

82). See also, Lockett v. Ohio, 438

2954, 57 L.Ed.2d 973

lurality opinion requiring instruc-

jury's attention on considera-

igating circumstances and the

alternative of recommending a life sentence

Count

vol. 9 at

do not instruct jury of its

lenied, Vo 103 S.Ct

102 S.Ct

S.Ct

even if aggravating circumstances are

found). The charge in Goodwin, like that in

Spivey, was insufficient because it did not

about

‘even slightly hint

the option to im-

pose life imprisonment even though aggra-

vating circumstances are found.” Goodwin,

The instructions here

adequate guidelines to

fully comprehend

nvolved in the sen-

tencing procedure. We agree with the dis-

trict court that the sentencing instructions

sionally infirm

684 F.2d at 802

however, contain

leac a reasonabie juror to

the duties and choices

were not constity

Petitioner next contends that the Georgia

statutory provisions and practices govern-

ing appellate review of the death sentence

violat~d his sixth and fourteenth amend-

extenuation and mutigation of punishment

Under the law of this State, every per

son found guilty of the offense of murder

shall be punished by death by electrocution

or by iumpnsonment for life in the State Peni

tentiary

If you find from the evidence that there

were no statutory aggravating circumstances

which you are authonzed to consider. ths

would end your deliberation on che death

penalty and vou should then return vour ver

dict for life impnsonment

Record vol 9 at |613-15 (emphasis addec

CORN v. ZANT 563

Cite as 708 F 26 S49 (1983)

ifical

ly again

Pp) the opening and

ng arguments. As we have stated, the

2 ure to transcribe the statements did not

-event Corn from obtaining a fair review

nor did it constitute ineffective

Furthermore, Corn’'s

roadside attack on Georgia's death penalty

merit, for the

f+ trial

nee of counsel

without

}

nae #hs

€ iS paventiy

rited States Supreme Court has already

re the statute to be constitutional,

. a. ee one » a

rege Gcorgia, 428 S. 153, 96 S.Ct

ma 49 L.Ed.2d 859 (1976

n a related argument, Corn claims that

he imposition and execution of kis death

ntence violates the eighth and fourteenth

mendments for four reasons: (1.) the

th penalty is administered arbitrarily

and capriciously; (2.) there is no justifica-

n for capital punishment: (3.) the death

nalty violates contemporary standards

r 4) the method of inflicting death is

n and unnecessarily cruel. As the

uistrate and district court correctly stat

nese Tentica! issues were decided ad

rsely to the petitioner in Gregg v. Geor-

f $28 U.S. 153, 96 S.Ct. 2909, 49 L Ed.2d

476 See aiso, Coker Georgia, 433

S. 544, 97 S.Ct. 2861, 53 L.Ed.2d 982

[27,28] Corn also asserts that his sen-

nee is cruel and unusual because adminis-

ration of the death penalty is often based

n @ prisoner's race, sex and economic sta-

In a habeas corpus context, a petition-

er bears the burden of producing substan-

€ evidence to support such a claim. See

Smith v. Balkcom, 660 F.2d 573

1981), modified 671 F.2d 858, 859-60 (5th

r Unit B 1982), stay granted pending

upreme Court, 677 F.2d

cert denied, US

74 L.Ed.2d 148 (1982)

Corn has not pointed to any acts

lencirg intentional discrimination on the

"oners

- aii,

103 S.Ct. 181

3 s4 Code Ann § 26-702

ed as Off Code Ga Ann §

revised and recod

6 3-2 (1982)) pro

\ person shall not be found guilty of a cnmme

at the time of the act. ormssion. or negli

mime. the person adic

distinguish be

ance nstituting the

nave menta apacit, t

basis of sex or wealth, we are without a

basis to evaluate his complaint. Jd, 660

F.2d at 585; Spinkellink v. Wainwright, 578

F.2d 582, 614 n. 40 (5th Cir.1978) cert. de-

nied, 440 U.S 976, 99 S.Ct. 1548, 59 L.Ed.2d

796 (1979). As was stated in Spinkellink, “a

state, if it chooses, can punish murderers

and seek to protect its citizenry by imposing

the death penalty—so long as it

through a statute

does x

with app

dards to guide discretion.” J/d., 578 F.2d at

605

of the Georgia statute was upheld by the

l in Gregg

We reiterate that the constitutiona

United States Supreme Court

The sentencing guidelines are therefore ad-

equate. Without substantiatin

the petitioner's bare allegation of discmmi-

nation must fail

evidence,

Corn further alleges that the state did

not introduce sufficient evidence to rebut

his showing that he was legally insane at

the time of the murder. Additionally, he

argues that the test for insanity, as applied

to him, violated the equa! protection and

jue process clauses of the fou

amendment. He reasons that even

the evidence of his insanity was suffi

to satisfy the test as codified in Georgia, it

would not have supported a finding of sani-

ty under the Model Pena! Code test, and

thus, it was deficient

{29} This argument amounts to little

more than Corn's mere speculation that he

might not have been convicted in some oth-

er jurisdiction where the insanity test dif-

fers from that in Georgia. Each state has a

substantial interest in formulating and en-

forcing its own laws, and the fact that

Georgia has not adopted the Mode! Penal

Code is no cause to overturn Corn’s convic-

tion

(30] The Georgia code provides

tests for insanity in criminal! cases, the

M'Naghten test ™ and the delusiona! com-

two

tween mght and wrong in relation to such

act, omission, or negligence

This section codifies the rule expressed in

WéNaghten's Case. § Eng Rep 718 (184%. The

Supreime Court of Georgia specifically dechned

to abandon the M'Naghten Rule in Moody \

Mate. 244 Ga 247, 260 S E 2d |! (1979). stating

564 TOS

é rn torne re 1e¢

r - rr, . 4 re rc

sole g n g r M'Naghte

: Te me made that strate "a le n

‘ é rn was unable lescrit n

a SS af hai m at the time of

e murder. Indeed, Corn said he recalled

rine . tr ‘ *, a \e "

ga i atx i¢ i€a i wary

g anu ecause no evidence was of-

PPPs sat f ré ‘ } nai wr 4] r

hy rt proper idresse n the

\r mean £ ‘ , +. .

M Naghten Rule Was nstitutiona

reor rm thie _ ir insanit le.

ne naer Georm 4

4 , gia law

31) Having determined that the irt

th want ¢ RPA Rove ¢

r ¢ rere es Aé ur ex

rn's cha nge f the sufficien f the

tat jon , ° D>

States evice e Ais san Both Corn's

wife and mother-in-law testified that he

, r .

or reookt fen, Prone ~ >

ev ® A g ir W a F

Sar We Mas a defense witness. stat

that _ ffered from seizures and dys-

. - he pain (Reann 2 a

4 t a ret 4

1408), but Dr. Miguel Bosch. a witness for

- tat estified that he did t detect

r ary r signs S Nosis Re rq

i U g N

= a .7 S $ iis n ied

$e ? « — = fap

4 4 2!CU t

ir etermine vhethor rn had

eer ’ at the time f the murder he.

aus n \a not if unt severa

avs - was the jurv's task weigh

an Jot prem ing thy relat € merits * the

testim nV and t udge the witnesses cred}-

‘ T é ° ‘ Ps

‘ ane ur’ und he testimony I

Was sane at the

time of the murder and at the trial See

~ Pea SOG 4 0 149 ?

Hance Zant, 696 F.2d 940, 948-49 (11th

Cir. 1983

that it was ‘for the legislature to sav whether

the a5 / Naught - sik Rule shou a

be replaced

dy the AL est of mental incompetence in the

trial of criminal cases Id 260 S.E.2d at 15

The legislature has not repealed the old rule

14. Ga.Code Ann. § 26-703 (revised and recod:

hed as Off Code Ga Ann. § 16-3-3 (1982 pro-

FEDERAL REPORTER, 2d SERIES

With

sanity, Corn als aims tnat he was deni«

Ais constitutional mgnts when the court rs

fused to grant his motion for an ndepen

vent psychiatric examination. The histor

of Corn’s psychiatric examination is exten

sively discussed in the magistrate’s report

Record, vol 2 at 355 After his arrest.

Corn’s counsel requested that Corn be eval.

Jated at “orn

Central State Hospital. Corn was

y Dr. Bosch,

treated there b

a psychiatnst

was tnen granted a

ntinuarce of his tmal so that he could

gather further psychiatric evidence He

was examined by Dr. Sapp, a psychiatrist.

and Dr. Butcher, a psychologist. After

Corn entered a special plea of insanity. the

trial court required a fourth psychologica!

evaiustion at state expense

Following a

hearing on his sanity, Corn was

found sane. The state has fulfilled any

duty that it might have had to provide him

with an adequate psychiatric evaluation

(33,34) Additionally, Corn raises several

ssues in ng ¢t on of the jury

Specifica ne his sentence is

unconstitutional because the exclusion of

Jrors opposed ¢ > death penalty denied

him the right to be tried by a fair and

impartial aiso asserts that the

failure to disqualify jurors who might have

been predisposed in favor of capita! punish-

ment is due process and equal

A potential juror can be

he or she is irrevocably commit-

ted to vote against the death penalty

Witherspoon v. Illinois, 391 U.S. 510, 88

S.Ct. 1770, 20 L.Ed.2d 776 (1968) During

voir dire, venireman Vicky White was

asked: “(Rlegardless of what the evidence

is and regardless of what the law is, on that

point, you don’t

death penalty?”

violated h

protection rights

excused

think you could impose the

She replied, “no.” When

A person shall not be found guilty of a cnme

when, at the time of the act, omission, or

negligence constituting the crime, the person

because of mental disease, injury, or congeni-

tal deficiency, acted as he did because of a

delusional compulsion as to such act which

overmastered his will to resist commutting

the cnme

CORN ¥

ZANT 565

Cite as 708 F.2¢ S49 (1983)

‘orther pressed, “Under any circumstanc-

If her answer had

heer tentative or equivocal, there would not

rave been a sufficient basis to exclude her

Maxwell v. Bishop, 398 U.S. 262,

a S.Ct 26 L.Ed.2d 221 (1970)

White's responses, however, were firmly

and definitely negative. Taken «s a whole,

her answers support the trial court's finding

that she would automatically vote against

the death penalty, and thus, it was proper

exclude her under Witherspoon

she answered “no.”

‘or cause

1578,

Corn maintains that the exclusion of jur-

urs who oppose the death penalty denied

him the right to a jury selected from a

representative cross-section of the commu-

nity. In Spinkellink, 578 F.2d at 597-98,

this court addressed questions pertaining to

jeath-scrupled jurors, and held that when

veniremen are properly struck under With-

erspoon, their exclusion does not violate the

representative cross-section requirement of

tne sixth and fourteenth amendments

(35)

mort

As a corollary to the above argu-

Corn contends that the exclusion of

teath-scrupled jurors results in a “prosecu-

Therefore, he reasons, his

mviction violated his sixth and fourteenth

amendment rights in that the jury was

Jnrepresentative and biased on the issue of

guilt. This court recently rejected a similar

argument in Smith v. Balkcom, 660 F.2d at

on-prone™ jury

576-78. Accord, Spinkellink, 578 F.2d at

594-95. Other courts have also refused to

accept the notion that the remaining jurors,

after the exclusion of veniremen oppos 4 to

capital punishment, are possessed of a pros-

ecutormal bent and are not impartial. See

Bumper v. North Carolina, 391 U.S. 543, 88

S.Ct. 1788, 20 L.Ed.2d 797 (1968); United

States ex rel. Clark v. Fike, 538 F.2d 750

7th Cir.1976) cert. denied, 429 U.S. 1064, 97

S.Ct. 791, 50 L.Ed.2d 781 (1977); United

States v. Marshall, 471 F.2d 1051 (D.C. Cir.

1972); Douthit v. State, 239 Ga. 81, 235

S.E.2d 493 (1977). As we said in Smith v.

Balkcom, 660 F.2d ai 578, “[a]ll veniremen

are potentially biased. The process of voir

dire is designed to cull from the venire

persons who demonstrate that they cannot

be fair to either side of the case.” (original

emphasis) The record does not revea! that

any Jurors in Corn’s case were so biased in

favor of the death penalty that they would

have imposed it without reasonably weigh-

ing and considering the evidence. We con-

cur with the district court’s conclusion that

the veniremen indicated that they were pre-

pared to perform their civic obligations and

that they would obey the law. Such an

attitude cannot be labeled as a “hanging

jury” mentality. See Spinke!link, 578 F.2d

at 594-95

Corn contends next that the police fraud-

ulently induced his wife to waive her inter-

spousal privilege and her fourth amend-

ment right to be free from unreasonable

search and seizure. Thus, he alleges, the

trial court erred in admitting any eviderice

furnished by her. Corn’s wife aided police

in a search which yielded a knife and some

bloody clothing. She also testified at the

trial. Nothing in the record suggests that

police coerced her assistance. Her coopera-

tion was apparently voluntary

[36-38] Corn had no standing to exclude

his wife’s testimony at the trial because the

privilege against spousal! testimony is avail-

able only to the witness-spouse. Ga.Code

Ann. § 38-1604 (recodified as Off. Code Ga

Ann. § 24-9-23 (1982)); Trammel v. United

States, 445 U.S. 40, 100 S.Ct. 906, 63

L.Ed.2d 186 (1980). Corn's wife could nei-

ther be compelled to testify nor foreclosed

from doing so, and since she voluntarily

took the stand, Corn cannot successfully

attack the admissibility of this evidence.

The trial court is afforded broad discretion

in this area and its determination will not

be disturbed absent a clear showing of

abuse. United States v. Dothard, 666 F.2d

498 (11th Cir.1982). There was no such

abuse of discretion in this case.

(39] A serologist testified at the trial

that she analyzed a sample of Corn's blood

and matched his blood type and that of the

victim with stains found on the murder

weapon, a rag and Corn’s clothing. Corn

argues that his fourth and fourteenth

amendment rights were violated because

his blood was seized in a warrantless search

without his voluntary consent. He failed to

ct initia the admission of the serol-

- ‘ ;

gist’s testimony and would ordinarily be

r jjeqd from frais ng this yhiection n

review. See note 2, infra. Nonetheless, the

state habeas corpus court and the federal!

listrict court considered the

alleged error and rejected it. Corn v. Hop-

per, 244 Ga. 28, 257 S.E.2d

trict Court s Order Ree rd, voi

adopting the Magistrate’s report and rec-

mime yr Corn suffered no constitu

tional ivation as a result of the ble

test record indicates that the police

nformed Corn that a sample of his blood

was needed as evi Corn willingls

agreed to go to the

purpose

hospital for the

Ls t

f taking the blood specimen, and although

he balked momentarily at the prospect of

ected with a needle, he voluntarily

Moreover, as the magistrate con-

[40]

sided, the admission of this evidence, even

f erroneous, was clearly harmiess because

> oa ‘ ‘ WW roe

id mpact on Corns defense Having

niessed to the k ng, his on fense

Nas insanity ine € lence of Corns guilt

wa and he did not suf

an tutional proportion be-

ause of the serologist’s testimony

[41] The

ano imoror ‘

an iyroperiy

n is another « s

tutional error. At the trial, witness Bills

Sweatman identified Corn after having pre-

15. Record, vol 6 at 630

16. It appears that the “lineup” identification of

rn occurred close to the moment of arrest

en Sweatman saw Com

f four or five men

three of whom were policemen. Corn was ar

Clayton County police station

approximately four hours after his initial deten

n, roughly the same time that Sweatman

was in the station. For police testimony as ¢

the umung of the arrest, see Record. Vol. 6 at

997-999: 1009. For Sweatman's testimony

see Record Vol. 5 at 560-71

walking in the sta

n with a group two or

rested at the ¢

17. It was the magistrate who stated in his re

port and recommendation that the initial ident:

fication procedure was impermissibly sugges-

tive due to the absence of counsel. Corn's

right to

yunsel had attached, according to the

magistrate, because the police had already nar

708 FEDERAL REPORTER, 2d SERIES

ssi¥ recognized nim at tne police station

when Corn was without counse!

The record is not clear that Corn had act

ally been arrested pmor to the identifica-

on.'® and thus, tne proceedings were not

stage

to counsel

454, 469, 101

when Corn

Estelle

S.Ct. 1866

necessarily at a critical

1876, 68 L.Ed.2d 359, 373 (1981); Kirby

Illinois, 496 U.S. 682, 92 S.Ct. 1877, 32

L.Ed.24 411 (1972); Moore v. Illinois, 434

T ¥

mf “4 > ¥ “4 %@ 4 S 4 T ~ 4 4

S. 220, 228, 98 S.Ct. 458, 464, M L.Ed 24

Indeed, in his reply brief ¢

does not that the

this court, Corn claim

ation was inadmissible because his

sixth amendmert mght to counsel was vio

lated." He simpiy urges that the lineup

When an

identification is challenged on other than

amendment grounds, tne appropriate

analysis emerges from the “fifth and four-

was impermissibly suggestive

teenth amendments

proscription against

sugges-

procedures which are unnecessarily

e an ynducive to irreparable mistaken

ntification.” Puassman, 652 F

ting Manson v. Brathwaite, 432 U.S. 98, 97

S.Ct. 2243, 58 L.Ed.2d 140 (1977)

r ‘ Tz "

[42,43] If clear and convincing evidence

es an independent origin for the

witness's identification, the testimony is ad-

missible. United States v. Wade, 388 US

241, 87 S.Ct. at 1926, 18 L.Ed:2d at 1149

zy Wade, the Court in Moore v. Illi-

nois, 434 U.S. at 226 n. 2, 98 S.Ct. at 463 n

; 1.2d at 432 n. 2 stated

-_ ,

row the focus of their investigation to Corn

The report cites United States » Wade, 388

U.S. 218, 87 S.Ct. 1926, 18 L Ed.2d 1149 (1967)

see also, Gilbert v. California, 388 U.S. 263. 87

S$ Ct. 1951. 18 LEd.2d 1178 (1967) (companion

case) Wade clearly involved a cntical stage. a

post-indictment lineup, but that reasoning

would not necessanly affect Corn’s case The

definition of a cntical stage was clanfied in

Kurby v. Ilhnois, 406 U.S 682, 92 S.Ct. 1877, 32

L.Ed.2d 411 (1972) where the plurality opimon

made clear that the mght to counsel as an-

nounced in Wade and Gilbert attaches only to

corporeal identifications conducted “at or after

the imtiation of adversary judicial cnmuina! pro-

ceedings—whether by way of formal charge

hearing, indictment, information

of arraignment Moore v. lilinois, 434 U.S. at

226. 98 S.Ct. at 463, 4} LEd2d at 432

pretrmunary

CORN \. ZANT 567

Cite as 708 F.2¢ 4S (1943)

Among the factors to be considered in

~ak ng this determination are “the prior

»portunity to observe the alleged cmmi-

na. act, the existence of any discrepancy

netween any pre-lineup description and

:ne defendant's actual description, any

ientification prior to lineup of another

person, the identification by picture of

the defendant prior to the lineup, failure

to identify the defendant on a prior occa-

sion, and the lapse of time between the

alieged act and the lineup identification

Billy Sweaiman’s identification of Corn at

the trial was independent of the lineup evi-

dence. Shortly before Mary Long’s corpse

was discovered, Sweatman had been shop-

ping in the convenience store and had ob-

served Corn there for approximately ten

Corn waited on Sweatman, told

the youth that someone had robbed the

store, and failed to charge Sweatman for

rs purchase. Doubtless this experience

made a sufficient impression on Sweatman

fur him to recognize Corn just one week

Furthermore, Corn was independent-

dentified in court by five other witnesses

who gave the same genera! description of

ater.

xilling. No objection was made to the iden-

tification at the trial.

This cireuit has stated that the key factor

in assessing the admissibility of identifica-

tion testimony is the reliability of the iden-

tification in light of all the circumstances.

Nettles v. Wainwright, 677 F.2d 410 (11th

Cir.1982). Considering the totality of the

evidence in this case, it is clear that there

was no likelihood or irreparable misidentifi-

cation, and the eyewitness identification

testimony was properly admitted.

(44) The petitioner also attacks the in-

troduction of his confession at the trial as

unconstitutional because his detention was

unreasonable amu his incriminating state-

ments were not knowingly and voluntarily

made. Approximately four hours elapsed

from the moment of Corn's first contact

with police officers until his confession.

Corn claims that he does not clearly remem-

ber waiving his rights, but the testimony of

police officers discloses that prior to any

questioning, Corn was advised of his rights,

which he voluntarily waived in writing

Record, vol. 7 at 1277-78, 1295-96; vol. & at

1492, see Miranda v. Anzona, 384 U.S. 436,

86 S.Ct. 1602. 16 L.Ed.2d 694 (1966). This

case is not one where the defendant's will

was worn down over a long period of time,

nor was Corn physically abused. There is

no evidence that his detention was unrea-

sonable, and there was no violation of his

fourth amendment rights. United States \

White, 493 F.2d 3 (5th Cir.). cert. denied 419

U.S. 901, 95 S.Ct. 186, 42 L.Ed.2d 147 (1974)

[45.46] Even though Corn’s statements

to the police comported with the standards

of Miranda, the question remains whether

Corn’s iow IQ and history of emotional!

problems had such an impact on his confes-

sion as to render it involuntary. While it is

true that statements or confessions made

during a time of mental incompetency or

insanity are involuntary and hence inadmis-

sible, mere emotionalism and confusion do

not necessarily invalidate them. Sullivan v

Alabama, 666 F.2d 478 (11th Cir.1982). The

record indicates that Corn remained calm

and responsive throughout the interroga-

tion, but was a bit shaken while his wife

was present. Record, vol. 7 at 1319-20. He

did not appear to be confused or incompe-

tent so as to cal] into question the voluntar-

iness of his confession. Although Corn was

of below-average intelligence, he admitted

that he was familiar with the criminal proc-

ess and he understood the policemen’s state-

ments to him. His mental capacity was

also evaluated at a hearing held pursuant to

the rule in Jackson v. Denno, 378 U.S. 368,

&4 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and the

court determined that he understood his

rights. Record, vol. 7 at 1310; see United

States v. Bush, 466 F.2d 236 (5th Cir.1972)

The voluntariness of a confession is

premised on the totality of the circumstanc-

es, Sullivan, 666 F.2d at 482-83, and based

on that standard, we agree that Corn’s in-

culpatory statement was voluntary and

properly admissible into evidence.

[47-49] Although he did not object at

the trial, Corn later cha!lenged the admis-

sion into evidence of the testimony of the

ictim's mother and the identification of

the victim's son at the sentencing hearing

He claims that such evidence was not pro-

bative rcumstances in exteruation, mit-

igation, or aggra f the crime, but

only served to inflame the jury. The trial

court has broad discretion in passing on the

admissibility of evidence, inciuding testimo-

ny that may be calculated to create preju-

jice against or sympathy for the accused

It is for the trial court to determine wheth-

er the probtive value of the evidence is

yutweighed by possible prejudicial impact.

In evaluating this charge of error, the state

habeas corpus court found, and we agree,

that the evidence was neither inflammatory

nor prejudicial. The mother testified brief-

ly and unemotionally as to her deceased

daughter's age, employment and marital

status. She also identified the child, who

was a spectator in the courtroom. United

States v. Sonntag, 684 F.2d 781 (11th Cir

1982). The trial court did not

discretion by admitting this evidence

[50]

court erred by not granting a new eviden-

abuse its

Corn also contends that the district

tiary hearirg. The

had a full and fair federal evidentiary hear-

ing on all the claims in his habeas corpus

petition that bear on ineffective assistance

There are no questions of fact

pertaining to any of his other allegations

that would require further development.

Consequently, we see no reason for an addi-

tional evidentiary hearin

petitioner has alread;

of counsel

For the foregoing reasons, we AFFIRM

in part and REVERSE in part and RE-

MAND to the district court with direction

to vacate the stay of execution

APPENDIX

The complete instructions on intent

at Corn's trial are set forth below

given

Now as I have stated, the other offense

charged against the Defendant in Count

Number Two of this bill of indictment is

that of murder. And in that connection I

charge you that a person commits murder

when he unlawfully and with malice afore-

thought either express or implied causes the

Express

death of another human being

708 FEDERAL REPORTER, 2d SERIES

maiice is nat deliberate ntention

fully, to take away the fe of a fellow

creature which 1s manifested by externa

capable of proof. Malice

shall be implied where no considerable prov-

circumstances

pears and where all of the cir

cumstances of the killing show an aban

1s n ym» (uiing snow an abdan-

heart

element in murder and it must

ocation ap

doned and malignant Malice is an

essential

exist before any homicide can be mu

Malice, in its lega! sense, is not necessarily

il! will or hatred; it is the unlawful, deliber-

intention to kill a human being without

mitigation or excuse, which

exist at the time of the

It is not necessary, however, that

ate

justification or

intention must

killing

this unlawful, deliberate

exist for any particular length of time be-

fore the killing. If it enters the mind of a

slayer the moment before he inflicts the

fatal wound, that is sufficient

intention should

The law presumes every intentional hom-

cide to be malicious until the contrary ap-

pears from circumstances of alleviation and

justification, mitigation or excu The ac-

cused may show such circumstances to the

Jury unless such circumstances appear from

the evidence produced against the accused

But he is not required to do so. If such

evidence produced against the accused, if

there be such, discloses the homicide was

done without malice, then this presumption

that the homicide is malicious does not ex-

ist. If, however, the evidence produced

against the accused, if there be such, does

not disclose that the killing was done with-

out malice, the accused may show that :t

was done without malice. But he is not

required to do so

I charge you, however, that this presurp-

tion which arises against the slayer where

an intentional homicide is shown does not

arise against the slayer unless it be first

shown to a moral and reasonable certainty

and beyond a reasonable doubt that the

Defendant was the intentional

When and if a killing is proved to your

satisfaction to be the intentional act of the

Defendant himself, the presumption of in-

nocence with which he enters upon the tria

is removed from him. But as I charged you

slayer

CORN v. ZANT 569

Cite as 708 F.2d HAS «(1983

A} a} Continued the efens f murder. it would be ir

he ¢ ace ‘ ’ ation or juty to acquit the Defendant of th —

non be found in the evidence f murder

* how Tf ++

t agains i ere De nO eVi- ‘ t ee

é Vow, as | fave ated, the Defendant

nteniuiced against him to show ost.

j apa . J¥ Charle< Th mas Corn ntends that he <

¢ ‘ ‘ :

. ror ra n and tne evidence o ® ‘

& gulity I tne ffense as charged in tnis

pnwe the ham to on bh } 7

» shows te ave i :

, 7 - : e t f indictment He further contends

= harged in the ndictment. th

: that at the time of the commission of the

a Dutis? reocuired ft cn 4 ’

ndery and murder ne was @

~ 2° 10N ré

=° . mind, that ne was insane

riner charge vou that it is r vou mpete to commit tne

. a to sav wi! er the evidence ir n this b f d e

ase, the testimony and all of t

¥ 1pcila >< \¢

” - mstances. s ae cient den ec iare n n

~.* , De CON I any crime ed while

efendant as the Ssiaver Devond a reasona- an) =

i le Ae ee wie nsane. Now in that connection | charge

Die GOUDL i is OL necessar nal tne

, you that a person shal! be considered of

Defendant prove that another person com-

S-

ha not +

ryvais Snaii L DE

crime or misdemeanor

rder to constitute a

have intelligence and

criminal intent and

crime charged. The

Sima enah

ne words

nent oh ¢ . tian af eanit’ ’ - -

ed with the act for which the accused is u yf sanity anc insanity, tne genera: rule

ros ted mn this state is that il a person has reason

tf at ¢n distiag bets a take and

_ Sulliicent ais iguish dDeLween Mgnt. and

Now Jury & 5

’ wrong r re t r ? the nart r act

arge nd a A 4 at uC ine parvicular acy

e rf about to be committed, he is cmmuinaiiy re-

2sonadie Gouht that the Verencant cic, in r

=e é' ; sponsible n the i, if he should

unt ; Clavton, anc State i Weor-

not Nave reason s§ t Mstinguisn

‘ th a weapon describec in the noaiet. -

. hetween right na wrong inr nt th

- with malice aforeth ght either ex- * ee £ anc g reiat ( €

, ¢ pa ular act about to be committed, Nhe

r implied did unlawtuliy and inten-

‘ would De insane in lega mplation and

1K the ceceased as ‘

n not cmmuinally responsibie tor sucn act

and J Deleve

the manner usec was | charge vou that intention is an essentia

roduce h. then } would be element of an rime and that the Mh nis

r e + tr fondant f th ntr ~ t . mh int rt na

¢ Je le 1a ine n ine ate f e su Le ) “e\

s ; murder 'f vou have a reasona- @ reasconabie dout While the t s

as to the Defendant's guilt as t not on the Defendant jisprove intentior

APPEN DIX—Continue

netheless he introduces some mpe-

tent evidence nsanity, which might tend

) negate « ntention in the Defendant at

the time of the mmission of the alleged

rime, then the burden falls upon the State

to prove beyond a reasonabie dount that tne

Defendant was sane at the time of the

alleged crime, and therefore had the requl-

site criminal intent. Under Ge aw,

nsanity sufficient to convince you

beyond a reasonable doubt, but rather it is

only necessary for him to introduce some

competent evidence of his insanity. And

when he nas done this, tne

the State to prove his sanity beyond a rea-

sonable doubt. Under Georgia law, a per-

son will not be presumed to act with cnmi-

na! intent but the triers of the facts, the

Jurors. may find such intention or the ab-

sence thereof upon ynsideration of the

words nduct, demeanor, motive, € tence

sa r insanit and a ner reum-

stances nnected with the acts r whicn

he accused !s prosecuted

Emphasis added

70s FEDERAL REPORTER, 2d SERIES

RT. VANDERBILT COMPANY,

Petitioner,

OCCUPATIONAL SAFETY AND

HEALTH REVIEW COMMISSION and

Raymond J. Donovan, Respondents.

No. 82-5604.

States Court of Appeals

= -

Eleventh Circuit

Minera! product supplier aj; pealed from

decision of the Occupational Safety and

Health Review Commission upholding ad-

ministrative law judge's vacation of cita-

tions issued against supplier's customer re-

lating to failure to comply with asbestos

standards in workplace as result of agency's

jetermination that mineral product con-

tained ast t

stos. Supplier did not seek re-

versal, but rather challenged Commission-

er's finding that mineral contained asbestos

and argued that asbestos standard was un-

enforceable because of vagueness and pro-

The Court of Ap-

peals, Johnson, Circuit Judge, held that: (1

gratuitous finding by Commission that as-

bestos fibers were present in mineral prod-

uct used by company found to have lacked

cedural irregularities

actual or constructive knowledge of pres-

ence of asbestos in workplace caused suppli-

er actual, redressable injury by unnecessari-

ly impugning integrity of product, thus

satisfying Article III's requirement of per-

sona! stake in outcome of appeal insofar as

supplier's request that Commission's finding

that product contained asbestos be vacated

2) court had no power to pass on merits

finding because appellate review of find-

ings immaterial to case would amount to 4

and (3) mineral! sup

was not arguably within zone of interests

Occupational Safety and Health Act so

lacked a right of action

advisory opinion,

Appeal dismissed

aj IN THF UNITED STATES COURT OF AP°SALS

FOR THE ELEVENTH CIRCUIT os coe CF APPLALS

LEVENTH CiRCUIT

FILED

No. 81-7649 AUG 1 . 1983

—=sya¢ /C

Spencer D Mercer

Clatk ; oc /D

CHARLES THOMAS CORN,

F602 -7

Ar Anno? ) v

Petitioner-Appeilee,

(Cross, Appellant,

versus

WALTER ZANT, Warden,

Jackson Diagnostic ana

Classification Center,

Resvrondent-Aprelliant

(Cross) Appe.lee

Appeal from the United States Dist

> District or G

ON PETITION FOR REHEARING AND SUGGESTION FO

TION FOR REHEARING EN BANC

(Opinion June 15 » 11 Cir., 1983, F.2d )

( August 11, 1933 ) . -

Before HILL and HENDFRSO, Circuit Judges, and GARZA*, Senior painless

PER CURIAM:

( ~) The Petition for Rehearing is DENIED and no member of

this panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit

Rule 26), the Suggestion for Rehearing En Banc is DENIED.

( ) The Petition for Rehearing is DENIED and the Court having

been polled at the request of one of the members of the Court and

a majority of the Circuit Judges who are in regular active ser-

vice not having voted in favor of it (Rule 35, Federal Rules of

Appellate Procedure; Eleventh Circuit Rule 26), the Suggestion

for Rehearing En Banc is also DENIED.

( ) A member of the Court in active service having requested

a poll on the reconsideration of this cause en banc, and a major-

ity of the judges in active service not having voted in favor of

it, rehearing en banc is DENIED.

—? FOR 7 pe

/ if fs

“United Stétés ‘Circuit Judge .

emMheR Unnaneasa ayes Circu. G. Saka, U.S. Circuit Juage DEWMAA

APPENDIX B

Ca. Code Ann. §26-1101 (a)

[OCGA §16-5-1 (a) }

16-S-1. Murder; felony murder.

(a) A person commits the offense of murder when he

unlawtully and with malice aforethought, either express or

implied, causes the death of another human being.

Ga. Code Ann. §27-2534

(OCGA §17-10-30)}

17-10-30. Procedure for imposition of death penalty generall

(a) The death penalty may be imposed for the offenses of

aircraft hijacking or treason in any case.

(b) In all cases of other offenses for whic the death

penalty may be authorized, the judge shall consider, or he shall

include in his instructions to the jury for it to consider, any

mitigating circumstances or aggravating circunstances otherwise

authorized by law and any of the toilowing statutory aggravating

circumstances which may be supported by the evidence;

,» or

(1) The otfense of murder, rape, armed robb

Kidnapping was committed by a person wi

record of conviction for a capital felo

(2) The offense of murder, rape, armed robbe

kidnapping was conzaitted while the offender was engaged

in the commission of another capital £ ny or

aggravated battery, or the offense of murder was

committed while the offender was engaged in the

commission of burglary or arson in the first Gegree;

(3) The oftender, by his act of murder, armed robbery,

or kidnapping, knowingly created a great risk of death

to more than one person in a public place by means of a

weapon or device which would normally be hazardous to

the lives of more than one person;

(4) The offender committed the offense of iaurder for

himself or another, for the purpose of receiving money

or another thing of monetary value;

(5S) The murder of a judicial officer, former judicial

officer, district attorney or solicitor, or former

district attorney or solicitor was committed during or

because of the exercise of his official duties;

(6) The offender caused or directed another to commit

murder as an agent or employee of another person;

APPENDIX C

(7) The ottense of murder, rape, armed robbery, or

Kidnapping was outrageously or wantonly vile, horrible,

Or inhuman in that it involved torture, depravity of

mind, or an aggravated batter to the victim;

(8) The offense of murder was committed against any

peace officer, corrections employee, or fireman while

engaged in the performance of his official duties;

(9) The offense of murder was committed by a person in,

cr who has escaped from, the lawful custody of a peace

otficer or place of lawful confinement; or

(10) The murder was committed for the purpose of

avoiding, interfering with, or preventing a lawful

arrest or custody in a place of lawful confinement, of

himself or another.

jucge to be warranted by the evidence shall be given in

charge and in writing to the jury for its deliberation. The

jury, if its verdict 1s a recommendation of death, shall

Gesignate in writing, signed by the foreman of the jury, the

aggravating circumstance or circumstances which it found

beyond a reasonable doubt. In nonjury cases the judge shall

make such designation. Except in cases of treason cr

aircraft hijacking, unless at least one of the statutory

aggravating circumstances enumerated in subsection (b) of

this Code section is so found, the death penalty shall not

be imposed. (Code 1933, §27-2534.1, enacted by Ga. L. 197

p. 159, §3.)

APPENDIX C

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

Xo. 83-5716

RECEIVED

CHARLES THOMAS CORN, NOV 7 1983

Petitioner, OFr.Cé OF THE CLERK

SUPREME COURT. U.S.

Vv.

WALTER ZANT, Warden,

Georgia Diagnostic Center,

Respondent

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Petitioner, Charles Thomas Corn, by his undersigned counsel,

asks leave to file the attached Petition for Writ of Certiorari

without prepayment of costs and to proceed in forma pauperic.

Petitioner's affidavit of indigency is attached to this motion,

Respectfully submitted,

RONALD J. ALLEN

University of Iowa

College of Law

Iowa City, Iowa 52242

(319) 353-3502

HAROLD A. MILLER, III

116 East Howard Avenue

Decatur, Georgia 30030

(404) 373-5515

COUNSEL FOR PETITIONER

IN THE

ee COURT OF THE UNITED STATES

OCTOBER TERM, 1983

0-88-5716

CHARLES THOMAS CORN,

Petitioner,

Vv.

WALTER D. ZANT, Warden,

Georgia Diagnostic Center,

Respondent

AFFIDAVIT OF INDIGENCY

I, CHARLES THOMAS CORN, being first duly sworn, depose and

say that I am the Petitioner in the above-entitled cause; that in

Support of my motion to proceed without being required to prepay

fees, costs or give security therefor, I state that because of my

poverty, I am unable to pay the costs of said proceeding or to

give security therefor; that I believe I am entitled to relief.

I further swear that the responses which I have made to

questions and instructions below are true.

l. Are you presently employed? Yes No x

a. If the answer is "yes", state the amount of

your salary or wages per month, and give the name and

address of your employer.

b. _If the answer is "no", state the date of last

empfoyment and the amount of the salary and wages

per month which you received.

1415 $500 per mean

2. Have you received within the past twelve months any money

from any of the following sources?

a. Business, profession or form of self-employment? Yes _ No x

b. Rent payments, interest or dividends? Yes No =

c. Pensions, annuities or life insurance payments? Yes _ No

d. Gifts or inheritances? Yes _—s—‘No —

e. Any other sources? Yes ¥ No

If the answer to any of the above is "yes", describe each source

of money and state the amount received from each during the past

twelve months. Oc+> trae 25° fom Hamil ¢ trends.

7 + 7

3. Do you own cash, or do you have money in a checking or

savings account? Yes X No (Include any funds in prison

accounts.)

If the answer is "yes", state the total value of

the items owned. $a,66

4. Do you own any real estate, stocks, bonds, notes, automobiles,

or other valuable property (excluding ordinary household

furnishings and clothing)? Yes No x

If the answer is "yes", describe the property

and state its approximate value.

5. List the persons who are dependent upon you for support,

state your relationship to those persons, and indicate how

much you contribute toward their support. Mone

I declare uncer penalty of perjury that the foregoing is

true and correct.

Dated:

Sworn to and subscribed to before me

this 2” day of ove le , 1983.

~—

1 444 he

NOTARY PUBLI

My commission expires:

CHARLES THOMAS CORN

CERTIFICATE OF SERVICE

I hereby certify that I have served counsel for the opposing

party with a copy of the foregoing pleading by placing same in

the United States Mail with adequate first-class postage attached

thereon addressed to Mr. Michael J. Bowers, Attorney General,

State of Georgia, 132 State Judicial Bldg., 40 Capitol Square,

S.W., Atlanta, Georgia 30334.

This B= aay of November, 1983.

University of Iowa

College of Law

Iowa City, Iowa 52242

(319) 353-3502

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.