# Petition — Corn v. Zant

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1697%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 468 U.S. 1224

## Text

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

TO

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
PT PMparr r TRI DNIM Parr sarrTrer
At et et hh cht a OD /* AAP eA ded ad fut et Se ae oe

arm ™P HPereNnaAms
whi 4h VLTonvVsAisid
Aarr ut DITCiuM mer
AN md iU
rmpyv © sama
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 °

ba
tH
3
=
t
mw
4
tH
|
HH
HW
4
oO
tH
Ww
oO

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+« ™N
. . . . . . . 4 . . . ‘?) . 2)
. . . _ . . 5 ~ ea)
. . . . > . . . . . ~ “4 . bh 4 -
. £ - . . ; . . ° Fe
. . . . . - . - . . x . . >) .
~ ; . . 4 . ~_ >) ba 4 by
. . £ - . . . . . ) r . 4 a ‘ 4 . a)
-T ‘ 4 ; . . 4 . ; 0 4 ) . A
. . \ 1 _ . ‘ . 4 4 . ‘ . >a’ dD . . ha WwW
~ ‘ ; . _ _ . ft) > . 4 Pal ) iJ rd = .
. _ ‘ 1 ) - . ‘ . . . 4 4 7) . {) io 5
fi _ ; ) ae al ) i . ~ ] . ba . = ‘ wy
>| if ‘_ . ‘ ) > . ) 7) ‘ . 4 . hy . —_ — Bo =
4 x ‘ ha y £ ‘ - DoW) . C) 4 ba . \ a
‘ . c 4 ° ‘ ‘ . j — -« _ () 4 ) aa) { roa) aa)
4 ‘ . tC) 4 tj 3 . . 4 C) . ~“ >a) _ sa
OS — ba . ‘ ~ . i- 4 4 5 £ 4 = ) _ f ° ong Ic
eo . 4 re ‘ . ° - 4d ; | oo) > 4 Le ve) ue] Piss |
zp) “r " ) = Nf J ri i 4 — Ss 4 x re 4 —™N hu
i, . ~ *) 4 . v4 Tt ‘ ~ 4 ) Tr ) ™N . . HI
) —r =~ ‘ tet ) . > Ww Jr i . ~” W tha ~
{ e >) ~ >) ° f) i oe >. 4 U QO, iat ° Ov
bad 4 ) J rT - - ’ . N . 8 ] 2) 4 eo ] - oO +
4 - " " ’ TT a) ° ‘ ) me. . in W) . 4 | - Ww) ba
‘ ‘ * “2 yy i i oo yy . {a4 . vy) 7) N v -¢
j 3 fay 9) rt } y . . Ee. baa . eb) T 6)
t - 4 +J 4 - ) . 4 ) ‘ | | a) rm bey v “Tr -
) . Nn roa) . oe j . ; . “r oe Ww) [ U > -
4] whe v {14 ) ) 3 © 44 ‘ . ~ + - ay eB
iJ 3 LO ) . ( ) - - -T ) > WwW) ry atid
j >A) t : tty bo “T ) 3 i - TT wy us) VO;c
ee ed + - ’ S ) “r Tr t: J ¥e) a Als
4) vs 4 S 2) TF UU 4 ve ) - 0 - y HI
= i) ) 1 y S hd | 4 se - ) . +?
,) - ) ts - f 4 - - 1) Vic 4 4 4 > Ww)
v DY ) ° °c a = 4 ‘| i] 0 ") S
iJ . ha nn - - vIa y n A CG} M4 ha 9] oe | Yn .
an 6S > is | 4 WrU OQ ‘ ) Yio ) Wa . 18) > 1a
| cS ] Q “3 + 3 62 O w) v7] ° > eo
a] > > C 3 , J} * ) dt . c ch
b~ t ° ° ' 3 W}4J ~ - 4 cE o) Ore
om) . . 3 -- > 4 hy . *lha . . > ) yy) Hic
U ° > Q - ° 10 ° ” 1d > - “ ba on fee)
be Ma : > »|O > o S) Uv re) re} od bt
) 3 ha v ) v 2 N = : v cS 19) io) 4
] 3 v 4 J J b] ee 4J 4 ‘ ) hel °] rw) c
) : Ml oe b4 ha ‘ ha by ") j oy oY G 4 n
r | ‘e) 3 39] ) ) - 4 ~ = he a ie) i | GC ue]
U m ioe) >a] U] J U U QQ kl! fa] © Ow eV) WY ~ =

373,

249 Ga.

Zant,

*
v

-

Vilsor

V

4

.
.
-
Adftitad - pt #£. db Use ‘ ’
ne Dini n > . ¥ ys + > + — + ~ -
Ploeyvont > . ‘ _ , , 9 A
m4 ni waft di (ADI 21 , b « A> d A
‘, + 5 c ‘Q > 4
ve jai , J Se ds (iit ~m_e © ‘ .
‘ . Da ‘ ° + > ‘
yr? . 4 , ‘ s ‘ é ’ i
> or ¥ > ¥ ‘ . + > >
2g
t the ~ONSTICTUCLIO? ‘ t , t
, . . . ° 4 , ‘ ‘
~-* asia “e- ~* a vs ss ~ ,ae - _- - ait
; a ' ‘ + tow? ‘ ; . ‘ >
rgia . ; P j x Vs LCi ir i Ln
_ . “omy . .
— a . ° 4 an , = —" 2 1)
As ‘ i she 4 sal 9% 5 a 6S - a
‘ _ " sat > . * - a’ . . t s = *% ve -
we! ralisec | pe i i ‘ I rit ‘ : DU t s t
= rye ; ‘ ; ‘
ul aniG = FraLisSea rn ipt e' . iJ Dy id

miu
Lf
re
}
v

'Y
44
a

Do+ + nar
re » - iCL yg
rdear na —
» \A ‘ Gsitu Ad iii
re Ma «
i ;
Gia Jt, MAY a 74a’ + 4 «
, jirect
, ie yy *
+ waat % & Wait
I was rece
uw ont i
evicentiliary
‘+ + . 4 Cai ‘ >
’ i! Which
rr ¢ + 4 y
a; Cu : ASU 4
, | > >
rid re ACI0O!
‘ ‘ ;

+

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

q

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

ne

aad
Ty
s

“AY y ed
INCLANUCa
_- . nA oh
LOeiaadad wd Laat
> ‘ |
C i U1La 4
2 + ¢ . =
& 26 L iCw ji
Hh ed Aeey Vit ‘
: n a ait
I t ress
+ ey +} Pay,
ileL Lilac ¢
— oe Aad
aCit . aaa
> n+
The asst +
~» **, }
wLAtivovosud és
% . mes ¢
* +9 wetor
VOUS YS 4
ra {Natlilon.
. ++ uy
. Cc ~Vvs

who

He
sic

was

ays

+
©

Or

mnet 7
Mise eae

ai

sa
ius
+
iter
ted
Ve
+
cua
cCuat

rr
Cris
re tt
ng
é
na
Ladi.

> tact ir
ic Le as
ors
sitlaa wa.
We See
‘ _
WOULG 2
Cnar le
erve Wi
7 ‘
} Té
,

(
+
}
oe"

4

‘
"+

+

WwW
rié
‘
r >

We KR \ ssiva ald 2 Li
Le
- AY _ . murt ™ or 7 . rT
(A) 4 MULVING UF satis \ mi DLL Le ,.8 VIN pt
MOET TC wr MirT MAT nh TMC e 7 y _
\ WrFLiL. Will ais HULVULING Ut blido Xv 4 Ai
a arr . — Trek: AA
SU , . i". i ion “es. Jar 2 , TE e
Tr ’ +y r vw N . h 4 ° y+ + 4 +} Dna
ai oa A . i Ve ‘ + als" tr ; + pan + a . * + ‘ ’ + } \ . rap
eFrocess iauUuSse I ~ ne rourteent AME Ament \ Vi ia 2 a \ury
- ii] a
ner ric y +h a+ + } y = + ’ y y + na + :
Lnsctru LO! that ic + aw pre es nat | ; ] ena L536
o - >] "
lir — “Or . “2 ‘ 4 + 4 y y + “+ y
Ora sak y ~ViinooCUuUuls Cc. Ua id 4 i) s su i 4 A s ~ ~iVi
’ ; P } , +orr + ? } + 4 + ¥ + + ;
= ss « - , . oS — A
wernaicet + ' ‘ ntran-+ . + €+ + > ‘
VOLUdL ai Waal 4 out iM Asi s i i ae s ‘ Wl a‘ i opt
Y a , + + > | + ¥ + +
> »-* é* ‘ ~ * — Vaal \s ‘ Aw ‘ in no X ** . s 4 . ‘ . A a
a + hy Ww. } , + rr y +o rs + + b rder ry FY de tha
umave ~~ ai Ass OL pic A 4 t AuCi ‘ p4 a LU Waal
Aa fond ‘
UeC.zciiGcdi °
Or ‘ + + "> Her +
- = — _ _ — — —_—___—_ - =
rw ¥ ¥ ‘ 's « ¥ - ‘ - + A+ is ~ +
€ Np i ea t proau i Ci ing thneret iu
: 2 t
tia +} ‘ hiyman ho 1 +} ’ ry ,
~ Tie geatn Of r numan being, Cre law py! Su
+hea ntrean- +¢ =a " at f ; 1 - -G99?
the intent to Kill. Le 2hahe OD, JF 993);
| ° "wry, } 7 ’ , an
4 if Law resunics € ery
sn+ ~ 7 +~ J»
Z t
)
str 4 An no : 5 #4 4 r oe a | -~ 4 Yr OY
2 lation and ustification, mitigation or
. " " T+ } Q7
“WC Yr}
cuses. iT .« trlai de 991) °
Rat? ¢ +h ca nerriicriogr */ ry « +} ) " e rae 4 to
both OF CNeESe INStIrUuctlions Contains Tie sanguage crucial C
the holdin mn Gandctrom “Yteho tw pre: ec." na hot} joa] witt
ne NOsw.aing in ocanastrom, tne saw presumMm ana potn Gaeali Witn

en

doubt.

7 — ~ >
eliemenct

that

Moreover,

the

wit

state was

beyond reasonable

required to prove

h respect ons,

>maeremer® 4
presumperl

ae The
trial
decision

are

complete
set
(Appendix

ins

forth

"A>

tructions on inten 's
in the Appendix to

to this Petition).

+
L

at Petitil
Eleventh

given

tne

oner
Cizvecuit’s

fiir? »Y yo ‘ y + + + . mr +
rurtner AUIS LLTUCUWIOTS a2his2UlL ec « ul . be L ‘ A 4 =
} GO wat " + " "

~ yp . ori a -Tal +oarr y , ~+ ’ + é - > _
may DE rebutted. 4 Cer! renputtced é . @eii3 P “ er,
+} . oe ++ + + } = + ’ + ve
Lilus 4€c 2iiG at . ie july >t 4e2Ge + p aura “ ae
Dw -n

rahi +ho “ro + ‘ - . + > ‘

ebut = ot: presumptilo! I ail and pt i ai ° is a
Yr l+¢ , + ’ > -» ~+ ° — + -
LeouUdil, +i KOC si waiG . Liu i & , 2 - ~u he ah ‘ 44 s
interprets. 7. + ner , y . ‘ + ++ é +
Ai11L© + la a weiheae Ki 4 Jud a - Oo uUG - pe “ —
m+ ¥ + r ¢ +} ’ . + . + - + + a .
Abin, maVUL Visa y Ams ~11€ L ~ - ' 4 pe 2 | se & = i a
+ ——_* Be - -
neoarlnery na a y + > + + + - . é -
~-*e Cli savr ~* 4 ~-* > * - a = - - ~- ~

. , + Tr)» + > 3
OUN4sGdtllon J é ¢ s ‘ 4
ré } ‘ j +

r r + > .

a 2at ~~. ~/ - ve ~ > - - ~ - -
that Court 4 tC rucini d t
"harae } + + + + + +
Chiarkrge pur U Yadiua p l i 4 ° ° Se “
558-59, anc | d I i ructi :

. ' Var + ° +
GUdadsalilyi j ial uaG ae 4G i a 4 4 ° z +
+} v + ~+ ’ y ‘ ‘ +
Vsti 4 ~via ‘ Gs 4 - , p o

+ + y "laa + ‘ - ¥

smovulru AOS il 4 we il s 4 1 pe a 4 pe “ eaClia pe ;

+ at a > ¥ >
. a a/* As Sy wseOloa - ~+ + ~ ~a A -
ms r +

‘ ‘ Y y y ‘ + ;
(€ o“wey 2 pit Lo a ' s }oAeae rs --* =" - “a7 7 ,
} . +} : #. . 1 + +>
Dut ~siCi C 4 « Mudada a4 4uca pt . é a Ss ° —

" }

7117" ~ . oe 7 : } > ‘ + +
Ul must ei= JuVILAINCCa eo) ) a Aw of ° ° . . .
J 4 J

ja Fond "+ “a an +} > _+ ‘ + ‘

ae.tenadalh Causca Lic AC ali J 4 4 i a J *

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"

"val. rr « T / ‘ ae Carr ; +» . ", " .
~-ructioOns. Ae itat iy aah Wasa La bily ws * Wan it Wao
Mme , aie Baal: Ks } ‘ } + } + + , ‘
ee! ll Se rFIiNnadily, DOv! Ln -ru l 1LL1ca
" ™ "
4 pr IMptioNn and Lali¢ ep ld any
no + } " ry > mrt 7 , . ’ L : + + +
£4iG Lilt WlCoull, 2O1) Abus, CVC) s 2 11G 4 s
3 t t
Cnvcilery, Lilley al LT, b A A ‘ 1 Witti
¥ , ¥ . + ‘Fr wf + ¥
Jae aa / 4 we fi ¥ . ‘ Aa ~a*«
ONY whl vi mL AUIS i atria Ao: ‘os
4 4 t WY 2 fha favurer a Aa ddve aa¥
On . ? + Y.
it Ny ee , De °
~— 7? aT oT _— PP) .
ec . y ' ‘ _ , :
av\ a fla shu shiv DON [ wd ‘ wi ° v4 °
+ + st 4
. ‘ : ’ ee ’ ° ° y
nnecticut l oOrcaer t I iV¢é 3 oe a @. ‘ i
ai s . . owe , 4 . .
Ad N\A a ¢ iV ¢ a . a , Ww -~-* s s
+ . - Y r ‘ r y ‘ y ‘
urt I IrTrea LM rie pseuralil i 1 1 ’ Wu
+ } + 4 tho ‘ y . + + + '
re, © pile in Che Lowe na a
ALns unre LV Le eeCe, ©.Gey, ENGIC ° BaGSi eg
mem anaoudl ne : add
AC + ’ y ) 2 y+ +Y +
(Oo (tOtn Gabe J 5) ert. gran l, oD- ’
aman a 4 ome =
1Qa + ne eo wr rae 4 + ‘ y .
(19% 2! (¢ RAL adi h A v « ‘ rf a A
~upre € Court nas I! Suppiied 1 1x 11cda! nm
. P ry . + AY uF r+ ‘ ’ + y ae leranae
asc iS a pt lilariy apt Ved 4¢€ LOL I : AVLNG
J t
+ he 7. } ow a not rel Hari ¢ .
wae w/e » + sve “+ - a — -~ s - ~— > Se Aa sy
_ cs . = ‘ court! 1a r+
on ’ 1t appears rel Court yuagnment
eae hea acs 1 nfl nereaAa Ke 4 ¢ ay sur ; tho “+ rong} ‘ +hea
was neavid inziuenceac DY its Lew Ol et Strength L ~ Tie
ie | , . - \ +} ip ¢ y c A. & —
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).

(C) REVIEWING THE INSTRUCTIONS
INDICATES THAT THE INSTRUCT
INCOMPREHENS NOT
MANDATE FORBII TRI

”

INTERPRETED

= es - 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) ’ 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

]
|

E
2
r
e

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,
i

demeanor, motive, evidence of Sanity or
insanity and all other *. 5 s
onnected with the acts for which
S prosecuted.

Cc
i

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
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 —. ‘
—_—T } Ary _ yw make y c, » ~ ) 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 -
= matters,

-ae sama ok me t
al Ctsvul ™
+> jing -
tanding Lne
= *-? ) r er
Linc pe

Va
~~. +

a as ++
i ase
_— _ +
ea aad

dade
’ ass

ubt is ery unclear. I f , ‘ ) find l ist t
ie . 4 P , ‘ 4 y Rey
© 5 = 8 Oe SS SOP er. Was - + r ++) . Pt 4 4 4 . ave
>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 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 } 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

an
Waa

compels that Sandstr

rael, 503 F.Supp. 1170 (E.D. Wis.
ice system, witnesses and families

om be applied).

>

presumec

i
6

Vu
+ +
Versae -~ ut

+he Flex
Lic mi

‘ . + 4 I
t
+ 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

é
Yr ¢
> é
w+
‘
a a

ana
ne

*
, 4 Ae
b t
Vinmhia
“
‘ial i
ts 2 &\

ust

wi

~ 7
_
~ 7
+}
wa
~Waa
4a y

~*
. :
sv
um

re
"
-~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 — ‘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
’ ~ ‘ 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

d

mental

cle

a

. > 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 \ 7 + . + } ae’
hearing LO zaCli -ALC
F lara c y
aaa ~~ ~~ ‘
> 1 - c alatal 1+ > r rake r + : —_——
4 iat « mw 2b ALS A a ws ae
- - =
) Cad cA 4 Sestas ri’ wad
eS
sy ‘ . ‘ mm 4 ne
4 CU Cu Wass at Vas a ef!
ie sm @ pv 93so™= Js a-«
; - . + -} P .
Ae wae - aw 440s 4 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 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 4 ~
(ie Fea. Had. ° LOD) « Ur. Magqgueli BO: bl, rie ; niatrist Caiseg
+hea m—re . + > + +h, + ’ “Aner y . ’ Fann le
che ~yro SUTIOI at CHne 11 it/ innocencée pnas ’ S} ifT1icaliiy
urn+ _ ~ we . . ro + + } + } i of
WLOCLC ai) bia DSYCiitatllia repodl t -blAL eo? &. ec aQGiosi di
(Cr . — . + + _ 4 ~+ y ’ +hpe Co * + or . .
Wiida if Yai Was. a bb’2aeAYaAL AY 4 - 2 Ai 410 £3 0U0 J biL Clit Liits o
rr ¢ ' 9 1 c . - + ’ . + o rc , y m+ ; 4 4 r ror
i. } sc (
- i CUre ‘ . Je + 3 e VSL ta aiid LO ol sail aad eS Se he 4 ai ai s
clic *pere W1UNCSS IULG nay Impressea a ix ;
mnNntoreiie vw Hho — 130qa noe } rr thic TT, ne
UNLOLlLCUMA ays Lili ut 41iGQ NCL ied Lillos CvVd e' °
+rp >t lant _rt } , ale} ef ae +> lina C+ Hy ~
Lae evicentidal ie@aring Derlore ~ ie nitedc > ite
MA ' erate Dotitinor - 8 +rian + 4 — , he - 4 tna
Magistrate, re atlisONneds S LCliddi atvcOriie ’ a ele .2é2¢ LCMNCS ’
- ' ~v, hat ++ —_ . neeai ; P + + J y rn not +
conceadea that tnere no concelvabie trategi X 4 n no
+} ww > manta } > 1+ ry ae , + + Sea, + + ‘
Case wait avVasictwilt MCrsilad ssC ails 4 a ¢ 24 iaae —L Leolaa ak > 5
c m+ . . , 7 + ¥ y . T 4 4 y -_- + ~ -,
sentencing hearing. (T. Fed. i » De BSFe 46 FO2400 is a atte:
i
I ( mmo! ns¢ that I me ta AiNness i§ tH sc Tens ti i i
- + +a? y thoy — ‘ y a? ‘ ted ’ y + + r ant
ela lsyatlas hag Lad 4 ai. & ; Vaiss : r LOU d s a eh bo oti
>» r . _ . ’ ¢ y * + + 4 , ~~? . "> + > + yy *
SLIOMGQ C LuCctl ati SU) } it A i i¢ i ° Ai) ee Toe ' 4 ‘ Iii
. r ++oan -, + f arr .» ‘ ‘ ‘ P , )
aUulhil ea sici i. odapyt as sui ng A i &. {ie rea. biGled. ° °
y ? us} , > ; ih oer ton — +> + +; +
Wi. i big wi St i¢ : 11GG we i iGO} GU 2 sat wWLlAat a
Mele i 4 peers’ ‘ a aid ve Uitte ica | O) Sa ee i ie Se sini Vv‘ wa las »-

Toys . y + ms + ‘ ‘ ' '
cc veis.Oonv Lait TP See SOEs: dai a\ci saiaf i
‘ ale + ear . t + -~} - { + + ‘ ;
> VULOL Va 44104 as Du é c t } \
4 , ° ae ‘ = mn Jt - = as : ‘ , WW “wit U
hat, } ~% Ver Yr
mave wee even ~~
el . | -~ + . » 7 - + ‘ + + ,
a asl ~ULU asi = ¢? &.- -aococ — 4 Ana iy masa act S nce
- 2h . 7. 5+ OA eennn , ~ + "3+ ° ++ + - - “
Nici wan seEG4eCCcea strondl mLeLga , 7a ; t ‘
+ A + . ] ~ - :
. ea ee he ror | ¢ @ > ~= + eh a4 + , '
Liat MOEGLasI wosiaa \ . a24.€ S 4 ud s A c €
: L. > 4 as ~ ae. : au = 95 = Ms =
lor at, An m+ ne : mle r - | + ~
3 OP SS OSG Jaa 9eCileowecd > ~+zVO . Meee diy ~ “ .° tC I
r+ +} +, + , : +
ite fol nae ‘ y + y - -~+ “+ -+
LCCC, LsiC uly re 4I NEG 7U ~ 2 OJ —s ls Gn dh ~OUL a¢
4aAVsa sawUwons
aer y oe . .
wile e UNL sAWN S i ’ I as aU >» +} y , ime, . -
ala b4 iM baivc ° asi As ’ “4 |? |
y ‘ ne + + , +
+ne Nor, - > ’ , } é v , -
‘ he — 7 ’ or + , ‘ + » + +
i vC + s >? ' . ~ ii va oo “ a»
‘ + = . ++ . - . -
pete AQVsstiCiclwmwms way i AG o a ~ . ‘
as - / y “ ~Gaas Mt ae -« meee + .
+} € 4 ry ‘ - » ‘ +
, re + ~Y . } +
eh ‘ . ~+ >» ~ + ‘ P ‘
Jy Ca = « A 4 hy 4 sae 4 - +s + a
an: + + + y on + ’ ~ stom ce
aa 4c 4 4 s4#AvVaeriasic a 4 “ a = =|
- + 3 nA a, + r + a + ’ ~- . y Y ~

y " pecaus .Or r ¢ I cna s Ma i F
. 7; > rrny . + = —_ T ay y
UG1ICilal erroy in 1S¢ ina 4 | ow"
+s) ] ap +} + Tr Peon : » 4 lA war } +
Lt Vu te 1 asazsve€au iG YOu if 1c i
KIUC dH) as 4 i; as aS ~ bit ACA NW ©

‘ + ¥ *@ } re . > -

NOW, af cnere i YTNING As i iringd I
y Ur mina:

+ hy +} ry y ; ¢ ure re - +
see 4 4ah 4\s-s ‘ a) 4s ~* 4 ‘ maa . a a‘ Py
HEna — ar +} + ‘ . +>, + ‘ é é a 7
ldif, iy y u as } rriacit 1c rici
y ap SAT ° } a * ' . ‘
é i é
‘¢ + +h, ~+ . *, ~ * + + .
4 = 2! Cit — ica id ‘ 4 ‘ aa aac’ ,
a +} , , ry . - F - ¥ + a4 GV 4 A { ~ * , . 4 a ¥ * ‘
s , 44 LMprd nt, nave n 1a a ]
narc . at . cht?
6éMaL4UALC at Giddy, a awsils
t 3
THE COURT. That! riaqh+ ™} ; + '
£m CUUNIL S$ 4tidti S Zignt. ifhi L§ § I nin
+hat h¢ .A11 + + + no-+ —— 3 + . ’ ~ +
see & wesw weWVUd & ~* sive ia -~ +z - . ‘ u
On.
ney . nr ) n ap
R FE ( it c ) hank ‘ y lly
rit. rUOnR stiat§ §& Alli. sHank VOU, y ur
nonor,

fad Tue AS -

( r ) 6-/8

a « ~npwe . 4 UV Oo .

T c -laar tha sea wey : } AnReiAorineg
4% is ciear che ur INSLIGering a
> 4
nNtoaonro . 5 fo mnric moan + y 7 Hho +> -
sentence ofr aAaa@ al pt isonmen 2zOL -i1€ Ul

y ee ee ee we 8 eee ee - ee =
ne ates

+ ’
+

e
4s
s +

t t
é

—

od

J (/ | f

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,

v.

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

Cc

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

6s

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

t
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,

He

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
if

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

©
c
©
¢
~
nn
=
-_ ,

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 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

as

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.

(c) The statutory instructions as determined by the trial
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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1697%3A1. Public record. Not legal advice.