Appendix — Dobbs v. Zant

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

WILBURN DOBBS,

Petitioner-Appellant,

Vv.

WALTER D. ZANT, Warden,

Respondent-Appellee.

“APPENDICES To:

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Counsel of Record

ROBERT ALTMAN

Georgia Bar No. 014088

Suite 1560 - The Peachtree

1355 Peachtree Street, N.E.

Atlanta, Georgia 30309

(404) 892-8766

*MICHAEL KENNEDY MCINTYRE

Georgia Bar No. 494075

300 The Healey Building

57 Forsyth Street, N.W.

Atlanta, Georgia 30303

(404) 688-0900

Attorneys for Wilburn Dobbs

Appendix A

Appendix B

Appendix Cc

Appendix D

Appendix E

Appendix F

Appendix G

Appendix H

Appendix I

Appendix J

Appendix K

TABLE OF CONTENTS

Judgment and Order in Dobbs v. Kemp, Case No.

4:80-CV-247-HLM (N.D. Ga. JORUBEY 13, 1984). ccccccer

Dobbs v. Zant, 790 F.2d 1499 (llth Cir. 1986),

modified, 809 F.2d 750 (1987) cert. denied,

£7 Se UE, EE ea on

Judgment and Order in Dobbs v. Zant,

720 F.Supp. 1566 (N.D. Ga. Perr eT TTT ET TTT ee

Order in Dobbs v. Zant, Case No. 4:80-CV-247-HLM,

eee (ee es SO ed ee eee 6 doe bdo eo oe obs neu

Circuit Court Orders Denying Motion to Supplement

Record and Motion for Limited Remand. Case No.

erway eee Bly SOOO ect cvecvccéssescvvivccs

Dobbs v. Zant, F.2d (llth Cir., June 4,

Pe ee MD cc cee dtwetesdciivevseboenéc aia

Order Staying Mandate To And Including

August 3, 1992 in Dobbs v. Zant, Case No.

Se-Gsee (LICR CEP. , PUD BG, BOSD) «cccccccccsccccece

Affidavits Submitted By State To District Court,

February, 1981, Attesting That Sentencing

Hearing Was Not IN wad oe dd es b oe b-c te eekeweke

ie ey Sey Ge SNE. C avnecececeenwesbvsceue

T. Donald Bennet, Defense Counsel...........ccccceee

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Sentencing Hearing Transcript of Closing Argument

ey en Ci. 2aco ey ww WON 6a 60ek6obbecoonseneses

urman v. Georgia, 408 U.S. 238 (1972) -

(Excerpts reflecting defense counsel's

verbatim reading in closing argument)...............

Official Code of Georgia Statutes...................

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APPENDIX

” A “

PILED IN CLERK'S Ulrich

VLDC- Herne

JAN 13 1984

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ROME DIVISION

_ BEN. CASZER, Chart

“4 V. Vaws amuse a:

bepds

WILBURN DOBBS,

Petitioner CIVIL ACTION

Vv. NUMBER C80-247R

WALTER ZANT, WARDEN

OF THE GEORGIA DIAGNOSTIC

AND CLASSIFICATION CENTER, ’

Respondent

ORDER

AND MEMORANDUM

Presently before the Court is the petition for a writ

of habeas corpus filed by Wilburn Dobbs. He seeks relief

from his conviction in the Superior Court of Walker County,

Georgia on charges of aggravated assault, armed robbery

and murder. Dobbs received the sentence of death for

his murder conviction. Because the charge given by the

trial judge concerning the imposition of the death sentence 15

constitutionally deficient, the petitioner's writ of habeas

corpus shail issue insofar as it vacates his death sentence,

subject to the state's right to resentence him within 120 days.

Adon

lor)

f

I. PROCEDURAL HISTORY

On May 20, 1974 the petitioner, Wilburn Dobbs, was brought

to trial in the Walker County Superior Court on two counts of

aggravated assault, two counts of armed robbery and one count of

murder. On May 22, 1974 a verdict of guilty was returned by a

jury on all five counts. Dobbs was then sentenced to 10-year

consecutive sentences for each of the aggravated assault

convictions, life imprisonment for each of the armed robbery

convictions and death by electrocution for the murder conviction.

The case was appealed to the Georgia Supreme Court and

the conviction and sentence were affirmed on February 24, 1976.

See Dobbs v. State, 236 Ga. 427 (1976), cert. denied, 430 U.S.

975 (1977). A petition for a writ of certiorari to the United

States Supreme Court was filed and was denied. See Dobbs v.

@eorgia, 430 U.S. 975 (1977). °

On July 17, 1977 Dobbs filed a petition for a writ of

habeas corpus in the Tattnall County Superior Court. An evidential

hearing was held, and the petition was denied on October 9,

1979. See Dobbs v. Hopper, No. 77-185 (Tattnall Sup. Ct. Oct.

9, 1979). Dobbs then filed an application for a certificate of

probable cause to appeal this ruling, which was denied on

february 20, 1980. Next, Dobbs filed a petition for a writ of

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certiorari with the United States Supreme Court, which was denied

on June 16, 1980. See Dobbs v. Hopper, U.S. (1980).

\ petition for a rehearing was filed, and was denied on August ll,

1980.

On June 1l, 1979 Dobbs had filed an extraordinary motion

for a rew trial in the Walker County Superior Court. An

evidentiary hearing was conducted on August 12, 1979, and the extr:

ordinary motion for a new trial was denied on August 13, 1979.

See Georgia v. Dobbs, No. 8403 (Walker Sup. Ct. Aug. 13,

1979). This decision was appealed to the Georgia Supreme Court.

The Supreme Court affirmed the superior court's denial of the

extraordinary motion for a new trial on February ©, 1980. See

Dobbs v. State, 245 Ga. 208 (1980). A petition for a writ of

certiorari was filed with the United States Supreme Court on

y

March 11, 1980, which was denied on April el,

1980. See Dobbs v.

Georgia, U.S. (1980).

Dobbs filed his petition for a writ of habeas corpus in

this Court on December 3, 1980. An evidentiary hearing was held,

and the Magistrate's Report and Recommendation was filed on

August 26, 1983.

By virtue of the foregoing proceedings, Dobbs has exhausted

—T navralliw 2B I c

Lec aeneraiay zo Ww ew «

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all available state court remedies.

§ 2254(b) (1977).

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II. FACTS

Wilburn “Wiley” Dobbs, Walter Harris and Charles Burke were

friends who lived in Chattanooga, Tennessee. At approximately

9:00 a.m. on December 14, 1973 Dobbs visited Harris, and the two

proceeded to visit Burke at his house. Dobbs suggested to Harris

and Burke that they rob someone because he needed some money.

They proceeded to Roy Sizemore's Grocery Store, which was located

in Chickamauga, Georgia.

Dobbs, Harris and Burke approached Sizemere's store at about

10:45 a.m. They were riding in a blue Chevrolet car owned by

and parked it in front of Sizemore's store. Dobbs and Burke

went inside and asked Sizemore for directions to Travis’ Car

Lot. See ST at 222. i/ Sizemore gave Dobbs directions, and

Dobbs, Harris and Burke drove off.

They stopped on a hill near the store. Dobbs told Harris

and Burke to walk down to Sizemore's store and to distract Siz

by asking him for a gasoline can. Dobbs would then enter the store

with a shotgun and rob the store. The three walked down to

Sizemore's store at about 11:00 a.m. Harris asked Sizemore

for a gasoline can while Burke waited in front of the store.

robbs entered the store with shotgun. In the store at that time

were Roy Sizemore and Grace Foster, a patron of Sizemore's grocery

store who lived about one-half mile from the store. ©

Dobbs told everyone to be quiet. Harris searched Sizemore

and took his wallet. Sizemore told Dobbs and Harris that he had

heart trouble and that they could have anything they wanted.

Sizemore asked them not to hurt anyone. Dobbs made Sizemore go to

©

the back of the store and lie down. Dobbs hit Sizemore with the

shotgun. A milkman, William Austin, entered the store. Dobbs

shot Sizemore in the stomach and shot at the milkman. The shot

missed the milkman and he dove on the floor. Dobbs and

Harris then wrestled Foster to the ground, took her

purse and knocked her out. Her purse contained a silver

dollar, a brown tobacco sack and a pocket-knife. Dobbs, Harris

and Burke left the store and drove-off in Dobbs’ blue Chevrolet car.

Dobbs, Harris and Burke proceeded to see Paul Young at his

used car lot. They arrived at Young's car lot at about 12:30 p.m.

Dobbs owed Young approximately $100 and paid him with bills of

various denominations. Dobbs, Harris and Burke stayed at Young's

car lot for about one-and-one-half hours. At approximately

2:00 p.m. they went to a small store operated by Charlie Helton

and purchased about $6.00 worth of goods. From Helton's store

Dobbs, Harris and Burke went to "Cat’s house” to gamble. See id.

at 218.

bobbs' testimony at trial differs from the foregoing version

of the events. Dobbs admitted that he visited Harris on the

morning of December 14, 1973. He testified, however, that he was

not with Harris and Burke when the robbery was committed. Rather,

he was visiting with varioug people on December 14, 1973 --

including two girlfriends, two male friends and his wife --

and various places -- including a car lot, a hot-dog stand,

Young's car lot, a hamburger stand and a dry cleaning store.

|

AO 724

Dobbs' version of the events that occurred on December

15, 1973 is in accordance with other testimony. On that

date Dobbs returned to Young's car lot. Dobbs told Young

that the police were "trying to pin a murder on him,” and he

wanted Young to tell the police that he was at the car lot

on December 14, 1973. Dobbs began working on some cars at

Young's car lot when Officers Visage, Black and Griffin

arrived. They asked Dobbs to accompany them to the Walker

County Jail for questioning, and he voluntarily did so.

Visage drove Dobbs’ car to the Walker County Jail, and

Dobbs rode with Black in a police car. At the jail Dobbs gave

Visage permission to search his car. See id. at 153. In

Dobbs' car Visage found a brown tobacco sack. In the trunk

of Dobbs’ car Visage found a pocket~knife. At the trial

Grace Foster identified these items as those which were

taken from her at Sizemore's store. Dobbs was questioned

at the police station for approximately three hours and was

released.

Dobbs returned to Helton's store on either December 16

or 17, 1983. Dobbs asked Helton if the FBI or GBI had

contacted him. Helton replied that he had not spoken to any

FBI or GBI ‘ali and Dobbs left. See id. at 165.

On December 18, 1973 Dobbs was arrested in front of

Helton's store.

C)

ao

Several other facts, that are not part of the Ill. THE PETITION

description of the robbery itself or of Dobbs’ pre-arrest In his habeas corpus petition, Dobbs contends that the

conduct, should be set forth. The police questioned Harris following errors render his conviction and sentence unconstitutiona

about the robbery sometime before the trial, and he gave (1) the ineffective assistance of his trial counsel;

Pete Davis, a detective, permission to get the shotgun used (2) the trial court's refusal to grant a

in the robbery from his home. Davis did so. See id. at | continuance;

200, 423. | (3) the trial court's refusal to grant a change of

During Dobbs' trial, Grace Foster and William Austin venue;

positively identified Dobbs as the triggerman at Sizemore's | (4) the introduction of evidence that was procured as a

Store. See id. at 225, 302, 324, 338. | result of an illegal search of the petitioner's car and of

At the state habeas corpus hearing, Harris testified that Harris' house;

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said that Dobbs did not take part in the robbery. He also | after the state introduced false and highly prejudicial

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he had lied about Dobbs' involvement in the robbery. Harris (5) the trial court's refusal to declare a mistrial

stated that he was bribed and coerced by the police into | testimony;

framing Dobbs. See SHC at 78-87. a/ (6) the trial court's refusal to grant a mistrial when

At the state habeas corpus hearing, the petitioner a witness testified that the petitioner was involved in a prior

tendered the deposition of Emma Smith. In her deposition crime;

Smith stated that she was talking to Dobbs on the phone at the (7) the introduction of tainted identification testimony

time the robbery occurred. See Petitioner's Exhibit No. 4. through Grace Foster;

She also states that she would have testified on Dobbs' behaif (8) the introduction of tainted identification testimony

at his trial had his lawyer contacted her. through William Austin;

In the state habeas corpus opinion, Judge Dunbar Harrison (9) the introduction of gruesome pictures of the deceased

stated that the testimony of Smith, Harris and Dobbs was not during the trial;

credible. See Respondent's Exhibit No. 7 at 2-3. | (10) the introduction of hearsay testimony regarding

evidence material to the state's casc;

(11) the introduction into evidence of a gun which was not

the same as the murder weapon;

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(12) the denial of compulsory process;

(13) comments made by the district attorney during the

guilt/innocence portion of the trial regarding whether

the petitioner had supoenaed certain witnesses;

(14) improper remarks by the district attorney during

his closing argument in the guilt/innocence portion cof the trial;

(15) the trial court's failure to charge the jury

on the definition of “assault”;

(16) the trial court's erroneous charge, during the guilt/

innocence portion of the trial, that intent may be presumed

when it is the natural and necessary consequence of an act;

(17) and (18) the failure of the jury to constitute a

representative cross-section of the community because all

persons having conscientious or religious scruples against

capital punishment were systematically excluded from the jury;

(19) the failure of the jury to reflect a representative

cross-section of the community because it was biased in favor of

the use of the death penalty against black persons;

(20) juror Virginia E. Mitchell was improperly excused

from the jury because of her personal belief about the death

penalty;

(21) the ineffective assistance of counsel during the penalt

phase of the trial;

(22) the introduction of three prior convictions during

the penalty phase of the trial;

7

(23) the trial court's erroneous sentencing charge;

(24) the trial judge's refusal to answer a juror's

question during the sentencing-phase deliberations;

(25) the failure of the jury to find a capital felony as an

aggravating circumstance; _

(26) the conviction and imposition of a sentence by a

jury which acted under the influence of passion, prejudice and

other arbitrary considerations;

(27) the arbitrary and capricious infliction of the

death penalty under Georgia law;

(28) the practice of the Georgia prosecuting authorities

in discriminating in the imposition of capital punishment

on the grounds of sex and poverty;

(29) the failure of the indictment to allege any

aggravating circumstances;

(30) the failure of the Georgia Supreme Court to properly

review the sentence imposed by the trial court;

(31) the failure of the trial court clerk to send

the entire record and transcript of the trial court proceedings

to the Georgia Supreme Court;

(33) the failure of the Georgia Supreme Court to

3/

include an entire transcript of the trial for further review;

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(34) the ineffective assistance of counsel on appeal;

(35) the constitutionally deficient process of direct

appellate review of death sentences in Georgia;

(36) the intentional and systematic exclusion of blacks,

women, young people between the ages of 18 and 30 and poor

people from the grand jury venire;

(37) the intentional and systematic exclusion of blacks,

women, young people between the ages of 18 and 30 and poor

people from the traverse jury venire;

(38) the failure of the state of Georgia to pay for the

costs necessary to pursue a habeas corpus petition;

(39) the imposition of the death sentence by a jury

which did not believe that the petitioner would be executed;

| (40) the refusal of the trial court to compel

the petitioner's presence during the extraordinary motion

for a new trial hearing;

(41) the refusal of the trial court to grant a new

trial based on newly discovered evidence; anc

(42) the withholding by the state of exculpatory evidence

during the trial.

>

- IV. INEFFECTIVE ASSISTANCE OF

COMNNSEL DURING THE WALKER

CU._ATY TRIAL.

In Counts one and 21 of his petition for habeas corpus

relief, Dobbs contends that his trial counsel, Mr. Bennett,

provided constitutionally ineffective assistance during both the

guilt/innocence and sentencing phases of his trial. In

evaluating his contention, the Court will 1) set forth the

standard for reviewing such claims, 2) review Bennett's conduct

in preparing and presenting Dobbs' case during the quilt/innocence

portion of the trial, 3) determine whether Bennett rendered

effective assistance during this portion of the trial, 4) review

Bennett's conduct in preparing and presenting Dobbs' case during

the sentencing phase of the trial, and 5) determine whether

Bennett rendered effective assistance during this portion of the

trial.

A. THE STANDARD

Under the sixth amendment a criminal defendant is

guaranteed “effective assistance of counsel, that is, counsel

reasonably likely to render and rendering reasonably effective

assistance given the totality of the circumstances." Francis

v. Spraggins, slip op. at 661 (quoting Washington v. Strickland,

693 F.2d 1243, 1250 (5th Cir. 1982) (Unit B) (en banc), cert.

granted U.S. , 103 S. Ct. 2451 (1983)). To prevail

on an ineffective assistance of counsel claim, a petitioner

©)

=

must prove, by a preponderance of the evidence, that he did

not receive reasonably effective assistance from his counsel. See |

Francis, supra. 4/ Additionally, a petitioner must “show

that his counsel's ineffectiveness resulted in actual and

substantial disadvantage to the course of his defense, but

need not show that this disadvantage determined the outcome |

of the entire case." Washington, supra, at 1262. If this

showing is made, a writ of habeas corpus must be granted

unless the state proves that counsel's ineffectiveness was

harmless beyond a reasonable doubt. See Chapman v. California,

386 U.S. 18, 20-26 (1967); Washington, Supra, at 1258. And

although there is a presumption of attorney competence, "[t)his

presumption can be rebutted . . . when certain of counsel's

to a general pattern of a rational

trial strategy.'" Id. at 1257-58. 3/

actions do not conform

The court in Washington v. Strickland, 693 F.2d 1243 (llth Cin.

1982) (Unit B) (en banc), cert. granted, U.S. , 103 S. Ct.

2451 (1983), outlined general standards for evaluating an

ineffective assistance of counsel claim in the context of allegedly

inadequate pre-trial investigation. Because the focus of

the ineffective assistance of counsel claim in this case

relates to Bennett's investigation of both the guilt/innocence

and sentencing phases of Dobbs’ trial,a review of these

standards is useful.

.

a

In Washington the court first noted that the failure of

an attorney to conduct a reasonably substantial investigation

into a defendant's one plausible line of defense almost

always will result in a finding of ineffective assistance of

counsel, whereas an attorney who conducts such an investigation

will usually render constitutionally effective assistance.

Further, the court stated that when more than one plausible

line of defense may serve a defendant's interests, counsel should

conduct a reasonably substantial investigation into each of these

defenses to determine which of these defenses will best serve the

defendant. After such an investigation, if a strategic choice is

made regarding which defense to present at trial, “courts will. .

find ineffective assistance of counsel only if the choice was s0

patently unreasonable that no competent attorney would have

made it." Id. at 1254. The court also noted that, generally,

"an attorney who makes a strategic choice to channel his

investigation into fewer than all plausible lines of defense is

[constitutionally] effective so long as the assumptions upon which

he bases his strategy are reasonable and his choices on the

basis of those assumptions are reasonable." Id. at 1256.

Finally, the court stated that when counsel fails to conduct

a substantial investigation into plausible lines of defense

for reasons other than strategic choice -- i.e., counsel

“abandon[s] his obligation to develop a case for his client" --

a finding of ineffective assistance of counsel usually will

6/

result. -—

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B. BENNETT'S QUALIFICATIONS AND HIS CONDUCT

IN PREPARING AND PRESENTING DOBBS' CASE

DURING THE GUILT/INNOCENCE PHASE OF THE

TRIAL

1. Qualifications

Before he represented Dobbs, Bennett had practiced law for

over 10 years and had participated in over 100 capital cases. The

7/

Geogia's bifurcated capital-trial procedure. —

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Dobbs case was, however, the first case handled by Bennett uncer

The composition |

y

of Bennett's law practice varied, but it consisted of approximatel

50% criminal work at the time he represented Dobbs. |

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Ze Pre-trial Confusion

Pre-trial confusion existed regarding whether Bennett would

represent Dobbs. An attorney named Burton Brown was initially |

appointed to represent Dobbs, and Bennett was to assist

Brown, as Brown had little experience in criminal law. Sometime

in early 1974 it was agreed, however, that Bennett would .

represent Dobbs, either on a court-appointed basis or as

employed counsel. Accordingly, Bennett represented Dobbs at the

preliminary hearing held on January 29, 1974. On the day of

arraignment -~- two days before trial -- Bennett also represented

Dobbs. Dobbs stated to the court, however, that he had employed

an attorney named Sullivan to represent him at trial.

Sullivan did not appear on Dobbs’ behalf at trial, and Bennett

represented Dobbs during both the guilt/innocence and sentencing

phases. of his trial.

3. The Dobbs-Bennett Relationship

As confusion characterized the question of who would represent

Dobbs at trial, uncooperativeness characterized Dobbs’ attitude

toward Bénnett prior to the trial. Dobbs refused to discuss

possible defenses with Bennett and he gave Bennett the name of |

only one potential witness -- his sister. See SHC at 54, 56-57;

ST. at 2-11. According to Dobbs, however, his sister was to

supply Bennett with the names of potential defense witnesses.

Bennett contacted Dobbs' sister, but she did not know of any

potential witnesses and was uncooperative. See SHC at 52; ST. at

4.

4. Other Investigative Efforts

In addition to contacting Dobbs' sister, Bennett performed

the following pre-trial investigation: 1) Bennett contacted

Dobbs’ mother, who was incarcerated at the time; she was not

helpful, see FHC at 63, 8/ 2) Bennett interviewed all the

witnessses listed on Dobbs’ arrest warrant, and 3) Bennett

examined the main prosecution witness at the preliminary hearing.

See SHC at 53, 56, 58.

5. The Pre-trial Conference

At a pre-trial conference held on the day the trial began,

Bennett raised several motions. He moved for a change of

venue based on pre-trial publicity, challenged the

constitutionality of the entire proceeding based on Furman v.

@

Georgia, 408 U.S. 238 (1972), attempted to determine whether

two witnesses -- Harris and Burke -- were given lenient

sentences in exchange for their testimony and objected to the

death-qualification of jurors. All these motions were denied.

During the pre-trial conference, Bennett also aired the

problem of Dobbs’ uncooperativeness. See ST. at l-ll. The court

discussed the problem with Dobbs. He admitted that the problem

existed and inferred that it was due to Bennett's lack of

interest in his case. See ST. at 4-5. Dobbs also told the judge

that he had “some witnesses who were on their way." Id. at 7.

Bennett moved for a continuance to interview these witnesses, but

his motion was denied.

6. Witnesses Divulged During the Trial

During the course of the trial, Dobbs informed Bennett of

several possible witnesses, including a polygraph examiner,

James Wood, Sue Bloodworth and Mack Robinson. Sec id. at 66-

68, 143-44. Three of these witnesses -- Wood, Robinson and

the polygraph examiner -- were interviewed by Bennett during the trial.

They were never called to testify because Bennett determined that

the witness’ testimony was either incriminating or irrelevant.

Dobbs' concurred in the decision not to call these witnesses.

See id. at 66-68, 241, 329, 372; FHC at 64. Whether Bloodworth

was interviewed by Bennett is unclear from the record.

7. Bennett's Conduct During the Trial

During the trial Bennett conducted several effective

cross-examinations and raised sensible objections. See ST

at 80, 81, 82, 97-100 (cross-examination of Strickland, a

roadworker), 106, 108-113 (cross-examination of Whitten, a

roadworker), 119-122 (cross-examination of Howell, a meter

reader), 126, 127-133 (cross-examination of Maynor, a passer-by),

152, 153-62 (cross-examination of Young, a used-car salesman),

164, 194, 197, 213-15 (motion for mistrial after comment

about another crime), 311 (impeachment with preliminary

hearing materials), 330-37 (cross-examination regarding

identification procedure), 340-42 (introduction of photographs),

337-58 (Yates testimony), 368, 382,385, 389-90, 398-406

(allegation of prosecutorial misconduct). Bennett, however, failed

to object to certain prejudicial testimony. See id. at 203,

279-83 (discussion of Foster's injuries), 469-80 (collateral

matters).

8. King and Weidner

Two cases recently decided by the Court of Appeals

for the Eleventh Circuit -- King v. Strickland, 714 F.2d

1481 (llth Cir. 1983), and Weidner v. Wainwright, 708 F.2d

614 (llth Cir. 1983) -- shed light on whether Bennett rendered

75

effective assistance during the guilt/innocence portion of Dobbs’

trial. _ In King the court found the petitioner's counsel to have

rendered effective assistance during the guilt/innocence

portion-of the petitioner's trial notwithstanding the fact that

counsel was admittedly not prepared, failed to effectively

cross-examine a key witness and failed to introduce a piece of

exculpatory evidence. In reaching its conclusion, the court

relied on the fact that counsel deposed all key government

witnesses and consulted his client four or five times. Compare

Wiley v. Wainwright, 709 F.2d 1412, 1413 (llth Cir. 1983) (counsel

rendered ineffective assistance by conferring with his client

only three times, inadequately investigating the case and

coercing the petitioner into pleading guilty) (dicta). 2/

In Weidner v. Wainwright, 708 F.2d 614 (llth Cir.

1983), the court held that counsel rendered ineffective

assistance during the guilt/innocence phase of a murder case when

he did not hire an investigator, may have gone to the scene of

the shooting but failed to interview potential witnesses,

did not depose a key witness (a medical examiner), failed to

obtain a crucial piece of evidence (an autopsy report) and

relied on an implausible defense (excusable homocide). See

id. at 616-17. +9/

e)

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9. Effective Assistance of Counsel?

In light of King and Weidner, the Court concludes

that Bennett rendered effective assistance during the

guilt/innocence phase of the trial. Bennett interyiewed

all key prosecution witnesses and effectively cross-examined

them. Furthermore, he interviewed the potential defense witnesses

that Dobbs told him about, including Wood, Robinson, the polygraph

examiner and Dobbs' sister, and made a reasonable choice in not

calling these individuals as witnesses. Bennett did not

thoroughly investigate possible defenses. See SHC at 56; FHC

at 79-81, 86. One reason for this occurrence, however, was

Dobbs’ total lack of cooperation with Bennett. Although more

thorough investigation would have been preferable, this Court

cannot hold that Bennett rendered ineffective assistance of

counsel during the guilt/innocence phase of the trial in light

of Dobbs' reticence and Bennett's cther efforts.

C. THE SENTENCING PHASE.

1. Douglas, Stanley and Adams

Regarding whether Bennett rendered effective assistance

during the sentencing phase of Dobbs trial, three cases

recently decided by the Court of Appeals for the Eleventh

Circuit are instructive. In Douglas v. Wainwright, 714

F.2d 1532 (llth Cir. 1983), the petitioner contended that "he

was deprived of the effective assistance of counsel at the

penalty phase of [his] trial due to trial counsel's failure

to consult with [him] and other potential witnesses prior

to the penalty phase and to investigate and present

evidence which might have been considered mitigating.” Id.

at 1553. The facts in Pouglas demonstrated that the petitioner's

counsel had not conducted an investigation into the existence

of mitigating evidence befure the sentencing proceeding began.

Id. at 1555. Furthermore, counsel had not discussed with the

petitioner the possibility of the petitioner testifying on his

own behalf before the sentencing phase of the trial. Counsel

did, however, discuss with the petitioner during the sentencing

phase of the trial whether the petitioner should testify

on his own behalf. The facts also showed that counsel's

lack of preparation for the sentencing phase of the trial

was due to his unfamiliarity with a bifurcated capital-

trial procedure. See id.

The Douglas court held that counsel did not render

reasonably effective assistance during the penalty phase of the

petitioner's trial because counsel simply had done nothing to

prepare for this portion of the trial. Id. at 1556. The court

also noted that although the petitioner “had not suggested to

counsel any witnesses who could have been called to testify [on

@

his behalf during the sentencing phase of the trial], counsel

had discussed the need for such [evidence], if at all, only

'briefly' [with the petitioner) between the guilt and sentencing

phases of the trial.” Id. 1i/

In Stanley v. Zant, 697 F.2d 955 (llth Cir. 1983), the

court held that counsel rendered reasonably effective assistance

during the sentencing phase of a capital trial, notwithstanding

the fact that he failed to produce easily available mitigating

evidence im the form of character witnesses for the petitioner.

The court first noted that, under Washington v. Strickland,

693 F.2d 1243 (Sth Cir. 1982) (Unit B) (en banc), cert.

granted, U.S. , 103 S. Ct. 2451 (1983), counsel

do not have an absolute duty to investigate mitigating

evidence. It stated, however, that "a showing that counsel's

decision to forego [such] evidence was not based on a

reasoned tactical judgment will give rise to an ineffective

assistance claim." Id. at 966. Next, the court observed

that the petitioner's trial counsel discussed the possibility

of a character witness defense with the petitioner and his

mother. The Court then held that counsel's assistance was

effective because he had explored the possibility of presenting

character witnesses and made a reasonable strategic decision

to not introduce this testimony.

Finally, in Adams v. Wainwright, 709 F.2d 1443 (llth

Cir. 1983), the court addressed the issue whether counsel's

@

AQ TIA

(Rew 6/82)

decision to make a plea formercy at the sentencing phase of

a capital trial was a reasonable tactical decision. The record

in Adams indicated that the petitioner's counsel had made a

reasonable investigation of possible mitigating evidence --

he "had interviewed [the petitioner's) wife, neighbors and

former employers. .. ." == and that the petitioner's wife was

thoroughly familiar with the petitioner's background. Id. at 1446.

Also, the record demonstrated that the prosecution could have

introduced damaging evidence had the petitioner's background

been injected into the penalty phase of the

trial. Id. at 1447. In light of this evidence, the court

held that counsel's decision to plead for mercy was a

reasonable tactical decision. Id.

Bennett's Conduct In Preparing and

Opener oe g “iat.tae 2a —

Presenting Dobbs‘ Case During the

Sentencing Phase of the Trial

ho

In investigating the sentencing phase of Dobbs' trial

Bennett performed the following interviews. Bennett first

talked to Dobbs, although Dobbs denies that this interview took

place. See SHC at 109-10. Bennett stressed the importance of

the sentencing phase of the trial to Dobbs and asked about the

existence of mitigating evidence, e.g. character witnesses.

Dobbs refused to talk to Bennett about such evidence, although

he did tell Bennett that his sister could supply the names of

potential witnesses. See SHC at 59-60, 63; FHC at 62-66. Bennett

interviewed his sister. She was uncooperative and did not give

him the names of potential character witnesses. See SHC at

$2. Next, Bennett interviewed Dobbs' mother, who was serving

a life sentence in the penitentiary. She was also an

unavailing source of information. See FHC at 63. Finally

Bennett talked to several members of Dobbs' community and several

police officers, none of whom who testify as character

witnesses for Dobbs. See SHC at 62; FHC at 64-65.

In addition to conducting these interviews, Bennett knew,

from his general knowledge about the Dobbs family, that 1) the

petitioner had a poor reputation in his community, and 2) that

he was “separated from his wife and not supporting his family.”

SHC at 64; see id. at 62.

| Based on his interviews and his general knowledge about

Dobbs, Bennett decided not to present mitigating evidence

during the sentencing phase of Dobbs' trial. He felt that

the jury would not find this evidence -- which consisted of

character testimony from Dobbs' mother and sister -- to be

persuasive. See FHC at 64, 67-69, 75. 12/ Rather, Bennett

decided to argue that the Sizemore killing was impulsive and

that the imposition of the death penalty therefore was not

warranted.

Bennett's investigation failed to discover several

character witnesses who, at the time of the state habeas

hearing, stated that they would have testified on Dobbs'

behalf. See Affidavits of Knowles, Winston, Strickland,

Foster, Tramble, Porter, McDaniel, Pasley.

3. Effective Assistance of Counsel?

Given these facts, the Court concludes that Bennett

rendered effective assistance during the sentencing phase

of Dobbs’ trial. Although Bennett was unable to discover a

bevy of character witnesses who apparently would have testified

on Dobbs' behalf, he did perform a reasonably substantial

investigation. See Stephens v. Zant, slip op. at 1006

(llth Cir. Dec. 9, 1983) (affidavits of family members and

childhood acquaintances indicating that they would have testified

on the petitioner's behalf during the sentencing phase of his

trial, who were not interviewed by trial counsel, do not alone

establish ineffectiveness of counsel). The reticence of

Dobbs and his family members obviously impeded Bennett's

investigative efforts. Further, Bennett made a reasonable

tactical decision not to present mitigating evidence based

on the information before him. See McNeal v. Wainwright,

AO 72A

(Rev.

slip op. at 1054 (llth Cir. Jan. 3, 1984) (counsel will not be

deemed constitutionally deficient because of reasonable

tactical decisions). Thus, the Court holds that Bennett

rendered effective assistance during both the guilt/innocence

and sentencing phases of Dobbs‘ trial.

-26-

Vv. THE MOTION FOR A CONTINUANCE

In Count Two of his petition, Dobbs contends that the

denial of his motion for a continuance was error of constitutional

proportions. The motion for a continuance was made by Bennett

during a pre-trial conference in the trial judge's chambers.

Dobbs was present. In making the motion, Bennett first told

the Court that Dobbs had failed to supply him with the names of

potential defense witnesses. He then requested that Dobbs state

to the court “whether .. . he has [any] witnsses, and if he

intends to supply me with the witnesses’ [names] and enable me to

contact them and interview them. . - ." ST. at 6-7. Dobbs stated

Id. at 7. Bennett

that his witnesses were “on their way down.”

then asked for a continuance to interview these witnesses.

The trial judge then noted that 1) the prosecution's case

would last several days (thus enabling Bennett to interview these

witnesses), 2) the appearance of the witnesses was not assured

because they lived without the subpoena power of the court, and

3) the relevancy of their testmony was not established. See id.

at 10. The trial judge therefore denied the motion for a

continuance.

|

The denial of a motion for a continuance will not lead to

habeas corpus relief unless it is so “arbitrary and fundamentally |

|

unfair that it violates constitutional principles of due process."

Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Cir. 1981) (Unit B).

In this case the denial of the motion for a continuance was not

fundamentaily unfair. The motion was made to enable Bennett

to interview witnesses Dobbs solicited. Bennett was able to

do so before the prosecution rested its case. See id. at 66-68,

241, 329, 372; FHC at 64. Also, a continuance was not needed to

enable Bennett to otherwise prepare the case. Before the trial

began Bennett had interviewed every key prosecution witness and

was familiar with the case.

VI. CHANGE OF VENUE

In Count Three of his petition, Dobbs contends that the

trial court's denial of a motion for the change of venue

deprived him of his due process right "to be tried by ‘a panel of

impartial, indifferent jurors.'" Irvin Vv. Dowd, 366 U.S. 717,

722 (1961). Dobbs bases this contention of the fact that

there was “extensive press coverage and publicity" attending his

trial. Petition at 4.

The standard to be applied to an allegation of prejudicial

pre-trial publicity is outlined in Coleman v. Zant, 708 F.2d

541 (llth Cir. 1983):

—

When prejudicial pretrial publicity or an inflamed

community atmosphere preclude seating an impartial

jury, due process requires the trial court to grant a

defendant's motion for a change of venue, or a continuance.

Ultimately, the question is whether a defendant's "trial

was not fundamentally fair." Two standards guide analysis

of this question. They are the "actual prejudice" standard

and the "presumed prejudice” standard.

To find the existence of actual prejudice, two basic

prereguisites must be satisfied. fFTirst, it must be shown

that one or more jurors who decided the case entertained

an opinion, before hearing the evidence adduced at trial,

that the defendant was guilty. Second, these jurors, it

must be determined, could not have laid aside these

preformed opinions and "render([ed] a verdict based on the

evidence presented in court."

Prejudice is presumed from pre-trial publicity when

(1) pretrial publicity is sufficiently prejudicial and

inflammatory, and (2) the prejudicial pretrial publicity

saturated the community where the trial was held. As

the Fifth Circuit has described the test, “where a petitioner

adduces evidence of inflammatory, prejudicial pretrial

publicity that so pervades or saturates the community as to

render virtually impossible a fair trial by an impartial

jury drawn from the community, '[jury] prejudice is presumed

and there is no further duty to establish bias.'"

[(The} petitioner has the burden to show "essential

unfairness" under either standard. The petitioner [thus]

must “show that setting of the trial was inherently

prejudicial or that the jury selection pvrocess of which

he complains permits an inference of actual prejudice.”

Id. at 544 (citations omitted); see also United States v.

Capo, 595 F.2d 1086, 1090 (Sth Cir. 1979), cert. denied, 444

U.S. 1012 (1980).

-29- G

Under the evidence produced in the record, neither of

the two prongs of the test outlined in Coleman are met.

Although the record suggests that some publicity attended Dobbs'

state court trial, see ST at 12, 15-16, 316, 320; Respondent's

Exhibit No. 4 at 6; SHC at 68, 71; Petitioner's Exhibit No. 3 at

43, this publicity is not so extensive that it can be considered

to have “pervaded the community." Also, although several jurors

had heard about Sizemore's murder and the arrest of the

petitioner, no prospective juror had any detailed knowledge about

the incident. Moreover, no potential juror who had heard about

the Sizemore incident indicated that this information would affect

his ability to render an impartial verdict. See Respondent's

Exhibit No. 3 at 10-13, 21, 23, 32-35, 49, 55-58, 69.

Finally, the state trial court gave several curative instructions

regarding the publicity associated with the Dobbs trial. See,

e.g., ST at 326. The petitioner's allegation that the denial

of the motion for a change of venue deprived him of his a

process right to a fair trial therefore is without merit.

75

VII. THE SEARCH AND SEIZURE ISSUES

In Count Four of his petition, Dobbs contends that 1) the

brown tobacco sack and the pocket knife taken from his car by

Officer Visage while he was being questioned at the Walker County

jail, and 2) the shotgun taken from Walter Harris’ house by Officer

Davis were illegally seized by these police officers. Thus, aes

items were improperly admitted into evidence and constitute grounds

for habeas corpus relief.

These contentions are without merit for two reasons. First, |

Dobbs failed to object to the manner in which these items were

seized at trial, thereby barring such objections in this proceeding.

See Stone v. Powell, 428 U.S. 465, 494 (1976); Magistrate's

Report and Recommendation at 21-23. Second, the contentions are

without substantive merit because Dobbs consented to the search

of his car and he has no standing to challenge the seizure of the

shotgun. See generally United States v. Knotts, U.S.

(1983); United States v. Mendenhall, 446 U.S. 544, 557

(1980); Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973);

Bumper v. North Carolina, 391 U.S. 543, 548 (1968); United States

v. Alegria, slip op. at 920 (llth Cir. Dec. 19, 1983); United

States v. Pitt, 717 F.2d 1334, 1336-38 (llth Cir. 1983).

VIII. ADMISSION OF YATES TESTIMONY

Count Five of Dobbs' petition concerns the admission of

Daisy Yates' testimony. Yates, who is Foster's daughter, testifed

CG?

that she saw Dobbs lurking near her mother's hospital room on

December 15, 1973, the day after the Sizemore killing. Yates

did not know exactly what time Dobbs appeared, although it was

early or mid-afternoon. See ST. at 355.

Dobbs contends that the admission of this testimony —e

constitutional error for two reasons. First, it is highly

prejudicial: it implies that Dobbs was attempting to kill Foster

at the hospital. Second, by introducing the Yates’ testimony

the prosecutor committed a Brady violation because he knew, in

light of Officer Visage's testimony, that Yates’ testimony was

false. See generally Brady v. Maryland, 373 U.S. 83 (1963).

Regarding Dobbs' first argument -- that the admission of Yates’

testimony wes so prejudicial as to constitute constitutional

error -- it is well settled that the admission or exclusion

of evidence by a trial court constitutes constitutional error

only if it deprives the petitioner of fundamental fairness. See

Jameson v. Wainwright, slip op. at 535 (llth Cir. Nov 17,

1983). 2¢/ To deny a petitioner fundamental fairness,

allegedly wrongfully admitted testimony must be “material in

the sense of a crucial, critical, highly significant factor.”

Osborne v. Wainwright, slip op. at 687 (llth Cir. Dec. 5,

1983).

The Court holds that the introduction of Yates' testimony

did not deprive Dobbs of fundamental fairness for four reasons.

First, the issue of Dobbs' location on December 15, 1973 is not

33

a critical factor in this case. Compare Hutchins v. Wainwright,

715 F.2d 512, 517 (llth Cir. 1983). Second, the other evidence

of Dobbs* guilt is overwhelming, 33/ Third, Yates' testimony was

properly admissible because it is not necessarily inconsistent with

Visage's testimony. Officer Visage testified at trial that he

learned that Dobbs was at Young's car lot at approximately 2:15

p.m. on December 15, 1973. See ST. at 395-96. Visage went to the

car lot and saw Dobbs there at about 2:30 p.m. See id. at 377.

Visage then took Dobbs to the Walker County Jail for questioning.

Yates testified that she saw Dobbs at the hospital in the early

or mid-afternoon on December 15, 1973. Thus, Dobbs could have

been both at the hospital and at Young's car lot on December 15,

1983. Finally, although Yates’ testimony was prejudicial, its

prejudicial effect was reduced because Bennett emphasized the

discrepancy between Yates and Visage's testimony to the jury.

See ST. at 355-56, 396-98, 402-05.

Dobbs’ second contention -- that the prosecutor committed a

Brady violation by introducing Yates' testimony ~~ is also merit-

less. To establish a Brady violation, it must be shown that the

prosecutor introduced testimony which he knew or should have

known was false, and that the jury was not made aware of evidence

which contradicted the false testimony. See generally Ross v.

Hopper, 716 F.2d 1528, 1533-34 (11th Cir. 1983); United States v.

Fontenot, 628 F.2d 921, 924 (5th Cir. 1980), cert. denied, 452

U.S. 921 (1981). In this case there is no reason the prosecutor

knew or should have known Yates' testimony was false because it

was not necessarily inconsistent with Visage's testimony. Further-

more, the jury was made aware of the possible inconsistency between

the testimony of Yates and Visage by Bennett.

IX. ADMISSION OF PRIOR CRIME

In Count six of his petition, Dobbs argues that his

constitutional right to a fair trial was denied “when the jury

heard Walter Harris testify as to a prior crime in which the

Petitioner was alleged to have been involved.” Petition at 5.

The comment Dobbs refers to came in response to a question asked

by Bennett on cross-examination regarding a car Dobbs owned:

Q: Well, did the red car have anything to do

with this [i.e. Sizemore's) holdup.

A: No, Sir, but it had something to do with Mr. Lomenick's

holdup.

See ST. at 212. After this comment, Bennett moved for a mistrial.

The trial judge denied this motion, but offered to give a

curative instruction to the jury. Bennett declined this offer

because the testimony “was stopped before {the jury) got into

it far enough.” Id. at 213.

Harris’ comment constitutes constitutional error only if it

rendered Dobbs’ trial fundamentally unfair. The comment did not

easons. First, the

render the trial fundamentally unfair for two r

comment was not unduly prejudicial because it implicated only

not Dobbs himself. Indeed,

from the

Dobbs' car in the Lomenick holdup,

Bennett apparently felt that the prejudice resulting

comment did not even warrant a curative instruction. Second, the

17/

other evidence of Dobbs' guilt is overwhelming. —

X. THE IDENTIFICATION TESTIMONY

In Counts Seven and Eight of his petition, Dobbs argues that

the identification of him by Foster and Austin during his trial was

tainted by impermissibly suggestive pre-trial identification

procedures, and that the admission of these identifications

therefore violated his constitutional right to a fair trial.

An in-court identification violates a petitioner's

constitutional right to a fair trial when 1) pre-trial

identification procedures are unnecessarily suggestive and 2) the

totality of the circumstances indicates that the at-trial

identification is not reliable. See Manson v. Brathwaite, 432 U.S.

98, 104 (1977); United States v. Thevis, 665 F.2d 616, 643

(Sth Cir. 1982); United States v Rice, 652 F.2d 521, 524,

528 (Sth Cir. 1981). The factors to be considered in determining

reliability include “the opportunity of the witness to view

the criminal at the time of the crime, the witness’ degree

of attention, the accuracy of his prior description of the

criminal, the level of certainty demonstrated at the confrontation

and the time between the crime and the confrontation."

Manson, supra, at 114. A court must balance the suggestiveness

of the identification against its reliability to determine

the admissibility of the identification at trial. See

Manson, supra at 114 (citing Neil v. Biggers, 409 U.S. 188

(1972)).

The pre-trial identification procedures used by the police

in this case were impermissibly suggestive. Austin was shown

approximately 12 photographs. Of these photographs, four were

pictures of Dobbs and two were of white males. See ST. at

309-315, 330-37. Foster was also given approximately 12

photographs to look through, and 4 or 5 were pictures of Dobbs.

See Petitioner's Exhibit No. 3 at 30-32.

Although the pre-trial identification procedures were

impermissibly suggestive, both Foster and Austin had an adequate

independent basis to identify Dobbs. Both were eyewitnesses

to the robbery and murder and both were extremely positive in

their identifications of Dobbs. See ST. at 225, 271, 302,

322, 338-39; see generally McKinon v. Wainwright, 705 F.2d

419, 422-23 (llth Cir. 1983); ST. at 220-278, 299-339. Thus,

although the pre-trial identification procedures were suggestive,

the totality of the circumstances indicates that the reliability

of the in-court identification of Dobbs by Foster and Austin

is high. The Court therefore concludes that there was not a

very substantial likelihood of irreparable misidentification

resulting from the pre-trial identification procedures, see

Corn v. Zant, 708 F.2d 549-566-67 (llth Cir. 1983); Neil v.

Biggers, 409 U.S. 188, 199-200 (1972), and holds that Dobbs’

constitutional rights were not violated by the identification

testimony admitted at trial. 18/

XI. ADMISSION OF GRUESOME PHOTOGRAPHS

In Count Nine of his petition, Dobbs contends that the

admission of gruesome photographs of the deceased deprived him of

his constitutional right to a fair trial. These photographs,

State's Exhibit No. 27 and 29, depict Sizemore's gunshot wound

and his head injury. See ST. at 341-43. Under Georgia law

"photographs which are relevant and material to issues in the

case are not excludable on the grounds that they would inflame

the minds of the jurors, nor are they excludable on the ground

that they are corroborative or cumulative of other evidence."

Cape v. State, 246 Ga. 520, 522 (1980), cert. denied, 449 U.S.

1134 (1981). The photographs at issue were relevant to the

manner in which Sizemore was wounded and subsequently killed.

They therefore were properly admitted by the trial judge and

do not provide grounds for habeas corpus relief.- Accord

Hance v. Zant, 696 F.2a 940, 951 (llth Cir. 1983),

cert. denied, U.S. » 103 S. Ct. 3544 (1983).

Even if the photographs were improperly admitted, the

petitioner would have to show that their admission denied him

“fundamental fairness" in order to be granted habeas corpus

relief. See Osborne v. Wainwright, Slip op. at 687 (llth Cir.

Dec. 5, 1983). To deny a petitioner “fundamental fairness,"

allegedly prejudicial evidence must be "material in the sense

of a crucial, critical, highly significant factor." Id.

The photographs in question are not material in this sense in

view of the other evidence of Dobbs' guilt on the charge of

murder. 19/

XII. ADMISSION OF HEARSAY TESTIMONY

In Count 10 of his petition, Dobbs argues that his

constitutional right to a fair trial was violated when certain

hearsay testimony was admitted. The testimony at issue was

given by Paul Young, the owner of the car lot that Dobbs visited

after the Sizemore incident. Young stated that Dobbs owed

him some money, approximately $100, and that on the afternoon of

December 14, 1973 -- the day of the Sizemore robbery -- Dobbs paid

off this debt by handing Young a fifty dollar bill and bills

of other denominations. See ST. at 148. This testimony was

potentially incriminating because a fifty-dollar bill was

taken from Sizemore during the robbery. See id. at 79. On

cross-examination, it was revealed that Young's statement

was hearsay because Dobbs paid the $100 to Young's wife.

AO 72A

iPev. 8/82)

|

|

The admission of this testimony warrants habeas corpus

relief only if it rendered Dobbs' trial fundamentally unfair.

See Jameson, supra. It did not do so because 1) the denomination

of the bills constituting the $100 was not a critical factor

in the state's case, 2) the prejudice resulting from the

hearsay statement was effectively negated by Bennett's

cross-examination of Young, and 3) the other evidence of

Dobbs’ guilt is overwhelming. 29/ See Shaw v. Boney, 695

F.2d 528, 531 (llth Cir. 1983) (admission of double-hearsay

threat did not lead to a fundamentally unfair trial because

the statement was “neither critical nor even a highly significant

factor in the prosecution's case" and the evidence of quilt

was overwhelming).

XIII. ADMISSION OF THE SHOTGUN

fn Count 11 of the petition, Dobbs argues that his

constitutional rights were violated by the “introduction into

evidence of a gun which was not the same as the murder weapon."

Petition at 7. As noted earlier, an evidentiary ruling warrants

habeas corpus relief only if it is erroneous and deprives the

defendant of fundamental fairness. See Jameson, supra.

-39- &

"To constitute a denial of fundamental fairness, the evidence

erroneously admitted must be material in the sense of a

crucial, critical, highly significant factor." Id.

The shotgun was properly admitted into evidence

because four witnesses -- Harris, Foster, Visage and

Davis -- identified the shotgun as the one used by Dobbs.

See Duvall v. State, 238 Ga. 325, 326 (1977); ST. at 199-

299, 264-67, 386, 407-08, 410-12, 423-24. Furthermore,

the shotgun was not a crucial piece of evidence in this case.

Accordingly, the admission of the shotgun did not deny the

petitioner fundamental fairness.

XIV. THE RIGHT TO COMPULSORY PROCESS

In Count 12 of his petition, Dobbs argues that his right

to compulsory process was violated when he “sought to have

crucial witnesses subpoenaed to his trial, but was unable to

do so because some of those witnesses resided in...

This contention is without

Tennessee." Petition at 8.

merit because the right to compulsory process extends only to

witnesses whose attendance may be compelled by a court. See

United States v. Greco, 298 F.2d 247, 251 (2d Cir.), cert.

8

::

deneid 369 U.S. 820 (1962). The witnesses Dobbs allegedly

sought to subpoena all lived in Tennessee. 21/ They were

beyond the subpoena power of the Walker County Superior Court

because, at the time of Dobbs' trial, Georgia had not enacted

the Uniform Act to Secure the Attendance of Witnesses from

Without the State.

which allows Georgia judges to apply for a court order from

judges in other Uniform Act states to compel the attendance of

22/

a witness.

therefore was not violated.

XV. THE PROSECUTOR'S CONDUCT DURING THE

GUILT/INNOCENCE PHASE OF THE TRIAL

Dobbs argues that the prosecutor's conduct during the

guilt/innocence phase of the trial deprived him of a

constitutionally fair trial. Specifically, Dobbs contends that

1) the questions asked by the prosecutor during Dobbs' cross-

examination regarding whether Dobbs had subpoenaed certain

witnesses (Count 13) and 2) the prosecutor's remarks during his

closing argument (Count 14) were so prejudicial that they

violated his constitutional rights.

-41-

See 0.C.G.A. § 24-10-90 to -97 (Michie 1981),

Dobbs' constitutional right to compulsory process

‘except in the sentencing phase of capital murder trials,

To prevail on a claim of prosecutorial misconduct during the

guilt/innocence phase of a capital trial, a petitioner must

show that the prosecutor's actions were SO egregious as to render

the trial fundamentally unfair. See Donnelly v- DeChristoforo,

696 F.2d 940,

637,

416 U.S. 642-43 (1974); Hance v. Zant,

.

' ~“

~ |

950 (llth Cir. 1983), cert denied, 0.8. , 403 S. ct’.

3544 (1983). In making this determination the totality of the

circumstances should be considered, i.e. the prosecutor's

conduct should be considered in the context of the entire trial.

Id. A court should, however, focus on the following consideration

(1) the degree to which the challenged remarks have a tendency

to mislead the jury and to prejudice the accused; (2) whether

the remarks are isolated or extensive; (3) whether the remarks

were deliberately or accidentally placed before the jury; and,

(4) the

strength of the competent proof to establish the guilt of the

accused. The prosecutorial misconduct

See id. at 950 n. 7.

standard for the guilt/innocence phase of a capital trial is

exacting. See Darden v. Wainwright, 699 F.2d 1031, 1036

(llth Cir. 1983) (a finding that "the prosecutor's remarks were

undesirable or even universally condemned" does not meet the

standard); id. (prosecutorial misconduct is “not to be found in

any but egregious cases"). 23/

-42-

.f

During the trial, the prosecutor conducted the

After the prosecutor finished cross-examining Dobbs,

following cross-examination of Dobbs regarding the availability , .

Bennett asked Dobbs the following questions on re-direct

of one witness:

examination:

Q Now, you know where James Woods Garage is on

Q Your witness that you subpoenaed, Woods was here

Salem Road?

this morning, wasn't he?

A Yes, sir, I do. ,

A Yes, sir, I believe he was.

Q@ And do you remember going there with [a) shotgun?

Q And we talked to him didn't we?

A No, Sir. ,

A Yes, Sir.

Q Do you remember sawing it off there? ;

Q And what did he tell us that caused us to send him

A No, Sir.

on back?

Q In fact, you had him subpoenaed as a witness, didn't

A That he didn't see my car that day.

ou?

. Q And why did you subpoena him?

A Yes, Sir, I did.

A Because I thought he had seen it.

Q And suddenly you decided you didn't need him, didn't

MR. BENNETT: Come down.

you?

A It wasn't my decision, its my lawyer's decision, it

was ours together after we got through talking.

Id. at 480.

Did that sawing off of that shotgun have anything to

. , . . The prosecutor also made the following remarks during

do with you deciding you didn't need him? ;

tis closing argument.

A No, sir.

| Then, when you get to Dobbs, boy, he was all over

the country that day. Now with his wife, his wife

ain't here, she's working. She lives in Georgia. Don't

you know a subpoena would have gotten her? Don't you

know his lawyer who has been his lawyer Since the

ST. at 475-76.

| preliminary hearing knows about subpoenas?

?

2

sn

Then I asked him about one witness, this fellow

Woods, about sawing off that shotgun and so forth and so on.

But he had him subpoenaed up here but didn't use

him because he didn't Sce him in his car that day, in his

car that day, when all the way through here he was telling

you he was in Harris' car with that gold scoop on it.

A man who would do what has been done here would

not hesitate, or don't you think under this evidence, to

tell you a story to save his own hide.

I don't know. I could stand up here and talk a

long time, but I do say this, there's people

that it just ain't safe to have on your streets,

and there is people that ain't safe to have

around you, and there's people that it ain't safe,

your property ain't, your life ain't, and if this

evidence hasn't demonstrated such a case, study about it.

Of course, if you find that he didn't do it, or

if you have a reasonable doubt, then you can

acquit him.

When you do that, he'll walk out the door with

everybody else.

Can you afford to take a chance?

That's this case, gentlemen of the jury, that's

this evidence, take it and weigh it and weigh it

well, and the State respectfully insists that

under this evidence a verdict of guilty is demanded.

Respondent's Exhibit No. 3 at 13-16.

5

The Court holds that the prosecutor's cross-examination

of Dobbs and his closing remarks did not render the guilt/

innocence phase of Dobbs' trial fundamentally unfair for several

reasons. First, the state in this case had overwhelming proof

to establish Dobbs’ guilt. See Darden v. Wainwright, 699 F.2d

1031, 1033-37 (llth Cir. 1983) (prosecutor's closing remarks

during guilt/innocence phase of a capital trial -- during which he

called the defendant an “animal,” and expressed his personal

opinion regarding the defendant and made “tasteless and

unprofessional” remarks -- did not render the trial fundamentally

unfair in light of invitation contained in defense counsel's

initial summation, the fact that defense had the "last word"

through Florida's rebuttal procedure and the overwhelming

evidence of the defendant's guilt); Hance v. Zant, 696 F.2d

940, 950-53 (llth Cir. 1983) (prosecutor, during guilt/

innocence phase of a capital trial, introduced numerous

gruesome photographs, fragments of corpse and vouched for the

credibility of the state's witnesses, yet his conduct did not

render the proceeding fundamentally unfair because of the over-

whelming strength of the state's case),cert. denied, U.S.

, 103 S. Ct. 3544 (1983); note 15 supra. 24/ second,

any prejudice that resulted from the prosecutor's comments about

the availability of Woods as a witness was at least partially

cured by Bennett's re-direct examination of Dobbs. Third,

ee

i

any confusion regarding the burden of proof caused by the

prosecutor's closing remarks ("of course, if you find that he

didn't do it, or if you have a reasonable doubt, *hen you

can acquit him") was cured by the trial court's instruction

regarding the burden of proof. See Duncan v. Stynchcomb,

704 F.2d 1213, 1215-16 (llth Cir. 1983); ST. at 486-87, 497-96.

Fourth, none of the prosecutor's remarks implicate

fundamental rights of the accused, such as the right to remain

silent or the right to counsel. See Duncan, supra; Darden,

supra, at 1036. 23/ Fifth, the allegedly improper remarks

are relatively isolated. Thus, although the prosecutor's

allegedly improper remarks were probably leliberate, the over-

whelming weight of the state's case and the isolation of the

remarks lead to the conclusion that they did not render the

petitioner's trial fundamentally unfair.

XVI. THE AGGRAVATED ASSAULT CHARGE

In Count 15 of his petition, Dobbs argues that the trial

judge's failure to define the word “assault” in his aggravated

assault charge resulted in a violation of Dobbs' constitutional

rights.

In charging the jury, the trial judge did state that "a

person commits aggravated assault when he is assaulted with a

deadly weapon, that is with reference to Count 1 and Count 2.”

Respondent's Exhibit No. 2 at 491. The trial judge also read

to the jury the allegations of assault contained in the

indictment (Counts 1 and 2):

This indictment charges that the said Wilburn

Wiley Dobbs did on the fourteenth day of December

in the year of our Lord 1973 in Walker County,

Georgia, unlawfully and with force and arms did make

an assault upon the person of William Austin with a

certain shotgun, a deadly weapon, and did shoot at

and toward the said William Austin contrary to the

laws of said State, the good order, peace and dignity

thereof. That is Count One.

Count Two charges that the Grand Jurors aforesaid

on their oaths aforesaid in the name and behalf of

the citizens of Georgia, doth further charge and

accuse the said Wilburn Wiley Dobbs with the offense

of felony for that the said Wilburn Wiley Dobbs did on

the day and date aforesaid, in the County aforesaid,

unlawfully and with force and arms did make an assault

upon the person of Grace Foster with a certain shot-

gun, a deadly weapon, did hit and beat the said Grace

Foster with said shotgun contrary to the laws of said

State, the good order, peace and dignity thereof. That's

Count Two.

1a. at 483-84. 29/

A defective jury charge raises an issue of constitutional

dimension only if it renders the entire trial fundamentally

unfair. See Carrizales v. Wainwright, 699 F.2d.1053, 1055

(llth Cir. 1983). Furthermore, a charge should be considered

as a whole, and if it presents the issues to a jury fairly,

it is constitutionally sound. See Davis v. McAllister, 631

F.2d 1256, 1260 (Sth Cir. 1980), cert. denied, 452 U.S. 907

(1981).

In this case some confusion could result from the failure

of the trial judge to define the word assault. Although

assault is a commonly used word, same individuals may consider

an assault to be defined as a violent action resulting in

27/

injury. This confusion does not render Dobbs’ trial

fundamentally unfair, however, for two reasons. First, this

confusion is alleviated somewhat by the manner in which the

allegations of assault are defined in the indictment. Second,

the confusion does not reach the point of shifting the burden

of proof to the petitioner. See Smith v. Smith, 454 F.2d 572,

973-79 (Sth Cir. 1971), cert. denied 409 U.S. 885 (1972).

The charge given by the trial judge therefore is constitutionally

adequate.

XVII. THE SANDSTROM CHARGES

In Count 16 of his petition, Dobbs contends that the

charge given by the trial judge during the guilt/innocence

portion of his trial impermissibly shifted the burden of

proving intent. The relevant portions of the allegedly

burden-shifting charge are as follows.

I instruct you that every person is presumed

innocent until proven guilty, no person shall

be convicted of a crime unless each element of

such crime is proven beyond a reasonable doubt.

I charge you further that this defendant enters

upon the trial of this case with the presumption

of innocence in his favor and this presumption

remains with him throughout the trial of the

case and entitles him to an acquittal at your

hands until and unless the State, by carrying

the burden of proof, removes and overcomes this

presumption of innocence by the introduction of

evidence in your presence and hearing which

convinces your minds of his guilt to a moral and

reasonable certainty and beyond a reasonable doubt.

This reasonable doubt, ladies and gentlemen,

means just what it says, it is not a fanciful or

a capricious doubt, but it is the doubt that

would remain in the mind of a fair-minded im-

partial juror honestly seeking for the truth

after having listened to all of the testimony in

the case.

So long as this doubt remains in your mind, it is

your duty to give the defendant the benefit of the

doubt and acquit him, but if this doubt does not

longer exist, you would be authorized to convict him.

(ST. at 386-87, 493-94.

I charge you that a crime is a violation of a

statute of this State in which there shall be a

union of joint operation of act and intention.

I further charge you that the acts of a person

of sound mind and discretion are presumed to be

the product of the person's will, but this

presumption may be rebutted. I charge you that

a person of sound mind and discretion is pre-

sumed to intend the natural and probable

consequences of his act, but this presumption may

be rebutted.

As to intent, I charge you that the intent to

commit the crimes charged in this bill of in-

dictment is an essential element that the State

must prove beyond a reasonable doubt. Intent is

always a question for the jury and is ordinarily

ascertained by act and conduct. Intent may be

shown in many ways, provided the jury finds that

it existed from the evidence produced before

them.

Intent may be inferred from the proof and

circumstances or by acts and conduct or it may be

presumed when it is the natural and necessary

consequences of the act.

The petitioner argues that the last

paragraph of the above-quoted portions of the charge (the

seventh paragraph) is burden-shifting, in violation of

Sandstrom v. Montana, 442-44 U.S. 570 (1979). Both the fifth

and the seventh paragraphs of the charge, however, present

burden-shifting issues.

The Court of Appeals for the Eleventh Circuit recently

concluded that a jury charge identical to the fifth paragraph

>f the above charge impermissibly shifted the burden of proof

-5l-

to the defendant in violation of Sandstrom. See Franklin v.

Francis, slip op. at 677-81 (llth Cir. Nov. 16, 1983). The charge

in Franklin provided:

[t]he acts of a person of sound mind and discretion are

presumed to be the product of the person's will, but the

presumption may be rebutted. A person of sound mind and

discretion is presumed to intend the natural and probable

consequences of his acts but the presumption may be rebutted.

Id. at 679. The Franklin holding is obviously binding authority,

and compels the conclusion that the fifth paragraph of the charge

violates Sandstrom. Franklin does not, however, end the analysis,

as a determination must be made regarding whether the Sandstrom

error is harmless. See id. at 681.

In Connecticut v. Johnson, slip op. (U.S. Sup Ct. Feb. 23,

1983}, the Supreme Court held, ina plurality opinion, that a

Sandstrom error could never be considered harmless error.

A plurality opinion of the Supreme Court does not overrule past

precedent, however, and the law of this Circuit before

Connecticut was "that a Sandstrom error may be held harmless. . .

Spencer v. Zant, 715 F.2d 1562, 1578 (llth Cir. 1983) (emphasis

added) (citing Lamb v. Jernigan, 683 F.2d 1332, 1342 (llth Cir.

1982), cert. denied, U.S. , 103 S. Ct. 1276 (1983)).

Whether a Sandstrom error is harmless thus must be determined on a

case-by-case basis, and cases in this Circuit which have addressed

this issue have reached different results. Compare Franklin,

supra, at 681 (error not harmless because the sole defense was

lack of intent to kill and the facts did not overwhelmingly

preclude that defense) with Brooks v. Francis, 716 F.2d 780,

793-94 (llth Cir. 1983) (harmless error where there was over~-

>

whelming evidence of guilt) and Spencer, supra (same).

a

In this case Dobbs did not rely on a lack of intent

offense; rather, he contended that he was not present during

the Sizemore incident. The evidence regarding Dobbs' presence

at the store -- and his role as the triggerman -- is, however,

overwhelming. Both Foster and Austin, who were eyewitnesses

to the incident, positively identified Dobbs as the triggerman.

Harris, an accomplice, implicated Dobbs as the mastermind

of the robbery, although he later recanted this testimony.

Dobbs presented no alibi witnesses during the trial, although

alibi evidence was presented during later proceedings. And

two items taken from Foster during the robbery -- a tobacco sack

and a knife -- were found in Dobbs' car. Thus, this Court 1s

compelled to conclude that the Sandstrom error found in the

trial judge's charge is harmless beyond a reasonable doubt.

Regarding the instruction contained in the seventh

paragraph of the above-quoted portions of the trial judge's

charge, Hance v. Zant, 696 F.2d 940 (llth Cir), cert denied,

U.S. 103 S. Ct. 3544 (1983), is directly on point.

In Hance the charge that "intent may be inferred from the

proven circumstances or by acts and conduct, or it may be

presumed when it is the natural and necessary consequence of

the act” was held not to be burden-shifting. Again, this

holding is binding authority and disposes of the second

Sandstrom issue. See also Lamb, supra, at 1338-40.

XVIII. THE WITHERSPOON EXCLUSION ISSUE

In ‘Counts 17 and 18 of his petition, Dobbs argues that

the systematic exclusion from the jury of all persons having

conscientious or religious scruples against the imposition of

the death penalty violated his constitutional right to a fair

trial because the jury was not comprised of a representative

cross-section of the community. It has been held in this

Circuit, however, that the exclusion of venirepersons under

Witherspoon does not violate the "representative cross-section

of the community” requirement contained in the sixth and

fourteenth amendments. See Corn v. Zant, 708 F.2d 549, 565

(llth Cir. 1983); Smith v. Balkcom, 660 F.2d 573, 574-79 (Sth

Cir. 1981), cert. denied U.S. , 103 Ss. Ct. 181

(1982); Spinkellink v. Wainwright, 578 F.2d 582, 596-98 (Sth

Cir. 1978), cert. denied, 440 U.S. 976 (1979). The

contentions contained in Counts 17 and 18 of the petition

therefore are unpersuasive.

-54-

In a contention related to Counts 17 and 18, Dobbs

argues that his constitutional right to a fair trial was

violated by the Witherspoon qualification of jurors because

“he was convicted and sentenced to die by a jury that [was)

biased in favor of the prosecution on the issue of Petitioner's

guilt of the crime with which he was charged, and biased

in favor of the use of the death penalty against black

persons" (Count 19). It has been held, however, that the

Witherspoon-qualification of a jury does not result ina

“prosecution-prone" jury, see Corn, Supra; McCorquodale v.

Balkcom, 705 F.2d 1553, 1556 (llth Cir. 1983); Smith,

supra; Spinkellink, supra, and Dobbs has presented no evidence

regarding whether the Witherspoon-qualification of jurors

resulted in a jury biased in favor of imposing the death

penalty on black defendants. He had the opportunity to do so

at the evidentiary hearing. The contention contained in Count 19

thus is without merit.

-S5- Ss

_-—*

XIX. THE WITHERSPOON ISSUE

In’ Count 20 of his petition, Dobbs contends that "Juror

Virginia E. Mitchell was improperly excused without a

declaration of her being unalterably opposed to capital

punishment, in violation of Petitioner's right to a fair

trial. ... " Petition at 11. Regarding the excusal of

venirepersons by the state-trial court because of their

personal feelings towards the death penalty, it is well-

settled that the court may exclude only those venirepersons

who make it “unmistakably clear (1) that they would

automatically vote against the imposition of capital

punishment without regard to any evidence that might be

developed at the trial of the case before them, or (2)

that their attitude toward the death penalty would prevent

them from making an impartial decision as to the defendant's

guilt.” Witherspoon v. Illinois, 391 U.S. 510, 522-23

(1968). The standard for the excusal of a juror under

Witherspoon is exacting. See Witt v. Wainwright, 714 F.

2a 1069, 1081 (llth Cir. 1983)("a prospective juror may even

concede that his or her feelings about the death penalty would

possibly color an objective determination of the facts of a

case without admitting of the necessary partiality to justify

excusal”).

The qualification of Mitchell proceeded as follows:

MR. SELF Are you conscientiously opposed to

capital punishment? One, if Your Honor please.

THE COURT: What is the juror's name?

MRS. MITCHELL: Virginia E. Mitchell.

THE COURT: Virginia Mitchell.

MRS. MITCHELL: Uh-huh.

THE COURT: Now Mrs. Mitchell, you said you were

conscientiously opposed to capital punishment,

that means inflicting the death penalty?

MRS. MITCHELL: Yeah.

THE COURT: Are your convictions and your opposition to

that so fixed and so firm and so ingrained in

you that you would never under any circumstances

vote to impose the death penalty?

_MRS. MITCHELL: No.

THE COURT. Is it so strong that you would ever refuse

to consider imposing the death penalty?

MRS. MITCHELL: If it was my family I would still.

THE COURT: It wouldn't matter how severe the evidence

might show a case to be, you would still refuse

to invoke the death penalty?

MRS. MITCHELL: Yes, sir.

THE COURT: I'm going to let her go off for cause.

Respondent's Exhibit No. 3 at 52-53.

-s7- SG)

Although Mitchell answered “no” to the court's question

regarding whether her conviction about the death penalty

would preclude her from imposing it“under any circumstances”

her answers to the court's other questions indicate

an unequivocal conscientious objection to the imposition of

the death penalty. Furthermore, the court's

questions progress as if Mitchell had answered "yes" to the

court's second question. Cf. Brooks v. Francis, 716 F.2d 780,

794-95 (lith Cir. 1983) ("it is entirely possible that the

juror misunderstood the meaning of [a word]"). The Court

therefore concludes that Mitchell was properly excluded from

the jury under Witherspoon. See Spencer v. Zant, 715

F.2d 1562, 1576-77 (llth Cir. 1983) (venireperson's statement

that his “reservations about the death penalty were such

that he would ‘refuse to even consider its imposition in

the case before [him] under any circumstances'" met Witherspoon,

notwithstanding the fact that his initial voir dire answers

were equivocal). 28/

-58-

35

XX. THE SENTENCING CHARGE Next, the trial judge instructed the jury on the penalties for

armed robbery and aggravated assault. He then instructed the

In Count 23 of his petition, Dobbs assails the adequacy of jury on the penalties for murder:

the sentencing charge given by the trial judge. He contends

that the charge failed to adequately 1) instruct the jury As to count five, the punishment for murder, ladies

and gentlemen, is that of life imprisonment or death

by electrocution. Before you would be authorized to

fix a sentence which would require the court to

sentence him to death by electrocution, you would have

to find beyond a reasonable doubt that one of the

aggravating circumstances which the Legislature has

provided for in capital felonies where the death sentence

can be imposed and where the death sentence is asked for,

have provided ten different statutory aggravating

circumstances.

on mitigating circumstances, and 2) limit the jury's discretion

in imposing the death penalty.

The trial judge made the following statement at the

beginning of the sentencing portion of the trial:

Now it is your duty to determine within the limits

prescribed by law the penalties which shall be | I submit to you that of those ten there is only one

imposed as punishment for these offenses, and in arriving | that you may consider in determining whether or not he

at this determination you are authorized to consider ail should be put to death by electrocution, and I will read

of the evidence received here in Court presented by the that to you.

State and the defendant throughout the trial before you,

you are authorized to consider the facts and circumstances,

You would have the authority to return 4 verdict of

if any, in extenuation, mitigation or aggravation of

death by electrocution if you found beyond a reasonable

punishment, however, it is not essential to your decision doubt that in this case the offense of murder was committed

that you find extenuating or mitigating facts and while the defendant was engaged in the commission of another

circumstances on the one hand or facts and circumstances capital felony.

in aggravation on the other. ,

; | Now I instruct you that notwithstanding the fact that I

told you you could not give the death penalty for tne

ST. at 505-06. After the presentation of evidence and argument armed robberies, armed robbery, however, is defined as a

capital felony under the laws of this state, and you may

of counsel, the trial judge stated: consider whether or not he was engaged in the commission

of another capital felony when he committed the offense

) ilty.

Ladies and gentlemen, in this presentence investigation of murder of which you found him guilty

and the trial of this case, you have had evidence

presented for your consideration by the State in

aggravation, you have had argument by the State in

aggravation, or what he contends is aggravation, and

| you have heard argument by counsel for the defendant in

Now if your verdict is life imprisonment, the form of

your verdict would be as to count five, we the jury fix

the punishment of the defendant on count five at life

imprisonment in the penitentiary.

mitigation and extenuation.

Id. at 507.

Be ‘

~59- 4) AO 72A bee (@

If your verdict be death by electrocution on count five, After a bench conference, the trial judge gave additional

the form of your verdict would be we the jury fix the at

punishment of the defendant on count five at death - instructions on the penalties for armed robbery and aggravated

to death by electrocution and that would mean that the

Court, if you did so, would have to ~- would sentence him

assault. He then gave the following additional charge regarding

to death by electrocution. :

the death penalty:

You will have out with you in writing this one statutory |

ground that the Court has permitted you to consider in

determining whether or not the death penalty will be

imposed. Now it will also be necessary if your verdict Now I charge you further that if you find that

on count five is death by electrocution, you must in writing there is an aggravating circumstance as I have

write out the statutory ground which you find him to be described to you, before you can impose the

guilty of in arriving at the verdict of death by electrocutio: death penalty, you're not bound - you don't have

you will have that with you in writing, that statutory to impose the death penalty, that's still a

ground which the Court has authorized you to consider matter within your discretion, that's still a

if you see fit to do so. matter of your discretion as to what your sen-~

tence will be, even though you find beyond a

All of this is within your discretion, all of reasonable doubt that he committed the offense

this 1s a matter that would address itseit to of murder while engaged in the offense of armed

Ou, ail the punishment of the defendant or all robbery, which is a capital felony, you're

SS addresses itself to the sound dis- still not bound to sentence him to death by

cretion of the jury. ra electrocution, you could still, if you see fit

—_——— to do so, sentence him to life imprisonment, but

Now I instruct you our law says in arriving at it would have to be either life imprisonment or

your verdict 5. these cabes, Ee one prescribing death by electrocution, but you are not bound to

the limits which a jury Can go, the law provides . sentence him to death even though you find there

no standards for the guidance of the jury in the is an aggravating circumstance which the

selection of the penalty but rather commits the — Legislature saw fit for a jury to consider.

ahole matter of determining which penalty shall

be fixed to the judgment, conscience and absoiute

discretion of the jury. Id. at 516.

The only standard, if any, that you will be permitted In Westbook v. Zant, 704 F.2d 1487 (llth Circ. 1983), a

to consider in arriving at whether or not you will . 7

inflict the death penalty is the question of jury instruction which is similar to the above instruction was

whether or not you find beyond a reasonable doubt that

this defendant committed the offense of murder while challenged because of its vagueness regarding mitigating

engaged in the commission of another capital felony. |

circumstances. The instruction provided:

I charge you further that a finding of a statutory

aggravating circumstance shall only be based upon You are authorized to consider the facts and

evidence convincing your minds beyond a reasonable circumstances, if any, in extenuation, mitigation

doubt as to the existence of that particular charge | or aggravation of punishment which may have been

submitted to you. However, it is not essential to

your decision that you find extenuating or mitigating

facts and circumstances on the one hand, or facts and

Id. at 511-14 (emphasis added). circumstances in aggravation on the other. Please do

— | not confuse this with a charge which I shall give you a

little bit later insofar as a statutory aggravating

circumstance may be concerned.

on that particular crime.

<i G3 | @

[y]ou do not have to make up your own statutory

aggravating circumstance, you only have to

determine whether you think that one or other of

those claimed as to the various counts did, in fact,

exist. And then you must either make one recommendation

for death or a recommendation for mercy and life

imprisonment, and, of course, as the law says, if you

find no statutory aggravating circumstances, then

the defendant would have to be sentenced to life

imprisonment in accordance with the law.

Id. at 1501-03.

The court held that the challenged instructions were

constitutionally deficient because they did not clearly guide

the jury in their understanding of mitigating circumstances:

A full examination of the charge does reveal

constitutionally deficient instructions furnishing

a basis for habeas corpus relief. The charge fails

to provide clear instructions on the function of

mitigating circumstances and no guidance on the

relationship between mitigating and aggravating

circumstances. As Spivey v. Zant teaches, jury

instructions must "describe the nature and function

of mitigating circumstances and “communicate to the

jury that the law recognizes the existence of facts or

circumstances which, though not justifying or excusing

the offénse, may properly be considered in determining

whether to impose the death sentence." The Spivey

court explained that most cases will require the court

to "tell the jury what a mitigating circumstance is and

what its function is in the jury's sentencing deliberations."

Although the charge authorized the jury to consider

circumstances in extenuation or mitigation, the court

failed to explain what function such a consideration

would play in sentencing deliberations. An authorization.

to consider mitigating circumstances is a hallow instruction

when unaccompanied by an explanation informing the jury

why the law allows such a consideration and what effect a

finding of mitigating circumstances has on the ultimate

recommendation of sentence. We cannot fit this instruction

within the requirements cf Spivey: “Capital sentencing

instructions which do not clearly guide a jury in its

understanding of mitigating circumstances and their

purpose . . . violate the eighth and fourteenth

amendments." Therefore, Westbrook's habeas

corpus petition seeking relief from his death

sentences must be granted on this ground because of

the sentencing instruction's inadequacies concerning

the nature and function of mitigating circumstances.

Id. at 1503 (citations omitted). See also Finney v. Zant,

709 F.2d 643, 646-47 (llth Cir. 1983); Goodwin v. a and

684 F.2d 794, 798-803 (llth Cir. 1983), cert denied, U.S.

, 103 S. Ct. 1798 (1983); Spivey v. Zant, 661 F.2d

464, 472 (5th Cir. 1981), cert. denied, U.S. >

102 S. Ct. 3495 (1982).

In light of Westbrook it is clear that the trial judge's

charge is constitutionally deficient. It does not define a

mitigating circumstance, describe the nature and function

of mitigating circumstances, or provide guidance regarding

the relationship between aggravating and mitigating circumstances.

Accordingly, Dobbs' writ of habeas corpus must issue. His

sentence of death therefore is vacated, subject to the state's

right to resentence Dobbs within a reasonable time.

Because the Court finds that the sentencing charge is

constitutionally defective due to its failure to describe the

role of mitigating circumstances, it is unnecessary to decide

-64- GC)

AO 727A

Be amr)

1) whether the charge is constitutionally defective because it

failed to limit the jury's discretion in imposing the death

sentence, 2) whether the admission of Dobbs’ prior convictions

during the sentencing phase of his trial was constitutional error

(Count 22), 3) ‘whether the trial judge's refusal to answer a

question about the availability of parole during its sentencing

deliberations was constitutional error (Count 24), 4) whether

the jury's sentencing verdict was constitutionally inadequate

(Count 25), 5) whether the fact that the jury allegedly

sentenced Dobbs to death thinking that he would not be

executed constituted constitutional error (Count 39), and 6)

‘whether Dobbs' sentence of death was imposed as a result of

passion, prejudice or other arbitary considerations (Counts

‘

26, 2% and 28).

THE FAILURE OF THE INDICTMENT TO

ALLEGE AGGRAVATING CIRCUMSTANCES

XXI.

In Count 29 of his petition, Dobbs contends that his

due process right to notice of the charges pending against him

was violated because none of the aggravating circumstances

considered by the jury in imposing the sentence of death were

alleged in the indictment. The Court finds this contention

unpersuasive and agrees with the Magistrate's analysis. See

generally Clemons v. Dougherty County, 684 F.2d 1365, 1374

(llth cir. 1982). 22/

XXII. PROPORTIONALITY REVIEW

In Count 30 of his petition, Dobbs contends that the

Georgia Supreme Court, in reviewing Dobbs' conviction on

direct appeal, did not “properly compare [the sentence

imposed in] this case with other similar cases," i.e. it did not

properly conduct a proportionality review. Petition at 19.

Before evaluating this contention, it is necessary to discuss

the function of the Georgia Supreme Court in reviewing death

the federal habeas

penalty cases on direct review and

standard for reviewing the actions of the Georgia Supreme

Court.

“

Under Georgia law, the Georgia Supreme Court must conduct

an expedited direct review oF a case in which the death penalty is

imposed. See 0.C.G.A. § 17-10-35 (Michie 1981) (formerly Ga. Code

Ann. § 27-2537 (Harrision 1978)). In reviewing a death

sentence, the court must determine whether the sentence was

imposed “under the influence of passion, prejudice, or any other

arbitrary factor," whether the evidence supports the finding

of a statutory aggravating circumstance, and “whether the

sentence of death is excessive or disproportionate to the penalty

imposed in similar cases, considering both the crime and the

defendant." 0.C.G.A. § 17-10-35(d) (Michie 1981). The court

must also include in its decision a reference to those “similar

cases" which it took into consideration. Id. § 17-10-35(e).

709 F.2d 1353 (llth Cir. 1983),

Moore v. Balkcom,

sets forth the standard that a federal court should use when reviewing

the proportionality analysis conducted by a state court. The Moore court

first stated that a federal court's only task is to determine "whether

the [state] court has 'properly performed the task assigned to it under

the [applicable statutes].'" Id. at 1359 (quoting Gregg v. Georgia,

428 U.S. 153, 224 (1976)). ‘The court also stated that a federal court's

function is limited to determining whether "the application of approved

sentencing procedures in a particular case creates a substantial risk

that the punishment has been inflicted in an arbitrary and capricious

manner." Moore, supra (citing Edmmd v. Florida, Sf. _,

S. Ct. 3368 (1982)). ‘Thus, a case-by-case analysis of the cases used by

a state court in its proportionality review is inappropriate. See

Moore, supra. When, however, a "petitioner who has been sentenced to

death can show that the facts and circumstances of his case are so

clearly undeserving of capital punishment that to impose it would be

patently unjust and would shock the conscience,” habeas corpus relief

should be granted. Moore, supra, at 1359-60.

In reviewing Dobbs' conviction on direct appeal, the

Georgia Supreme Court first found that "the evidence supports the

jury's finding of a statutory aggrivating circumstance, i.e., that

-67=

7

the offense of murder was committed while the offender was engaged

in another capital felony (armed robbery)." Dobbs v. State, 236

Ga. 427, 433 (1976), cert. denied, 430 U.S. 975 (1977). The —

court then “compared the evidence and sentence in this case with

Similar cases .. . [and found that] Dobbs' sentence to death

for murder is not excessive or disproportionate to the penalty

imposed in similar cases considering both the crime and the

defendant." Id. The “similar cases" the court refers to

involve murders committed during an armed robbery. See, e.g.,

Berryhill v. State, 235 Ga. 549 (1975); Mitchell v. State,

234 Ga. 160 (1975); Lingo v. State, 226 Ga. 496 (1970). The

court then upheld Dobbs' sentence of death.

The proportionality review conducted by the Georgia Supreme

Court “provided an adequate safeguard against the freakish

imposition of capital punishment," Moore, supra, at 1360, and

is therefore constitutionally adequate.

-68-

‘ XXIII. FAILURE TO TRANSCRIBE PORTIONS

OF THE STATE TRIAL

[Corn also insists that] there is no greater opportunity

for prejudice than in the arguments of counsel, and that

the failure to preserve that part of the proceedings was

error of a constitutional magnitude. He did not, however,

In Count 31 of his petition, Dobbs contends that the failure

, object to any part of the opening or closing statements,

, , ;

to send a transcript of 1) defense counsel's closing argument nor does he point to any infirmities during those phases

, , ' of the trial. Absent any showing of harm by a petitioner,

during the guilt/innocence phase of the trial, and 2) both the it is settled that failure to transcribe counsel's

; arguments is not a constituti 1 violati irin

defense counsel and the prosecutor's closing argument during neo cy Bigg aon maa violation requiring

the penalty phase of the trial to the Georgia Supreme Court,

Corn, supra, at 560 (citations omitted); see also

so that the court could properly review the sentencing

Stephens v. Zant, 631 F.2d 397, 402-04 (Sth Cir. 1980), rev'd

procedure, violated his due process and equal protection rights. a

on other grounds 33 Cr. L. 3195 (U.S. Sup. Ct. June 22, 1983).

In Corn v. Zant 708 F.2d 549, 560 (llth Cir. 1983)

a similar contention was raised. In Corn the petitioner argued

that his state trial counsel's failure to order a transcript of

the opening and closing arguments deprived him of effective

assistance of counsel. The Corn court first noted that there is nq

statutory duty to transcribe these arguments, and disposed

of this contention as follows:

Corn contends .. . that the Supreme Court of

Georgia could not properly assess the fairness

of his death sentence without considering the opening

and closing remarks.

-69-

AO 72

(Mey A/P7)

| AO 774

AO 727A

Rey AIM)

of

In this case the only untranscribed argument that could

have been inflammatory was the prosecutor's closing argument

during the sentencing phase of the trial. It is apparent,

however, that this argument was not inflammatory. Bennett did

not raise any objections to, nor does he recall any inflammatory

remarks being made during, this argument. See Respondent's

Exhibit No. 3 (Affidavit of Bennett). Furthermore, the court

reporter states in his affidavit that 1) although he did not

transcribe the prosecutor's closing argument during the

penalty phase of the trial, 2) it was his practice to record all

objections made during such arguments, and 3) he recorded ng

objections to the prosecutor's closing argument. See id.

(Affidavit of Towns). The petitioner's contention therefore is

without merit.

The Court also notes the trial judge provided the Georgia

Supreme Court with a record that was “more than adequate to

permit the [Supreme Court] to determine whether the death

penalty was imposed with an even hand."

Specifically, the trial judge submitted a detailed, seven-

page report to the Supreme Court as part of the record. See

Respondent's Exhibit No. 4. This report was required to be

submitted to the Supreme Court by statute, see Ga. Code Ann.

§ 27-2537(a) (Harrison 1978), and described the trial and the

basis for the imposition of the death penalty.

Stephens, supra, at 403.

AN TOA

In Count 33 of his petition, Dobbs contends that the

failure of the Georgia Supreme Court to forward a copy to this

Court of the transcript of the closing arguments of counsel

during the guilt/innocence and sentencing portions of the

trial prevents this Court from performing an adequate habeas

corpus review. For the reasons outlined above, this contention

is also without merit.

XXIV. INEFFECTIVE ASSISTANCE OF

COUNSEL ON DIRECT APPCAL

In Count 34 of his petition, Dobbs contends that he was

denied the effective assistance of counsel during the direct

appeal of his conviction because 1) his attorney 30/ failed

to appear at oral argument before the Georgia Supreme Court,

and 2) there “were shortcomings and delays in filing an

appellate brief.” Petition at 21. Dobbs’ counsel did, however,

appear at oral argument before the Georgia Supreme Court. See

Dobbs v. State, 236 Ga. 427, 434 (1976); Sic at 117. 23/

Furthermore, the petitioner has not presented any evidence

32/

regarding the shortcomings of the appellate brief.

Accordingly, this contention is without merit.

XXV. CONSTITUTIONAL CHALLENGE TO

GEORGIA'S APPELLATE REVIEW PROCEDURE

In Count 35 of his petition, Dobbs argues that Georgia's

system of appellate review of death sentences is unconstitutional.

This contention was rejected by the United States Supreme

Court and is without merit. See Zant v. Stephens, No. 81-89

(U.S. Sup. Ct. June 22, 1983); Gregg v. Georgia, 428 U.S.

153 (1976).

AO 72A

XXVI. THE COMPOSITION OF THE GRAND

AND TRAVERSE JURIES

In Count 36 of his petition, Dobbs contends that he was

indicted by an unconstitutionally selected grand jury because

there was a “systematic exclusion of blacks, women, young

people between 18 and 30 years of age, and poor people

from the grand jury venire. .. - " petition at 22. Dobbs

raises a similar contention in Count 37 as to the traverse

jury. 33/ Dobbs has, however, submitted evidence only on

the issue of whether women were systematically excluded from the

grand jury venire. The other challenges to the grand and

traverse juriers therefore will not be addressed and provide no

grounds for relief.

The prerequisites for federal relief from the allegedly

discriminatory selection of a grand jury were established in

Castaneda v. Partida, 430 U.S. 482 (1977). Under this standarce,

a petitioner is entitled to relief if he

(1) establish[es] that the

group against whom discrimination is asserted is a

recognizable, distinct class; (2) prove[s) [a significant]

degree of underrepresentation fof the class on the grand

jury venire] by comparing the proportion

of the [class] in the total population to the

proportion called to serve fon a grand jury]

over a significant period of time and (3)

show[s}] that the selection procedure is

susceptible to abuse or is not class neutral.

Id. at 494; see also Ross v. Hopper, 716 F.2d 1528, 1538 (llth

Cir. 1983); Gibson v. Zant, 705 F.2d 1543, 1546 (llth Cir.

1983).

@

The first portion of the Castaneda standard is met in this

case because women clearly are a cognizable class. See Gibson,

supra, at 1547 (citing Taylor v. Louisiana, 419 U.S. 522 (1975));

see generally Willis v. Zant, slip op. at 707-10 (llth Cir.

Nov. 17, 1983). The second portion of this test requires

proof of a significant degree of underrepresentation of

this class on the grand jury venire over a significant period

of time. Castaneda, supra. Dobbs has submitted proof showing

an underrepresentation of women on the grand jury venire that

indicted Dobbs of 16.6%. See SHC at 42-43. This degree of

underrepresentation is significant. See Hernandez v.

Texas, 347 U.S. 475, 480-81 (1954) (14%); Birt v. Montgomery,

709 F.2d 690, 700-01 (llth Cir. 1983) (17% to 33%); Gibson,

supra (29% to 38%). 347

In analyzing the grand jury venire,

Dobbs used data that span a 24 month period; thus, the

degree of underrepresentation of women is shown "over a significant

period of time." See Birt, Supra (underrepresentation over a 5

year period); Gibson, supra, at 1546, 1547 (10 year period);

35/

Machetti, supra, at 238, 240-41 (20 month period).

The third portion of the Castaneda standard requires a

showing that a jury selection procedure is not class neutral. In

evaluating whether Dobbs has met this portion of the standard, the

Court will first review the Georgia law which outlines the

procedures jury commissioners should follow in compiling jury

lists to determine if the statutory method of selecting jurors is

class neutral. The Court will then examine the actual procedures

used by the commissioners who selected the members of the grand

jury that indicted Dobbs to determine if their method of selection

is class neutral.

@

Georgia law § 59-106, which was in effect when Dobbs was

indicted, sets out the procedure to be followed by jury

commissioners in composing a jury list:

At least biennially, or, if the senior judge of

the superior court shall direct, at least annually,

the board of jury commissioners shall compile and

maintain and revise a jury list of intelligent and

upright citizens of the country to serve as jurors.

In composing such list the commissioners shall select

a fairly representative crosssection of the intelligent

and upright citizens of the county from the official

registered voters’ list of the county as most recently

revised by the county board of registrars or other

county election officials. If at any time it appears

to the jury commissioners that the jury list, so

composed, is not a fairly representative cross

section of the intelligent and upright citizens of the

county, they shall supplement such list by going out into

the county and personally acquainting themselves with other

citizens of the county, including intelligent and upright

citizens of any significantly identifiable group in

the county which may not be fairly represented thereon.

After selecting the citizens to serve as jurors,

the jury commissioners shall select from the jury list

a sufficient number of the most experienced, intelligent

and upright citizens, not exceeding two-fifths of the whole

number, to serve as grand jurors. The entire number first

selected, including those afterwards selected as grand

jurors, shall constitute the body of traverse jurors for

the county, except as otherwise provided herein, and no

new names shall be added until those names originally

selected have been completely exhausted, except when a

name which has already been drawn for the same term as a

grand juror shall also be drawn as a traverse juror, such

name shall be returned to_the box and another drawn in

its stead.

1973 Ga. Laws at 485-86. The Supreme Court has held that

this method of selection is not inherently unfair, but

contains the possibility of abuse. See Turner v. Fouche,

396 U.S. 346, 355 (1970). Thus, on,its face, Georgia law

§ 59-106 is class neutral. The Court must therefore evaluate the

procedures employed by the jury commissioners who selected the

grand jury that indicted Dobbs to determine if they are class

neutral.

@

-76-

Sidney Porter, a jury commissioner for Walker County,

described, during the state habeas corpus hearing, how the grand

jury lists for Walker County are compiled. He states that this

procedure was used in selecting the grand jury that indicted

Dobbs. The jury commissioners -- six in all -- take the

most recent voter registration list and apparently divide it

up equally. See SHC at 32. Each commissioner screens

the list for deceased persons. Each commissioner then picks

every fifth, sixth or tenth name for the grand jury. No other

criteria are used to select the grand jury and the superior

court judge does not alter the composition of the grand jury.

See id. at 32-39. °

Because this procedure is class neutral the third

portion of the Castaneda standard is not met. Accordingly,

Dobbs' challenge to the composition of the grand jury is

without merit. Compare Birt, supra, at 700 ("potential jurors —

occasionally selected by accepting or rejecting names on the

county voter registration lists based upon the commissioners

personal knowledge of the individuals or their family

background"); Gibson, supra, at 1548 ("In preparing the

[grand jury] lists the jury commissioners met jointly, went over

every name on the registered voter's list, -relied upon the

knowledge of one or more of commissioners as to each

registered voter, and either included or excluded each

registered voter from the jury lists").

XXVII. DENIAL OF FUNDS FOR INVESTIGATION AND

PRESENTATION OF THE STATE HABEAS PETITION

In Count 38 of his petition, Dobbs argues that his

sixth and fourteenth amendment rights were violated by the

failure "of the State of Georgia . . . to provide [funds

for] counsel, pay the costs of subpoenas and mileage for

witnesses, pay for expert witnesses, an investigator and

. . other cog¢ts” during the state habeas corpus proceedings.

Petition at 3le

At the state habeas corpus proceeding, Dobbs' counsel,

Mr. Altman, moved for these funds. In making this

motion he admitted that under Georgia law, a petitioner

"has no right to either appointed counsel or to mileage and

subpoena costs or for any cost for expert witnesses, investigators

and so forth.” Id. He argued, however, that the heightened

standards of due process applicable to a death penalty case,

and the petitioner's equal protection rights, justified

the disbursement of state funds for these purposes. See

generally Gardner v. Florida, 430 U.S. 349 (1979). The

state habeas judge denied Altman's motion. Altman raises

the same arguments in this petition.

AO ??A

(Rev, 8/87)

In Westbrook v. Zant, 704 F.2d 1487 (llth Cir. 1983), a

similar contention was made. There the petitioner's trial

counsel moved the state trial court to appoint an independent

qualified psychiatrist to determine whether the petitioner's

prior incarceration had affected his ability to conform to

acceptable societal standards. This evidence was to be used

to demonstrate the mitigating circumstance of the debilitating

affect of this incarceration.

In evaluating this contention, the court focused on the

"unquestionable right" of a defendant in a capital murder trial

to proffer “any evidence of mitigation submitted as a basis for

The court then

a sentence less than death.” Id. at 1495.

stated that it “interpret[ed] ..- 4 capital defendant's right

. an affirmativ

to present evidence in mitigation [as] placing .

duty on the state to provide the funds necessary for production

of the evidence. .- in those cases deemed appropriate by the

state trial court." Id. Next, the court noted that the granting

of a request for the appointment of an expert at trial is,

under Georgia law, a matter of trial court discretion. The court

then applied the relevant habeas ccrpus standard -~ whether the

>

=79-

AO 727A

(Rev. 8/82)

trial court abused this discretion. Id. at 1497. The court

found no abuse in the denial of the request for the appointment

of a psychiatrist because 1) the petitioner's inability to conform

his conduct to acceptable societal standards due to a history

of incarceration was not “a critical piece of evidence

determinative of his guilt or innocence of the offenses

charged;" 2) the petitioner's incarceration was placed

before the jury by other evidence; and 3) the evidence the.

petitioner sought from the psychologist covld have been

demonstrated by other methods.

The limits of the Westbrook holding are unclear. Even

its broadest reading does not afford the petitioner any relief,

however, because he has neither a statutory or constitutional

entitlement to the appointment of counsel, payment of witness

fees and other costs during state habeas corpus proceedings.

See Ross v. Moffitt, 417 U.S. 600, 617-18 (1974); Burston v.

Caldwell, 477 F.2d 996, 999 (Sth Cir. 1973); 0.C.G.A. § 17-12-60 to

-62 (Michie 1981) (counsel may be appointed in capital cases

only for superior court proceedings and direct appeal). Even

if such an entitlement existed, it would be unlikely that the

petitioner could demonstrate any prejudice resulting from

the denial of funds. He was ably represented by counsel during

the state habeas corpus proceedings; he has not demonstrated that

the denial of funds precluded any witness’ testimony from being

included in the record; and his general constitutional challenges

to the imposition of the death penalty in Georgia have been

adequately raised in this proceeding. See Westbrook, supra,

at 1497; Respondent's Exhibit No. 9.

XXVIII. RIGHT TO BE PRESENT AT

NEW TRIAL HEARING

In Count 40 of his petition, Dobbs contends that his

sixth amendment rights were violated by the trial judge's

| failure to order his presence at the extraordinary motion for

a new trial hearing. The hearing was held to ferret out the

Brady contention made by Dobbs, see generally pages 86-87, and to

determine whether the testimony of Harris and Smith warranted

Dobbs '

the granting of a new trial. See generally pages 83-85.

counsel made a motion to have him present at the hearing

because “Dobbs has much greater information than I have"

about the case. Respondent's Exhibit No. 10 at 5S.

A defendant's right to be present at judicial proceedings

stems from the confrontation clause of the sixth amendment

and the due process clause of the fourteenth amendment. See

Illinois v. Allen, 397 U.S. 337, 338 (1970). This right

"extends to all hearings that are an essential part of [a

criminal trial] -- i.e. to all proceedings at which the

defendant's presence ‘has a relation, reasonably substantial, to

-81-

|

modified 706 F.2d 3ll, 312 (llth Cir. 1983); see United States

the fullness of his opportunity to defend against the charge. '"

Proffitt v. Wainwright, 685 F.2d 1227, 1256 (llth Cir. 1982),

v. Stratton, 649 F.2d 1066, 1080 & n. 20 (5th Cir. 1981)

(defendant has constitutional right to presence at all stages

of trial where his absence might frustrate the fairness of the

proceedings).

Dobbs does not enjoy a constitutional right to be

present at his extraordinary motion for a new trial hearing for

two reasons. First, such a hearing is not an essential part of a

judicial proceeding, as compared, for example, to the guilt/

innocence portion of a trial. Cf. United States v. Gradsky,

434 F.2d 880 (5th Cir. 1970) (evidentiary hearing on a4

suppression motion is not an essential part of a judicial

proceeding) , cert. denied, 409 U.S. 894 (1971); but cf.

Proffitt, supra, at 1257 (post-trial sentencing

hearing is essential part of a judicial proceeding). Second,

Dobbs’ presence at the extraordinary motion for a new trial hearing

was not necessary to ensure the fairness of the hearing. The

hearing was held to determine 1) whether the prosecutor

committed a Brady violation, i.e., whether the prosecutor

knew of and failed to disclose exculpatory evidence

to the defense during the trial, and 2) whether the

-82-

aaa

testimony of Harris and Smith warranted the granting of a new

trial. Thus, the focus of the hearing was on the conduct of

the police and prosecutor in investigating Dobbs' case and on the

testimony of Harris and Smith. Dobbs' presence was not

necessary to conduct a thorough investigation into these areas

at the hearing. Furthermore, Dobbs was ably represented by

counsel at this hearing. Habeas corpus relief therefore will not

be granted on the ground that Dobbs was not present at the

extraordinary motion for a new trial hearing.

XXVIX. THE EXTRAORDINARY MOTION

FOR A NEW TRIAL

In Count 41 of his petition, Dobbs contends that his due

process rights were violated by the failure of the trial court

to grant him a new trial based on newly discovered evidence.

The evidence consisted of 1) Harris' recantation of his testimony

that Dobbs was the triggerman, and 2) Smith's statement that she

was talking to Dobbs on the phone when Sizemore's store was

robbed. The trial court summarily denied the motion for a

new trial. See Respondent's Exhibit No. 4 at 26 (Dobbs v.

State, No. 8403 (Walker Cty. Sup. Ct. Sep3, 1975), aff'd 245

Ga. 208 (1980), cert. denied 446 U.S. 913 (1980)). This decision

was appealed to Georgia Supreme Court, which affirmed the

trial court:

=-22-

en

ANY IIA

The trial court did not err in denying the

extraordinary motion for new trial on all of its grounds.

The appellant contends that he was entitled to a

new trial on the ground that the co-defendant, Walter

Harris (who is now serving a life sentence for the murder),

has subsequently recanted his testimony at trial that the

appellant had participated in the crimes of which he was

convicted. This newly discovered evidence is not so

material that it would probably produce a different

verdict. Even taking all of Harris' post-trial

statement as being true, the testimony fails to exclude the

appellant as the murderer, and there was sufficient

evidence at the trial, including testimony of eyewitnesses,

to authorize the verdict even without Harris' testimony.

"(I]t is incumbent on a party who asks for a new

trial on the ground of newly discovered evidence to satisfy

the court: (1) that the evidence has come to his knowledge

since the trial; (2) that it was not owing to the want of due

diligence that he did not acquire it sooner; ..- - 7

These criteria were not met with respect to Emma Jean Smith's

claim that she was talking to the appellant on the

telephone at the time the crimes occurred. In addition to

the appellant, who obviously would have known of such

conversation, Ms. Smith testified that she had notified

not only the police but also the appellant's trial counsel

of it. In spite of being given ample opportunity to

secure witnesses, the appellant failed to have Ms. Smith

subpoenaed, and even up to trial he would not provide his

counsel with a witness list. Furthermore, the testmony of

Ms. Smit) was totally inconsistent with that of the appellant

who accounted otherwise for his time during this period

without mentioning a telephone conversation.

245 Ga. at 210 (citations omitted).

-84-

Because the propriety of granting a new trial is, at

the least, a mixed question of law and fact, this Court is

authorized to re-examine the state court's resolution of this

issue. ‘See Dickerson v. Alabama, 667 F.2d 1364, 1368-

69 (llth Cir. 1982), cert. denied U.S. , 203 8S. Ct. 173

(1982) (citing Cuyler v. Sullivan, 446 U.S. 335, 341-42

(1980)). This Court, like the Georgia Supreme Court, believes

that the denial of the extraordinary motion for a new trial was

proper. Smith's testimony does not warrant the grant of a new

trial because, under Georgia law, evidence that is allegedly

"newly discovered” must not have been overlooked due to a

lack of diligence on the part of the movant. See Burge v.

State, 133 Ga. 431, 432 (1909). Dobbs certainly should have

known about his conversation with Smith at the time of

trial. Similarly, Harris' testimony does not warrant the

granting of a new trial. Under Georgia law, newly discovered

evidence must also be "so material that it would probably

produce a different verdict" in order to warrant the granting

of a new trial. Johnson v. State, 240 Ga. 90, 92 (1977).

In view of the overwhelming evidence of Dobbs' guilt, 36/

Harris' testimony does not reach this level of materiality.

Accordingly, the denial of the motion for a new trial was

proper and did not violate any of the petitioner's

constitutional rights.

AO 727A

WITHHOLDING OF

EXCULPATORY EVIDENCE

XXXV.

In Count 42 of his petition, Dobbs contends that he was

denied a fundamentally fair trial because the state withheld

See generally Giglio v. United States,

405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83 (1963). To

exculpatory evidence.

support this contention, Dobbs points to the testimony of Emma

Smith. She stated, in an affidavit submitted during the state

habeas corpus proceeding, that she told several police

officers within two days of Dobbs' arrest that she was talking

to him at the time of the Sizemore robbery. Dobbs argues that the

failure of the police to reveal this information to him

gives rise to a Brady violation.

The state habeas court gave Dobbs a full and fair

hearing on this issue, found Smith's testimony to be

See Dobbs v. Hopped

No. 77-185 at 2-3 (Tattnall Sup. Ct. Oct. 9, 1979).

not credible and denied relief on this ground.

The success of the petitioner's Brady contention centers

on the credibility afforded Smith's testimony. Resolution

of credibility issues rests within the province of the state

habeas court, provided a petitioner is given a full and fair

hearing. See Marshall v. Lonberger, U.S. , 103 S. Ct.

843, 851 (1983) (a federal habeas court is not given a “license

to redetermine the credibility of witnesses whose demeanor

has been observed by the state... - court, but not by them");

Smith v. Kemp, 715 F.2d 1459, 1465 (llth Cir. 1983); 28 U.S.C.

§ 2254(d) (1977). Because the state habeas court gave Dobbs a

full and fair hearing on the Brady issue’ and concluded that

Smith's testimony is not credible, this Court is compelled to

conclude that Dobbs' Brady claim is without foundation.

Dobbs' Brady claim is also without merit because

prosecutors have no duty under Brady to disclose evidence

that is available to the defense from another source. See

generally United States v- Milstead, 671 F.2d 950, 953

(Sth Cir. 1980) (per curiam). Here, Dobbs himself would

have known about his conversation with Smith.

XXXVI. CONCLUSION

The petitioner's writ of habeas corpus shall issue

insofar as it vacates his death sentence, subject to the

state of Georgia's right to resentence him within 120 days, all

én a@ecordance with the Court's Order of-December 30, 1983.

IT IS SO ORDERED, this the LZ sey of January, ,1984.

aN VIA

FOOTNOTES

st. refers to the transcript of the trial court

proceedings.

SHC refers to the transcript of the state habeas

corpus proceedings.

The petitioner omitted ground (32) in his habeas

corpus petition.

The assistance of counsel must “not be judged by

benefit of hindsight, but must be reviewed ‘from the

perspective of counsel, taking into account all of the

circumstances of the case, but only as those circumstances

were known to him at the trial in question.'‘" Douglas

v. Wainwright, 714 F.2d 1532, 1553-54 (llth Cir.

(quoting Washington v- watkins, 655 F.2d 1346, 1356 (Sth

Cir. 1981) cert. Jenied 456 U.S. 949 (1982)).

The standard for ineffective assistance of counsel is

the same in a capital case as in non-capital cases, S€e€

Stanley v. Zant, 697 F.2d 955, 962 (llth Cir. 1983),

although the seriousness of the charges against the

defendant is a factor that must be considered in assessing

counsel's performance." proffitt v- Wainwright, 685 F.2d

1227, 1247 (llth Cir. 1982), petition for cert. filed,

The court in Birt v- Montgomery, 709 F.2d 690 (11th

Cir. 1983), also commented on an attorney's duty to

investigate a case. It stated that "counsel should

ideally perform a substantial investigation into each

potential line" of Gefense. Id. at 701. The court then

noted that when a reasonably Substantial investigation

into each potential defense is not conducted, the result

of an ineffective assistance of counsel claim usually

turns on the reasonableness of the assumptions made by

counsel:

\~4

In most cases, strategy employed without a

reasonably substantial investigation into all

plausible lines of defense will be in part based

upon the attorney's professional assumptions

regarding the probable success of each line. The

courts have found that a reasonable strategic choice

based upon reasonable assumptions makes investigation

into other plausible lines of defense unnecessary.

Conversely, courts have found counsel ineffective

where the failure to investigate is not based upon

a reasonable set of assumptions or when those

assumptions are not reasonable.

Id. (citations omitted).

Georgia enacted this procedure as a result of

Furman v. Georgia, 408 U.S. 238 (1972).

_ PHC refers to the transcript of the federal habeas

corpus evidentiary hearing.

-89-

iS

~

Although the King court found the petitioner's

counsel to have rendered effective assistance during

the guilt/innocence phase of the trial, it also held that

petitioner's counsel provided ineffective assistance

during the penalty stage of the trial because 1) he did

not’ conduct an exhaustive investigation for potential

mitigating evidence (although he did present one

character witness), and 2) during his closing argument

he stressed "the horror of the crime" rather than

attempting to humanize the defendant." Id.

The court also held that these shortcomings

prejudiced the petitioner because four witnesses

were discovered after the trial was completed whose

testimony would have supported a plausible defense.

See id. at 616.

The court then held that counsel's ineffectiveness

was prejudicial and granted the writ of habeas corpus.

See id. at 1557-58.

The petitioner contends that the trial judge's

personal views about the kind of mitigating evidence

that could be introduced during the sentencing phase

‘of a capital trial “chilled the defense attorney"

and prevented certain mitigating evidence from

being introduced. It appears, however, that the

trial judge's views did not significantly affect

Bennett's decision to argue the evidence rather than to

introduce mitigating evidence. See FHC at 72-75.

Thus, the facts of this case reveal that the

publicity attending Dobbs' trial does not approach

the level of publicity found in Ross v. Hopper, 716

F.2d 1528, 1539-41 (llth Cir. 1983), or Brooks v.

Francis, 716 F.2d 780, 785-87 (llth Cir. 1983),

and the courts in Ross and Brooks held that the

denial of a motion for a change of venue did not

violate the petitioner's due process right to a fair

trial.

i)

Ie

~

>

=

The standard for reviewing state-court evidentiary

rulings was extensively discussed in Shaw v. Boney,

695 F.2d 528 (llth Cir. 1983):

In reviewing the evidentiary determination

of a state trial judge, we are mindful of the

fact that we do not sit as a “'super' state _

supreme court.” Unlike a state appellate court,

we are not free to grant the petitioner relief

simply because we believe the trial judge has

erred. The scope of our review is severely

restricted. Indeed, the general rule is that

a federal court will not review a trial court's

actions with respect to the admission of evidence.

A state evidentiary violation in and of itself

does not support habeas corpus relief. Before such

relief may be granted, the violation must rise to

the level of a denial of “fundamental fairness.”

In the context of state evidentiary rulings,

the established standard of fundamental fairness

is that habeas relief will be granted only if the

state trial error was “material in the sense of a

crucial, critical, highly significant factor."

Moreover, application of this standard has been

notably one-sided, consistent with the reluctance

of federal courts to second-guess state evidentiary

rulings. This court has established a well-

documented resistance to granting relief when a

habeas petition alleges a federal claim based merely

on a state evidentiary ruling.

Id. at 53 (citations and fottnote omitted).

-91- n @

Two eyewitnesses to the Sizemore incident

positively identified Dobbs as the triggerman

during the crime. One of his accomplices also

identified him as the triggerman, although this

testimony was later recanted. At trial,

Dobbs' alibi defense was completely uncorroberated.

And two items taken from Foster during the robbery

were later found in Dobbs‘ car.

See pages 86-87 infra.

See note 15 supra.

The Magistrate ruled that the identification

contentions raised by Dobbs did not merit habeas

corpus relief for two reasons: (1) the totality of

the circumstances indicated that the identifications were

reliable, and (2) Dobbs did not object to the

identification testimony at trial. Under Wainwright

v. Sikes, 433 U.S. 72 (1977), the failure to object

to the admission of evidence during state court

proceedings bars a petitioner from raising the

evidentiary issue in a habeas corpus proceeding in

the absence of cause and prejudice. In this case

the trial judge ruled the identification testimony

of Austin admissible before Bennett objected to it.

Thus, cause for the failure to object to Austin's

identification may exist. The Court need not address

this issue, however, in view of its ruling on the

merits of the claim. ‘

See note 15 supra.

See note 15 supra.

an TIA

nN

N

~

A At the pre-trial hearing, Dobbs stated that

he "had some witnesses" and that “they were on

their way..." ST. at 7. He never specified

who these witnesses were, where they lived or the

relevance of their testimony. Thus, even if the

trial court had the power to subpoena these

witnesses, the refusal to summon them would not

have deprived Dobbs of his right to compulsory

process. See lloskins v. Wainwright, 440 F.2d 69,

71 (5th Cir. 1971). Dobbs did name four potential

witnesses who lived in Georgia. See ST. at 66-68

143-45. These witnesses -- Wood, Bloodworth, ,

a and a polygraph examiner -- were subpoenaed.

ennett interviewed Wood, Robinson and the polygraph

examiner and decided not to call them as witnesses.

See id. at 241, 329, 372. The record does not indicate

whether Bennett interviewed Bloodworth.

Although the trial judge could not subpoen

a

ee See ws offered to let Dobbs and

use his one to co j

ae” oie Pp ntact these witnesses.

The standard for prosecutorial misconduc

during the sentencing phase of a capital Sas

is less demanding because of the importance of

excluding passion from the sentencing procedure.

Compare Brooks v. Francis, 716 F.2d 780, 787-90

(lish Cir. 1983) (prosecutor's remarks during the

sentencing procedure, which appealed to the

patriotism of the jurors and which played of

their fear of crime in the streets, rendered the

procedure fundamentally unfair) and Hance v.

Zant, 696 F.2d 940, 950-53 (llth Cir. 1983)

(prosecutor rendered sentencing procedure

fundamentally unfair because of a “dramatic appeal to

gut emotion") cert denied, U.S. , 103

S. Ct. 3544 (1583) with McCorguodale v. Balkcom,

708 F.28 1553, 1556-57 (Ith Cir, 1983)

2secutor's remark, during sentencin hase of

capital trial, that the “appellate peere vail have

6 eT ae a | gear hl did not render

undamenta un

of a curative ie ss

-93-

AO 727A

See also Brooks v. Francis, 716 F.2d 780,

787-90 (lith Cir. 1983) (prosecutor's remarks

during guilt phase of capital trial, which included

the comment that "the state has more witnesses than

it would need to call to prove its case,” and his

statement of opinion regarding the credibility

of prosecution and defense witnesses, did not render

trial fundamentally unfair).

Nor did the prosecutor express an opinion about

Dobbs' guilt. See Francis v. Spraggins, slip op. at

661 (llth Cir. Nov. 14, 1983).

The jury took the indictment to the jury

room during its deliberation.

Webster's New Collegiate Dictionary does not,

however, make this mistake. An assault is defined

as “an apparently violent attempt . . + to do hurt

to another without the actual doing of the hurt

threatened.”

Compare Brooks v. Francis, 716 F.2d 780, 794-95

(llth Cir. 983) (no Witherspoon violation when two

jurors, after they initiaily Said that they were not

conscientiously opposed to the death penalty,

demonstrated that they would refuse to vote for the

death penalty under any circumstances) and Corn V-

Zant, 708 F.2d 549, 564-65 (11th Cir. 1983) (no

unequivocally stated

Witherspoon violation where juror.

that Spier no circumstances could she impose the

death penalty) and McCorquodale v. Balkcom, 705 F.2d

LED (ju h

1553, 1560 (llth Cir. ror who stated three

times that he could not impose the death penalty under

any circumstances was properly excused under witherspoon)

and Darden v. Wainwright, 699 F.2a 1031, 1037-

Tiith cir. 1983) (no Witherspoon violation where excused

jurors "unequivgcably answere that they would be

‘unwilling under any circumstances’ or 'ynable without

violating' their princples to recommend the death

penalty") with witt v. Wainwright, 714 F.2d 1069,

1082 (llth Cir. 1983) (Witherspoon violation where

-94-

AO 72A

Me. Or)

juror excused because she thought her conviction

against the death penalty would interfere with her

evaluation of the defendant's guilt or innocence) and

McCorquodale, supra, at 1556-60 (venirepersons who

answered yes to three group questions ~~ whether they

were conscientiously opposed to the death penalty;

whether they could not, regardless of the evidence,

vote to inflict the death penalty; and whether their

opinion about the death penalty would keep them from

being impartial -- were excused in violation of

Witherspoon) and id. at 1560 (juror who said she did

not think she could impose the death penalty was

ly excused) and Hance V. Zant, 696 F.2d 940,

955-56 (llth Cir.) (Witherspoon violation where

jurors expressed uncertainty about their conviction

regarding their ability to inflict the death penalty),

cert denied, __U.S. 103 S. Ct. 3544 (1983)

and Granviel v. Estelle, 655 F.2d 673, 677 (5th Cir.

[oe1) (juror who stated that he didn't think he could

inflict the death penalty and who did not feel like he

could take another person's life in that fashion, was

improperly excluded from the jury on Witherspoon grounds)

cert denied 455 U.S. 1003 (1982); cf. King v- Strickland,

sla Fo2a 1481, 1492-93 (llth Cir. 1983) (no Witherspoon

violation when prospective juror stated she could not be

impartial in deciding the defendant's guilt).

-95-

AOD T7A

29/

30/

31/

The Magistrate evaluates this contention as

follows:

In Ground 29 of the petition, petitioner claims

that his death sentence violates his right to due

process of law because his indictment did not include

an allegation that the murder involved statutory

aggravating circumstances. The Magistrate concludes

pm cer has failed to state a constitutional

claim.

The murder for which petitioner was sentenced

to death was carried out during the course of an

armed robbery. Petitioner was indicted for this

‘armed robbery. Armed robbery was the only

aggravating circumstance with which petitioner

was charged and it clearly was included under the

Georgia statutory provisions concerning

aggravating circumstances. 0.C.G.A. § 17-10-30(b)

(2), formerly Ga. Code Ann. § 27-2534.1(b) (2).

The defense attorney stated that his preparation

for trial included preparation for the sentencing

phase of trial (federal habeas corpus hearing

transcript, p. 61). The Magistrate concludes

that petitioner has failed to show any unfairness

or lack of notice that would render the state's

attempt to impose the death penalty violative of

due process.

Melvin Robinson handled the direct appeal

of the petitioner's case.

Counsel on direct appeal did obtain a

continuance of the argument.

-96-

. at. , e* . Py * e -

y . 40E0 8 os % @hu “aa 6 “” » ty ae ee

oak OO “ine bas, te bat Ey”. ,* of -

° _ “tag! . oe ye: ts 44 } gare set atte beetle vee 4 BENS ‘. }

es a ee ., a an Ky cae eee ° b 4 tees} cot 9 ’

. ¢ ae a .* om . A Be Ae ke

’ r at “ _ sa iv Mae

° ia we 4 oF ow ow

+ 3.5:4 ° 8 he aa ar...0°

; . ae rt” Sa ‘

. . les nent

“substantial issues were raised on direct

appeal. - See Dobbs,* su ra,° at 427-34; Respondent's

Exhibit #7 at 5 (state

‘counsel on appeal found

abeas opinion); compare

da 1306, i303 -(itth

' Sullivan v. Wainwright, 695 F.2

Cir. T963) (allegation of ineffective assistance of

meritless because counsel

‘filed a brief raising substantial legal claims)

i with Myos v. Alabama,

frivolous appeal constitutes ineffect

wl 327

iW 337

08 oo

°

Pe ed od

ota %

»~ 2 “3 Ped

“2° Because of the Cou

oy een PE? ,

Nee hee Rie

PG Ree ces

iS pobbs’ compared ‘the ‘grand. jury pool that was in

—_—

Cir.

of counsel). Mes

‘ ' , “ te, °

671. F.2d 1299, 1302 (11th

(failure to file a brief on a non-

ive assistance

* 3.8

‘ ‘

-" mhis Court will entertain these claims on the

- have done so. See Machetti v. Linahan,

—_ “merits because the state habeas court appears to

679 F.2d

Cir. 1982), cert. denied,

236, 238 n. 4 (Iith Cir

, 103 S.:Ct. 763 T1983); Respondent's

U.S.

Exhibit No. 7 at 9-10.

“the third portion of th

| Pew Te or a. ; Ee

are 4 tes |

”

i’

rt's holding regarding

e Castaneda standard,

,/-han'analysis of the statistical method used to

-\peetece Ot figure ’will'not:be undertaken.

. *2 See SHC at 42-43. 5", Mase.

io %,

eo".

. a .

tt ‘

oe, ‘ ° 4

ex ee . . : ~

4 4 soe ¢ aoe ef - > ee “Ps 5 te

haw? ta? i & ee ba - ey, a

las ee ete on Teed eed: Be

hg inc $3555 : t ‘

r. on | es - effect: when he was/‘indicted to the 1970 U.S. census

age

. -

** tye

’ ase | Pn “ :

at Pa «Os gigures™ for Walker.,County. ‘The grand jury pool list

. ee

ce. .

° > A °

Wo 4. ce? Seer SHC at 31. The ‘comparison thus

'-over’a 24° month period..."

"Se , ‘3

J os -

v.was jin’ effect from ‘August 1972 until Augus

36/. - .$ee note 15 supra. Fw

;

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ors ROM (OS ae. ¢ a ie oe

‘ *'s > “ee ees S Gos 's' >

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oa tt Nags - te

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ot, © ee dedoty “ ;

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, yh? ‘s

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Peay

re. Se

t 1974.

was performed

e Poe \ ee . ‘

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. Os y « ee ‘ a . es e

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’ toe! / o¥ <= -

~ _“e , ‘ a vel

(7

APPENDIX

"n°

+), >>, —. - . a

Me v'g: .

ty WH te BY Nar

> - * ry a na rf

"7 r *¢: pty Ornggs ~ tid 43 rs | FFs: *

DOBBS v. KEMP 1499

Cite as 790 F.2d 1499 (11th Cir. 1986)

Cir.1984). In another case we remanded

for reconsideration because the trial court

did not have the benefit of our recent opin-

ions in this area. DG Shelter Products

Co. v. Forest Products Co., 769 F.2d 644

(10th Cir.1985). In Shelter Products we

suggested that the trial court must ex-

pressly consider the alternative of attorney

sanctions. Jd. at 645.

In the case before us the record does not

demonstrate any default other than failure

to meet the trial court’s deadline for a

pretrial memorandum; the default appears

to be that of the attorney; the trial court

neither held a hearing nor invited respons-

es as to what sanctions should be applied;

it did not explain why dismissal was the

most appropriate sanction.

We hold that, when a case is dismissed

with prejudice or dismissed without preju-

dice at a time when the statute of limita-

tions would ban refiling, a trial court must

explain why it imposed the extreme sanc-

tion of dismissal. We realize, of course,

that in the instant case the district court

made its decision before we issued the opin-

ions cited above to this effect. Thus the

district court did not have the benefit of

those rulings. We therefore consider it

appropriate to reverse and remand for re-

consideration in light of those cases.

IT IS SO ORDERED.

Wilburn DOBBS, Petitioner-Appellant,

Cross-Appellee,

’.

Ralph KEMP, Respondent-Appellee,

Cross-Appeliant.

No. 84-8153.

United States Court of Appeals,

Eleventh Circuit.

May 21, 1986.

State prisoner under sentence of death

sought federal habeas corpus petition. The

790 F 26—34

United States District Court for the North-

ern District of Georgia, Harold L. Murphy,

J., finding that trial judge's instructions

with regard to function of mitigating cir-

cumstances under Georgia death penalty

statute were insufficient, set aside death

sentence subject to state’s right to reinsti-

tute sentencing procedures, and state and

petitioner appealed. The Court of Appeals,

Anderson, Circuit Judge, held that: (1) im-

proper implication of prosecutor's closing

argument that guilt beyond reasonable

doubt is or should be permissive standard

did not render trial fundamentally unfair;

(2) admission of hearsay evidence did not

render trial fundamentally unfair; (3) in-

court identification of defendant was reli-

able; (4) impermissible burden-shifting in-

struction on issue of intent was harmless

error. and (5) sentencing instructions con-

cerning mitigating circumstances were not

unconstitutional.

Reversed in part, affirmed in part and

remanded.

1. Habeas Corpus ¢45.2(6, 7)

Improper prosecutorial argument and

evidentiary errors are grounds for granting

writ of habeas corpus only when trial! is

rendered fundamentally unfair.

2. Criminal Law 717

Prosecutor’s statement during closing

argument that “if you find that he didn’t

do it, or if you have a reasonable doubt,

then you can acquit,” improperly implied

that guilt beyond reasonable doubt is or

should be permissive standard.

3. Habeas Corpus ¢°45.2(7)

Prosecutor’s improper statement that

“if you find that he didn’t do it, or if you

have a reasonable doubt, then you can ac

quit him,” was not of constitutional magni-

tude so as to require habeas corpus relief,

where trial court had clearly and repeated-

ly instructed jury that jury had to find guilt

beyond reasonable doubt, and guilt of de

fendant was overwhelming.

4. Habeas Corpus ¢°45.2(6)

Response “No, sir, but it had some

thing to do with [different] hold-up” to

defense counsel's question to accomplice as

to whether particular car was involved in

crime did not render trial fundamentally

unfair so as to warrant habeas corpus re

lief, where statement did not explicitly ac-

cuse defendant of other crime, and even

assuming jury had attributed so-called oth-

er holdup to defendant, it would have been

very insignificant factor in light of over-

whelming evidence of defendant's guilt

5. Habeas Corpus ¢°45.2(6)

Erroneous state evidentiary ruling wil!

be considered fundamentally unfair for ha

beas corpus purposes only if it concerns

matter which is materia! in sense of crucia!

critical, or highly significant factor

6. Criminal Law @°706(2)

Testimony of daughter of witness, who

identified defendant as perpetrator of

crime in which she was severely beaten

that as she was visiting her mother at loca!

hospital on afternoon following crime she

saw man whom she later identified as de

fendant lurking around hospital was not

necessarily in conflict with police officer's

testimony that defendant was on used car

lot on afternoon in question, and therefore

use of testimony was not unconstitutiona!

on ground prosecutor knew or shou!d have

known that testimony was false

7. Habeas Corpus @ 45.2

Testimony of owner of used car lot

that defendant had paid him approximate!y

$100 in $50 bill and assorted smaller bills

on afternoon of murder, which was poten

tially incriminating because accomplice had

indicated that accomplice had taken $50 bi!

from murder victim before defendant k:/led

him, did not render defendant's prosecution

for murder unfair for purpases of warrant

ing habeas corpus relief even though own

er's in-court statement was hearsay, where

cross-examination revealing money was

paid to owner's wife, and that owner on!)

heard of payment from his wife, proba!

negated effect, if any, of hearsay

hte | : aad *, Ais oe on ra a

4 >< ~ > - . ee dio ¥ % geetss 25 ie Holt mS Ber ais

. "y . . 4 : —

nero OAD AA RS ee

- —$——

}

1500 790 FEDERAL REPORTER, 2d SERIES

8 Habeas Corpus ¢45.2(7)

Trial court definition of term “aggra

vated assault,” by reference to word as

sault, leaving jurors with somewhat circu

lar definition, did not render trial funda

mentally unfair so as to warrant habeas

corpus relief, where indictments which

were read aloud and taken to jury room

defined both assault counts with great

specificity

9. Habeas Corpus €°45.3(1.50)

Petitioner could present his claim con

cerning improper identifications at tra! in

federa! habeas corpus proceedings despite

his failure to object at state trial, where at

time of trial, Georgia law permitted defend

ant to raise federa! constitutiona! claims in

state habeas corpus proceedings in absence

of knowing and intelligent waiver. Laws

1967, p. 835, § 1 et seq

10. Criminal Law @°339.7(4

Photographic identification procedures

in which one witness was showrT

f ;

ve photographs, all of which were

fendant, and second witness was showr

r Mtogranhs four of which were sf Aafs

f which were

ant and two o

whereas defendant was black, were

suggestive

11. Criminal Law @°339.10(2

Although pretna! identification proce

Jures were improperly suggestive, in<court

identifications were reliable, where

witnesses identified defendant at tna! wit)

Cfiawlt ewe

out hes tation hot h faced : or

aminations wh ah attemontec tn noderm ine

i .

relia ty , their pretra jen? f “at

and both witnesses were in very close prox

imity to defendant during emme

—

12. Criminal Law @°778(5), 823(9

Jury instructions that acts of person of

sound mind and Jiscret mn are presumec t

be product of person's will, but that pre

sumption could he re} ttec anc that per

son of sound mind and discretion is pre

sumed ti ntend natura and probat e enn

ee yuences af hie acts whic presump?t -

could also be rebutted. were unconstit

a y burden-shifting anc not cured either

genera netructons as t presumpt w

.¥ +

‘> aan

‘

ye

,

1502 7900 FEDERAL REPORTER, 2d SERIES

}

is

DOBBS v. KEMP

"err

te we Oe

'

DOT Yr oT . W 7, we re erse

Cite as 790 F.2d 1499 (itch Cu. 1986) ; NDEI . cater = ua oahet « which ha

® beadaan , : = ws . ° J g

unnocence anc Durden of proof, or by more death, where answer which << ~ , ' < f the tr

. > ‘ " ’ "? ne ~ nre ee vv rT ”

specific instruction that intent may be in- cate lack of Opposiuon & ° Appel's — tents the fur

. ‘ 7 . var no »

ferry = seal aad , t rgia prmsoner curr . .

ferred from proof and circumstances, by al! circumstances actua —?*o 2,53 or « ,

) - . : —eetenes nde

-? | : _ . ‘ . : . » ntbanea ~# j +h - ate ~ ¢ <i

acts anc conduct, or when intent is natura Cerstanding of question and belief that Te vale teg-ar- come — P r ' t We aff

i 4 = —_ , . : : 2 ie tots earnuea relic - the ree s*a 6 we

and pecessary consequence of act ror was in effect answering that she cou z aoeas : : on

> - ror ’ rerr n r — .

- ——" " ; rt for the Northern stmt . gia a

— ever im Geath f n r : , “

13. Criminal Law 1172.2 aeve pose Ceath penaty, anc answe ot » 2008s The Matrict far consideration

“ir ts 7 ’ " . ; - * tn C . 22 ine . “ -

Giving of impermissible burden-shift 4 Was My iamiy . wou 8U ci ft reuant © « ’

- ea Cae = —_ . > , — “ . + denied relief on the basis of a gec ms with respe

Sy eee ere ' indicate juror would impose death pena a 4 ’

ing instrucbon on intent was harmiess er . eae - < nm the cuilt/innocence -

memoer Of [amiuy were crime wcum, b 25 ronsOtutiona: errors ec 5% c

ror, where any reasonable doubt as tt ine ~ 1 eT ; er, while re

; rather, Oat even if member ¥: phase of Vodos a.. mowev . ’

teat was negated by testimony thaidefend- ~ a e Tinhh ——————

t t t were Vicum She Woule &U “ ecting several of Dodds claims e Z

ant struck assault victim severa! times pr 7 oh ~ : -~ =

» ie . — , » ‘ ; ‘ NDOS on O deal < the sentencing phase . ra , 7 a &

or © KiUung murder Vicum, shot at and ‘ . ‘ the +

ror ae . r r- oat at an — - nied rele am the 7+ - - ™

r , , ; ror for cause was ; rane 6 a

missed bystander before firing fata! shot, ' =i r “— .

te nat the tra sages instructons © Se ' eorgia

oc that murder was accomplished hen ; , — 4

. a as accompushed »& 18. Homicide @311 ‘ hn Ganstion af enitiantinge escum -

’ ot of r Aw > gar - 3 ~ : Z

ve.e a 5.000 Over wm. Whe Nac prev ” .

. ” : : ‘ , © a og “A »* 8 2 e¢ "Cer ‘re - r¢” | a : : °

ous been orderec & e on floor, and Sue os ~

' " gaung r r we were ns ©

x rc ArT je 4 £ a | ¥ . ~~ y . .

4 i . ~~ . 2 e« er ‘ ™

: t 4 ce ‘ —- * eath sentence was se. & irs ea .

bLoma ir se range ~ — -

. age a2vawuo = . . ates al 43 -.< : - Trese ‘ ™

14. Constitutional Law €250.2 gation and exter iz odiegs. Plas e distr te lobher

I au $e.e¢ gra ; . ta © “= . — _ ng - £9 . . 7, ; ‘ - -

mes Siale urw 4 ¢ avenge . arrrava g @ = " sevues ravsec

| © 4 a - > , "“2e ta anu ¢ —_ 7 - - -

Aw appe.a.5 : A . b

| A . . . 4 A . 4 4 ese ao r

“ - al -

rrant F

. .* = 4* ‘

; s hw Seco a 4 Fy a eae ressing "Ss €& 4 :

. © 40 e721

- ~ - at od ’ ae - . -

- > > . »' ry > ate . . ase acm" Ss - ‘ “ 4 4 - 4

s'* = ° ed . "et = selis which he Aon and rt grar 4 ‘ -

_ er

ad ec Was a? ange ~ , . . : 7 e he serter Ag e a” .

a rT a : a se . 7 2 af rmance ; 4 - ‘ -

.

a | Sua A _ be 4 | ~ . o — a | ary oan > .

»

to ; re vole regustralos . ailure ember 17 a4 - arfoes w

| ‘ . a, . + 5 ea - . - rt « «

: . — - . 4 >

7 > 7 :

, ‘ eene ecease ers | - . 4 » “ye - ore ot ae

> ~ a

, Z < s 2 la > . *2 > * = a + was arg » - _ :

—_— * ove = .

> - a “ 4 5 4 — >

4 name fr ’ x reg . = iS was ~ - ~~ : .

A < Is wus, PadDea r - : .

er Taved lO make J s a facie case

gr sry dis ry © ie — =

. A = ” ca wre - e Se 2

Jury @ 33/2 . 2 a ;ux & : a .

ea sua 2 , = - wr ~ a s - 7 . a

, arge was . .

ya . ° . :

- 4 5 > . Vs ause a ec ca . :

. = ; . . . 2 . ra ca - ga -

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= = " a : es ‘

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at 2 : ea . " ,

A.

“™ wa <2 ave ge . > :

ale al aoe eve eu : . _

ene eR AK Arse OT. wary ee eee ee

> teh -da°- o.*3 * “ses? s” "*s . . : .

Sed wg <a aie ts eT ee eee

——— iL 7 4 . P » . < . bs ae

, “ : i » ae ae eee = <7 4

a” : ~ S, ». Ts ~« | > n

- — ;

: ; v. ‘;. ? £ ‘eX ~

a . . ’ ee ~ ¢ ee r

Fiat Coe ee En hae aid PR Sate vv

Pon 4 ~~ ” a ms ey =) gta a ,* >. — (vr, - *

. PA ot ae PNY Ere 34 nd ch ug EDRs. Pl ‘

~* _ Z _ + -

SSR i, Trends =. ‘ ; oe tag” * ~~ ' ae “ y Met, da, ay

mh ; Ce, - pees ett Pe ws vv « " AT Oat Peat ah in fv-'

wale Of . rr 4 a L As

.

DOBBS v. KEMP 1503

Cite as THO F.2d 1499 (lith Cir. 1986

,

hruaryv i™ i ye on ignt a writ of whether the grand and traverse ry

- rar r trig nited tates Supreme poo's fearm wroich tne irors m Ty hhys case

_ w > . wa alse jen eda D hhe + were se mow * re neanetityuet .

eciec were U Ss tuuonaiiy com

nr ? win it . f\ «

er, 44 } M t. 3029, 6 posed

~ . ie

tc uw het bh +) . "A } |

5) whether the process of “death qual

nadie hile ¢ fying” the jury under With {

’ nallv. w e the state habeas pe .¥ x : jury uncer t1LRETSPOON V. iit

" . = 20? ae & r* c a ‘

mn was pencing ods [1\ecd an extraorc mots. I » 510 88 S.Ct 17 20

,‘ OCYwos 77e 7.

~y motion for a new tral. An evidentia- 4.246 & (1968). created a jury which

ry neanmng was ne d and a new tna! was was conviction-prone and not fa riy repre

lenied eorgia v. Dobbs, No. 8403 (Walk sentative of the community

er r ’ 4 , x 779 Th +

ig j co ,eoTTia whether a notentia Iror Was akatoa ta

reme Court affirme i the 1! : Sie

; a ec anc ne nitec eriv removed on Witherspoon grounds

: 4 [zg Inc

4 nrermre , ret jer eG cert oram

. hethe ; r ; on

4 ‘sf - sa , ™ 64 : > 4 * “ e er ne c urt : nswu uons re

raring , atin - wr

t denied, 4 ers vase eg earding mitigating circumstances were

_

nstitutionally deficient

; whetner hhs attorney Drov ded n-

: effective assistance jumng the sentenc ng

nase, anc

9 an g 6 are re 6 kL

whether he fa re to transcmbe

§

nse sing arg’ ments 4 nmng the

7 , - wing a entencing hase was = a nstit , na

or —~y error . 4 andc Fach ‘ . . P

¢ es W v) scusse r

' rendered | he’ tria nda oe

™ er the - repent?

— . roner AS DOBE TRIA

- of . © guilt/innoedhes LENTALLY

, , inti of ¢ NFAIR?

‘ - -- - , “ * y r ’

. P Di . proper prosecutonma argument

ri ’ , 7 r prosec n anc evyoentiary ery r< are gre node Sage

“ " KnowT we false and pre granting a writ of habeas corpus only when

- = ——. 7 9 the tria s rendered fundamenta! y unfair

. nnelly 1 DeChristoforeo 416 U.S. 637

Lsto/o i “

r 4 t. 1868, 40 L.Ed.2d 431 (1973); Shaw

bed r ma er ca 5 r —e Oo =

Boney, 695 F.2d 528 (11th Cir.1983). We

_ 7 ~ esses were & ” " ; a ’

eva ats e [ollowing arguments pursuant

as as na taint

he fundamentally unfair standard

ss Ww at ‘er ca ns ‘ ;

‘ D+ ~ ry 4

secu rs FI TL Argument at

a . - t's - ete Re = nase

' ‘ . ‘ ates attorney mace the f wing

: ‘ ner g argument at guit/innocence (ma

now ' «a 4 stand = tb

11G anc Uf ere

a « s ng ‘me » 7 4 sav thee

~ - we eonle tha st ain't safe ¢

re 4 , +~ 4 ere is nNe@’onie

4 arour ar

: < ee . ? |

;

_ S « ———" . ose

a th. + Set ~ i lid

dp 5, Rn

a~ “g@* Z,

“a - leas

apt ogi , mf

there’s people that it ain't safe, your

property ain't, your life aint, and if this

evidence hasn't demonstrated such a

case, study about it

Of course, if you find that he didn’t do

it, or if you have a reasonable doubt,

then you can acquit him

When you do that, he'll waix out the

door with everybody else

Can you afford to take a chance’

[2] Dobbs argues that the above state

ment undermines the presumption of inno

cence and proper burden of proof required

‘in a criminal trial. The state seems to

admit that this statement was improper,

but argues that it does not mse to the level

of being fundamentally unfair The prose-

eytor’s statement was improper because it

was a veiled implication that guilt beyond a

reasonable doubt is or should be a permis-

sive standard

[3] The relevant precedents suggest

that the statement is not of constitutional!

magnitude. “Prosecutora! remarks must

be so prejudicial] that they render the trial

fundamentally unfair.” Donnelly v De-

Christoforo, 416 U.S. 637, 94 S.Ct. 1868, 40

| Fd.2d 431 (1973); Brooks v. Kemp 762

F.2d 1383 (11th Cir.1985) (en banc Cobd v

Wainwright, 609 F.2d 754 (5th Cir.),* cert

Jenied. 447 U.S. 907, 10 S.Ct. 2991, 64

L.Ed.2d 857 (1980); Houston Estelle, 569

4 372 (Sth Cir.1978)

- nf ¢ a} , f +} y ,

gnt the obscurity of the imprope!

mplieatior light of the clear anc re

seated instructions to ‘ne jury from the

: ; ructs

‘ria court tse f that the urv hac ts ‘ nd

guilt beyond a reasonable coudt and in

ght of the overwhelming ence of

he’ guilt, Dobbs has fa er w oe! y

, at 4 emonstrat ng that hee ta was

rendered fundamentally unfair

: .

al . ’ , re wmncence - -

mme

“YT defe e inse ¢

4 @ ‘ Wa er arris . w he er

4 rad sS ord, 66 A

en ba adopte ‘

ecer Py - ak r« -

e r ance ” £

1504 790 FEDERAL REPORTER, 2d SERIES

a particular car was nvolved in the emme,

Harris answered: “No, sir, but it had some

thing to do with Mr Lemenick’s hold-up.”

Immediately thereafter, defense counse]

moved for a mistrial. The court refused to

order a mistrial, but offered a curative

nstruction which defense counsel declined

[4.5] Although Georgia and federa! law

do not permit evidence of prior crimes ex-

cept fcr limited purposes, the comment by

Harris did not render the trial fundamen

tally unfair. As the district court indi

cated. the statement does not explicitly ac-

euse Dobbs of a prior crime by any means

Even assuming that the jury attributed the

socalled Lemenick hold-up to Dobbs, it

would have been a very insignificant factor

im the case. An erroneous state evidentia-

ry ruling will be considered fundamentally

unfair only if it concerns a matter which 1s

‘ ‘material in the sense of a crucial, critical,

highly significant factor. " Shaw v. Bo-

ney, 695 F.2d 528, 530 (11th Cir.1983) (quot

ng Hills v. Henderson 599 F.2d 397, 401

(Sth Cir), cert. denied, 429 U.S. 850, 97 S.Ct

139, 50 L.Ed.2d 124 (1976

C. Testimony of Daisy Mae Yates

'6] Grace Foster, a witness who ice

fied Dobbs as the perpetrator at tra! + was

heaten severely at the scene of the crime

Foster's daughter, Daisy Mae Yates, test

fied that she was visiting her mother at &

a] hospital the afternoon after the crime

She further testified that she saw a man

whom she later identified as Dobbs lurking

round the hospital. Dobbs claims this evr

if

dence was improperly admitted because !t

conflicted with a police officer's testumony

as to where Dobbs was at the time in

question. He claims this discrepancy in

timony was extremely prejudicial be

-ause it indicates that he was trying to kill

Dobbs also

Ms. Foster at the hospital

srgues that the prosecution knew or should

have known that Ve Yates testimony was

september 30, 1981. fd at

DOBBS v. KEMP

Cite as 790 F.2d 1499 (11th Cir. 1986) 1505

false. See Miller v. Pate, 386 US. 1, 87

S.Ct. 785, 17 L.Ed.2d 690 (1967). We find

no merit in these arguments.

In fact, as the district court opinion indi-

cates, the testimony of Yates and the police

officer do not necessarily contradict each

other. The police officer's testimony sim-

ply places Dobbs at a used car lot at ap

proximately 2:30 p.m., which does not, of

course, preclude the possibility that Dobbs

was at the hospital at another time during

the afternoon. Prejudicial evidence, if rele-

vant and not otherwise infected with evi-

dentiary error, is generally admissible. If

the jury chose to believe Yates, her testi-

mony, no matter how interpreted, seems

relevant.

Dobbs also contends that the prosecu-

tor’s use of the Yates’ testimony was un-

constitutional because the prosecutor knew

or should have known that the testimony

was false. However, he presents no evi-

dence of this and, as indicated above,

Yates’ testimony is not necessarily incon-

sistent with other evidence presented by

the state. Thus, we reject Dobbs’ claim

with regard to the testimony of Ms. Yates.

D. Admission of Hearsay Testimony

[7] At trial, Paul Young, an owner of a

used car lot, stated that Dobbs paid him

approximately $100 in a $50 bill and assort-

ed smaller bills on the afternoon of the

murder. This was potentially incriminating

because accomplice Walter Harris’ testimo-

ny indicated that Harris had taken a $50

bill from the murder victim before Dobbs

killed him. Harris also testified that the

money taken during the robbery, a total of

$210, was split three ways, among Harris,

Dobbs and another accomplice, after the

crime. Upon cross-examination, defense

relative importance of this testimony nor

does he cite any legal authority to support

his claim.

In fact, given the other evidence adduced

at trial, the hearsay probably had little or

no effect. In addition, as the district court

opinion pointed out, the cross-examination

revealing that the money was paid to

Young's wife, and that Young only heard

of the payment from his wife, probably

negated the effect, if any, of the hearsay.

In any event, the admission was not of

constitutional magnitude. Shaw v. Boney,

695 F.2d at 530-31 (evidence must be “cru-

cial, critical, highly significant factor”;

case involved double hearsay).

E. Definition of the Word “Assault” in

the Jury Instructions

[8] In its instructions, the trial court

defined the term “aggravated assault” by

reference to the word “assault,” leaving

the jurors temporarily with a somewhat

circular definition. However, the indict-

ments which were read aloud and taken to

the jury room defined both assault counts

with great specificity. The indictment sub

stantially clarified the circular instruction.

In the context of the trial as a whole, the

instruction, even if viewed as improper, did

not conceivably render the trial fundamen-

tally unfair. Carrizales v. Wainwright,

699 F.2d 1053, 1055 (11th Cir.1983).

al

4

Cumulative Effect of Trial Errors

None of the alleged errors, considered

alone, approach the threshold standard of

fundamental fairness. Taken together,

their cumulative effect also falls far short

of rendering Dobbs’ trial fundamentally

unfair.

Sa SS Ses

SS 4s Se ee tt

1506

[9] As a threshold matter, the state ar-

gues that Dobbs’ claim concerning improp-

er identifications has been waived for fail-

ure to object at trial. Engle v. Isaac, 456

U.S. 107, 102 S.Ct 1558, 71 L.Ed.2d 783

(1982), Wainwright v. Sykes, 433 US. 72,

97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). How-

ever, at the time of Dobbs’ trial in 1974, the

relevant Georgia law, 1967 Ga.Laws p. 835,

permitted a defendant to raise federal con-

stitutional claims in state habeas corpus

proceedings in the absence of a knowing

and intelligent waiver by the defendant.

Spencer v. Kemp, 781 F.2d 1458 (11th Cir.

1986) (en banc). Since there is no allega-

tion by the state that Dobbs relinquished

his rights as contemplated by the Georgia

statute then in effect, Dobbs may present

his constitutional claim here.

On the merits, Dobbs argues that pre-tri-

a) photographic identifications of him made

by Foster and Austin were impermissibly

suggestive, rendering subsequent identifi-

cations at trial unreliable.

This circuit has adopted a two-step analy-

sis in determining whether identifications

such as the present ones are SO unreliable

as to violate due process. The court first

must decide whether the origina) identifica-

tion procedure was unduly suggestive. If

so, the court must determine whether the

procedure, given the totality of the circum-

stances, created a substantial risk of mis-

identification at trial. United States v.

Thevis, 665 F.2d 616, 643 (5th Cir. Unit B),

cert. denied, 459 US. 825, 103 S.Ct. 57, 74

L.Ed.2d 61 (1982);* see also Manson v.

Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53

L.Ed.2d 140 (1977).

[10] The district court concluded that

the photographic identifications were im-

permissibly suggestive. Foster was shown

4 or 5 photographs, all of which were of

Dobbs. Cf Manson v. Braithwaite, supra

_ 790 FEDERAL REPORTER, 24 -

(use of only one picture, that of the defend-

ant, found suggestive). Austin was shown

12 photographs, 4 of which were of Dobbs

and 2 of which were of white males (Dobbs

is black). We agree with the district court

that the use of multiple photos of Dobbs in

the pre-trial identifications was unduly sug-

gestive. Showing witnesses a series of

pictures of which several are the same

person can only be a calculated method at

narrowing the witnesses’ choice with re

gard to identification.

(11) The lower court, however, while

holding the pre-trial procedure improperly

suggestive, found that the identifications

were reliable because of the witnesses’

very close proximity to the perpetrator dur-

ing the crime and the certainty with which

the identifications were given at trial. See

id. at 114, 97 S.Ct. at 2253 (citing these and

other factors as evidence of reliability de

spite suggestive identification procedures).

After a careful review of the trial record,

we agree with the district court that the

identifications were reliable.

Both Austin and Foster identified Dobbs

at trial without hesitation. They both

faced difficult cross-examinations ’ which

attempted to undermine the reliability of

their pre-trial identifications by, in part,

challenging their physical and emotiona!

capacities to observe and remember the

events which transpired. However, their

testimony indicates that they in fact accu-

rately observed Dobbs during the course of

the crime. Moreover, as the district court

indicated, it is significant that both Foster

and Austi

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