# Appendix — Dobbs v. Zant > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0414%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1993 - **Citation:** 506 U.S. 357 ## Text EDITOR’ rHE FOI ANT itl BhITER Wild | NOT 14) wat vi 11 t | Whiil “SIN A OOK i! PAINE HARD COl \ND WHEN \ NEW I I 7 fa Pep ster vide xo. 92-55 7q° 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 eee: ae. Gs BEE UNIS 56 6 cee cc nacecctcesoviccce 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................... Pe PONE hose rb ks Cee Saddbaedies cece soedkdvaree eT Oe eee 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 'Y -2- \% 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 « - -_— —& all available state court remedies. § 2254(b) (1977). | 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; | | | | said that Dobbs did not take part in the robbery. He also | after the state introduced false and highly prejudicial | 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; @ @ - AO 224 > (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; -10- (2) (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. -— @ -14- 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. — | | 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. | | 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) Zi -19- 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. 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 f [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0414%3A3. Public record. Not legal advice.