Petition for Writ of Certiorari — Wright v. Johnson

TABLE OF CONTENTS

CITATIONS TO OPINIONS BELOW.....

SE Sun ahis cages ttescsevscs

QUESTION PRESENTED...............

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.............

REASON WHY THE WRIT SHOULD

| ee ree

i acaas ch ekgsh ons eees< ese

APPENDIX A: Johnson v. Wright,

509 F.2d 828 (5th Cir, 1975).............

APPENDIX B: Johnson v. Wright,

Civil Action No. 18116 (N.D. Ga.,

August 20, 1973) Order of Court..........

APPENDIX C: Johnson v. State,

230 Ga. 196, 196 S.E. 2d 385 (1978)..........

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Page

Cases:

Barnes v. United States, 412 U.S. 887 (1978).... .11, 15

Brown v. State, 15 Ga. App. 484, 83 S.E. 890

ee eh ei pei escteces 10

Casey v. United States, 276 U.S. 418 (1928)..... 15, 16

Coleman v. Alabama, 399 U.S. 1 (1970)........... 10

Elkins v. State, i7 Ga. App. 479,

Mr Es INS Swoon ic cc ec c ence encane 10

Ezzard v. State, 229 Ga. 465, 192 S.E. 2d 376

di ee CONS s vias eaec 5% 9, 18,15

Fanning v. State, 39 Ga. App. 531,

I WO ok Sade bsis a vv vce de tuceees 9, 10

Henderson v. State, 22'7 Ga. 68, 179 S.E.

es es oa g's wie wy ween 17

In re Winship, 397 U.S. 358 (1970) ......... 12, 18, 14

Johnson v. State, 230 Ga. 196, 196 S.E. 2d 385

Seeger hdc a sdk os sed dawene 6, 18

Johnson v. Wright, 509 F.2d 828 (5th Cir. 1975) .... 1

Johnson v. Wright, Civil Action No. 18116

Be Ue eye's wees ee es Jaawns 13

Kingsby International Pictures Corp. v.

Regents of University of State of New York,

360 U.S. 684 (1959)... 0... ccc ce eee eee 10

McHenry v. State, 58 Ga. App. 410, 198 S.E. 818

ee ore ak oss canPiwb kus asd sos vas 9

Pickett v. State, 123 Ga. App. 1, 179 S.E.

RRR. aa a a .. 17

Reed v. State, 195 Ga. 842, 255 E. 2d 692 (1948)... 9

Roviaro v. United States, 353 U.S. 53 (1957)... .... 16

ii

&

TABLL: Gf AUTHORITIES—Continued

Page

Cases—Continued:

Smith v. Smith, 454 F.2d 572 (5th Cir. a 12

Turner v. United States, 396 U.S. 358 | 16

United States v. Collier, 381 F.2d 616

ASSES 18

United States v. Cruikshank, 92 J.S.

NE ic 9

Wallace v. State, 224 Ga. 255, 161 S.B. 2d 288

DUNC TNS Fes Creed ete ei te et 10

Webb v. State, 18 Ga. App. 44, 88 S.E. 825 (1916)... 10

Wood v. State, 283 Ga. 347, 211 S.E. 2d 300

SRG Wet CRON SC ope owe ered naek sors ccs 10

Statutes:

A. United States Code

A SR ee ere 17

BD Wtias MODs STOR CB). onc. ccc ccc cccccaccss 15

ee Ns ks sc Ch cad vecaicban hg 18

PMA NG MIE, oon on ss cu cnaccceevacaccae 18

er MN Is bn uve esd anvcGvcanccac i8

ee Ss ee 2

Me WHas PC RC hie dn vis cet cicncavecax 6, 7

B. Georgia Code Annotated

ee 11, 15

Se i rs a I rr 3

a ey a ce stealth RB

a ., a een 2, 9, 12, 17, 18

SRNR BG FERS te le a 3, 8

C. Georgia Sessions Laws

1919 Georgia Laws, pp. 134, 185.............. 8

iii

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

NO. 74-

R. C. WRIGHT, Warden, Et al.,

Petitioner,

vs.

JERRY L. JOHNSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

Petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of

Appeals for the Fifth Circuit, entered on April 2, 1975.

CITATIONS TO OPiNIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit is reported at 509 F.2d 828 (5th

Cir. 1975) and is set out in Appendix A hereto, pp. 1la-

lla, infra.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was entered on April 2, 1975. A

1

2

timely motion for rehearing was filed, and was denied

by that Court on April 28, 1975. The jurisdiction of this

Court is invoked under 28 U.S.C. Sec. 1254 (1).

QUESTION PRESENTED

DID THE COURT OF APPEALS ERR IN

RULING THAT THE STATE OF GEORGIA IS

REQUIRED TO PROVE, AS AN ESSENTIAL

ELEMENT OF THE OFFENSE OF CARRYING

A WEAPON WITHOUT A LICENSE, GEORGIA

CODE ANN. SEC. 26-2903, THAT THE ACCUSED

DID NOT POSSESS A LICENSE, WHERE THE

GEORGIA SUPREME COURT HAS RULED THAT

THE POSSESSION OF A LICENSE IS AN AFFIR-

MATIVE DEFENSE TO SAID OFFENSE, TO BE

RAISED BY THE DEFENDANT?

CC Y“TITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. This case involves the Fourteenth Amendment to

the United States Constitution.

2. This case also involves the following provisions

of the Code of Georgia:

a. Georgia Code Ann. Sec. 26-2903

Carrying Pistol without License.

A person commits a misdemeanor when he has or

carries on or about his person outside of his home, auto-

mobile or place of business any pistol or revolver,

whether concealed or not, for which he has not obtained

a license from the ordinary of the county in which he

resides.

3

b. Georgia Code Ann. Sec. 26-2904

License to Carry Pistol or Revolver.

| The ordinary of each county may on application

under oath and payment of a license fee of three dollars

| issue a license, either in term or during vacation, to any

resident of the county authorizing the applicant, for a

period of three years from the granting of such license,

to have and carry a pistol or revolver in an open manner

and fully exposed to view or in his motor vehicle pro-

vided the applicant: (a) is twenty-one years or older;

(b) is mentally competent; (c) has not within the 10

years immediately preceding the application been con-

victed of a felony or within the two years immediately

preceding the application been convicted of a forcible

misdemeanor; and (d) gives a bond, with a surety ap-

proved by the ordinary of said county, payable to the

Governor in the sum of $300 conditioned upon the law-

ful use of the pistol or revolver.

The ordinary grai ting the license shall keep a record

of the name of the person taking out the license, the

name of the maker of the firearm to be carried, and the

caliber and number of the firearm. The ordinary shall

not grant a license to any applicant who does not com-

ply with the above requirements and furnish the re-

quired information. The ordinary of the county where

the license was issued shall, after notice and hearing,

revoke the license upon adjudication of mental in-

competency, upon the conviction of a felony, a forcible

misdemeanor, or a violation of section 26-2901 or

section 26-2902.

| STATEMENT OF THE CASE

| On January 7, 1972, at about 2:30 p.m., Officer D. F.

(eee

4

Lindstrom of the Atlanta Police Department, heard a

call over the police radio which, in essence, stated there

was a suspicious person at a grocery store on Lee Street,

in southwest Atlanta. (Hearing Transcript, p. 3; Trial

Transcript, p. 17). Officer Lindstrom answered that

call, which was at Patterson’s Grocery Store. There,

Officer Lindstrom talked to two or three employees,

who stated that a tall, black male in his early twenties,

wearing a flop-hat had entered the store. They indi-

cated that they believed this man had been involved in

the robbery of the store two days previously. The em-

ployees informed him that the subject had left the

scene in a red Ford Fairlane which was jacked up in the

rear with a license tag wired on to the car. It was be-

lieved that the car was occupied by four black males,

one or two of whom had flop-hats on. Officer Lindstrom

passed this information over the police radio and set

about to search for the suspect. (Hearing Transcript,

pp. 4, 17; Trial Transcript, pp. 17, 18, 19, 27).

Officer R. R. Wilbanks heard the call over the radio.

‘He joined the search of the immediate area. Officer

Lindstrom was driving down Ashby Street when he

spotted a car fitting the description of the subject ve-

hicle going in the opposite direction. He turned around

and followed it. (Hearing Transcript, p. 4; Trial Tran-

script, p. 20). The two cars passed Officer Wilbanks,

who was proceeding in the opposite direction. He turned

and followed. After they crossed the railroad tracks, at

the intersection of Murphy Street and Lillian Street,

Officer Wilbanks turned on his blue light, honked, and

pulled the car over. Officer Lindstrom, who was in a

police station wagon, pulled in front of the subject ve-

hicle. (Hearing Transcript, pp. 5, 6, 18, 19; Trial Tran-

script, pp. 21, 27).

5

The suspects, including Respondent, were trans-

ported to the police station. They were advised of their

rights, and asked to sign waiver forms, acknowledging

the reading of their rights, and waiving the presence of

counsel at a line-up. Respondent signed both forms.

The next day, January 8, 1972, at about 2:30, Respon-

dent appeared in a line-up, at which time he was iden-

tified by Mr. Willie Verdon, operator of Willybern’s

Food Store in Atlanta, which was robbed on December

10, 1971. (Hearing Transcript, pp. 22, 33, 34, 42, 43;

Trail Transcript, pp. 35, 36, 37).

Respondent was subsequently indicted by the Grand

Jury of Fulton County and charged with the offenses of

armed robbery, carrying a concealed weapon, and carry-

ing a pistol without a license. To said charges, Respon-

dent pleaded not guilty, and, on July 24, 1972, was

placed on trial in the Superior Court of Fulton County,

Georgia, before the Honorable Jack Etheridge and a

jury.

During the trial, after the evidence and arguments

had been presented, the judge sought to instruct the

jury on the law. His charge, in pertinent part, was as

follows:

Now, this defendant has been charged, as I said

in one indictment, with the possession of a pistol

without a license, and with the carrying of a pistol

outside of his home, not in an open manner. I in-

struct you that the State has proven a prima facie

case of the possession of a pistol in this case by

someone who is alleged by the Grand Jurors here

to have been the defendant, which the defendant

denies. And when a prima facie case is made, I

charge you that it is then upon the defendant, if

you believe the defendant to be the person alleged

to have committed this crime, to show that he did

ei eee ia prise PeieRea APPR LS PPE

possess a license to carry the weapon alleged to

have been carried by the State. The defendant in

doing so must prove that a license existed to carry

the weapon in order to overcome the prima facie

showing of the violation of this law by the State.

(Trial Transcript, p. 171).

The jury returned a verdict of guilty, and the defen-

dant was sentenced to a term of ten (10) years in the

penitentiary for the offense of armed robbery, and

twelve (12) months each for the two pistol offenses, to

run concurrent to the armed robbery sentence. Respon-

dent then proceeded by direct appeal to the Supreme

Court of Georgia, which, on February 22, 1973, affirmed

the conviction. Johnson v. State, 230 Ga. 196 (1978).

See, Appendix C.

Respondent on April 4, 1973, filed a petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254 in

the U.S. District Court for the Northern District of

Georgia, Atlanta Division. This petition was dismissed

on April 27, 1973, because Respondent had failed to

exhaust all State remedies. Upon motion for leave to

appeal in forma pauperis, the District Judge recon-

sidered his original order, and determined that since

Respondent had raised all issues aileged ir his petition

on his appeal to the Georgia Supreme Court, and that

since the Georgia Supreme Court had reached and de-

cided each of those issues, the exhaustion requirement

had been met.

That order was entered by Judge Edenfield on May

23, 1973. Prior to the entry of that order, and pursuant

to the order of the District Court dated April 27, 1973,

Respondent filed a petition for habeas corpus in the

Superior Court of Fulton County on May 11, 1973. In

this petition, Respondent raised the same issues alleged

we FS

a

7

in his petition to the District Court. On May 25, 1978,

after entry of the order of May 28 by the District Judge,

Respondent’s petition was dismissed in Fulton Superior

Court.

On August 20, 1978, the District Judge entered an

order denying Respondent’s petition. The order was

eventually appealed to the United States Court of Ap-

peals for the Fifth Circuit, which, on April 2, 1975,

entered an order affirming in part and reversing in part,

the order of the District Court. A motion for rehearing

was timely filed, and denied on April 28, 1975.

In his petition to the District Court below, and in his

appeal to the Supreme Court of Georgia, respondent

contended that the charge, quoted above, placed an

impermissible burden upon him to prove that he had a

license to carry the pistol outside his home, office or

automobile. In each instance, the Court disagreed with

him. See, Appendices B and C. The Court of Appeals

reversed. See, Appendix A.

The petitioner before this Court was the Respondent-

Appellee below. It is respectfully urged that this Court

review that portion of the decision of the Court of Ap-

peals which revised the order of the District Court.

BASIS FOR FEDERAL JURISDICTION BELOW

The jurisdiction of the United States District Court

for the Northern District of Georgia, Atlanta Division,

was invoked by the respondent, and accepted by the

Court, pursuant to 28 U.S.C. Sec. 2254 (1970). See,

Appendix B.

REASON WHY THE WRIT SHOULD BE GRANTED

This Court should issue the Writ of Certiorari to the

8

Court of Appeals below because that Court, in its de-

cision in this case, resolved an important issue of Geor-

gia law in a way coiitrary to prevaili#g Georgia law as

enunciated by the Supreme Court of Cvorgia.

A

In 1910, the General Assembly of Georgia acted to

regulate the possession and use of handguns in Georgia.

In that year, Georgia’s first handgun licensing statute

was enacted. Georgia Laws 1910, pp. 134, 185. That

statute was amended in 1960 and superseded in 1969.

The present statute is set out above. Georgia Code Ann.

Sec. 26-2904. For sixty-five years, it has been illegal in

Georgia to possess a handgun outside of the home or

office.

The license required to authorize such possession of a

handgun is issued by the ordinary (now probate judge)

of the county to any resident of that county meeting

the following qualifications: a) he is twenty-one years

of age; b) he is mentally competent; c) he has not been

convicted of a felony within the ten years immediately

preceding the application; and d) he has not been con-

victed of a forcible misdemeanor within the two years

immediately preceding the application. Any resident

meeting these qualifications, who makes application to

the ordinary and gives a bond conditioned upon the

proper use of the handgun, will be issued a license.

That license authorizes the named person, and no one

else, for a period of three years, to carry the handgun

specified in the license by make, caliber and serial num-

ber, “‘in an open manner and fully exposed to view or

in his motor vehicle,’”’ when outside the confines of his

home or office. Georgia Code Ann. Sec. 26-2904.

9

This case involves the enforcement arm of this li-

censing provision, which is codified as Georgia Code Ann.

Sec. 26-2903. In Georgia, it is prima facie illegal to pos-

sess or carry a handgun outside of the home, office or

automobile. Ezzard v. State, 229 Ga. 465 (3) (1972). But,

as an accomodation to the people who have a need, real

or perceived, to carry a weapon, this prima facie il-

legality may be justified by proof of the acquisition of a

license. Since the Second Amendment is inapplicable to

individuals, no person has an absolute right to bear

arms. Uniied States v. Cruikshank, 92 U.S. (2 Otto) 542

(1875). Therefore, the action of the General Assembly

of Georgia in establishing this statutory scheme was

constitutionally permissible, based upon the legislative

determination that the safety and protection of all

Georgians required such action.

The enforcement statute, enacted to enforce the man-

date of the licensing statute, is a criminal statute carry-

ing misdemeanor punishment. In a prosecution under

that statute, and under the predecessor statute, the

Appeilate Courts of Georgia have consistantly required

that the State prove that the accused carried a handgun

on or about his person in a place not his home, office, or

automobile. This holding has been based upon the con-

struction of the statute, finding that those are the es-

sential elements of the offense stated in Georgia Code

Ann. Sec. 26-2903. With equal consistency the Georgia

Courts, in these same cases, have held that the posses-

sion of a license, duly-issued, is an affirmative defense,

to be raised by the defendant, and considered by the

jury with the other evidence, and not to be negated in

advance by the State. Ezzard v. State, supra. See, Reed

v. State, 195 Ga. 842, 850, 851 (5) (1948); McHenry v.

State, 58 Ga. App. 410 (1) (1938); Fanning v. State, 39

19

Ga. App. 531 (1929); Webb v. State, 18 Ga. App. 44 (1)

(1916) ; Elkins v. State, 17 Ga. App. 479 (1915); Brown

v. State, 15 Ga. App. 484 (1914). This construction and

interpretation of the Georgia statutory scheme by the

highest court in the State of Georgia is binding on the

federal courts. Coleman v. Alabama, 399 U.S. 1, 9 (1970);

Kingsby International Pictures Corp. v. Regents of Uni-

versity of State of New York, 360 U.S. 684, 688 (1959).

The essential elements of the offense of carrying a

pistol without a license are the possession of a pistol or

revolver outside of the home, office, or automobile.

Whether or not an accused has a license authorizing

him to carry the handgun under circumstances is a

matter of defense, and is not an essential element of the -

offense.

This construction has been placed on this criminal

statute for obvious reasons. In all criminal cases, the

law requires that the prosecution prove, beyond a rea-

sonable doubt, all of the essential elements of the offense

charged. But where there is some fact with regard to

such an offense, the proof of which involves the proof of

a negative, and where the knowledge of that fact is

peculiarly within the knowledge of the defendant; and

where going forward with the evidence on that issue

would not subject him to undue hardship or unfairness,

it is logical to require the defendant to go forward with

the evidence. This is the rationale behind the construc-

‘tion placed on the statute by the Georgia Supreme

Court. See, Wallace v. State, 224 Ga. 255 (3) (1968). This

rationale has been extended in Georgia to drug sale

cases. The Georgia Supreme Court has held that the

State does not have to prove that the defendant did not

have authority to sell heroin. Wood v. State, 233 Ga.

347 (1974).

11

The logic of this approach is irrefutable. If the prose-

cution were required to prove that the accused did not

have a license, given the licensing statute discussed

above, the best effort that the State could make would

be to produce evidence from every county in Georgia

(totaling 159), that there was not on the records of the

Court of Ordinary (now probate court) any record of a

license issued to the accused authorizing him to carry a

handgun. Petitioner seriously questions whether or not

such evidence would be sufficient to prove, beyond a

reasonable doubt, that no license had been issued to the

accused.

The approach adopted in Georgia is not unconstitu-

tional. Because the possession of a license is denomi-

nated by the Georgia Supreme Court as an affirmative

defense, the defendant need only present evidence there-

on, unless the State’s case raises the issue. Georgia Code

Ann. Sec. 26-401(a). It is net suggested that, within

this statutory scheme, the defendant is required to

prove that he had a valid license. No burden is cast on

him more thar to simply go forward with the evidence

regarding tue license. Such a burden does not violate

his right against self-incrimination. Barnes v. United

States, 412 U.S. 837 (1973). While he could take the

stand, such would not be absolutely necessary. He

could raise the issue by coming forward with a certified

copy of the license, or by testimony of other witnesses.

If the defendant were to go forward with evidence on

this affirmative defense, then the State could come for-

ward with evidence in rebuttal. The only burden that

was shifted by the rulings of the Georgia appellate

courts, and by the statute, and by the instruction given

in this case, was the burden of going forward with the

12

evidence, Overall, the burden of proof rested upon the

prosecution from the time issue was joined until the

time verdict was returned.

B.

The decision of the Court of Appeals below, in disre-

gard of the construction of the statute by the highest

court in Georgia held

that the trial court’s instruction violated Ap-

pellant’s right to due process in permitting the jury

to infer that his pistol was unlicensed from the

evidence that he possessed one, and also in snifting

to him the burden of proof on an essential element

of the offense. 509 F.2d at 830.

This holding actually breaks down into two separate

legal conclusions. First, the Court determined that in a

prosecution under Georgia Code Ann. Sec. 26-2903, the

State was allowed to prove that the defendant possessed

a handgun outside of his home, office or automobile, and

that from that evidence the jury was allowed to infer

that the handgun was unlicensed. Second, the Court

determined that the instruction shifted to the defendant

the burden of proof on an essential element of the of-

fense, contrary to this Court’s holding in the case of

In re Winship, 397 U.S. 358 (1970), and that of the

Court of Appeals in Smith v. Smith, 454 F.2d 572 (5th

Cir. 1971).

This analysis of the statute, and of its application in

the present case, is entirely erroneous. In its analysis

below, the Petitioner will attempt to demonstrate the

magnitude and the impact of that error.

C.

In ruling that the charge, wnich followed the statute

13

as construed and which was held to be proper under

state law, shifted to the defendant the burden of proof

on an essential element of the offense charged, the Court

of Appeals disregarded e::+irely the construction of the

statute by the Georgia Supreme Court.

Respondent raised this same issue in the Georgia

Supreme Court. That Court found, upon a construction

of the statute, that there was no merit in the contention.

The Court quoted the holding in the case of Ezzard v.

State, supra.

“There is no merit in the Appellant’s contention

that ne was required to carry the burden of proof

on the two misdemeanor charges. The State had

the burden to show, and did show, that the Ap-

pellant carried a pistol on his person, outside his

home, not “in an open manner and fully exposed to

view.” .. . The Appellant in defense had the privi-

lege - showing that he had a license to carry the

pistol. ..,’”

Johnson v. State, 230 Ga. 196 at 200, 201 (4b) (1978).

The construction of this statute by the Georgia Ap-

pellate Court is clear. The corpus delicti of the offense is

to carry a pistol! outside of the home, office or automo-

bile, even if in an open manner. The possession of a

valid license is an affirmative defense to be raised by the

defendant. The District Court believed itself to be

bound by this analysis. Johnson v. Wright, Civil Action

No. 18116 (N.D. Ga., August 20, 1978). See, Appendix

B.

As so construed, the Georgia statutory scheme, and

this charge, do not violate the rule of In re Winship,

supra. In that case, this Court held that due process

protects the accused in a criminal prosecution against

conviction except upon proof beyond a reasonable

14

doubt of every fact necessary to constitute the crime

with which he is charged. Here, as construed by the

Georgia Supreme Court, the crime is proven by evidence

which shows the accused possessed a pistol outside of

his home, office or automobile. The State proved those

facts beyond a reasonable doubt in this case. The State

carried its burden under Winship. The fact that the

State did not prove, and was not required to prove, that

the accused did not have a license, does not result in a

violation of due process, under Winship. Possession of

a valid license is an affirmative defense to be raised by

the defendant, not an element of the off case, to be

proven by the State.

Such a division of the burden of going forward with

the evidence does not violate the rule of Smith v. Smith,

supra. That case involved a charge on the defense of

alibi which stated: “ ‘alibi as a defense must be estab-

lished’ to the satisfaction of the jury.”” The Court of

Appeals there held that the error lay in the fact that the

language of the charge, by using the imperative “must”

shifted the burden to the defendant.

No such burden can be sustained under our Con-

stitution. Evidence of alibi should come into a case

like any other evidence and must be submitted to

the jury for consideration of whether the evidence

as a whole on the issue of presence proves the de-

fendant’s guilt beyond a reasonable doubt. 454

F.2d at 578.

The problem in the Smith case was simply that the

defendant had raised the defense of alibi, and the trial

court had charged that the defendant had the burden of

sustaining that defense. The Court of Appeals believed

that the evidence of aiibi should be submitted to the

jury like any other evidence, to be considered for what-

15

ever it was worth, with all the other evidence. The jury

then, upon a consideration of all of the evidence, would

determine whether the defendant was present and com-

mitted the offense, or whether he was absent.

This is exactly what the statutory scheme in question

here contemplates. The possession of a valid license is

an affirmative defense. Ezzard v. State, supra. An affir-

mative defense, like entrapment, coercion, self-de-

fense, justification, etc., is to be raised by the defen-

dant, but it need not be proved, and no burden is cast

upon the defendant to do more than go forward with the

evidence. Georgia Code Ann. Sec. 26-401(a). Such a

burden does not violate the defendant’s right against

self-incrimination. Barnes v. United States, supra.

Such a statutory scheme, with a like division of the

burden of going forward with the evidence, has been -

adopted by the federal courts in several cases. In Casey

v. United States, 276 U.S. 413 (1928), this Court had

occasion to deal with a statutory presumption in nar-

cotics cases. That statute, which has since been re-

codified, appeared at 26 U.S.C. Sec. 4704(a). That pre-

sumption arose if the Government proved that the

accused possessed opium or a derivative thereof not in

the original stamped package. If such was proven, it

was presumed, absent an explanation from the accused,

that the drug was purchased illegally.

This Court, speaking through Mr. Justice Holmes,

stated

The statute here talks of prima facie evidence,

but it means only that the burden shall be upon the

party found in possession to explain and justify it

when accused of the crime that the statute creates.

. .. It is consistent with all the constitutional pro-

tections of accused men to throw on them the bur-

16

den of proving facts peculiarly within their knowl-

edge and hidden from discovery by the Govern-

ment. ... In dealing with a poison not commonly

used except upon a doctor’s prescription easil

proved, or for a debauch only possible by a breac

of the law, it seems reasonable to call on a person

possessing it in a form that warrants suspicion to

~— that he obtained it in a mode permitted by

the law.

276 U.S. at 418.

This Court subsequently held that this presumption

merely places on the accused, at a certain point, the

burden of going forward with the evidence. Roviaro v.

United States, 353 U.S. 58, 68 (1957).

Assuming that the Casey case, as construed in Roviaro,

is still sound law, as is suggested in Turner v. United

States, 396 U.S. 398, 408, 404, 405 (1969), the ruling by

the Georgia Supreme Court in the present case was

absolutely correct, and that of the Court of Appeals

was absolutely erroneous. The presumption dealt with

in those cases was of guilt from unexplained possession.

This Court allowed to stand a rebuttable statutory pre-

sumption upon which the Government could rely as a

substitute for proof of an essential element of the of-

fense charged. In the present case, the Georgia Supreme

Court required that the prosecution prove all of the

essential elements of the offense. Then the defendant

was permitted to come forward with his defense. The

only burden shifted to him was the burden of going for-

ward with the evidence.

This Court, in Casey, recognized the difficulty which

the prosecution might have in proving facts peculiarly

within the knowledge of the accused and hidden from

the Government. A similar situation arises in the case

17

| sub judice, as Petitioner has attempted to point out

above. Additionally, it should be noted that Georgia

has no discovery procedure in criminal cases. Henderson

v. State, 227 Ga. 68 (1970).

Finally, in Casey, this Court pointed out that the

| drug could only be possessed legally by authority of a

| prescription, or illegally; and, that if the drug was pos-

sessed by authority of a prescription, that prescription

could be proven with ease. In Georgia, a pistol may be

possessed outside the home, office or automobile legally,

by authority of a properly issued license. Under any

other circumstances, the possession of a pistol in such a

situation is unlawful. However, in some situations, such

illegality is excused. See, Pickett v. State, 128 Ga. App.

1 (1) (1970).

Just as a prescription to possess drugs may be, with

ease, shown by the accused, so may a license be intro-

duced. Just as emergency is a defense to the charge

under Georgia Code Ann. Sec. 26-2903, so too a valid

license is a defense. There is no constitutional impedi-

ment to shifting to the accused the burden of going for-

ward with the evidence on the issue of emergency if that

be his defense. How then can there be any constitutional

impediment where the defense is not emergency, but

the possession of a valid license. The Petitioner can see

absolutely none.

Furthermore, the Petitioner respectfully suggests

that in numerous other prosecutions, the efficient and

effective enforcement of the criminal laws would be

effectively thwarted if the ruling of the Court of Appeals

is allowed to stand. It is important to note that many

federal drug prosecutions are controlled during trial by

the rules set out in 21 U.S.C. Sec. 885. Prosecutions in

S| eh repos

18

the area of tax evasion and of federal firearms violations

would also be affected.

Many state prosecutions would also be affected. by

this decision, if allowed to stand. In most jurigdictions,

a defense to a charge of illicit possession of drugs is the

possession of a doctor's prescription. What havoc would

be wrought in the enforcement of the drug laws if the

prosecution was required in each case to negate the

issuance of a prescription? For the prosecution to prove

that the accused did not have a valid prescription would

be as easy as proving that no angels can sit on the head

of a pin, or that no fat man can pass through the eye of

a needle. The practical effect of the decision of the

Court of Appeals is to legalize the possession of any drug

which may be legally possessed with a prescription. In

Georgia, that decision makes legal the licenseless pos-

session of any pistol, anywhere, because, in its present

form, Georgia Code Ann. Sec. 26-2903 is unenforceable.

It would be relatively easy for Georgia to resolve the

particular dilemma created in this case. The General

Assembly could simply adopt a rule similar to that

adopted by the federal government. In a federal prose-

cution for possessing an unlicensed firearm, the prose-

cution must negate a valid registration. U.S. v. Collier,

381 F.2d 616 (6th Cir. 1967). This is due to the fact

that lack of registration is an essential element of the

offense under the National Firearms Act, 26 U.S.C.

Sec. 5841, 5851, 5862. However, such proof is relatively

easy for the Government since all such registrations are

maintained in a central location by the Department of

the Treasury. The State of Georgia could easily set up

such a centrally-located agency for maintaining such

records, Or, in the alternative, the individual could be

19

required to carry the license on his person when he

carries the pistol. However, in the case of prescription

drugs, how could the state prove that an accused did

not have a prescription? How could the state change

the law to make such proof possible if it were required?

The only way would be to make all possession illegal,

irrespective of a prescription. Such would be inhumane.

The other alternative would be to make all possession

legal. Such an alternative would be equally inhumane.

The impact of the decision of the Court of Appeals

far exceeds the boundaries of this case. That decision,

if allowed to stand, could have a profound effect on the

course of law enforcement for years to come. For that

reason, Petitioner files this request for certiorari. Pe-

titioner, but for the overall impact of their opinion,

would have no qualms about the order of the Court be-

low. But that opinion, in practical effect, and carried to

its logical extension, makes unenforceable numerous

criminal statutes, both state and federal. For that rea-

son, this Court shou!d grant the Writ of Certiorari to

the Court of Appeals for the Fifth Circuit, and reverse

the decision below.

20

CONCLUSION

For the foregoing reasons, Petitioner respectfully

prays that the petition for Writ of Certiorari be granted;

that the Writ be issued; and this cause inquired into.

Respectfully submitted,

Kaus fador

LEWIS R. SLATON

District Attorney

Atlanta Judicial Circuit

Fulton County Courthouse

Third Floor

Atlanta, Georgia 30303

pela Ae

“RICHARD E. Hicks

Assistant District Attorney

8 td

la

APPENDIX A

Jerry L. JOHNSON, Petitioner-Appellant,

v.

R. C. WRIGHT, Warden, et al.,

Respondents- Appellees.

No. 74-3017.

United States Court of Appeals,

Fifth Circuit.

March 13, 1975.

* * *

Appeal from the United States District Court for

the Northern District of Georgia.

Before DYER, MORGAN and GEE, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Appellant was convicted in Superior Court of Fulton

£ County, Georgia, of armed robbery and of carrying a

concealed and unlicensed pistol. He appeals the district

court’s denial of his petition for habeas corpus en two

grounds:

(1) his warrantless arrest was not based on probable

cause aiid violated his rights under the Fourth Amend-

ment;

(2) the trial judge’s charge to the jury on the weapons

count violated his right to due process. For reasons ex-

plained below, we hold that his second contention is

correct, and we therefore reverse the judgment of the

district court.

I,

The challenged arrest of appellant occurred in the

—— aa eer

2a

following manner. In the early afternoon of January 7,

1972, Officer D. F. Lindstrom of the Atlanta Police

Department received a call on his radio stating that

there was a suspicious man at a grocery store in the

neighborhood which Lindstrom was currently patrol-

ling. Upon arriving at the store, Lindstrom interviewed

several employees, who told him that they believed

the man in question had participated in a robbery of

the store two days earlier. They described him as a tall

black male in his early twenties and wearing a floppy

hat; they told Lindstrom that he had left the grocery

in a red Ford Fairlane, with a jacked up rear end and

with its license plate wired on. They indicated to him

their belief that three other black males, one or two of

whom were wearing hats, were also riding in the car;

appellant was one of these passengers. Lindstrom

passed this information along over the police radio,

and began to patrol the neighhorhood. Shortly, he and

R. R. Wilbanks, another officer, both observed a car

fitting the employees’ description precisely and occu-

pied by four black males. Wilbanks directed the driver

of the Ford to pull over, and approached the car to

ask for his driver’s license. Upon observing a .22 caliber

pistol on the front seat, Wilbanks ordered the men out

of the car and immediately frisked them. By this time,

two additional police vehicles had arrived at the scene,

and Wilbanks placed each suspect in one of the cars.

He next searched the car and found a sawed-off shot-

gun; the suspects were then taken to the police station,

where they were held on the robbery and gun possession

charges.

[1] Our analysis of this series of events begins with the

proposition that although “searches conducted without

the prior issuance of a warrant are, for the most part,

3a

per se unreasonable, Katz v. United States, 389 U.S.

347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), there are a

few clearly delineated exceptions to the warrant re-

quirement of the Fourth Amendment.” United States

v. Anderson, 500 F.2d 1311, 1815 (5th Cir. 1974). In

addition, we do not deal here with an indivisible pro-

cess but with five conceptually distinct stuges of the

search and arrest, each one of which must satisfy con-

stitutional standards.

[2] First, there can be no question that the officers

were justified in stopping the car. Adams v. Williams,

407 U.S. 148, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972),

United States v. Rollerson, 491 F.2d 1209 (5th Cir.

1974). The car precisely fitted the description given by

a store employee who alleged that its driver had been

involved in a robbery two days previously.

Second, the officers clearly acted properly in arrest-

ing the driver when they ascertained that he fit the

descrivtion given by the store employee. Indeed, ap-

pellant does not challenge this contention, and we re-

peat it only for purposes of logical coherence.

[3] Third, having reason to believe at least one of the

car’s occupants might have committed armed robbery,

and seeing a pistol on the front seat of the vehicle, the

officer acted reasonably in ordering the occupants out

to be frisked for other weapons. Terry v. Ohio, 392

U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), United

States v. Rosenberg, 458 F.2d 1183 (5th Cir. 1972).

[4, 5) Fourth, having arrested the driver, the police

acted properly in searching the car itself for evidence

pertaining to the crime. This warrantless search was

proper because the officers had probable cause to believe

they would find evidence pertaining to the crime, Dyke

4a

v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct.

1472, 20 L.Ed.2d 538 (1968), and because they were

dealing with a temporarily stopped automobile, a search

of which is justified on the basis of exigent circum-

stances, see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct.

1975, 26 L.Ed.2d 419 (1970). Naturally, they could not

safely and effectively search the vehicle unless it was

empty of all passengers, and they therefore acted reason-

ably in detaining the passengers outside the car. Nor

did they act improperly in segregating the passengers

in separate cars for the duration of the search; the

police had good reason to suspect that these men might

be dangerous and might have been involved in a crimi-

nal offense. In segregating them, the police reduced any

chance that the passengers would confer with each other

as to alibis, or that they might endanger the officers.

[6] Finally, when Wilbanks discovered a sawed-off

shotgun in the car, he acted properly in arresting all the

occupants, since possession of such a weapon consti-

tutes both a federal and a state offense.

Probable cause existed to arrest appellant, and his

Fourth Amendment rights were not violated.

II.

At appellant’s trial, the judge charged the jury in

Now, this defendant has been charged . . . with

the possession of a pistol without a license, and with

the carrying of a pistol outside of his home, not in an

open manner. I instruct you that the State has proven

a prima facie case of the possession of a pistol in this

case by someone who is alleged by the Grand Jurors

here to have been the defendant, which the defendant

denies. And when a prima facie case is made, I charge

5a

you that it is then upon the defendant, if you believe

the defendant to be the person alleged to have com-

mitted this crime, to show that he did possess a license

to carry the weapon alleged to have been carried by the

State. The defendant is doing so must prove that a

license existed to carry the weapon in order to overcome

the prima facie showing of the violation of this law by

the State. (Emphasis supplied.)

[7] On appeal, the Georgia Supreme Court found this

to be a proper charge on violations of Ga.Code Ann.

§ 26-2903: and to contain no constitutional errors.

Johnson v. State, 230 Ga. 196, 196 S.E.2d 385 (1973).

We hold that the trial court’s instruction violated ap-

pellant’s right to due process in permitting the jury to

infer that his pistol was unlicensed from evidence that

he possessed one, and also in shifting to him the burden

of proof on an essential element of the offense.

In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068,

1078, 25 L.Ed.2d 368 (1970) established that the due

process clause of the Fourteenth Amendment requires

“roof beyond a reasonable doubt of every fact neces-

sary to constitute the crime. .. .’” However, the Supreme

Court has never decided whether this principle applies

to the area of evidentiary presumptions and inferences.

For example, in Leary v. United States, 395 U.S. 6, 89

S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Court struck

down a statutory presumption that possession of mari-

juana, unless satisfactorily explained, was sufficient to

prove that the defendant knew that the marijuana had

1. The statute provides:

A person commits a misdemeanor when he has or carries

on or about his person outside of his home, automobile or

place of business any — or revolver, whether concealed

or not, for which he has not obtained a license from the

ordinary of the county in which he resides.

— CREE BE aR IE TS : SINT VORATAL VER DERE ST AAI BRAD OPTIMIST OT LE TOE OLE

6a

been illegally imported. Concluding that any given

marijuana might have been grown domestically, and

that a user was unlikely to be aware of its origin, the

Court stated that an inference is,

‘irrational’ or “arbitrary,” and hence unconstitu-

tional, unless it can at least be said with substantial

assurance that the presumed fact is more likely than

not to flow from the proved fact on which it is made

to depend. 395 U.S. at 36, 89 S.Ct. at 1548.

The Court added in a footnote that since the challenged

inference did not satisfy the “more likely than not’

standard, it “need not reach the question whether a

criminal presumption which passes muster when so

judged must also satisfy the criminal ‘reasonable doubt’

standard if proof of the crime charged or an essential

element thereof depends upon its use.”’ Jd. n. 64. Like-

wise, in Turner v. United States, 396 U.S. 398, 90 S.Ct.

642, 24 L.Ed.2d 610 (1970), the Court left the issue un-

resolved in dealing with the constitutionality of a jury

instruction that it might infer from possession of heroin

and cocaine that the defendant knew the drugs to have

been illegally imported. The Court simply held the

heroin inference valid and the cocaine inference invalid,

whether judged by the more likely than not standard

or the beyond a reasonable doubt standard (7. e. the

evidence necessary to invoke the inference is sufficient

to permit a rational juror to find the-inference beyond

a reasonable doubt.) Finally, in Barnes v. United States,

412 U.S. 837, 848, 93 S.Ct. 2357, 2361, 37 L.Ed.2d 330

(1973), the Court ruled that, “if a statutory inference

submitted to the jury as sufficient to support conviction

satisfies the reasonable-doubt standard . . . as well as

the more-likely-than-not standard, then it clearly ac-

cords with due process.’

dt Ta

ww

The inference here involved, that from proof of the

defendant’s possession of a pistol the jury may conclude

that the pistol is unregistered, is clearly violative of due

process by either standard. A more arbitrary and ui-

reasonable conclusion can scarcely be imagined, since

it is not even more likely than not that a given pistol

will be unregistered.

[8] Additionally, the charge is unconstitutional be-

cause it shifts the burden of proof of an essential element

of the crime to the defendant. Of course, the state al-

ways bears the burden of proof in a criminal trial, and

any such shift renders the trial fundamentally unfair.

Smith v. Smith, 454 F.2d 572 (5th Cir. 1971).

This does not mean, of course, that permissible in-

ferences which satisfy the more likely than not and the

reasonable doubt standards violate due process. For

example, in Dyer Act? cases, the jury may infer from

unexplained possession of a recently stolen auto that

the defendant knew it to be stolen. There are two crucial

distinctions between such an inference and the one in-

volved here.

First, at issue under the Dyer Act is knowing posses-

sion of stolen property; “(k]nowledge and intent, be-

cause of their nature, must largely be proved by cir-

cumstantial evidence.” Jackson v. United States, 330

F.2d 679, 681 (8th Cir. 1964). Therefore, once the gov-

ernment has proved that the defendant possessed the

prohibited object, the jury may infer that he possessed

it knowingly. Under the Georgia scheme, however, the

state is not even required to prove possession of the

prohibited object, an unlicensed pistol. Rather, the

state is merely required to prove that the defendant

2. 18 U.S.C. § 2312.

8a

possessed any pistol. The inference relates not to the

defendant’s knowledge, but to the nature of the object

possessed.

Second, the inference employed in Dyer Act cases is

permissible; the jury may make the inference, but it is

not required to do so. The burden of proof does not

shift to the defendant; he may be acquitted without

offering any evidence at all if the jury feels the govern-

ment has not proved his guilt beyond a reasonable

doubt. As we have noted, the Georgia inference goes

further and impermissibly shifts the burden of proof to

the defendant.

The judgment of the district court is reversed, and it

is ordered to issue the writ, subject to the state’s privi-

lege to retry appellant.

Reversed and remanded.

* * *

9a

Jerry L. JOHNSON, Petitioner-Appellant,

v.

R. C. WRIGHT, Warden, et al.,

Respondents- Appellees.

No. 74-3017.

United States Court of Appeals,

Fifth Circuit.

April 2, 1975.

Appeal from the United States District Court for the

Northern District of Georgia.

Before DYER, MORGAN and GEE, Circuit Judges.

PER CURIAM:

It is ordered that the last two paragraphs of the

opinion in this case; dated March 13, 1975, which read

as follows:

The judgment of the district court is reversed, and

it is ordered to issue the writ, subject to the state’s

privilege to retry appellant.

Reversed and remanded.

be stricken, and that the following two paragraphs be

substituted in lieu thereof:

It is no longer a bar to federal habeas relief that

granting the writ will not result in petitioner’s im-

mediate release. Peyton v. Rowe, 391 U.S. 54, 88

S.Ct. 1549, 20 L.Ed.2d 426 (1968); Walker v. Wain-

wright, 390 U.S. 335, 88 S.Ct. 962, 19 L.Ed.2d 1215

(1968); Glazier v. Hackei, 440 F.2d 592 (9th Cir.

1971); Velasquez v. Rhay, 408 F.2d 9 (9th Cir. 1969);

United States ex rel. Rybarik v. Maroney, 406 F.2d

1055 (8rd Cir. 1969); Rhodus v. Patterson, 404 F.2d

890 (10th Cir. 1968).

a ES 7 : SOND ANON YAEL SAR RAMAN

10a

The judgment of the district court is therefore af-

firmed in part and reversed in part. The cause is re-

manded with instructions to issue the writ as to ap-

pellant’s gun possession conviction.

It is further ordered that the mandate to be sent to

the district court in this case be based on the revised

version of the opinion rather than the opinion as

originally submitted.

lla

United States Court of Appeals

FIFTH CIRCUIT

April 28, 1975

TO ALL COUNSEL OF RECORD

Re: 74-3017—Jerry L. Johnson vs. R. C. Wright, Ete.,

Et Al.

Dear Counsel:

This is to advise that an order has this day been en-

tered denying the petition( ) for rehearing, and no mem-

ber of the panel nor Judge in regular active service on

the Court having requested that the Court be polled on

rehearing en bane (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 12) the petition: )

for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH

CLERK

By /s’/ BARBARA KREI

Deputy Clerk

lb

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

JERRY L. JOHNSON CIVIL ACTION

VS NUMBER 18116

R. C. WRIGHT, WARDEN

JUDGMENT —

The Court, Honorable NEWELL EDENFIELD

United States District Judge, by order of this date

having DENIED THE PETITION FOR WRIT OF

HABEAS CORPUS,

JUDGMENT is hereby entered in favor of the re-

spondent and against the petitioner.

Dated at Atlanta, Georgia, this AUGUST 20, 1973.

BEN H. CARTER, CLERK

BY: /s/ Kay BATES

Deputy Clerk

Filed and entered in

AUGUST 20, 1973

Clerk’s Office this

BEN H. CARTER, CLERK

By: /s/ Kay BATEs

Deputy Clerk

ssh a Le a eee ee TO SER NER ET 61% in de il

2b

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

JERRY L. JOHNSON } CIVIL ACTION

vs.

R. C. WRIGHT, Warden,

Fulton County Correction and NO. 18116

Rehabilitation Center,

Alpharetta, Georgia

ORDER

Petitioner, a state prisoner incarcerated in the Fulton

County (Georgia) Correction and Rehabilitation Cen-

ter, was convicted in the Fulton County Superior Court

of armed robbery and carrying an unlicensed and con-

cealed weapon. The convictions were appealed to the

Supreme Court of Georgia and affirmed by that court

on February 22, 1973. Petitioner then filed an applica-

tion in this court for the writ of habeas corpus after

being permitted to proceed in forma pauperis. The ap-

plication of petitioner was denied by this court because

of his failure to seek habeas corpus in the state superior

court under Ga. Code Ann. § 50-107 (Supp. 1972).

Pursuant to an order of this court dated May 23,

1973, the petitioner’s case was reopened on his motion

for leave to appeal the court’s earlier denial. As pointed

out by the petitioner in his motion, the exhaustion re-

quirement of 28 U.S.C. § 2254 (1970) had been satisfied

since in the petitioner’s appeal to the Supreme Court

of Georgia, the issues presented in the present case had

been raised, considered and decided adversely to the

3b

petitioner. Accordingly, the petitioner’s motion for

leave to appeal was denied, his case reopened, and the

state ordered to show cause why the requested relief

should not be granted. The state has now responded.

In his application the petitioner asserts that his

arrest by state officials was unlawful, that he was sub-

jected to an illegal lineup, the evidence of which should

have been suppressed, and that the instructions given

by the state trial judge to the jury which convicted him

shifted the burden of proof from the state to the ac-

cused and thereby relieved the state of proving guilt

beyond a reasonable doubt. The petitioner states that

his conviction was obtained only in violation of his

rights under the Fourth, Fifth and Fourteenth Amend-

ments of the United States Constitution and he requests

an evidentiary hearing by this court to inquire into his

claims. A hearing need only be held, however, if the

factual determinations reached by the state are not

supported by the record as a whole or where material

facts were not adequately developed in the state court

hearing. The court is satisfied that the proceedings in

this case provide adequate support for each of the

factual determinations reached by the state courts.

The Arrest

The petitioner claims that his arrest was unlawful

because the arresting officer had not obtained a warrant.

The petitioner asserts that the sole basis for his arrest

was his presence in a suspicious car. The petitioner’s

claim is without merit.

The arrest was made after an officer responded to a

call made by employees of a grocery store which had

been robbed two days earlier. The employees informed

RR 6:7 nmr cece: nave + men MOMS APRN, LAAN 2, ESO AEA, ELE EIT

4b

the officer that a man, described as a young black in

his early twenties, approximately six feet tall, with a

small Afro hairstyle and wearing a “flophat”, had just

ieft the store. The employees claimed that this man

had been involved in the robbery. The employees de-

scribed in detail the car the man entered after leaving

the store. The other occupants of the car were described

as three young blacks in their twenties. Since the officer

had had personal knowledge of the robbery even prior

to having answered the call, he posted a “lookout’’ for

the car over his patrol car radio. Shortly thereafter

another police officer, acting on the “lookout”, stopped

a car fitting the description. Upon asking the driver of

the car for his driver’s license, the officer observed a

pistol lying on the front seat and the barrel of a shotgun

protruding from under the driver’s seat. The cfficer

testified that he immediately backed away and ordered

the four occupants to get out of the car. The petitioner

had been in the back seat. The “our men were taken

into custody along with the weapons. The petitioner

claims that the lack of a warrant and the failure of the

police officer who posted the “lookout” to corroborate

information given by an informant renders the arrest

unlawful.

An arrest is lawful when the arresting officer has prob-

able cause to suspect that a crime has been committed

and that the person sought committed the crime. Here

the officer who posted the “lookout” had personal

knowledge that two days prior to the petitioner’s arrest

a robbery had occurred in the grocery store. On the

day of the arrest the officer posted his “lookout” on the

basis of information supplied by victims of the crime.

This situation is clearly distinguishable from the case

of an informant from the criminal milieu who merely

5b

has knowledge of criminal activity. There is no need to

establish the credibility of a victim. Brown v. United

States, 365 F.2d 976, 979 (1966). However, it is neces-

sary to show why the person giving the information has

a basis for his knowledge. Here the fact that the infor-

mantwasa victim of the crimewhich he claimed was com-

mitted by petitioner tvro days before was sufficient

basis for the officer to post the lookout and make lawful

a subsequent arrest.

The probable cause required for an arrest and that

necessary to conduct a search are substantially different.

Here, prior to making the arrest, the arresting officer

had no basis on the information contained in the look-

out to conduct a search of the car. However, both the

shotgun and the pistol were in plain view. This is the

testimony of the arresting officer who was the subject

of cross-examination conducted by the petitioner’s

counsel in both the trial court and in a hearing on a

motion to suppress. For this court to hold that the

weapons were not subject to seizure would require a

finding that the weapons were not in plain view and

there is nothing in the record transcript of the state

proceedings which could require such a result.

Illegal Lineup

The petitioner next contends that as a result of his

arrest he became the subject of an illegal lineup and

that the evidence therefrom should have been sup-

pressed. In reviewing this claim the Supreme Court of

Georgia ruled that since the petitioner had withdrawn

his motion to suppress lineup testimony during the

Superior Court’s hearing on the motion, any objection

to evidence obtained pursuant to the lineup was ex-

6b

pressly waived. Furthermore, the court held that since

it viewed the petitioner’s arrest as lawful, the lineup

evidence was not the fruit of an illegal arrest.

The Supreme Court of the United States and the

Fifth Circuit Court of Appeals have recently held that

waiver or abandonment of a constitutional guarantee

is disfavored and will not generally be found absent the

informed and intelligent choice of the accused. Hum-

phrey v. Cady, 405 U.S. 504 (1972), and Winters v. Cook,

466 F.2d 1393 (5th Cir. 1972). Here there is nothing in

the record transcript which would indicate that counsel

obtained petitioner’s informed consent prior to aban-

doning the motion to suppress. Thus there is no support

for a finding that petitioner waived his right to contest

the identification evidence obtained from the lineup.

However, petitioner asserts only that the lineup was

unlawful because his arrest was unlawful. Since this

court has already stated that the arrest was lawful, it

would follow that the lineup conducted pursuant to

that arrest must aiso be held to have been lawful. The

petitioner makes no allegation that the lineup was con-

ducted unfairly, nor did he make such an allegation in

the state courts. Accordingly, the relief sought on the

basis of this ground must be denied.

Jury Instruction

The petitioner attacks the following instruction to

the jury by the state trial judge:

“T instruct you that the state has proven a

prima facia [sic] case of the ion of a pistol

in this case by someone. And when a prima facia

[sic] case is made, I charge you that it is then upon

the defendant, if you believe the defendant to be

the person all to have committed this crime,

7b

to show that he did possess a license to carry the

weapon alleged to have been carried by the State.

The defendant in doing so must prove that a license

existed to carry the weapon in order to overcome

the prima facia [sic] showing of the violation of

this law by the State.”’

The petitioner asserts that the instruction, violated

the Fifth and Fourteenth Amendments to the Constitu-

tion by shifting the burden of proof from the state to

the petitioner and thereby relieving the state of proving

the guilt of petitioner beyond a reasonable doubt. The

petitioner further complains that the instruction denied

him of a presumption of innocence and amounted to

an expression of the trial court’s opinion that petition-

er’s alibi offense was insufficient as a matter of law.

In support of its holding the Georgia Supreme Court

cited its recent decision in Ezzard v. Georgia, 229 Ga.

465, ___._.__ S.E.2d _____ (1972). There the Court

said, “There is no merit in the appellant’s contention

that he was required to carry the burden of proof on

the two misdemeanor charges. The State had the burden

to show, and did show, that the appellant carried a

pistol on his person, outside his home, not ‘in an open

manner and fully exposed to view.’ Code Ann. § 26-2901

(Ga.L. 1968, pp. 1249, 13823). The appellant in defense

had the privilege of showing that he had a license to

carry the pistol. [Citations omitted.) Id. at 465, 466.

The language cited from the Ezzard case and the jury

instruction challenged in these proceedings are con-

sistent with such federal decisions as Williams v. United

States, 328 F.2d 256 (8th Cir. 1964);! Jackson ».

‘The Jackson and Williams decisions are two of a long line of

federal cases involving 21 U.S.C.A. § 174 which create a pre-

sumption of guilt where a defendant is shown to have or have

8b

United States, 330 F.2d 679, 681-682 (8th Cir. 1964).

The instruction merely pointed out to the jurors that

the prosecution’s evidence had established a prima

facie case and that the defendant could rebut such

evidence by showing that he had a license to carry the

weapon. Indeed, the challenged instruction proceeded

to point out to the jurors:

“‘As I have instructed you and as you have ob-

served here, the defendant contends, however,

that he was not present and thus could not have

been the person allegedly in the unlawful possession

of a pistol and possessing a pistol not in an open

manner.” (Tr. 171.)

Thus the damage, if any, to the defendant’s alibi

defense in this instruction appears negligible. Moreover,

when the text of the jury instructions is read as a whole

had possession of narcotics. According to the statute, this pre-

sumption may be explained away by the defendant. The Su-

preme Court, as early as 1925, held that the presumption so

created was constitutionally sound. Yu Hem v. United States,

oa ast) 182 (1925). See Turner v. United States, 396 U.S.

).

9b

it does not appear that the defendant suffered any

prejudice.’

For the foregoing reasons, petitioner’s application

for the writ of habeas corpus is DENIED.

IT IS SO ORDERED.

This 20 day of August, 1973.

/s/ NEWELL EDENFIELD

NEWELL EDENFIELD

United States District Judge

2 With regard to the petitioner’s alibi defense, the trial court

instructed the jurors in the following manner:

“Now in this case the defendant has entered a defense which

is called alibi. An alibi is a defense involving the possibility,

or that is to say, the impossibility of the defendant's presence

at the scene; that is, it is his position that he was not at the

scene of the offense at the time of its alleged commission.

“TI charge you that any evidence whatsoever of alibi is to be

considered on the general case with the rest of the testimony

and if a reasonable doubt of guilt be raised by the evidence as

a whole, the doubt must be resolved in favor of the innocence

of the accused.” (Tr. 169.)

lc

APPENDIX C

IN THE SUPREME COURT OF GEORGIA

Decided: FEB. 22, 1973

27671. JOHNSON v. THE STATE.

1. The trial court did not err in overruling the mo-

tion to suppress evidence on the grounds of illegal arrest,

search and seizure.

2. The shotgun involved in the robbery was properly

admitted into evidence.

3. The denial of the motion for mistrial was not

erroneous.

4, Overruling of the motion to dismiss the misde-

meanor pistol charges and the charge to the jury on this

subject were proper.

5. The trial court correctly refused to give the charge

on guilt or innocence requested by the appellant.

6. The enumeraiion based on the failure to charge on

the unreliability of eyewitness identifications is without

merit.

GRICE, Presiding Justice. Jerry Lee Johnson was

indicted and tried for the offenses of armed robbery and

carrying a concealed and unregistered pistol in the

Superior Court of Fulton County. He appeals from the

judgments of conviction and sentences of ten years for

the armed robbery and one year each on the pistol

charges.

1. The appellant contends that the trial court erred

in overruling his motion to suppress evidence because

evidence used against him was obtained when he was

illegally arrested, searched and held in custody without

a warrant, probable cause or lawful justification.

2c

The transcript of record reveals that when an Atlanta

police officer answered a call at a grocery store he was

told by employees there that a black male in his twenties

had just left the store in a red Fairlane automobile,

jacked up in the rear with its license tag wired on and

dangling, occupied by three black males about the same

age, one of whom wore a “flop hat’”’. The employees told

the officer they believed the man had been involved in a

robbery of the store two days earlier and also that they

recognized the car as having been used in this holdup.

The officer testified that he knew personally that the

store had been robbed, so acting on this information he

placed a “look-out” over the police radio for the de-

scribed car. Relying on this “look-out”, another police

officer stopped a car fitting the description. The ap-

pellant was in the back seat. All four men were taken

into custody along with a loaded pistol, which was lying

on the front seat between the two occupants, and a

loaded shotgun with a sawed off butt and barrel, which

was protruding from under the front seat.

The appellant urges that this constituted an unlawful

arrest because the officer had not obtained a warrant

and the corroboration requirements for information ob-

tained from a confidential informant had not been met;

that certain lineup evidence should be suppressed be-

cause the arrest was illegal; and that the search of the

car during which the weapons were found was likewise

illegal.

There is no merit in these contentions. |

(a) The crucial question is whether the knowledge of

the related facts and circumstances gave the police of-

ficers here probable cause and reasonable grounds to

believe that the appellant had committed an offense.

If it did, the arrest, even without a warrant, was legal;

——_—_—_{_—_$_$_$_———————|

the subsequent search of the car and seizure of the

loaded weapons were validly made incident to a lawful

arrest; and the motion to suppress was properly over-

It is the function of the court to determine if the facts

upon which the officer acted would warrant a man of

committed. See in this connection Draper v. United

States, 358 U.S. 307, 310, 79 SC 329, 3 LE2d 327; Beck

. State, 114 Ga. App. 595 (152 SE2d 647).

The source of the information here was not s conf-

essary to support an arrest does not demand the same

strictness of proof as proof of guilt upon the trial.

Strauss ¢. Stynchcombe, 224 Ga. 850, 865 (165 SED

302).

In our view, the information upon which the officers

acted here was sufficient to sustain the arrest of the ap-

pellant without a warrant.

(b) Since we have ruled that the appellant's arrest

was legal his contention that there was an llega! search

of the car in which he was riding cannot be sustaimed.

Moreover, since the weapons were in plain sight no

illegal search was involved here.

(c) The appellant's objection to the trial court's

4c

failure to suppress certain lineup evidence is likewise

invalid.

The transcript of the hearing on the motion to sup-

press discloses that appellant’s counsel withdrew his

motion to suppress the identification testimony after

the court ruled that the appellant had knowingly and

intelligently signed a waiver of lineup. Therefore, any

objection to this evidence has been expressly waived,

and since the appellant’s arrest was lawful the lineup

evidence is not the fruit of an illegal arrest as contended.

2. The appellant next urges that the trial court erred

in admitting the shotgun into evidence because it was

not connected to him, was prejudicial, and had been

illegally seized.

This argument cannot be sustained.

The owner of the store robbed testified that the ap-

pellant was carrying a pistol and another one of the

robbers had a shotgun, which he described; and that the

shotgun produced in court “looks like the exact gun I

saw the day of the robbery and at Police Headquarters.”

This was the shotgun found in the car with the appel-

lant and his companions when they were apprehended.

“Under all the evidence and circumstances it was for

the jury to determine the fact as to whether or not the

weapons introduced in evidence were the same weapons

used by the accused and his accomplices in perpetrating

the robberies for which he was on trial. [Citations|”’

Clements v. State, 226 Ga. 66 (172 SE2d 600).

The shotgun was properly admitted into evidence and

was not prejudicial to the appellant, as contended. For

the reasons stated in Dvision 1 (b) above, the search of

the car and seizure of the shotgun were not illegal.

5e

3. Because of the rulings made in Division 1 and 2

above, the appellant’s enumerations of error concerning

admission into evidence of a lineup photograph and the

denial of his motion for mistrial based upon the admis-

sion into evidence of the shotgun and the lineup photo-

graph cannot be sustained.

4. The appellant’s enumerations that the trial court

erred in overruling his motion to dismiss the misde-

meanor pistol charges, and that the charge to the jury

on the subject was improper, are not meritorious.

(a) The conviction for carrying a concealed weapon

was clearly supported by the evidence.

The owner of the robbed store testified that while he

was talking on the telephone he saw the appelant and

another man outside the store; that while he was still

talking on the telephone one of them hit him “in the

bend of the leg with something” and he fell down; that

when he looked up he saw the appellant with a pistol;

and that the appellant then told him to “Get off the

phone” and give him the money in the cash register and

his billfold, and said “Don’t move’’, and the robbers

left the store.

The only logical inference to be drawn by the jury

from this evidence was that the pistol was concealed by

the appellant on his person until the time that the actual

perpetration of the robbery began.

(b) The appellant’s contentions that an impermissible

burden was placed upon him to prove that he had a

license to carry the pistol, and that the trial court erred

in charging the jury that he had to rebut the burden of

proof in regard to the pistol charge, have been decided

adversely to him in the recent decision of Ezzard »v.

State, 229 Ga. 465 (8) ( SE2d _).

6c

This court there said: “There is no merit in the ap-

pellant’s contention that he was required to carry the

burden of proof on the two misdemeanor charges. The

State had the burden to show, and did show, that the

appellant carried a pistol on his person, outside his

home, not ‘in an open manner and fully exposed to

view.’ Code Ann. § 26-2901 (Ga. L. 1968, pp. 1249,

1323). The appellant in defense had the privilege of

showing that he had a license to carry the pistol. [Cita-

tions].”’

What we said there is equally applicable to the evi-

dence and charge to the jury given by the court in the

instant case.

5. The appellant protests the trial court’s refusal to

give a requested charge to the jury from Patrick »v.

State, 75 Ga. App. 687 (2) (44 SE2d 297), to wit:

“‘Where the facts in evidence and all reasonable de-

ductions therefrom present two theories, one of guilt

and the other consistent with innocence, the justice and

humanity of the law compel the acceptance of the

theory which is consistent with innocence. Davis v.

State, 13 Ga. App. 142 (1) (78 SE 866).”

Although this written request to charge was not in-

cluded in the record, the substance of the charge appears

in the transcript in colloquy between the trial judge and

counsel for the appellant.

It should be noted that the Patrick case, and others

following it, involve circumstantial evidence where the

State must prove facts that not only are consistent with

the hypothesis of the guilt of the accused, but exclude

every other reasonable hypothesis. See, e.g., Carr v.

State, 119 Ga. App. 540, 544 (167 SE 707), and cases

cited.

Te

Here however, the appellant was identified by victims

of the robbery both at a lineup and in court. The only

theory consistent with his innocence was the defense of

alibi and this was completely and adequately charged,

as requested, by the trial court. The court also fully

charged on reasonable doubt. Therefore, the denial of

the requested charge does not constitute reversible

error.

6. The appellant’s final enumeration, that the trial

court erred in failing to charge his written request con-

taining language from Wade v. United States, 388 U.S.

218, SE ‘ LE2d , concerning the unre-

liability of eyewitness identifications, is not maintain-

able.

The requested charge is not included in the record and

the colloquy contained in the transcript does not reflect

the substance of it, as contended by the appellant. Ali

that appears is the trial judge’s response to counsel’s

objection to its denial, that “Your request No. 5 was

denied and that had to do in general with the testimony

of a witness in which you cited United States versus

Wade.”

Counsel for appellant made no effort to perfect the

record as provided in Code Ann. § 6-805 (f) (Ga. L.

1965, pp. 18, 24), and nowhere in his brief or argument

has he stated what language he contends the court

should have charged the jury. Since the trial judge

fully charged the jury in regard to determining the

credibility of witnesses and on reasonable doubt, this

enumeration is without merit. Geter v. State, 226 Ga.

236 (6) (173 SE2d 680) (One Justice dissenting on other

grounds).

Judgment affirmed. All the Justices concur.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

NO. 74-

R. C. WRIGHT, Warden, Et al.,

Petitioner,

vs

JERRY L. JOHNSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

CERTIFICATE OF SERVICE

I, Lewis R. Slaton, liereby certify that I am a mem-

ber of the bar of the Supreme Court of the United

States and that I have served copies of the Petition

for Writ of Certiorari in the above-styled case on

Counsel for the Respondent by depositing the same

in the United States mail, first class postage prepaid,

addressed as follows:

Phillip S. Davi, Esq.

P. O. Box 8182

Atlanta, Georgia 30306

All parties required to be served have been served

this__2*9 _ day of 197 an

Fulton County Courthouse Lewis R. SLATON

Third Floor District Attorney,

Atlanta, Georgia 30303 Atlanta Judicial Circuit