Johnson v. Zant, 38819

• Decision Date: 10 September 1982
• Docket Number: No. 38819,38819
• Citation: 249 Ga. 812,295 S.E.2d 63
• Parties: JOHNSON v. ZANT.
• Court: Georgia Supreme Court

Page 63

295 S.E.2d 63

249 Ga. 812

JOHNSON v. ZANT.

No. 38819.

Supreme Court of Georgia.

Sept. 10, 1982.

Alice C. Stewart, Atlanta, Ga., for appellant.

Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., for appellee.

SMITH, Justice.

Johnnie Johnson appeals the denial of his petition for a writ of habeas corpus. Johnson is under sentence of death for murder. He received in the same trial a twenty-year sentence for kidnapping, ten years for aggravated assault, and a life sentence for rape. Appellant's convictions and sentence, including his sentence of death, were upheld on direct appeal to this court in Johnson v. State, 242 Ga. 649, 250 S.E.2d 394 (1978). Johnson also filed an extraordinary motion for "extraordinary relief", which was denied and on appeal to this court affirmed. Johnson v. State, 246 Ga. 474, 271 S.E.2d 789 (1980). Johnson's petition for a writ of habeas corpus was denied in March 1982. We granted his application for a certificate of probable cause in May 1982. We affirm.

(1) Petitioner asserts that it was error for the court below to find that Johnson received effective assistance of counsel during the guilt and the sentencing phases of his trial. The sixth amendment to the United States Constitution as applicable to the states through the due process clause of the fourteenth amendment, provides for a criminal defendant's right to effective assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

Nevertheless, the acknowledged constitutional right to assistance of counsel guarantees "not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960); Pitts v. Glass, 231 Ga. 638, 639, 203 S.E.2d 515 (1974).

We have recognized that " 'decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.' " Reid v. State, 235 Ga. 378, 379, 219 S.E.2d 740 (1975), quoting ABA Standards, relating to the Administration of Criminal Justice (1974) (ABA Standards, the Defense Function § 5.2). We have adopted the view expressed in Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962) that the elements determining whether petitioner was afforded reasonably effective assistance of trial counsel involve: (a) whether the defendant had a defense that was not presented; (b) whether trial counsel consulted sufficiently with the accused and adequately investigated the facts and the law; and (c) whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy. Hawes v. State, 240 Ga. 327, 329-330, 240 S.E.2d 833 (1977).

Johnson's trial attorney was appointed shortly after his arrest and he consulted with Johnson approximately six times prior to trial to research the case and to help Johnson prepare his testimony. Examination of the trial record shows that counsel conducted an active defense by interviewing the investigating police officers, familiarizing himself with the contents of the District Attorney's file, objecting to introduction of certain evidence, cross-examining witnesses, conducting direct examination of Johnson, moving for a mistrial, and moving for a directed acquittal on the indictment charging Johnson with rape. Johnson did not aid in his defense by providing to counsel an alibi or the names of character witnesses. Counsel also filed a pre-trial petition seeking psychiatric evaluation of Johnson's competence to stand trial and general mental condition. The petition was granted and Johnson was sent to Milledgeville for testing. State psychiatrists there assessed him to be an habitual user of drugs, an habitual drinker, to have a callous attitude, and to exhibit anti-social behavior. Counsel chose not to introduce this report at trial.

During the sentencing phase counsel chose not to have Johnson testify because he feared that his client, who had testified during the guilt-innocence phase, was such a poor witness that his additional testimony would serve only to demonstrate further Johnson's lack of remorse. Counsel considered other witnesses but concluded that there was no one with knowledge of Johnson's recent history who would have been helpful. The state did not present any evidence during the sentencing phase.

After a thorough review of the record we cannot say that the decision of the habeas court is without evidence to support it or that it is clearly erroneous, and we find no merit in this enumeration of error. We hold that defense counsel's representation of the petitioner did not constitute ineffective assistance of counsel within the meaning of the sixth and fourteenth amendments. Decisions made by defense counsel such as to not present character witnesses and to not introduce psychiatric reports unfavorable to the petitioner are part of trial tactics and strategy and thus committed to counsel's professional judgment. We do not find that counsel was inadequately prepared or that Johnson had a defense that was not presented. Johnson consulted with his attorney at least half a dozen times in preparation for trial and we hold this to be sufficient under the circumstances of this case. Examining the transcript of the trial wherein the petitioner was convicted shows that he was ably represented. The fact that Johnson's attorney chose to try petitioner's case in the manner in which it was tried does not require a finding that petitioner was unconstitutionally denied effective assistance of counsel. Estes v. Perkins, 225 Ga. 268, 167 S.E.2d 588 (1969).

(2) Petitioner urges that the death penalty was imposed unconstitutionally because the sentencing jury was prevented from considering mitigating factors. It is not argued that instruction as to mitigating circumstances was wholly lacking in the charge, but only that the jury was improperly guided as to the relationship between aggravating and mitigating circumstances. The habeas court concluded that although the trial court could have been more illuminating in its instruction on mitigation the charge as a whole met the requirements of Spivey v. Zant, 661 F.2d 464 (11th Cir. 1981), and Zant v. Gaddis, 247 Ga. 717, 279 S.E.2d 219 (1981).

In Spivey the court considered the requirements of the eighth and fourteenth amendments. "(T)he judge must clearly and explicitly instruct the jury about mitigating circumstances and the option to recommend against death; in order to do so, the judge will normally tell the jury what a mitigating circumstances is and what its function is in the jury's sentencing deliberations." Id. at 471.

In the case at hand, the trial court specifically authorized the jury to consider all evidence received in the trial and explained the concept and purpose of a mitigating circumstance. The charge was therefore constitutionally sufficient as to the consideration of mitigating circumstances. The court also charged clearly and fully enough to inform the reasonable juror that he could recommend life imprisonment even if he should find the presence of one or more of the statutory aggravating circumstances. The charge makes this option clear to the jury. Zant v. Gaddis, supra.

We find no merit in this enumeration of error. The trial court charged properly as to consideration of mitigating circumstances and the option to recommend against death. We hold that the death penalty was not imposed contrary to the eighth and fourteenth amendments.

(3) Petitioner enumerates as error the unconstitutionally vague and overbroad application of Code Ann. § 27-2534.1(b)(7). ¹ He argues that Godfrey v. Georgia, 446 U.S 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), requires a limiting instruction by the trial court regarding (b)(7) in order to channel the sentencer's discretion by clear and objective standards. Id. at 428, 100 S.Ct. at 1764. He further urges that it is impossible to objectively determine under the current standards that the jury's attention in the present case was focused on permissible considerations.

This court has recently considered the challenged statute in light of Godfrey. In Hance v. State, 245 Ga. 856, 268 S.E.2d 339 (1980) we ruled that in order for Code Ann. § 27-2534.1(b) to be applied constitutionally in a given case, the evidence presented at trial must satisfy certain enumerated criteria as they apply to the specific factual situation of each case.

The evidence must be sufficient to satisfy the first major component of statutory aggravating circumstance (b)(7) (outrageously or wantonly vile, horrible or inhuman), and at least one of the three parts of the second component (torture to the victim or depravity of mind of the defendant or aggravated battery to the victim). Hance, supra, at 862-863, 268 S.E.2d 339.

The trial court in the sentencing phase of the present case instructed the jury that they were authorized to consider the death penalty if they found the following statutory aggravating circumstance beyond a reasonable doubt: "The offense of murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim."

In the sentence review section of our opinion considering this case on direct appeal we concluded that the murder here was conducted in a methodical, execution-style fashion. The murdered girl's hands were bound with wire and Johnson marched her into the woods where he raped her. Johnson then brought her back to the site of his parked car where Jerry Sprouse, Johnson's co-defendant, held the second girl. The girls were stripped of their clothes and while still helplessly tied were shot at point blank range. This clearly...