Smith v. Zant

• Citation: 250 Ga. 645,301 S.E.2d 32
• Decision Date: 01 March 1983
• Docket Number: No. 39172,39172
• Parties: John Eldon SMITH v. Walter D. ZANT, Supt.
• Court: Supreme Court of Georgia

Page 32

301 S.E.2d 32

250 Ga. 645

John Eldon SMITH v. Walter D. ZANT, Supt.

No. 39172.

Supreme Court of Georgia.

March 1, 1983.

Robert C. Glustrom, Decatur, Jack Greenberg, James M. Nabrit, III, Joel Berger, John Charles Boger, Deborah Fins, James S. Liebman, Anthony G. Amsterdam, New York University Law School, New York City, August F. Siemon, III, Atlanta, for John Eldon Smith.

Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., for Walter D. Zant, Superintendent.

HILL, Chief Justice.

John Eldon Smith appeals from the dismissal of his successive state habeas petition in which he alleged three constitutional issues. He contends he is entitled to a hearing on the merits of these issues under OCGA § 9-14-51, (Code Ann. § 50-127), and that the habeas court erred in holding that he had waived his right to raise them and in dismissing his petition.

John Eldon Smith, also known as Anthony Isalldo Machetti, was convicted of the shotgun slayings of his wife's former husband and second wife, and was sentenced to death. ¹ His conviction was affirmed in Smith v. State, 236 Ga. 12, 222 S.E.2d 308 (1976), cert. denied, 428 U.S. 910, 96 S.Ct. 3224, 49 L.Ed.2d 1219 (1976), and the denial of his first state habeas was also affirmed in Smith v. Hopper, 240 Ga. 93, 239 S.E.2d 510 (1977), cert. denied, 436 U.S. 950, 98 S.Ct. 2859, 56 L.Ed.2d 793 (1978). Smith's federal habeas petition was denied in an unpublished order from the Middle District of Georgia and affirmed on appeal in Smith v. Balkcom, 660 F.2d 573 (5th Cir.1981) , modified on rehearing, 671 F.2d 858 (5th Cir.1982).

Thereafter, Smith filed this, his second state habeas petition, raising constitutional issues: (1) that women were underrepresented on both his grand and petit jury panels; (2) that Georgia's death penalty statute is being applied arbitrarily and in a racially discriminatory pattern; and (3) that the failure of the prosecution to correct the testimony of John Maree, an accomplice and eyewitness who testified against Smith at his trial that he had no plea agreement with the state when that statement was not true, denied him due process and a fair trial. The habeas court dismissed his petition without a hearing as successive.

We granted Smith's application to appeal, which urged us to require the habeas court to grant him a hearing on the constitutional issues, and we immediately ordered "an evidentiary hearing on the issues raised in the petition", while retaining jurisdiction of the case. The habeas court held an evidentiary hearing, but limited its scope to whether the three constitutional issues had been waived by failing to raise them in his first habeas petition. After finding that all three issues were or should have been raised earlier, the habeas court again dismissed the petition as successive under OCGA § 9-14-51 (Code Ann. § 50-127). The transcript of that hearing was sent up, new enumerations of error were filed, and oral argument was heard on an expedited basis because we had retained jurisdiction of the original appeal. See OCGA § 9-14-52 (Code Ann. § 50-127).

1. Relying on OCGA § 9-14-51 (Code Ann. § 50-127), discussed in greater detail below, Smith seeks to raise the underrepresentation of women on his jury panels as a ground "which could not reasonably have been raised" in his original habeas petition. He argues that Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), holding that the constitution required that women be represented adequately in jury pools, was decided only a few days before his trial.

Petitioner did not raise any challenge to his grand or traverse juries prior to his trial as required by law. Harris v. Hopper, 243 Ga. 244(2), 253 S.E.2d 707 (1979), and cases cited; Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). He did not raise any challenge to his grand or traverse juries in his first habeas petition. OCGA § 9-14-42(b) (Code Ann. § 50-127), applicable to the first habeas petition, provides in pertinent part: "The right to object to the composition of the grand or trial jury will be deemed waived under this Code section unless the person challenging the sentence shows in the petition and satisfies the court that cause exists for his being allowed to pursue the objection after the conviction and sentence has otherwise become final." Petitioner did not seek to amend his first habeas corpus petition to add jury challenges while it pended for over a month nor while it was under consideration for over three additional months.

In both his first state habeas and in his federal habeas petition a related issue based on Taylor v. Louisiana, supra, was unsuccessfully raised. Smith v. Hopper, supra, 240 Ga. at 94, 239 S.E.2d 510; Smith v. Balkcom, supra, 660 F.2d at 582. In neither his first nor second habeas petitions has he raised any question as to the competency of his trial counsel or his first habeas counsel.

Petitioner has not shown grounds for raising this issue in his second habeas petition and the habeas court did not err in refusing to hear the matter on its merits.

2. OCGA § 9-14-51 (Code Ann. § 50-127) provides: "All grounds for relief claimed by a petitioner for a writ of habeas corpus shall be raised by a petitioner in his original or amended petition. Any grounds not so raised are waived unless the Constitution of the United States or of this state otherwise requires or unless any judge to whom the petition is assigned, on considering a subsequent petition, finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition." (Emphasis and brackets supplied.)

Thus, in considering a successive petition, the habeas court must determine, as the threshold matter, whether the petitioner is entitled to a hearing on the merits of his belated claims. See Smith v. Garner, 236 Ga. 81, 85, 222 S.E.2d 351 (1976). In order to be so entitled, the petitioner must raise grounds which are either constitutionally nonwaivable or which could not reasonably have been raised in the earlier petition. Fuller v. Ricketts, 234 Ga. 104, 214 S.E.2d 541 (1975); Dix v. Zant, 249 Ga. 810, 811, 294 S.E.2d 527 (1982). For example, in Smith v. Garner, supra, where the successive petitioner's first habeas attorney would not raise several constitutional issues despite the petitioner's requests to do so, the petitioner was allowed to proceed on the merits of his second petition. But, in Samuels v. Hopper, 234 Ga. 246, 215 S.E.2d 250 (1975), where ineffective assistance of trial counsel had been raised in petitioner's first habeas, his claim in the successive petition that the failure of his appointed trial counsel to inform him of his right to appeal was dismissed. Accord, Yates v. Brown, 235 Ga. 391(3), 219 S.E.2d 729 (1975); Fuller v. Ricketts, supra.

Smith's claim that the Georgia death penalty statute is being applied arbitrarily and discriminatorily fails to meet either test of OCGA § 9-14-51 (Code Ann. § 50-127). Smith raised the unconstitutional application of the death penalty statute in his first state habeas as well as in his federal habeas petition. ² On rehearing, in Smith v. Balkcom, supra, 671 F.2d 858-59 (5th Cir., 1982), the court had this to say on the issue: "In some instances, circumstantial or statistical evidence of racially disproportionate impact may be so strong that the results permit no other inference but that they are the product of a racially discriminatory intent or purpose. [Cits. omitted.] Smith's evidence, however, does not present such a case. The raw data selected for the statistical study bear no more than a highly attenuated relationship to capital cases actually presented for trial in the state. The leap from that data to the conclusion of discriminatory intent or purpose leaves untouched countless racially neutral variables. [Footnote omitted.] The statistics are not inconsistent with the proper application of the structured capital punishment law of the state found constitutional in Gregg v. Georgia, 428 U.S. 153 [96 S.Ct. 2909, 49 L.Ed.2d 859] (1976). Here, the proffered evidence would not have been of sufficient probative value to have required response and no hearing was required." Now, in his successive state habeas, Smith seeks to bolster his claim of discriminatory application with preliminary analysis of a more recent study. Since, however, the ground has previously been raised and rejected, it is not cognizable in a successive petition under the requirements of OCGA § 9-14-51 (Code Ann. § 50-127), and was properly dismissed. If the rule were otherwise, a "new study" could be produced quarterly by another investigator using more detailed data to form the basis of yet another habeas petition.

3. Smith also alleges prosecutorial misconduct as another basis for granting him habeas relief. Smith's accomplice, John Maree, testified against him at trial, stating that he was an eyewitness to the murders and that Smith was the triggerman. "According to the testimony of accomplice John Maree, he was to be paid $1,000 for his participation. He testified that he and the appellant Tony Machetti drove to Macon, Georgia, where they contacted Ronald Akins and lured him into the area of the crime, ostensibly to install a television antenna, and that when he and his wife arrived at the appointed time the appellant Tony Machetti killed both of them with a shotgun...." Smith v. State, supra, 236 Ga. at 12, 222 S.E.2d 308.

At trial, on cross examination, the following series of questions and answers transpired between the witness Maree and Smith's defense attorney:

Q: "How many times have you talked to Mr. Ray Wilkes [chief deputy sheriff] about this case?"

A: "Five or six times."

Q: "How many times have you talked to Mr. Fred Hasty [the district attorney] about it?"

A: "Possibly twice, I think twice, yes, sir."

Q: "How many times have you talked to Mr. Don Thompson who is...