Banks v. Glass, 33786

• Decision Date: 07 November 1978
• Docket Number: No. 33786,33786
• Citation: 242 Ga. 518,250 S.E.2d 431
• Parties: BANKS v. GLASS.
• Court: Georgia Supreme Court

Page 431

250 S.E.2d 431

242 Ga. 518

BANKS v. GLASS.

No. 33786.

Supreme Court of Georgia.

Argued Oct. 11, 1978.

Decided Nov. 7, 1978.

Stephen P. Harrison, A. J. Welch, Jr., McDonough, for appellant.

Arthur K. Bolton, Atty. Gen., Edward E. McGarity, Arch W. McGarity, McDonough, E. Byron Smith, Dist. Atty., for appellee.

PER CURIAM:

This is the third appearance of this case before this court. Appellant was convicted of two counts of murder and was sentenced to death. This conviction was reversed. Banks v. State, 235 Ga. 121, 218 S.E.2d 851 (1975). After retrial, he again was convicted of murder and sentenced to death. This court affirmed. Banks v. State, 237 Ga. 325, 227 S.E.2d 380 (1976).

The present appeal is from the judgment of the trial court denying his application for the writ of habeas corpus. This court granted his application for certificate of probable cause to appeal. He contends that the trial court committed reversible error in ruling that he had not been denied effective assistance of counsel during the trial, sentencing and appellate phases of his case; in ruling that the sentencing court had properly instructed the jury that it could recommend a life sentence, even though it might find the presence of one or more aggravating circumstances; and in denying him the right to submit evidence concerning the systematic exclusion of black people, young people, and women from the grand and traverse juries.

1. After thorough review, this court has reached the conclusion that appellant has not been denied effective assistance of counsel during the trial, sentencing and appellate phases of his case.

Mr. Hudson John Myers was retained by appellant's family to represent appellant. While represented by Mr. Myers, appellant obtained a reversal of his initial convictions.

Appellant points to numerous portions of the transcript and record of the second trial which he alleges unequivocally establish, if not by themselves, then as a whole, the ineffectiveness of Mr. Myers' representation. Most of these grounds of complaint against appellant's former counsel relate to motions or objections made or not made, or to preparation for trial and trial strategy or tactics. The records and transcripts of the second trial and the habeas proceeding show that appellant has not satisfied either of the tests pertaining to the ineffectiveness of retained counsel that are set forth in Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1975). See Allen v. Hopper, 234 Ga. 642, 217 S.E.2d 156 (1975); Pullin v. State, 237 Ga. 759, 229 S.E.2d 606 (1976).

Another ground of complaint against Mr. Myers' representation of appellant is based upon his failure to object to the introduction of statements and admissions of appellant on the ground that they were involuntarily made or elicited without proper forewarning of his constitutional rights. Although potentially harmful to appellant, this failure to object was rendered harmless by the trial court's initiative in conducting a Jackson-Denno hearing out of the presence of the jury. The trial court determined that appellant's statements or confessions were made freely and voluntarily after he had been advised of his rights. Appellant does not contend that the trial court's ruling on the Jackson-Denno hearing was erroneous. See Pierce v. State, 235 Ga. 237, 219 S.E.2d 158 (1975). Accordingly, any potential harm was obviated by the trial court.

After appellant was convicted and sentenced to death, Mr. Myers appealed to this court in his behalf. Although Mr. Myers did not complete the procedure for an application for certiorari to the United States Supreme Court, this matter was cured by completion of the procedure by appellant's extremely able present counsel.

The habeas court did not err in holding that appellant was not denied effective assistance of counsel.

2. Appellant contends that the habeas court committed reversible error when it ruled that the trial court had properly instructed the jury that it could recommend a life sentence for the petitioner even though it might find the presence of one or more aggravating circumstances.

After the decision of this court upholding appellant's conviction, the cases of Spivey v. State, 241 Ga. 477, 246 S.E.2d 288 (1978), and Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92 (1978) were decided. The decision in Spivey, p. 481, 246 S.E.2d p. 291, established a test for determining whether a trial court's charge to a jury in the sentencing phase of a death case is proper. The test is as follows: "(W)hether a reasonable juror, considering the...