Baty v. Balkcom, Civ. A. No. CV479-101.

• Decision Date: 06 August 1980
• Docket Number: Civ. A. No. CV479-101.
• Citation: 494 F. Supp. 960
• Parties: Willie Fred BATY, Petitioner, v. Charles R. BALKCOM, Warden, Georgia State Prison, Respondent.
• Court: U.S. District Court — Southern District of Georgia

494 F. Supp. 960

Willie Fred BATY, Petitioner, v. Charles R. BALKCOM, Warden, Georgia State Prison, Respondent.

Civ. A. No. CV479-101.

United States District Court, S. D. Georgia, Savannah Division.

August 6, 1980.

COPYRIGHT MATERIAL OMITTED

Grace Evans, Asst. Fed. Public Defender, Augusta, Ga., for petitioner.

Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent.

PETITION FOR A WRIT OF HABEAS CORPUS

BOWEN, District Judge.

ORDER

Petitioner is a prisoner of the State of Georgia confined at the Georgia State Prison at Reidsville, Georgia. He is serving a life sentence imposed after a conviction for armed robbery in the Superior Court of Newton County on July 11, 1977. His conviction was affirmed by the Court of Appeals in Baty v. State, 147 Ga.App. 277, 248 S.E.2d 503 (1978), after a motion for new trial heard in March of 1978. Certiorari was denied by the Supreme Court of Georgia by Order dated November 7, 1978. The issues presented in this petition for relief under 28 U.S.C. § 2254 have thus been presented to the courts of Georgia as required by that statute. 28 U.S.C. § 2254(b), (c).

Petitioner alleges his trial was rendered unfair by the ineffective assistance of counsel in violation of his rights guaranteed by the Sixth Amendment to the Constitution. Specifically, he alleges that: (1) his trial attorney did not speak to him except briefly on the morning of his trial; (2) his counsel conducted no independent investigation of the case, relying on work done by petitioner's former counsel; (3) counsel did not discuss the existence of defense witnesses with petitioner, nor did he interview the State's witnesses; (4) counsel failed to file a motion for continuance despite the fact that a denial of such would have been grounds for new trial; (5) counsel decided against petitioner's taking the stand in his defense without prior consultation with him; and (6) petitioner was denied a fair trial because of a conflict of interest between representation of petitioner and his co-defendant.¹

I.

The Georgia Court of Appeals made certain findings of fact based upon the record of both the defendant's trial and the motion for new trial.² These are as follows:

A robbery committed by two individuals occurred in a store in Newton County. The store owner only saw one of the individuals (later identified as defendant Baty), who knocked him down. He felt something against his head, very much like a gun, and the robber told him, "I'll blow your g___ d___ brains out." During this incident another employee came in the store, whereupon defendant Leroy Miller, whom he had seen in the store earlier that morning, waved a gun at him and "told me to get behind the counter, get on the floor," and he was made to lie down on the floor. The two robbers proceeded to ransack the store and left, advising the store owner and employee they would blow their brains out if they came out of the store. The robbery was reported with a description given to the police that they had fled on the expressway in a car with a black vinyl top and off-white bottom, being two black males, one big, the other smaller. The car was then chased by Rockdale County police in which shots were fired as soon as they were intercepted. When the chased vehicle left the expressway one of the robbers (later identified as defendant Leroy Miller) jumped from the car, aimed a pistol at the police officer, pulled the trigger and when it misfired he fled. The police officer attempted to shoot at defendant Miller with a shotgun but it misfired. Defendant Miller was later apprehended at a nearby apartment house. The chase continued as to the driver of the car (later identified as defendant Baty) who ran it into a fence and fled. Defendant Baty, as he was fleeing, fired several shots from his pistol at a uniformed state patrolman who in turn fired six shots from his M-1 carbine which then malfunctioned. He was later apprehended. Defendants Leroy Miller and Willie Fred Baty were separately indicted for armed robbery, tried jointly and convicted. We are concerned here with only the appeal of the defendant Baty, who was sentenced to life imprisonment.

During the trial only the defendant Miller took the witness stand and testified. He admitted he had been in the store to "get me a drink," had bought a drink out of the machine on the outside of the store, started walking down the street and hitchhiked a ride with another until they were chased by a police officer on the expressway who started shooting at them. He got "scared," and jumped out of the car, climbed the fence and was stopped by the police officer. His sole defense was that he did not know defendant Baty and was only riding in the car when it was chased by a police car.

Initially, both defendants were jointly represented by one lawyer who investigated the case. Approximately three or four days before trial because of the different stories the two defendants were telling, as to the circumstances surrounding the alleged crime, the sole counsel arranged with another attorney who had previously been associated with him to be prepared to act as attorney for defendant Baty if counsel was unable to obtain a severance. Counsel announced to the trial court that because of the possible conflict of interest he could not represent both defendants at the time of trial, that he had discussed this with the two defendants and they understood. Whereupon he proceeded to argue the motion for severance which was denied. Both were convicted.

147 Ga.App. 277, 278, 248 S.E.2d 503, 504.

A presumption of correctness of findings of fact such as these is created by 28 U.S.C. § 2254(d).³ The threshold for establishing this presumption is that there be an adequate written indication of the findings made by a court of competent jurisdiction and that the record from which the findings were made supports them and shows the issues involved to have been fully aired. Thompson v. Linn, 583 F.2d 739, 741-742 (5th Cir. 1978). These criteria have been met here in the opinion of the Court of Appeals. The transcript of the petitioner's motion for new trial certainly supports these findings. They are, therefore, adopted by this Court for use in these proceedings. 28 U.S.C. § 2254(d); Thompson v. Linn, supra; Farmer v. Caldwell, 476 F.2d 22 (5th Cir. 1973).

These facts can be augmented by evidence adduced at a hearing held by this Court May 15, 1980, and at the petitioner's motion for new trial in Newton County.⁴ On the basis of this record, the Court makes the following findings of fact.

Mr. Baty was originally represented by Mr. William D. Smith. This attorney was retained by the petitioner and his co-defendant to represent them. Mr. Smith represented them in all proceedings prior to trial. He conducted the initial investigation, interviewed the witnesses to be used against his clients, filed a variety of pre-trial motions, reviewed the State's file on the case, mapped out the defense strategy, and appeared on behalf of both defendants at all pre-trial hearings. Mr. Smith frequently consulted and, later, formally associated a second attorney to assist him in the case.

This second attorney, Mr. Charles M. Taylor, eventually represented the petitioner at his trial. His initial association with Mr. Smith on this case was of a very informal nature. The two attorneys had, at one time, shared office space together. At the time of the petitioner's trial, however, both maintained separate offices and separate law practices. Mr. Smith had associated Mr. Taylor on cases previously. In this instance, Mr. Taylor was associated in the early stages of the case to assist in the legal research involved and to act as a consultant and "sounding board" to Mr. Smith. No financial arrangements were made, other than an understanding that Mr. Taylor would be reimbursed for his time at the conclusion of the trial. Mr. Taylor conducted none of the investigation, interviewed none of the government's witnesses, consulted not at all with either defendant prior to the morning of the trial. He did, however, discuss the case in all respects with Mr. Smith many times, and felt he was thoroughly familiar with all aspects of the crime and the case against Baty. He also undertook to view the scene of the events surrounding the crime.

We come now to the heart of the factual controversy here. At some time before trial the defendants' retained counsel, Mr. Smith, determined that a conflict of interest could arise in the event the two defendants went to trial with the same attorney. The conflict would have occurred because of the different versions of the events surrounding the crime being asserted by the two defendants. After discussing the matter with his clients, counsel made a motion for severance of the trials, and requested Mr. Taylor to stand by to represent one of the defendants in a separate capacity in the event the motion was denied. This arrangement was communicated to the defendants without objection by them.

A preliminary hearing was held the day before trial to present the motion for severance. After the denial of the motion, Mr. Taylor undertook to defend Mr. Baty as arranged. The fee agreement discussed between the two lawyers was for Mr. Taylor to keep as much of the retainer previously paid as he thought he had earned, and for him to turn over the portion he allotted to the trial of Mr. Baty to Mr. Taylor. Mr. Taylor subsequently received an additional retainer for the trial work from a friend of the petitioner's. She promised to pay more at a later date. This payment was never received.

At this point Mr. Taylor undertook the sole representation of Mr. Baty. Prior to the date of trial he had not interviewed Mr. Baty. He had not interviewed any witnesses. He had not participated in the initial investigation. On the morning of the trial he spoke to his new client only twenty or thirty minutes. He was satisfied, however, with his grasp of the facts of the...