Birt v. Hopper, 35268
| Decision Date | 26 February 1980 |
| Docket Number | No. 35268,35268 |
| Citation | 245 Ga. 221,265 S.E.2d 276 |
| Parties | BIRT v. HOPPER. |
| Court | Georgia Supreme Court |
Lloyd D. Thompson, Brunswick, Cal., Eric G. Kocher, Dalton, Jack Greenberg, John Charles Boger, New York City, Anthony G. Amsterdam, Stanford, Cal., for appellant.
Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., H. Reginald Thompson, Dist. Atty., for appellee.
Billy Sunday Birt was convicted of the burglary, armed robbery and murders of Mr. and Mrs. Reid Oliver Fleming, Sr. The evidence showed that the Flemings had been tortured and then strangled to death with coat hangers among other devices. Birt was sentenced to death for each of the murders and his death sentences were upheld on direct appeal. Birt v. State, 236 Ga. 815, 225 S.E.2d 248 (1976), cert. den. 429 U.S. 1029, 97 S.Ct. 654, 50 L.Ed.2d 632 (1976).
After a new execution date was set, Birt filed a petition for a writ of habeas corpus on March 13, 1978. On March 29, 1979, the habeas court granted Birt a new sentencing hearing on the ground that the trial court had failed to explain to the jury that it could be merciful and sentence Birt to life imprisonment even though it found the existence of one or more statutory aggravating circumstances beyond a reasonable doubt. The respondent warden did not appeal this ruling. 1 The habeas court denied all of Birt's other grounds for habeas corpus relief which involved alleged defects in the guilt-innocence phase of his trial. Birt's application to appeal this order was granted. 2 He enumerates 4 alleged errors.
1. Birt argues that he was forced to accept appointed counsel, whom he did not want, in violation of his sixth amendment right to counsel. Birt was incarcerated in the federal penitentiary in Marion, Illinois, on an unrelated federal conviction when he was indicted for the Fleming murders on January 31, 1975, by the Jefferson County grand jury. Appointed counsel notified him of the indictment by telephone. Birt immediately told his appointed counsel that he did not want the appointed lawyer's services and that when he came to Georgia for arraignment he would hire an attorney. When Birt was arraigned on June 7, 1975, he objected to being represented by appointed counsel even though he had not retained an attorney. The trial judge conducted the arraignment with the appointed attorney as counsel. Birt later retained counsel who first met with appointed counsel on Sunday, the day before trial started on Monday, June 23, 1975. Although retained counsel proposed seeking a continuance due to his late entry into the case, appointed counsel expressed doubt that a continuance would be granted because he was prepared and Birt had had ample time to retain an attorney.
Appointed counsel testified at the habeas hearing that after independent conversations with both attorneys, Birt decided to keep both of them. Birt's contrary testimony was rejected by the habeas court. Williams v. Caldwell, 229 Ga. 453(1), 192 S.E.2d 378 (1972). The conclusion of the habeas court that Birt voluntarily accepted the assistance of both attorneys is supported by the record. No objection was made at the commencement of the trial by retained counsel to the representation of appointed counsel and Birt was represented by the appointed counsel in the original appeal. Birt's reliance on Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), is misplaced. Here the trial court appointed counsel well before trial and it was Birt's retained counsel who entered the case late. Petitioner was not denied his sixth amendment right to the assistance of counsel.
2. In his second enumeration of error, Birt argues that his appointed attorney was ineffective because he failed to challenge the composition of the traverse jury. In his third enumeration, he argues that the traverse jury pool was unconstitutionally composed. Because we find the jury claim to have been waived by competent counsel, we do not consider the composition question.
Our habeas corpus statute provides that "The right to object to the composition of the grand or traverse jury will be deemed waived under this 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." Code Ann. § 50-127(1). No challenge has been made to this statute unless the effective assistance of counsel question be considered as such a challenge. But see Goodwin v. Hopper, 243 Ga. 193, 253 S.E.2d 156 (1979).
Appointed counsel testified that he discussed the possibility of a challenge to the grand jury with both retained counsel and Birt. He advised Birt that he was prepared to make such a challenge and that it would produce some delay but that he thought the state would reindict almost immediately with a validly constituted grand jury. Appointed counsel testified that Birt was anxious to have his day in court and confront Billy Wayne Davis, one of Birt's co-conspirators and a witness for the state, and that Birt decided that no grand jury challenge should be made. The habeas court found that Birt had personally relinquished his right to challenge the composition of the grand jury. The habeas court was free to reject Birt's testimony to the contrary. Williams v. Caldwell, supra.
Appointed counsel testified that no challenge to the composition of the traverse jury was made because, based upon his discussions with the jury commissioners, he was satisfied with the method of selecting the jury pool, and based upon his investigation, he was satisfied with the composition of the jury list. 3 Although the habeas court did not find that Birt personally participated in the decision not to challenge the traverse jury, Birt had expressed his desire to proceed to trial and his retained counsel did not demur to appointed counsel's decision.
Pitts v. Glass, 231 Ga. 638, 203 S.E.2d 515 (1974), provides that a criminal defendant is not entitled to perfect counsel or counsel judged ineffective by hindsight but to...
To continue reading
Request your trial
-
Birt v. Montgomery
...Georgia Supreme Court made a factual finding that Collins "did not know the racial composition of the county." Birt v. Hopper, 245 Ga. 221, 224, 265 S.E.2d 276, 278 (Ga.1980). ineffective. While it is true that Birt challenges his counsel's representation in only one aspect, to wit: counsel......
-
Chancey v. State
... ... See also Birt v. Hopper, 245 Ga. 221 (265 SE2d 276) (1980)." Zant v. Gaddis, 247 Ga. 717, 718(2), 279 S.E.2d 219 ... ...
-
Birt v. Montgomery, 82-8156
...phase of Birt's trial were denied. The Georgia Supreme Court upheld the decision of the state habeas corpus court. Birt v. Hopper, 245 Ga. 221, 265 S.E.2d 276, cert. denied, 449 U.S. 855, 101 S.Ct. 150, 66 L.Ed.2d 68 Birt next sought collateral relief in the United States District Court for......
-
Birt v. Montgomery
...subsequently vacated and petitioner has been granted a new sentencing hearing in regard to his murder convictions. See Birt v. Hopper, 245 Ga. 221, 265 S.E.2d 276, cert. denied, 449 U.S. 855, 101 S.Ct. 150, 66 L.Ed.2d 68 Petitioner, now an inmate at Georgia State Prison in Reidsville, Georg......