Black v. Hardin, 42375

• Decision Date: 27 November 1985
• Docket Number: No. 42375,42375
• Citation: 336 S.E.2d 754,255 Ga. 239
• Parties: BLACK v. HARDIN.
• Court: Georgia Supreme Court

Page 754

336 S.E.2d 754

255 Ga. 239

BLACK v.HARDIN.

No. 42375.

Supreme Court of Georgia.

Nov. 27, 1985.

Michael J. Bowers, Atty. Gen., Eddie Snelling, Jr., Staff Asst. Atty. Gen., for Gary Black, Warden.

Andrew J. Ekonomou, Atlanta, Kirby G. Atkinson, for Ethel L. Hardin.

WELTNER, Justice.

Hardin was convicted of the murder of her husband and was sentenced to life imprisonment.Her son, Davies, pleaded guilty to the murder and testified at trial that he shot his step-father because it was what his mother wanted.We affirmed the conviction on appeal.Hardin v. State, 252 Ga. 99, 311 S.E.2d 462(1984).

Hardin's petition for a writ of habeas corpus was granted.The habeas corpus court concluded that several errors at the trial violated Hardin's constitutional rights and entitled her to a new trial.The state appeals from this judgment.

1.The habeas corpus statute, OCGA § 9-14-42, was amended to become effective on January 1, 1983--three months before Hardin's conviction.The effect of the amendment was to limit the relief available by habeas corpus to errors or deficiencies which constitute "a substantial denial of ... rights under the Constitution of the United States or of this state."OCGA § 9-14-42(a).Parker v. Abernathy, 253 Ga. 673, 324 S.E.2d 191(1985).

2.We recently applied the amended habeas corpus statute in Valenzuela v. Newsome, 253 Ga. 793, 325 S.E.2d 370(1985), in which we held that a failure to make timely objection to an error or deficiency in the trial court constituted a waiver for purposes of habeas corpus review, absent the statutory exceptions of cause and prejudice shown, or a miscarriage of justice.253 Ga. at 796, 325 S.E.2d 370.

3.In his concurring opinion to Valenzuela, Chief Justice Hill stated: "[A]lthough Georgia permits defendants in criminal cases to reserve their objections to jury instructions and enumerate them as error on appeal ... we should not permit defendants in criminal cases to reserve their objections to jury instructions and assert them as error in habeas corpus....[T]he cause and prejudice requirement with its miscarriage of justice exception should apply to alleged errors in jury instructions in habeas corpus cases."Id. at 797, 325 S.E.2d 370.

4.This same logic applies alike to a failure to assert any alleged error or deficiency on appeal which fails, in and of itself, to constitute "a substantial denial of ... rights under the Constitution of the United States or of this state."OCGA § 9-14-42(a).Hence, under the statute, a failure to enumerate as error on appeal any alleged error or deficiency stands on like footing with a failure to make timely objection in the trial court--that is, the same shall be waived.Being waived, there then exists a procedural bar to its consideration in habeas corpus proceedings, under...