Bowden v. Zant

• Decision Date: 25 September 1979
• Docket Number: No. 34832,34832
• Citation: Bowden v. Zant, 260 S.E.2d 465, 244 Ga. 260 (Ga. 1979)
• Parties: BOWDEN v. ZANT.
• Court: Georgia Supreme Court

Page 465

260 S.E.2d 465

244 Ga. 260

BOWDEN v. ZANT.

No. 34832.

Supreme Court of Georgia.

Argued July 9, 1979.

Decided Sept. 6, 1979.

Rehearing Denied Sept. 25, 1979.

Nelson Jarnagin, Atlanta, for appellant.

Arthur K. Bolton, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., William J. Smith, Dist. Atty., for appellee.

HALL, Justice.

This is Jerome Bowden's habeas corpus appeal. He is under a sentence of death for murder. The Butts County Superior Court conducted a hearing on his petition and issued a comprehensive order which follows hereafter as an appendix to this opinion. The numbered divisions of that order correspond to the enumerations of error on this appeal, and this opinion will only supplement or supercede portions of that order where needed.

1, 2. Bowden's enumerations of error 1 and 2 alleging ineffectiveness of trial counsel are without merit for the reasons stated in Division 1 of the order, and also for these additional reasons. Leading defense counsel, Mr. Oates, was assisted by at least two other attorneys. In addition to Mr. Oates' efforts, Mr. Cain, who was subsequently named Public Defender, visited Bowden before trial, and assisted in the conduct of the defense at trial. Mr. Collins, an attorney specializing in criminal law, met with Bowden at least once, assisted with pre-trial motions, participated in the hearing on the motion for psychiatric examination and cross-examined witnesses, gave the closing argument on the guilt phase, and participated in the appeal and the application for certiorari.

The standard of effectiveness of counsel which Bowden urged through an expert witness at the habeas hearing, is more stringent than that which the law requires. For example, the law does not require that defense counsel pay out of his own pocket for expert psychiatric witnesses for a indigent defendant. Nor is it required for effectiveness in a death case that attorneys spend three to four hours of investigation for Each prospective juror, in preparation for voir dire.

Bowden's expert also testified that trial counsel erred in failing to push more aggressively on the issue of possible mental defect or insanity. We find no ineffectiveness here. Trial counsel testified at the habeas hearing that he diligently sought evidence of mental incapacity of whatever sort; that on the motion for psychiatric examination concerning the special insanity plea he presented everything that he had; that he personally thought it fell short of the required level; and that he thought the trial judge correctly denied the motion. We find no indication that there existed evidence of incapacity which counsel failed to uncover.

We find that Bowden's trial counsel easily met the test of reasonably effective counsel set out in Pitts v. Glass, 231 Ga. 638, 639, 203 S.E.2d 515 (1974) and recently discussed in Jones v. State, 243 Ga. 820, 256 S.E.2d 907 (1979).

Claims of ineffectiveness in certain particulars of strategy are without merit for reasons which will be further stated in Divisions 3, 8, 9, 11 and 13. The claim that counsel failed to investigate witnesses is without specificity and without merit.

3. In enumeration of error 3, Bowden raises seven claims of error, some of which have never been presented before. As the habeas court noted, on the appeal we found no error in the Graves statement transaction. It suffices here to note that the Graves statement was Not admitted into evidence, and therefore assertions here that it was inadmissible are irrelevant. Subparts A and C of this enumeration are without merit for reasons determined on the appeal. Parts B, D and E are answered by the fact that the statement was not in evidence. Parts F and G concerning jury instructions are raised for the first time here and will not be considered. This enumeration of error is without merit.

4, 5, 6, 7. Enumerations of error 4, 5, 6 and 7 are without merit for the reasons stated by the habeas court. Ross v. Hopper, 240 Ga. 369, 370, 240 S.E.2d 850 (1977).

8. Enumeration 8 is without merit for the reason stated by the trial court with respect to juror Pue. We have reviewed the voir dire transcript concerning jurors Storey, Matlock, and Godwin, and we find that none of them was erroneously excluded under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and its progeny. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976); Boulden v. Holman, 394 U.S. 478, 481-484, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969).

9. Enumeration 9 is without merit for the reason stated by the habeas court. See generally, Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Chenault v. Stynchcombe, 546 F.2d 1191 (5th Cir. 1977); Bruce v. Estelle, 483 F.2d 1031, 1037 (5th Cir. 1973). Bowden's argument here that he should have been provided a state-paid psychiatrist to attempt to show his mental characteristics in possible mitigation of punishment is without legal basis under the authorities cited in Division 16, infra.

10. Enumeration 10 asserts error in the closing arguments in the sentencing phase, and in the fact that in the original appeal a transcript of the closing arguments was not included in the record and was not considered by this court on its mandatory sentence review (see Code Ann. § 27-2537). A transcript was provided following the habeas application and is a part of the record on this appeal.

Considering the absence of the transcript of closing arguments on the original appeal, the duty falls upon counsel for appellant to bring before this court on appeal a record on which he can show error. On Bowden's appeal, counsel did not procure a transcript of these arguments and raised no enumeration of error respecting them. Dungee v. Hopper, 241 Ga. 236, 244 S.E.2d 849 (1978).

However, on this appeal we have reviewed the arguments and find no error. The prosecutor's argument was permissible, and no trial objection was made to it by any of the three defense attorneys. We find no error with respect to it. Bowden erroneously asserts that the defense attorney was denied a full argument on the subject of mitigation. He was attempting to argue that Bowden was insane and that the state had denied him the right to prove it. That was untrue, and the trial court committed no error in sustaining an objection to that line of argument.

This enumeration of error is without merit.

11. Enumeration 11 is without merit for the reason stated by the habeas court. Additionally the argument made on this habeas appeal is without merit because it misconstrues the evidence. Bowden urges here that there is no evidence he committed murder because all the evidence showed the victim was dead before he stabbed her; but this is irrelevant because she died from blows on the head and his confession which went to the jury included his statement that he hit her twice with his gun before stabbing her. This enumeration is frivolous.

12. Enumeration 12 is without merit for the reason stated by the habeas court.

13. Enumeration 13 is without merit because it is founded on two cases, Futch v. State, 90 Ga. 472, 481, 16 S.E. 102 (1892) and Owens v. State, 120 Ga. 296, 48 S.E. 21 (1904), which involved incriminating statements which contained legal excuse or justification; Bowden's statement did not.

14. The sentencing charge meets our test under Spivey v. State, 241 Ga. 477, 246 S.E.2d 288 (1978) and enumeration of error 14 alleging error in this respect is without merit.

15. Enumeration of error 15 is similarly without merit. This enumeration has three parts:

A. The transcripts show that although, as Bowden contends, the defense attorney was not given written notice of the former convictions which the state intended to introduce in aggravation against him, he did receive the "clear notice" required by our decisions construing Code Ann. § 27-2503(a). See Potts v. State, 241 Ga. 67, 83-84, 243 S.E.2d 510 (1978); Hewell v. State, 238 Ga. 578, 234 S.E.2d 497 (1976); Gates v. State, 229 Ga. 796, 194 S.E.2d 412 (1972).

B. Bowden asserts that he was not given "adequate notice" that the state would seek the death penalty. Bowden's habeas attorney admitted that no law requires the state to notify a defendant that it will seek the death penalty. Moreover, his trial attorney testified at the habeas hearing that he had been told by the district attorney shortly after the arraignment that the state would push for a death sentence. This argument is groundless.

C. Bowden's final argument under this enumeration is that prior to trial the state must serve on defendant a written notice of which of the aggravating circumstances listed under Code § 27-2534.1 the state intends to try to prove, and that this notice is required by due process and by Code Ann. § 27-2503.

We disagree. We know of no authority requiring such a result under due process concepts. For example, aggravating circumstances need not be alleged in an indictment. Dungee v. Hopper, 241 Ga. 236, 244 S.E.2d 849, supra.

Considering Code § 27-2503(a), that section states in pertinent part, "Provided, however, that only such Evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible (in the presentence hearing in death cases)." (Emphasis supplied.) Here, at Bowden's presentence hearing, no Evidence was introduced except Bowden's prior record, notice of which to defendant we have held adequate, supra. Therefore, the argument sought to be made under this statute has no relevance to Bowden. However, because the argument could at some time be raised on behalf of other defendants, we note here that Code Ann. § 27-2503 concerns Notice of evidence which is being admitted for the first time at a Presentence hearing, and has absolutely nothing to do with the idea of giving Notice of an attempt to prove aggravating circumstances during the Guilt phase of...