Byrd v. Hopper

• Decision Date: 20 October 1975
• Docket Number: Civ. A. No. C75-1128A.
• Citation: 402 F. Supp. 787
• Parties: Charles H. BYRD v. Warden Joseph S. HOPPER.
• Court: U.S. District Court — Northern District of Georgia

402 F. Supp. 787

Charles H. BYRD v. Warden Joseph S. HOPPER.

Civ. A. No. C75-1128A.

United States District Court, N. D. Georgia, Atlanta Division.

October 20, 1975.

James C. Bonner, Jr., Thomas M. West, Prisoner Legal Counseling Project, University of Georgia School of Law, Jackson, Ga., for petitioner.

Lois F. Oakley, Asst. Atty. Gen., Atlanta, Ga., for respondent.

ORDER

O'KELLEY, District Judge.

This action is before the court on the petitioner's and the respondent's cross motions for judgment on the pleadings or in the alternative for summary judgment in this habeas corpus action. The petitioner was convicted of motor vehicle theft in the Superior Court of Troup County and sentenced to five years imprisonment; he did not take a direct appeal of the conviction but filed a state habeas corpus petition which was denied, and the Georgia Supreme Court affirmed that denial with two justices dissenting. Byrd v. Hopper, 234 Ga. 248, 215 S.E.2d 251 (1975). The petitioner contends that he was denied due process when the state trial judge charged the jury concerning the effect of his possession of a recent stolen vehicle as follows:

Now, Ladies & Gentlemen of the Jury, if you find that the offense alleged in the indictment was committed by someone, and that very soon thereafter, that the whole or any part of it, of the goods so taken at the time of the offense was committed, if any offense was committed, was found in the recent possession of the Defendant, such possession, if not satisfactorily explained, consistent with his innocence, raises the presumption of guilt and it would authorize you to identify the Defendant as the guilty party and to convict him of the crime as charged. The presumption of guilt, however, is one of evidence and not of law, and may be rebutted by proof satisfactory to the Jury.

In the appeal of his state habeas corpus, the Georgia Supreme Court recognized that the charge was not an altogether proper one and that the wording should have been couched in terms of a permissible inference instead of a presumption; however, that court felt that this portion of the charge "did not so infect the entire proceedings as to render the resulting conviction void on due process grounds." 234 Ga. at 251, 215 S.E.2d at 254.

Now the petitioner comes to this court with his habeas corpus petition. In reviewing a jury charge from a state court in a case such as this, the court must not look at the charge complained of alone but must look at it in view of the overall charge. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); Boyd v. United States, 271 U.S. 104, 46 S.Ct. 442, 70 L.Ed. 857 (1926). This court also has a strictly limited scope of review of such a charge so that relief can be granted only where the charge is so arbitrary and oppressive that it renders the trial fundamentally unfair. Bassett v. Smith, 464 F.2d 347 (5th Cir. 1972); Smith v. Smith, 454 F.2d 572 (5th Cir. 1971). In Cupp v. Naughten, supra, the Supreme Court characterized this review as follows:

Before a federal court may overturn a conviction resulting from a state trial in which this instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.

414 U.S. at 146, 94 S.Ct. at 400. It has long been an established principle that a defendant enters into a trial carrying with him a presumption of innocence, and in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the Court expressly held that the due process clause of the fourteenth amendment requires the state to prove guilt beyond a reasonable doubt in a criminal prosecution. Accordingly, if this court were to conclude that the charge in the present case had the effect of lessening this stringent burden, then the charge would fall within that category delineated by the Supreme Court in Cupp v. Naughten where a federal court may overturn a conviction based on a trial court's instructions to the jury.

In upholding the denial of the petitioner's state habeas corpus, the Georgia Supreme Court relied on Georgia decisions holding that the use of the words "presumption of guilt" in a charge is not necessarily erroneous since a "presumption of fact" is synonymous with an "inference" under Georgia law. While the law in Georgia is not totally clear on the question of the use of the "presumption of guilt" in a charge compare the charge held erroneous in Lewis v. State, 120 Ga. 508, 48 S.E. 227 (1904) with one upheld in Barber v. State, 61 Ga.App. 578, 6 S.E.2d 797 (1940), it appears that the distinction drawn by the Georgia courts is that it is erroneous to charge that the law raises a presumption of guilt from recent possession while it is not erroneous to charge that recent possession raises a presumption of guilt. See Cook v. State, 49 Ga.App. 86, 174 S.E. 195 (1934). Apparently, little or no consideration is given as to how a jury would view the charge. Compare Barfield v. United States, 229 F.2d 936, 940 (5th Cir. 1956). Whatever the rule in Georgia is on this matter, it is not determinative in this action, the question being whether the charge comports with the federal Constitution. In an analogous situation, in determining whether a particular inference was constitutionally acceptable, the Supreme Court stated that while a longstanding and consistent judicial approval of a particular instruction is an indication of its validity, such a historical basis "is not in itself sufficient to establish the instruction's constitutionality." Barnes v. United States, 412 U.S. 837, 844, 93 S.Ct. 2357, 2362, 37 L. Ed.2d 380 (1973). In the present case, the court notes that the present charge, and those similar to it, have been widely criticized by the Georgia courts. Byrd v. Hopper, 234 Ga. 248, 215 S.E.2d 251 (1975); Gravitt v. State, 114 Ga. 841, 40 S.E. 1003 (1902); Gaskin v. State, 119 Ga.App. 593, 595, 168 S.E.2d...