Crawford v. Linahan
| Decision Date | 15 February 1979 |
| Docket Number | No. 34312,34312 |
| Citation | 243 Ga. 161,253 S.E.2d 171 |
| Parties | CRAWFORD v. LINAHAN. |
| Court | Georgia Supreme Court |
Robert C. Kates, Athens, for appellant.
Arthur K. Bolton, Atty. Gen., Harrison Kohler, Asst. Atty. Gen., for appellee.
Leland Linahan, pro se.
The habeas corpus petitioner was convicted in Coweta Superior Court of murder and cruelty to a child, receiving consecutive sentences of life and five-years' imprisonment. The basis of her petition is the allegation that, as an indigent, she had been unaware of her absolute right to the free assistance of appointed counsel to make an appeal for her and that her appointed attorney, David Rutledge, rendered ineffective appellate assistance of counsel by failing to prosecute her appeal. There is no allegation of violation of her constitutional rights or ineffective assistance of counsel at the trials.
At the habeas corpus hearing, the petitioner testified that neither the trial judge nor her court-appointed trial counsel had informed her of her right of appeal, yet she had had counsel come to the jail where she was incarcerated, on the day after her second conviction, and told him she wanted to appeal. Counsel purportedly replied that he didn't have time, and had to carry his boy to a baseball game, and left after about two minutes. In response to her repeated requests to see him, she testified, he returned to the jail, but didn't see her, merely leaving a note, saying, "I'm sorry, I can't make it." One of the petitioner's sisters, Sara Crawford, testified that she had visited the petitioner about three times after her conviction; that each time, the petitioner said she wanted an appeal; that, in compliance with the petitioner's request, she had told her counsel that the petitioner wanted to appeal, to which he had replied that the petitioner didn't want an appeal, that they had too much evidence against her, and that if they gave her another trial he didn't know what the outcome would be. She testified that she had not told the petitioner what her counsel had said to her. Another sister, Mable Head, testified that she had also visited the petitioner in jail about three times and had also heard her indicate her wish to appeal. She testified that she had never talked to the petitioner's counsel, and both sisters testified that they were never present when the petitioner and her counsel were discussing her case.
In rebuttal of the above testimony, the habeas corpus court received in evidence, over the petitioner's objections, the sworn affidavit of her court-appointed trial counsel, to the following effect: that he is presently a resident of the State of Texas; that, immediately after the trials, he had told the petitioner "about an appeal," that he would appeal her case, that he would be paid by the county, that a successful appeal would result in a new trial, and that she had nothing to lose by filing an appeal; that when he visited the petitioner in jail several days later at her request, she told him that someone had told her that her husband had been seen at the scene of the crime the night the victim had been killed; that he had told her that they could bring this newly discovered evidence to the attention of the court, but that it would implicate her husband; that, although he had advised her to go ahead with her appeal, she said she did not want to appeal; that after the time for appeal had expired, he received a telephone message that the petitioner wished to appeal her murder conviction.
In his order denying the writ of habeas corpus, the judge noted that the facts were in sharp conflict, but that, after observing the petitioner's demeanor and hearing her testimony, he found her not to be credible, chose to credit the "testimony" of her court-appointed trial counsel, and found that she had been advised of her right to appeal and to have appointed counsel on appeal, but had chosen not to appeal until the time for filing a notice of appeal had already run. The petitioner appeals.
1. The first enumeration of error is that the habeas corpus court's reliance on subsections (a) and (c) of Code Ann. § 50-127(7) () in admitting in evidence over the appellant's objection the ex parte affidavit of her court-appointed trial counsel, unconstitutionally deprived her of a right to a hearing on her petition.
Subsection (a) of the statute provides: "The court may receive proof by depositions, oral testimony, sworn affidavits, or other evidence." Subsection (c) provides: (Emphasis supplied.)
In passing on the constitutionality of the above statute vis-a-vis the instant proceeding, it is necessary to review some of the aspects of habeas corpus law. "(T)he Civil Practice Act applies to habeas corpus proceedings insofar as questions arise therein regarding the sufficiency of pleadings, the admissibility of evidence under the petition as drawn, amendments, and those other elements of pleading and practice enumerated in § 81 of the Act as amended." Johnson v. Caldwell, 229 Ga. 548, 552, 192 S.E.2d 900, 903 (1972). "General rules of evidence controlling the weight and sufficiency thereof apply in habeas corpus proceedings, as, for example, with regard to the determination of such issues and matters, among others, as deprivation of constitutional privileges . . ." 14 EGL 151, Habeas Corpus, § 43 (1978 Rev.). "The burden is on the applicant to make out his case, that is, to prove to the satisfaction of the habeas corpus judge that the alleged violation of his constitutional rights did, in fact, occur." Sims v. Smith, 228 Ga. 136, 137, 184 S.E.2d 347, 348 (1971) and cits.; Jones v. Leverette, 230 Ga. 310, 311, 196 S.E.2d 885 (1973). This burden is to be carried by the preponderance of evidence. Walker v. Johnston, 312 U.S. 275(5), 61 S.Ct. 574, 85 L.Ed. 830 (1941). 14 EGL 151, Habeas Corpus, § 42 (1978 Rev.) and cits.; Parrott v. State, 134 Ga.App. 160(1), 214 S.E.2d 3 (1975). It has also been held that a strong presumption obtains that defense counsel was competent, and that a movant for postconviction relief bears the burden of proving otherwise. Walker v. State, 567 S.W.2d 398 (Mo.App.1978).
It should be noted that Code § 50-114 provides that the hearing may be done "in a summary manner." Even under federal habeas corpus law, the allegations of a prisoner that he had requested his counsel to appeal and that counsel had failed to do so do not require a full-scale evidentiary hearing in open court with the prisoner present on a motion to vacate the sentence. Walters v. Harris, 460 F.2d 988 (4th Cir. 1972), cert. den. 409 U.S. 1129, 93 S.Ct. 947, 35 L.Ed.2d 262 (1973). Moreover, even though the petitioner was permitted to testify here, McIntyre v. Balkcom, 229 Ga. 81(1), 189 S.E.2d 445 (1972). The court went on to hold in McIntyre, supra, that even if the key witness was not present to testify at the habeas corpus hearing, Even if the respondent fails to file a timely answer as required by Code Ann. § 50-127(6), this does not provide grounds for release of the prisoner. Gooding v. Dudley, 232 Ga. 321, 324, 206 S.E.2d 490 (1974). Since the above results are true, it follows that the habeas corpus judge, as the trier of fact, could have rejected the petitioner's testimony as a whole and denied her petition even if the respondent had neither filed an answer nor the affidavit or other evidence. Thus, even assuming that the affidavit was not admissible for the determination of the disputed fact issues, the judge as the trier of fact can sift the wheat from the chaff and select the legal evidence, and his judgment will not be reversed where there is any legal evidence to support it. Lester Colodny Const. Co. v. Allen, 129 Ga.App. 545, 546, 199 S.E.2d 917 (1973) and cit.
This is not to say that a habeas corpus petitioner cannot produce rebuttal evidence in the form of depositions, oral testimony, sworn affidavits, or other evidence, such as written interrogatories. Indeed, Code § 50-114 provides that the habeas corpus judge "may compel the attendance of witnesses, the production of papers, or may adjourn the examination of the question, or exercise any other power of a court which the principles of justice may require." However, this being a civil proceeding, the petitioner, though indigent, was not entitled to have witnesses (or other evidence) at public expense, appointed counsel, or the assistance of lay counsel, appointed or otherwise. Green v. Caldwell, 229 Ga. 650, 651 (1, 2, 3), 193 S.E.2d 847 (1972).
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