Ferguson v. Caldwell

• Decision Date: 04 March 1975
• Docket Number: No. 29347,29347
• Parties: Billy Homer FERGUSON v. E. B. CALDWELL.
• Court: Georgia Supreme Court

Page 855

213 S.E.2d 855

233 Ga. 887

Billy Homer FERGUSON v. E. B. CALDWELL.

No. 29347.

Supreme Court of Georgia.

March 4, 1975.

Walter H. Wingfield, Atlanta, for appellant.

Arthur K. Bolton, Atty. Gen., David L. G. King, Jr., Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

INGRAM, Justice.

This is habeas corpus appeal from Tattnall Superior Court presenting two major issues for decision: (1) whether certain evidence used in appellant's 1962 trial and conviction for murder in Douglas Superior Court was obtained as the result of an unlawful search and seizure; and (2), whether appellant was indicted by a grand jury and convicted by a petit jury from which blacks had been systematically excluded. The trial court decided adversely to appellant on both issues and we affirm its judgment.

This case has proceeded through a long journey of trials and appeals. The trial court's order traces the history of those various proceedings and we incorporate this part of it for background reference to the present appeal.

'Petitioner was tried for first degree murder by the Superior Court of Douglas County, Georgia on September 23-24, 1958, which resulted in a verdict of guilty without a recommendation of mercy. The judgment was affirmed by the Georgia Supreme Court in Ferguson v. State, 215 Ga. 117, 109 S.E.2d 44 (1959). The United States Supreme Court reversed in Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961), on the ground that the trial court committed error in prohibiting Ferguson's counsel from questioning him in order to elicit his unsworn statement.

'Petitioner was tried again in the Superior Court of Douglas County on September 2-4, 1961. He was again convicted without recommendation of mercy and, on appeal, the Supreme Court of Georgia reversed for reasons unrelated to present petition. Ferguson v. State, 218 Ga. 173, 126 S.E.2d 798 (1962).

'Petitioner was again tried on September 24-26, 1962, for first degree murder on original indictment and was found guilty without a recommendation of mercy, and petitioner was sentenced to death by electrocution. This conviction was affirmed on appeal by the Supreme Court of Georgia, Ferguson v. State, 219 Ga. 33, 131 S.E.2d 538, and certiorari was denied by the United States Supreme Court. Ferguson v. Georgia, 375 U.S. 913, 84 S.Ct. 210, 11 L.Ed.2d 152 (1963).

'On April 1, 1964, petitioner filed an extraordinary motion for new trial in the Superior Court of Douglas County on the ground that counsel had discovered new evidence material to the case. The Superior Court, after hearing, denied the motion on April 17, 1964. On appeal, the denial was affirmed by the

Supreme Court of Georgia. Ferguson v. State, 220 Ga. 364, 138 S.E.2d 881 (1964). The Supreme Court of the United States denied certiorari. Ferguson v. Georgia, 381 U.S. 905, 85 S.Ct. 1451, 14 L.Ed.2d 286 (1965).

'On August 16, 1965, Ferguson filed a petition for habeas corpus in the City Court of Reidsville, Georgia, alleging several errors in the 1962 trial of his case. The respondent filed a return and answer denying all material allegations of the petition and interposed a plea of res judicata which was sustained by the City Court of Reidsville. On appeal, the Georgia Supreme Court affirmed. Ferguson v. Balkcom, 222 Ga. 676, 151 S.E.2d 707 (1966).

'Petitioner then brought a petition for habeas corpus in the Federal Court under 28 U.S.C. § 2254. The original petition was filed March 3, 1967, in the United States District Court for the Southern District of Georgia, Savannah Division, Civil Action No. 2112. Subsequently, on motion, the case was transferred to the Northern District of Georgia, Atlanta Division, in accordance with 28 U.S.C. § 2241(d).

'The Federal Habeas Corpus petition, as amended, alleged that petitioner's constitutional rights were violated because the pistol, billfold, and confession were admitted into evidence at his 1962 trial in violation of his rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. Petitioner further alleged that he was convicted in violation of his rights the Fourteenth Amendment to the United States Constitution because he was indicted by a grand jury and tried by a petit jury from which Negroes had been systematically excluded. The Federal District Court denied Ferguson's petition. The two important issues considered were: (1) whether an alleged consent given by Ferguson to a search of his room was effective to support not one but two searches of his room during the day even though the investigating officers did not inform Ferguson that they were going to make a second search and did not obtain a separate consent to that search, and (2) whether the constitutional rights of Ferguson, a white man, to due process of law and an impartial jury were violated by indictment and trial by juries which did not represent a fair cross-section of the community because of the systematic exclusion of Negroes.

'Thereafter, petitioner appealed the judgment of the United States District Court for the Northern District of Georgia to the United States Court of appeals for the Fifth Circuit. The Court of Appeals, in an opinion dated March 21, 1973, concluded that Ferguson had not first presented the question of systematic exclusion of Negroes to the State Courts and that the case should be remanded to the District Court in order to permit Ferguson to file a proceeding in the appropriate Georgia court raising such question. The Fifth Circuit made no ruling on Ferguson's contentions regarding the admissibility of the evidence obtained as a result of the search. See Ferguson v. Dutton, 477 F.2d 121 (5th Cir., 1973).

'Pursuant to this decision, the United States District Court for the Northern District of Georgia entered an order dated May 11, 1973, requiring Ferguson to file an application for writ of habeas corpus in the Georgia courts alleging that he had been deprived of his rights under the Fourteenth Amendment to the Constitution of the United States by reason of the systematic exclusion of Negroes from the grand jury which indicted him and the petit jury which convicted him.

'The present petition was filed pursuant to the District Court's order of May 11, 1973. In addition to raising the systematic exclusion question, the petition also presents the question of the validity of the second search of Ferguson's room at which the pistol and billfold were discovered and the discovery of which proximately resulted in his alleged confession. This issue is presented in view of the District Court's order of February 26, 1971, that Ferguson had not exhausted his state remedies with respect to such issue as required by 28 U.S.C. § 2254.'

Appellant's brief recites that 'in May, 1974, he was placed on parole by order of the State Board of Pardons and Paroles.' This presents the threshold question of whether this appeal is moot. The habeas corpus complaint filed in the trial court alleges only an illegal detention and imprisonment, and appellant has now been freed from this physical restraint. Nevertheless, we take judicial notice that appellant is still subject to restrictions and limitations on his freedom as he is legally confined by the terms of his parole. A violation of the terms of the parole by appellant would result in the revocation of his parole with reconfinement ensuing therefrom. If the constitutional issues raised in this proceeding are determined favorably to appellant, he is entitled to have his conviction set aside. Consequently, his cause cannot be considered moot simply because he is now on parole. Morgan v. Kiff, 230 Ga. 277, 196 S.E.2d 445 (1973).

We move on to consider appellant's first enumerated error, that there was an illegal search and seizure which invalidates his 1962 conviction for murder.

The record of appellant's trial shows that the investigating officers made two warrantless searches of his rented room. The evidence also shows that after arrest and during interrogation, appellant gave his consent to a search of his residence to prove his innocence. This search apparently took place between 11:00 and 11:30 a.m. on the day of the arrest. There was no evidence presented at appellant's trial as a result of that search.

The transcript discloses that another search of appellant's residence took place later that same day between 3:00 and 3:30 p.m. In this second search, a billfold and pistol were discovered above the ceiling (through a trap door) of the closet in appellant's room. These were both later identified as belonging to the homicide victim, Luke Brown. This evidence was taken to the jail where appellant was being interrogated and, after being confronted with it, he made an oral confession which was later reduced to writing and signed by appellant. This evidence and the two confessions were admitted at trial and are the bases of this enumeration of error.

Appellant argues that the uncontroverted evidence clearly establishes that the investigating officers did not have his consent to...