Godfrey v. Francis

• Citation: 308 S.E.2d 806,251 Ga. 652
• Decision Date: 04 November 1983
• Docket Number: No. 39843,39843
• Court: Supreme Court of Georgia
• Parties: GODFREY v. FRANCIS.

Page 806

308 S.E.2d 806

251 Ga. 652

GODFREY v. FRANCIS.

No. 39843.

Supreme Court of Georgia.

Nov. 4, 1983.

Rehearing Denied Nov. 29, 1983.

Ellen Kreitzberg, Washington, D.C., Joseph M. Nursey, Atlanta, for Robert Franklin Godfrey.

Michael J. Bowers, Atty. Gen., Mary Beth Westmoreland, Asst. Atty. Gen., for Robert Francis, Warden.

SMITH, Justice.

This is a habeas corpus case. Robert Franklin Godfrey shot and killed his wife and mother-in-law and struck his daughter with the same shotgun. He was convicted of murder and aggravated assault and received two sentences of death. We affirmed in Godfrey v. State, 243 Ga. 302, 253 S.E.2d 710 (1979). The two death sentences were subsequently vacated by the United States Supreme Court. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). On remand, this court directed that the case be sent back to the trial court for either imposition of a life sentence or for a resentencing trial. Godfrey v. State, 246 Ga. 359, 274 S.E.2d 339 (1980). A second sentencing trial was held in Polk County Superior Court and Godfrey was again sentenced to death. On direct appeal, we concluded that the two statutory aggravating circumstances, the murders of the two women, were mutually supporting, vacated the death penalty for the murder of his wife Mildred Godfrey, and affirmed the sentence of death for the murder of Chessie Wilkerson, his mother-in-law. Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422 (1981). Godfrey then filed for a writ of habeas corpus, which was denied. We subsequently granted his application for probable cause to appeal. We affirm. A detailed statement of the facts in this case may be found at Godfrey v. State, 243 Ga. 302, 253 S.E.2d 710 (1979).

1. In his first enumeration Godfrey contends that he did not receive effective assistance of counsel, in that no challenge to the traverse jury pool was filed and the challenge to the composition of the grand jury was not timely filed. The habeas court found as a fact that prior to Godfrey's first trial, counsel filed numerous motions and that among them was a challenge to the composition of the grand jury. This motion was dismissed as untimely because Godfrey had already been indicted. This dismissal was upheld on direct appeal. Godfrey v. State, 243 Ga. 302, 305, 253 S.E.2d 710.

It was the rule in Georgia at the time of Godfrey's indictment that a challenge to composition of the grand jury must be filed prior to the return of the indictment or it will be deemed waived. ¹ Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975), cert. denied, 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1975). A challenge cannot be asserted as a ground for writ of habeas corpus, unless it is shown in the petition that cause exists for being allowed to pursue the objection to the grand jury's composition after the conviction and sentence have otherwise become final. OCGA § 9-14-42(b) (Code, § 50-127). Under federal law a showing of actual prejudice is required, as well as a showing of cause, to allow the untimely challenge. Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Lumpkin v. Ricketts, 551 F.2d 680 (5th Cir.1977). Where no cause is shown, mere allegation that a jury challenge was not timely filed will not support a claim of ineffective assistance of counsel. Zant v. Gaddis, 247 Ga. 717(3), 279 S.E.2d 219 (1981).

Godfrey submits evidence to support this enumeration in the form of an affidavit containing unanalyzed data as to composition of the grand jury array. This data on its face neither confirms nor contravenes his contention. He asserts that he has thus established cause in that it is likely that his timely motion challenging the composition of the grand jury would have succeeded. However, he has not shown cause as contemplated by the statute and the cases interpreting it and Godfrey cites no authority in support of his contention. Therefore we find that Godfrey has not shown cause why he should be allowed to proceed with an untimely challenge to the composition of the grand jury.

As to the traverse jury question, Godfrey's counsel testified that he considered a challenge but he believed that it would be dismissed and thus unsuccessful. Appellant has not presented any evidence to support a contrary conclusion and merely alleges that the traverse jurors were selected by a discriminatory system which disproportionately excluded blacks, women and persons aged 18 to 30. The habeas court found that counsel's failure to file a challenge to the traverse jury was a tactical decision. We cannot find that this was a clearly erroneous result. Hawes v. State, 240 Ga. 327, 329, 240 S.E.2d 833 (1977). Neither defense counsel's failure to timely challenge the composition of the grand jury nor his tactical decision not to challenge the traverse jury array resulted in denial of Godfrey's Sixth and Fourteenth Amendment right to effective assistance of counsel. Hudson v. State, 250 Ga. 479(8), 299 S.E.2d 531 (1982). We find no merit in this enumeration.

2. Godfrey enumerates as error issues raised and reviewed by this court on direct appeal in his enumerations numbered 2, 4-8, 11, 16, 18, 20, and 21. These issues will not be considered again on this appeal from denial of a petition for a writ of habeas corpus. Zant v. Campbell, 245 Ga. 368, 265 S.E.2d 22 (1980), cert. denied, 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 118 (1981).

3. In his third enumeration Godfrey asserts that the trial court's charges to the jury concerning the elements of intent and malice impermissibly shifted the burden of proof to him, contrary to the rule established in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d (1979). At Godfrey's trial on the issue of guilt, the court instructed the jury: "the acts of a person of sound mind and discretion are presumed to be the product of a person's will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted." Godfrey contends that the instruction was unconstitutional because it permitted the jurors to conclude that they could find the requisite element of intent unless appellant provided more than some evidence to the contrary, thereby shifting the burden of proof of this element to appellant.

In Hosch v. State, 246 Ga. 417, 271 S.E.2d 817 (1980), decided after Godfrey's trial and conviction, we examined a similar although not identical charge: "I charge you that the law presumes that a person intends to accomplish the natural and probable consequences of his acts, and if a person uses a deadly weapon or instrumentality in the manner in which such weapon or instrumentality is ordinarily used and thereby causes the death of a human being, the law presumes the intent to kill. These presumptions may be rebutted." Id. at 419, 271 S.E.2d 817. We found that although this charge was not error, we disapproved its continued use. "Absent explanatory language the charge should not be cast in terms of the 'the law presumes,' a phrase which, standing alone, as the U.S. Supreme Court has pointed out in Sandstrom, supra, is subject to misinterpretation by the jury." Id. at 420, 271 S.E.2d 817. Our approved charge on intent substitutes "you may infer," for language stating a presumption. However, as we said in Hosch, no conclusive presumption is charged when the jury is also adequately instructed that the presumption may be rebutted. See OCGA § 16-2-5 (Code, § 26-604); Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442 (1983). In view of the trial court's charges on the presumption of innocence, the burden of proof, reasonable doubt, and intent as a jury question, we find that the jury could not have interpreted the charge as shifting the burden of persuasion to Godfrey. Johnson v. State, 249 Ga. 621(1), 292 S.E.2d 696 (1982). Where, as here, instruction on rebuttal is incorporated into the charge, the burden of persuasion on the element of intent is not shifted to the accused in violation of the Fourteenth Amendment's due process requirement that the state prove every element of a crime beyond a reasonable doubt.

As to malice, the trial court charged: "Express malice is that deliberate intention unlawfully to take away the life of a fellow creature which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart." Godfrey contends that this instruction violates due process, in that the jury may have concluded that the implication of malice was mandatory or that Godfrey had to prove lack of malice. We have previously examined and approved this charge. See Franklin v. State, 245 Ga. 141(9), 263 S.E.2d 666 (1980).

4. In his ninth enumeration, Godfrey contends that the trial court failed to timely determine his status as an indigent and thus violated his right to due process of law and effective assistance of counsel. Godfrey was arrested on September 21, 1977. Counsel was appointed the next day, pending a determination of his indigency, which was resolved on December 22, 1977. He was tried beginning March 6, 1978. Godfrey was represented by counsel from the day after his arrest and throughout the period leading up to and including his trial. There is no merit in this enumeration.

5. In his tenth enumeration, Godfrey complains that the compelled pretrial psychiatric and psychological examinations conducted without presence of counsel violated his right against self-incrimination protected under the Fifth and Fourteenth Amendments and his right to counsel under the Sixth Amendment, citing Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). He also contends that he was entitled to, but was not given, a separate Miranda warning prior to the psychiatric interview.

Prior to Godfrey's first trial, ...