Hawes v. State

Citation240 Ga. 327,240 S.E.2d 833
Decision Date28 November 1977
Docket NumberNo. 32167,32167
PartiesGary Lee HAWES v. The STATE.
CourtGeorgia Supreme Court

Tom W. Thomas, Adel, Millard C. Farmer, Jr., Atlanta, for appellant.

Vickers Neugent, Dist. Atty., Pearson, Arthur K. Bolton, Atty. Gen., B. Dean Grindle, Jr., Asst. Atty. Gen., Atlanta, for appellee.

MARSHALL, Justice.

The appellant was convicted of murder, armed robbery, aggravated assault, and possession of a firearm during the commission of a felony. He received a death sentence for the murder conviction, a life imprisonment sentence for the armed robbery conviction, and a ten-year sentence for the aggravated assault conviction. The trial judge set aside the conviction of possession of a firearm during commission of a felony as a lesser included offense.

This case is here on direct appeal and for mandatory review of the death sentence imposed.

I. Summary of the Evidence.

The state presented evidence from which the jury was authorized to find the following:

The appellant and one of the accomplices to this crime, Eddie Maurice Hawes, were observed in the Big J. Supermarket in Homerville, Georgia, at approximately noon on April 20, 1976. They were standing at the checkout counter. The appellant, the shorter of the two, was holding a pair of gloves. His accomplice had a six-pack of malt liquor.

Two customers in the store left, but before reaching their car they heard two gunshots. The appellant and his companion were then seen running from the store. The appellant was putting a pistol in his pocket, and his taller companion was clutching a money bag with both hands. They fled in a maroon and white car driven by a third accomplice.

The first gunshot was fired into the chest of Stephen Michael Johnson, the clerk working behind the checkout counter. He was killed. The second shot was fired at Roy Metts, the assistant manager of the supermarket. He was not, however, injured.

The perpetrators were quickly traced to the home of Jo Ann Addison, the appellant's cousin. Police officers went to her home to investigate. They heard movements within the home but received no response to their knocking on the door and requests to enter. They forcibly entered the Addison home and found the appellant and the two accomplices inside.

The three of them were taken outside and placed in police cars. One police officer then reentered the Addison home to search for a fourth possible suspect and to secure the house from people milling about the premises. Inside the house lying on the floor he found the money bag taken from the Big J. Supermarket, together with a large sum of money. Also found on the floor was a .38 Smith and Wesson revolver shown to have fired the bullet killing the deceased.

II. Enumerations of Error.

1. The first enumeration of error alleges that, "the convictions and sentence of death must be vacated because the appellant was afforded inadequate representation by court-appointed counsel in violation of Georgia Constitution and the Sixth and Fourteenth Amendments to the United States Constitution."

The record shows only the following with respect to the qualifications of the appellant's legal counsel at trial: The appellant's court-appointed counsel of record had approximately five years of experience in the general practice of law; assisting him were two other attorneys, one with 25 years' experience and the other with 30 years' The defendant's appellate counsel asserts various omissions on the part of the defendant's trial counsel in his conduct of the proceedings below, and he argues that their cumulative impact amounted to ineffective assistance of counsel.

experience in the practice of law. All of them are members in good standing of the Bar.

Among these are a failure to file a motion to suppress evidence, failure to cross examine key state's witnesses as to their credibility and reliability, objections limited mostly to introduction of photographic evidence not essential to the state's case, failure to request a charge on circumstantial evidence, and inadequate closing argument. The appellant also complains of his trial counsel's failure to interview witnesses testifying on behalf of a motion for change of venue and failure to raise the issue of the composition of the grand and traverse juries.

However, the record shows that the appellant's trial counsel did take the following actions in his defense: demand for a copy of indictment and list of witnesses, motion for the defendant to be administered a psychological examination, motion to compel disclosure in the nature of a Brady motion, motion for individual voir dire and sequestration of jurors during voir dire, motion to sever, motion for change of venue (three witnesses being called to testify in support of the motion), and repeated objections to the introduction of evidence and various testimony of witnesses at trial.

In the landmark decision of MacKenna v. Ellis, 280 F.2d 592 (1960), the 5th Circuit Court of Appeals abandoned the traditional sham, farce, or mockery-of-justice standard for determining the effectiveness of counsel, and recognized the constitutional right to assistance of counsel as meaning "not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." Id. at 599. In Pitts v. Glass, 231 Ga. 638, 203 S.E.2d 515 (1974), this court adopted the standard for determining the effectiveness of counsel enunciated in MacKenna, supra.

What does the right to reasonably effective assistance of counsel guarantee the defendant in a criminal trial? "When inadequate representation is alleged, the critical factual inquiry ordinarily relates to . . . whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy." Brubaker v. Dickson, 310 F.2d 30, 32 (9th Cir. 1962). "Effective assistance does not mean that a defendant is entitled to have the best counsel appointed, or any particular counsel, but it does mean that he must have such assistance as will assure him due process of law." Pineda v. Bailey, 340 F.2d 162 (5th Cir. 1965).

"The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client." Reid v. State, 235 Ga. 378, 379, 219 S.E.2d 740, 742 (1975), quoting ABA standards, relating to the Adm. of Crim. Justice (1974), the Defense Function, § 5.2(b).

Applying these legal standards to the facts and circumstances of the present case as found in the record before us, we cannot say that the defendant was denied his constitutional right to assistance of counsel. See Adams v. State, 236 Ga. 468, 224 S.E.2d 32 (1976); Dobbs v. State, 235 Ga. 800, 221 S.E.2d 576 (1976).

Enumeration of error 1 is without merit.

2. Enumeration of error 2 is controlled by Division 1, supra, and is also without merit.

3. The third enumeration of error alleges that the trial court erred in not charging, in the absence of a request to charge, on the law of circumstantial evidence.

As provided in Code § 38-109, "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused."

However, even in a case which is wholly dependent on circumstantial evidence, if from the proved facts only one reasonable hypothesis presents itself, i. e., that the defendant is guilty of the offense charged, then a failure to charge under the prior Code section does not furnish cause for a new trial. See Germany v. State, 235 Ga. 836, 221 S.E.2d 817 (1976). Stated somewhat differently, a failure to charge on circumstantial evidence is considered harmless error if the case is not close or doubtful.

The evidence of the defendant's guilt in this case is circumstantial. However, the proved fact that the defendant and his accomplice were seen at the checkout counter of the supermarket immediately before the robbery-murder occurred, together with the proved fact that the defendant was seen running out of the store stuffing a gun into his trousers immediately after the robbery-murder occurred, leads almost irresistibly to the inference that the defendant was involved in the commission of these crimes.

The case was not, therefore, close or doubtful. The charge on the state's duty to establish the defendant's guilt beyond a reasonable doubt was full and fair. From the evidence introduced at trial, there appeared no reasonable hypothesis save that the defendant was guilty of the offenses charged. See Justice Hill's special concurrence in Nance v. State, 239 Ga. 381, 236 S.E.2d 752 (1977). Hence, the failure of the trial court to charge on circumstantial evidence did not constitute reversible error under the facts of this case.

4. Enumeration of error 4 contends that the trial court erred in disqualifying a prospective juror upon the following statements made by her concerning her opposition to the death penalty: "DISTRICT ATTORNEY: Are either of you conscientiously opposed to capital punishment? If so, please stand. JUROR STANDS. DISTRICT ATTORNEY: Your name is Mrs. Wilson (Marrie Ruth Wilson). MRS. WILSON: That's right. DISTRICT ATTORNEY: Mrs. Wilson, I'd like to ask you one additional question and that is, would you because of your conscientious objection to capital punishment, refuse to vote for the death penalty in this case, under any circumstances, regardless of the facts that might be proved by the evidence in the...

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