High v. Zant
| Decision Date | 01 March 1983 |
| Docket Number | No. 39371,39371 |
| Citation | 250 Ga. 693,300 S.E.2d 654 |
| Parties | HIGH v. ZANT. |
| Court | Georgia Supreme Court |
Joseph Nursey, Atlanta, Bradley S. Stetler, Graber, Stetler & Townsend, Alexandria, Va., Stephen B. Bright, D.C. Law Students in Court, Washington, D.C., for Jose Martinez High.
Michael J. Bowers, Atty. Gen., Virginia H. Jeffries, Staff Asst. Atty. Gen., for Walter D. Zant, Warden.
We granted a certificate of probable cause to consider High's contentions on writ of habeas corpus. For the factual background of the case see High v. State, 247 Ga. 289, 276 S.E.2d 5 (1981), where this Court affirmed the imposition of the death penalty; Brown v. State, 247 Ga. 298, 275 S.E.2d 52 (1981); and Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472 (1979), where we affirmed death sentences imposed upon High's co-actors.
1. High's principal contention, along with 24 other enumerations of error, is that he was denied effective assistance of counsel in that no witnesses were called on his behalf during the sentencing phase, notwithstanding his post-trial showing of the availability of witnesses who, after the trial, indicated their willingness to come forward in his aid.
His counsel, a member of the Bar for many years and a lawyer possessing wide experience in the defense of criminal cases, including capital cases, testified before the habeas corpus court that he and two assistants made an effort to locate witnesses, and inquired of High as to the availability of witnesses--without avail, either from their own investigation or from suggestions put forward by High. He further stated that he had determined not to call High's parents for fear that their distress might be perceived by the jury to be feigned.
In support of his contention, High presented to the habeas corpus court a series of affidavits from family, friends, neighbors, and former teachers, several of which are excerpted as follows:
"A gentle person...he never showed any cruelty to others." "Jose was desperate for attention and definitely begging for psychological counseling but we didn't even have a school psychologist."
Other affidavits showed that High was "a nice fellow and good neighbor," that he once helped a neighbor start a car, and that he cut the grass and took care of the dogs at his parents' home; that he was "polite," and a "normal regular teenager."
Having presented these affidavits, High contends that his counsel, in failing to produce at the trial equivalent testimony, was of necessity ineffective, notwithstanding counsel's relation of the matter.
Lest the total circumstance within the courtroom be overlooked at this remove, we quote from High, supra, at p. 297, 276 S.E.2d 5:
In our opinion affirming the conviction and death sentence of High's co-defendant, Ruffin v. State, supra, there appears at page 95, 252 S.E.2d 472 the following summation of fact: "In the late evening hours of July 26, 1976, Henry Lee Phillips was operating an Amoco service station off I-20 near Crawfordville, Georgia, with his eleven-year-old stepson, Bonnie Bulloch, helping him. A car pulled into the station with three occupants. The appellant and the two co-indictees, Nathan Brown and Jose High, were in the car. The car had been in the station a week or two earlier. The three men got out of the car and one pointed a pistol at Phillips. Appellant had a sawed-off shotgun. Phillips was forced to leave the booth while the appellant removed the money from the register and demanded any other money. When Phillips told him that there was no more money, the appellant grabbed Bonnie Bulloch and told Phillips to get in the car trunk or Phillips and the boy would be killed.
In viewing the contention of ineffectiveness of counsel, we cannot consider potential mitigation evidence in vacuo, any more than the trial jury might blot out what they have seen and heard for several days in the guilt phase, once they turn to consider sentence. Here, the jury learned of the execution-style killing of an eleven year-old child, whose only offense against High was that he was present when High and his companions robbed a service station, thereby committing the crime of becoming an involuntary witness. Here, the jury was exposed to the tragic death of a little boy, shot through the head after High had continued to ask and assure him High, supra, at p. 296, 276 S.E.2d 5. Here, the jury learned of a small child removed from a car, marched around the front of an automobile and forced to lie upon his face, as three murderers snuffed out his life. Here, the jury heard of High bragging that "he wanted to be the most famous black ringleader in the world."
Up against that, High's counsel is charged with derogation of duty in failing to call someone who would mount the stand to say that Jose was a normal teenager, or that he never talked to a school psychologist.
In the face of the monstrosity of what High did to eleven-year-old Bonnie Bulloch, we can easily understand the decision of an experienced defense lawyer who sees, with us, the hazard of deigning to present such transparencies.
The habeas corpus court found as a matter of fact that High's counsel rendered effective assistance, as do we.
2. High contends that the habeas corpus court erred in not admitting into evidence two affidavits in support of his claim of ineffective assistance. This contention is without merit, as the affidavits were not served upon the State five days in advance of the day set for hearing, as required by OCGA § 9-14-48(c) (Code Ann. § 50-127). Nevertheless, we have considered the affidavits and conclude that, even if they were properly in evidence, our holding in Division 1 would not be affected, as they are merely cumulative of other evidence which was considered by the habeas corpus court.
3. It was not error to exclude from the guilt-innocence phase of High's trial jurors who stated that they were conscientiously opposed to the imposition of the death penalty. Smith v. Balkcom, 660 F.2d 573, 578 (5th Cir.1981).
In particular, it was not error, under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1966), to exclude a juror who stated that, while she could consider capital punishment along with other possible punishments, she could never impose it, under any circumstances. See High, supra, at p. 291, 276 S.E.2d 5.
4. High contends that the trial court erred in failing to excuse for cause six jurors alleged to have preconceived notions of petitioner's guilt or the penalty to be imposed.
High argues that two of the jurors should have been excused due to their failure to understand the presumption of innocence in favor of the defendant. Neither juror actually served on the jury which convicted High. The basis for High's contention may be illustrated by excerpting a portion of the voir dire examination of juror Warren Johnson by defense counsel:
Mr. Johnson subsequently stated that his mind was perfectly impartial between the State and the accused, that he would want to hear "all the evidence," and that he could return a verdict of guilty or not guilty whether the defendant put up any evidence or not.
"In examining a prospective juror, counsel for the accused should not ask technical legal questions in regard to the presumption of innocence, but should confine his questions to those which may illustrate any prejudice of the juror against the accused, or any interest of the juror in the cause." McNeal v. State, 228 Ga. 633(3), 187 S.E.2d 271 (1972). The questions proffered were improper, and the responses thereto were not grounds for excusing the jurors. Additionally, the layman generally conceives of a court as a tribunal where "both sides" will be heard.
High contends that four jurors should have been excused for cause due to fixed opinions as to guilt-innocence or punishment. A review of the voir dire examination of these jurors reveals that all four had heard about the case at the time of the killing. One indicated that he had an opinion as to the guilt or innocence of High, but that he could subordinate that opinion to the evidence and the law as given by the court. The others, one of whom served on the convicting jury, indicated that they had opinions as to punishment, but that, again, their opinions could be subordinated to the evidence and the law as charged by the court. As none of the jurors had fixed opinions as to guilt-innocence or punishment, this contention must fail.
High's contentions relative to sequestration of the jury and the oral denial of a Brady motion in...
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