Hill v. Dutton, 29137.

• Citation: 440 F.2d 34
• Decision Date: 11 March 1971
• Docket Number: No. 29137.,29137.
• Parties: Raymond Clarence HILL, Petitioner-Appellant, v. A. C. DUTTON, Warden, Georgia State Prison, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

440 F.2d 34 (1971)

Raymond Clarence HILL, Petitioner-Appellant, v. A. C. DUTTON, Warden, Georgia State Prison, Respondent-Appellee.

No. 29137.

United States Court of Appeals, Fifth Circuit.

March 11, 1971.

Richard E. Korem, Atlanta, Ga., for petitioner-appellant.

Arthur B. Cunningham, Cunningham & Weinsein, Miami, Fla., amicus curiae.

Harold Karp, Atlanta, Ga., amicus curiae.

Arthur K. Bolton, Atty. Gen. of Ga., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Courtney Wilder Stanton, Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee.

Before RIVES, GOLDBERG and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Raymond Clarence Hill was convicted of armed robbery in state court and sentenced to life imprisonment. On direct appeal the Georgia Supreme Court affirmed the conviction, Hill v. State, 1965, 221 Ga. 65, 142 S.E.2d 909, and relief was again denied when Hill petitioned the state courts for a writ of habeas corpus, Hill v. Stynchcombe, 1969, 225 Ga. 122, 166 S.E.2d 729. Hill applied for habeas relief in federal district court and upon its refusal to command his release from custody, an appeal was taken to this court.

Hill alleges that evidence favorable to his case was suppressed by the prosecution; that he was denied his right to confer with counsel because the sheriff had the means to monitor incoming calls at the jail; that he was prevented from questioning jurors on voir dire as to possible bias resulting from prejudicial newspaper articles; that a co-defendant, Charles W. Orr, testified falsely concerning Hill's participation in the robbery; that Orr's statements were coerced by threats from the police; and that the grand and petit juries were illegally constituted in that the members were not drawn by a judge in open court as required by Georgia Code Annotated § 59-203 and § 59-701. All these contentions are factual determinations which have been previously adjudicated by the state courts, Hill v. Stynchcombe, supra, and Hill has not alleged nor have we discovered anything to justify rejecting these findings of fact. Since 28 U. S.C. § 2254(d)¹ instructs us that in these circumstances the state court's findings are "presumed to be correct", we affirm the judgment on these issues. White v. Gnann, 5 Cir., 1970, 422 F.2d 1306; Thomas v. Simpson, 5 Cir., 1968, 391 F.2d 283.

We also find without merit appellant's contention that he should receive a new trial because the jury was allowed to hear hearsay testimony by a police officer who testified concerning statements supposedly made by co-defendant Orr. Although appellant claims the hearsay evidence prejudiced his trial by bolstering Orr's testimony, appellant had ample opportunity to discredit Orr's statements on cross-examination and the jury was instructed to disregard the erroneously admitted evidence. The error was not so prejudicial as to violate constitutional standards of fundamental fairness. See, e. g., Chavez v. Dickson, 9 Cir., 1960, 280 F.2d 727, n.14.

Hill contends he was denied a fair trial because on the call of his case for trial his counsel asked the court which number case was being called and the court responded, in the presence of various jurors who were in the court-room waiting for the call to service, that there were several numbers pending. According to Hill, the court's statement informed prospective jurors that appellant was charged with more than one offense and thereby prejudiced his trial. Hill objects to the court's denial of his motion, in the form of a challenge to the array, to have these jurors disqualified. However, under Georgia law a challenge to the array is an improper method of contesting possible prejudice by a jury member. Bias, if it existed, could have been discovered and properly disposed of by questions propounded on voir dire or by a challenge to the poll. Hill v. Stynchcombe, supra; Hill v. State, supra.

As to the allegation that the grand jury which indicted Hill was illegally constituted in that said members were selected from the most experienced, intelligent and upright citizens and thus did not represent a cross-section of the community, we find that state remedies have not been exhausted. Hill candidly admitted before the district court that this question was not presented to the state courts. We are thereby foreclosed from consideration of the issue. 28 U. S.C. § 2254; Donlavey v. Smith, 5 Cir., 1970, 426 F.2d 800; Love v. Alabama, 5 Cir.,...