Jackson v. Hopper, 28806
| Decision Date | 19 June 1974 |
| Docket Number | No. 28806,28806 |
| Citation | 207 S.E.2d 58,232 Ga. 419 |
| Parties | D. W. JACKSON v. Joe S. HOPPER. |
| Court | Georgia Supreme Court |
D. W. Jackson, pro se.
Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
Tried in 1971 on three indictments, Jackson was convicted of murder, attempted rape and aggravated assault. The conviction was affirmed by this court on direct appeal, Jackson v. State, 229 Ga. 191, 190 S.E.2d 530, but his death sentence was overturned by the United States Supreme Court. On remand this court entered a life sentence on the murder conviction. Jackson v. State, 230 Ga. 181, 195 S.E.2d 921. Jackson then brought this petition for habeas corpus on which he received an evidentiary hearing in Tattnall County on July 25, 1973. Following the hearing his petition was found without merit and he was remanded to custody. He appeals, filing a pro se brief. No brief has been filed by the state.
On the six issues presented, numbers 1 and 6 were addressed in some detail by the Tattnall Superior Court in its written opinion.
1. Jackson claims denial of his rights to due process, equal protection, and effective assistance of counsel through the trial court's 'firing' his attorney 'because the attorney was doing all he could to represent his client.' The trial transcript, however, reveals no 'firing' of either of the two attorneys appointed to represent him, and the record of the appeal in this court shows the names of both attorneys on the notice of appeal and on the brief for Jackson, and further shows that oral argument was made in this court on Jackson's behalf. For this reason and for the additional reasons stated by the Tattnall Superior Court in its opinion and order below, there is no merit in this contention.
Raising on this appeal a new issue which he did not raise below, Jackson urges that he was denied the effective assistance of counsel because his lead counsel, Mr. Rutledge, was denied a continuance sought on grounds that the pressure of other litigation had shortened his time for preparation for Jackson's defense. The transcript of this motion hearing reveals that Mr. Rutledge acknowledged that the time provided him had not been unduly short, that he had later been assisted by the appointment of an additional attorney, and that most of the other matters in which he had been involved had been 'voluntarily' assumed and had not been appointed cases. Nonetheless he stated that he felt more time was required for a proper defense to a case involving so many charges.
Whether a continuance should be granted for lack of preparation lies within the discretion of the trial court. Evans Theatre Corp. v. Slaton,227 Ga. 377, 383, 180 S.E.2d 712; Bradley v. Sherwin, 110 Ga.App. 632, 633, 139 S.E.2d 512. Here, Jackson was arrested October 17, 1970, and was not tried until May 31, 1971. Though the record does not reflect the date of Mr. Rutledge's appointment, he stated to the court at the motion hearing that Mr. Jones had been appointed to assist him on March 9, 1971. Therefore from March 9, 1971 to May 31, 1971, the first day of trial, there were two attorneys assigned to Jackson's defense, without taking into consideration the prior time of Rutledge's sole representation. Mr. Rutledge did not state to the court that any witness he desired to call was unavailable for trial. At trial following the denial of the continuance there were no witnesses for the defense; Jackson made an unsworn exculpatory statement; his attorneys claimed the final argument to the jury. On these facts we cannot say the court abused its discretion in refusing a continuance. See Evans Theatre Corp. v. Slaton, supra (). This contention is without merit.
2, 3, 4. The evidence authorized Jackson's convictions, and his allegation that perjury appears on the face of the record is incorrect. There is no merit in these enumerations.
5. Jackson claims denial of his constitutional rights flowing from the fact that the jury which tried him was all white whereas he is a Negro, and the jury was shorn on voir dire of all those potential jurors who stated an unalterable opposition to the death penalty, thereby leaving jurors who not only favored the death penalty but also were, he alleges, more prone to return a guilty verdict.
The record does not reflect the race of the jurors, nor does it reveal any challenge raised at any stage of the proceeding below to the manner in which the jurors were selected with reference to race nor to the racial composition of the pool from which t...
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State v. Salinas
...and absence of blacks on jury did not warrant determination that defendant was denied a trial by an impartial jury); Jackson v. Hopper, 232 Ga. 419, 207 S.E.2d 58 (1974) (held prosecutor's striking all potential black jurors for particular trial did not deny defendant equal protection); Sta......
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...discretion. We find none here. Code Ann. § 81-1419. See Smith v. State, 235 Ga. 620, 621(3), 221 S.E.2d 41 (1975); Jackson v. Hopper, 232 Ga. 419, 420-21, 207 S.E.2d 58 (1974); and, Campbell v. State, 231 Ga. 69(2), 200 S.E.2d 690 In enumeration of error No. 2, appellant contends that the t......
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...a continuance should be granted for lack of preparation lies within the discretion of the trial court. [Cits.]” Jackson v. Hopper, 232 Ga. 419, 420(1), 207 S.E.2d 58 (1974). “In this case, the trial court did not prevent [Appellant] from participating in [a presentence] hearing; the trial c......
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