McCorquodale v. Stynchcombe

• Decision Date: 12 May 1977
• Docket Number: No. 32057,32057
• Citation: 236 S.E.2d 486,239 Ga. 138
• Court: Georgia Supreme Court
• Parties: Timothy W. McCORQUODALE v. Leroy STYNCHCOMBE, Sheriff, et al.

Page 486

236 S.E.2d 486

239 Ga. 138

Timothy W. McCORQUODALE v. Leroy STYNCHCOMBE, Sheriff, et al.

No. 32057.

Supreme Court of Georgia.

May 12, 1977.

Rehearing Denied June 7, 1977.

John R. Myer, Robert L. Ridley, Atlanta, Jack Greenberg, James M. Nabrit, III, Lynn Walker, David E. Kendall, Peggy C. Davis, New York City, Linda Greene, Boston, Mass., Anthony G. Amsterdam, Stanford, Cal., for appellant.

Lewis R. Slaton, Dist. Atty., H. Allen Moye, Asst. Dist. Atty., Atlanta, for appellees.

UNDERCOFLER, Presiding Justice.

McCorquodale appeals from the denial of his habeas corpus petition and motion for stay of execution in Fulton Superior Court on November 15, 1976. This court granted review on January 15, 1977.

This is the second appearance of this case in this court. Appellant attacked, on direct appeal, his conviction for murder and sentence of death. This court affirmed the conviction and sentence in McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974). The U. S. Supreme Court denied certiorari on July 6, 1976. McCorquodale v. Georgia, 428 U. S. 910, 96 S.Ct. 3223, 49 L.Ed.2d 1218 (1976).

Following remittitur by this court, the trial court, on October 22, 1976, set an execution date of November 10, 1976, and denied an oral motion for the appointment of a psychiatrist to examine appellant who it was alleged, without proof being offered, had become insane following conviction. On October 27, 1976, under the provisions of Code Ann. § 27-2602, appellant's counsel wrote a letter to the Governor requesting a psychiatric examination for appellant which the Governor denied on the grounds that the requirements of the statute as to evidence raising reasonable grounds to believe the appellant was insane had not been met. On October 28, 1976, the petition for writ of habeas corpus and motion for stay of execution was filed in the trial court. On November 4 and 5, 1976, a hearing was held on the writ and motion. During this hearing, after lengthy argument on the stay motion, an oral motion for continuance was made and denied; however, a stay of execution was ordered. On November 15, 1976, the trial court denied the writ, denied further stay of execution and set December 3, 1976, as the date of execution. On November 29, 1976, the court, on hearing and argument of counsel on a motion for new trial considered by the trial court as a motion to reconsider its order of November 15th, permitted the filing of a report from the staff physician at Reidsville who, pursuant to an order from the Governor, examined appellant upon his transfer to that institution and thereafter denied the motion. This report stated there were no grounds for believing McCorquodale was insane. On November 30, 1976, the court granted supersedeas pending appeal.

Appellant enumerates four errors. We affirm.

1. Appellant argues that denial of his oral motion for continuance during the habeas hearing on November 4 was error as an abuse of the judge's discretion under Code Ann. § 81-1419; a violation of the basic purposes of the Georgia Habeas Corpus Act of 1967, as amended; and violated his constitutional rights to due process and effective assistance of counsel under the Sixth and Fourteenth Amendments to the U. S. Constitution and Art. I, Sec. I, Par. I and Par. XI of the 1976 Georgia Constitution. (Code Ann. §§ 2-101, 2-111).

(a) "All applications for continuances are addressed to the sound discretion of the court, and, if not expressly provided for, shall be granted or refused as the ends of justice may require . . . " Code Ann. § 81-1419. This discretion will not be interfered with by the appellate courts unless it clearly appears that the judge abused his discretion. Campbell v. State, 231 Ga. 69, 200 S.E.2d 690 (1973).

The record and transcripts here show appellant filed his writ on October 26, 1976, to forestall execution set for November 10, 1976. The remarks of leading counsel for appellant show the trial judge selected a date for the hearing on the writ and motion to stay which was concurred in by leading counsel. He also stated to the court that no evidentiary hearing was contemplated. The hearing was held pursuant to this concurrence seven days after the writ was filed which was not unreasonable under the circumstances. See Foster v. State, 213 Ga. 601, 602(1), 100 S.E.2d 426 (1957). After the case was called and lengthy argument for a stay of execution, counsel for appellant made oral motion for a continuance stating that the Governor's failure to grant his request for appointment of a psychiatrist to determine whether or not appellant was now insane had changed the "complexity" of the case and evidentiary hearings were therefore required to examine into all of the allegations presented to the court in the writ as well as into contentions 24 and 25 relating to post-conviction insanity allegations.

There was no abuse of discretion. These facts are clearly distinguishable from those argued by counsel, i. e., Ryder v. State, 100 Ga. 528, 28 S.E. 246 (1897) and Maddox v. State, 32 Ga. 581 (1861). Nor was the denial a foreclosure of opportunity by counsel to prepare adequately for trial as cited in Hardwick v. Gooding, 233 Ga. 322, 210 S.E.2d 794 (1974). Appellant here was represented by nine attorneys, most of whom have been actively engaged in preparation of appellant's legal defenses from the time of the filing of the application for certiorari to the U. S. Supreme Court in the main case until the present date. Many of them have been actively engaged in defense litigation involving the death penalty. If counsel had seriously intended to present oral testimony and empirical data at the habeas hearing, he could have so advised the court prior to the setting of the date for the hearing on the writ and stay of execution.

Refusal of continuance based solely on alleged lack of opportunity of leading counsel to prepare for trial was not an abuse of discretion, nothing being shown as to inability or lack of opportunity of other attorneys in the case to prepare for such trial. Alred v. Celanese Corp. of America, 205 Ga. 499(2), 54 S.E.2d 225 (1949). And see Dawson v. Smith, 150 Ga. 352(1), 103 S.E. 847 (1920).

( b) The Georgia Habeas Corpus Act of 1967, as amended, expanded the scope of state habeas corpus and modified the state doctrine of waiver of rights. (Ga.L.1967, Sec. 1, p. 835). The Act further gave the superior courts exclusive jurisdiction to try such cases because of "many sharply contested issues of a factual nature." Appellant argues the habeas court should have been "flexible" under that Act and permitted a full evidentiary hearing. He alleges the hearing was "accelerated," permitting him insufficient time for preparation and that the failure of the state to file defensive pleadings prior to the hearing date severely handicapped him. Under the facts set out in sub-section 1(a) ante, there is no merit to these contentions.

( c) A careful review of the record and transcripts shows no denial of due process under the Fourteenth Amendment of the U. S. Constitution or under Art. I, Sec. I, Par. I of the 1976 Georgia Constitution (Code Ann. § 2-101).

The trial judge who conducted the original trial of appellant also presided at the habeas hearing. He was thoroughly familiar with the issues raised. The record and transcripts of the hearings show he gave thorough and searching attention to each issue raised by appellant. He distinguished those issues which were previously considered and decided on the main appeal. He carefully considered and rejected new claims presented.

( d) Appellant argues he was denied effective assistance of counsel because the habeas court denied his motion for continuance. A review of this record and transcripts shows no ground to support this claim. "This Court has repeatedly held that the constitutional right to effective assistance of counsel does not apply to a habeas corpus proceeding which is not a criminal case." Smith v. Ault, 230 Ga. 433, 434(7), 197 S.E.2d 348 (1973); Wayman v. Caldwell, 229 Ga. 2, 189 S.E.2d 74 (1972). But, here, appellant was represented by competent counsel, and the challenge is directed to the ability of that counsel to represent appellant effectively where a continuance to bring into court out-of-state witnesses was denied him. We do not think this record shows the habeas court was unreasonable in denying the motion and we find that the court below did not apply technical rules of pleading to restrain appellant's counsel, but sought to explore thoroughly every legitimate issue before the court upon which counsel for appellant was prepared to present legal argument or evidentiary testimony when the case was called. See McAuliffe v. Rutledge, 231 Ga. 1, 3, 200 S.E.2d 100 (1973).

2. Appellant's second enumeration of error contends that the result of the habeas court's decision to deny continuance, under the circumstances of this case, was to deny an adequate hearing where substantial state and federal constitutional questions were raised in paragraphs 10 through 25 in his habeas petition. A review of the habeas corpus petition shows that those set forth in paragraphs 10, 11, 12, 13, 14 and 15 were enumerated as errors 21 and 22 in the assignment of errors on direct appeal. Also, paragraphs 16, 17 and 18 were considered on direct appeal as errors 25 and 26; paragraph 19 was addressed in errors 4, 7, 8 and 16 on direct appeal; paragraph 20 was addressed in errors 18, 19 and 20; paragraph 21 was addressed in error 4, and paragraph 23 was addressed in error 7.

Paragraph 22 raised an issue not presented during the main appeal, namely, that the trial court's instruction to the jury that "the law presumes" certain mental states as elements in the offense of murder "which presumption may be rebutted" was burdenshifting, depriving appellant of the right against conviction except upon proof beyond a reasonable doubt.

A review of the charge of the court attacked here by app...