Mitchell v. Hopper

• Decision Date: 01 April 1982
• Docket Number: CV478-162 and CV179-247.,Civ. A. No. CV478-132
• Parties: William "Billy" MITCHELL, Petitioner, v. Joe S. HOPPER, Warden, Georgia State Prison, Respondent. Willie X. ROSS, Petitioner, v. Joe S. HOPPER, Warden, Georgia State Prison, Respondent. James Lee SPENCER, Petitioner, v. Walter D. ZANT, Warden, Georgia Diagnostic & Classification Center, Respondent.
• Court: U.S. District Court — Southern District of Georgia

538 F. Supp. 77

William "Billy" MITCHELL, Petitioner, v. Joe S. HOPPER, Warden, Georgia State Prison, Respondent.

Willie X. ROSS, Petitioner, v. Joe S. HOPPER, Warden,¹ Georgia State Prison, Respondent.

James Lee SPENCER, Petitioner, v. Walter D. ZANT, Warden, Georgia Diagnostic & Classification Center, Respondent.

Civ. A. Nos. CV478-132, CV478-162 and CV179-247.

United States District Court, S. D. Georgia, Savannah and Augusta Division.

April 1, 1982.

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Bobby L. Hill, Savannah, Ga., for Mitchell.

C. B. King, Albany, Ga., for Ross.

Edward D. Tolley, Athens, Ga., for Spencer.

John C. Boger, New York City, for petitioners.

Arthur K. Bolton, Atty. Gen., Atlanta, Ga., for Hopper.

William Hill, Asst. Atty. Gen., Atlanta, Ga., for Zant.

MEMORANDUM AND OPINION

BOWEN, District Judge.

These three suits petition the Court for relief in the nature of habeas corpus. They were filed separately in forma pauperis under 28 U.S.C. ? 2254. Each petitioner was convicted of murder and is now under sentence of death by electrocution; each petitioner challenges the constitutionality both of his conviction and of the sentence imposed. The three suits were not consolidated, but, because many issues raised were common to all three, they have been treated together at most phases of the litigation to conserve the time and resources of both the Court and of the parties. Consistent with this treatment, this memorandum will examine the three petitions in two stages; the common issues will be discussed together in one section, and the issues individual to each petition will be discussed separately in later sections.

I

A. Legal History

William "Billy" Mitchell entered a guilty plea to the charge of murder on November 5, 1974, before a judge of the Superior Court of Worth County, Georgia. A presentence trial was held as required by Georgia law. Ga.Code Ann. ?? 27-2503, 27-2528, 27-2534.1.² After imposition of the sentence of death, the conviction was affirmed on direct appeal to the Georgia Supreme Court.³Mitchell v. The State, 234 Ga. 160, 214 S.E.2d 900 (1975) (Gunter, J., dissenting without opinion), cert. denied 428 U.S. 910, 96 S.Ct. 3224, 49 L.Ed.2d 1219 (1976). Petitioner then filed a petition for the writ of habeas corpus in the Superior Court of Tattnall County, Georgia. A hearing was held in January, 1977, after which Judge Paul E. Caswell denied the petition by order of April 6, 1977. This denial was affirmed in Mitchell v. Hopper, 239 Ga. 781, 239 S.E.2d 2 (1977), cert. denied, 435 U.S. 937, 98 S.Ct. 1513, 55 L.Ed.2d 534 (1978).

Willie X. Ross was convicted of armed robbery, kidnapping and murder after a jury trial in the Superior Court of Colquitt County, Georgia, on March 3, 1974. Sentences of life imprisonment, twenty years and death were imposed on June 26, 1974. The conviction and sentence were affirmed by the Georgia Supreme Court in Ross v. The State, 233 Ga. 361, 211 S.E.2d 356 (1974) (Gunter, J., dissenting without opinion), cert. denied, 428 U.S. 910, 96 S.Ct. 3222, 49 L.Ed.2d 1217 (1976). After a hearing in the Superior Court of Tattnall County, the petitioner's suit for state habeas corpus relief was denied by Judge Paul E. Caswell on March 22, 1977. This decision was affirmed in Ross v. Hopper, 240 Ga. 369, 240 S.E.2d 850 (1977), cert. denied, 435 U.S. 1018, 98 S.Ct. 1890, 56 L.Ed.2d 397 (1978).

James Lee Spencer was convicted of murder, aggravated assault and escape after a jury trial in the Superior Court of Richmond County, Georgia, in January, 1975. Sentences of death for the murder and ten years running concurrently on the other two charges were imposed. The convictions and sentences were affirmed by the Georgia Supreme Court on appeal. Spencer v. The State, 236 Ga. 697, 224 S.E.2d 910 (1976) (Gunter J., dissenting without opinion), cert. denied, 429 U.S. 932, 97 S.Ct. 339, 50 L.Ed.2d 302 (1976). An evidentiary hearing was held in the Superior Court of Tattnall County, Georgia, on Spencer's petition for state habeas corpus relief. This was denied by order of Judge James E. Findley on August 18, 1978. This denial was affirmed in Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1 (1979), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979).

Three hearings have been held before this Court. On January 26, 1981, a hearing was held in Savannah, Georgia, pursuant to notice to counsel and in accordance with 28 U.S.C. ? 2254(d)⁴ to determine the necessity for an evidentiary hearing. This first hearing was confined to the issues common to all three petitions. See Part II, below. The Court heard argument on the sufficiency of the record made in the courts of Georgia, the sufficiency of their findings of fact and allowed the petitioners to make offers of proof relating to evidence they would present at an evidentiary hearing. At the conclusion of this hearing, the Court announced its ruling as to the issues upon which evidence would be received, and the scope of the evidence permitted.⁵ Evidence was taken at an evidentiary hearing the following day in accordance with this ruling.

The third hearing was held in Augusta, Georgia, to determine the necessity under 28 U.S.C. ? 2254(d) for an evidentiary hearing on the individual issues raised in the three petitions. See Parts IIIA, IIIB and IIIC, below. Consistent with the procedure of the first hearing, the Court heard argument from counsel on the sufficiency of the record and the findings of fact made by the Georgia courts to determine the necessity for an additional evidentiary hearing. The Court has concluded that no further hearings are mandated except as noted below.

B. The Crimes

The Court here recites the facts surrounding the crimes of which the petitioners were accused and convicted. This section is not meant to add gloss to a proceeding which could be perceived as a dry, antiseptic legal exercise. To the contrary, an atmosphere of calm is crucial to the proper function of our system for dispensing justice. However, the following descriptions are included to provide necessary perspective about the business in which we are engaged.

The ancient writ of habeas corpus ad subjiciendum serves the modern and noble purpose of providing a remedy for those whose conviction or incarceration was obtained outside the bounds of the law. Fay v. Noia, 372 U.S. 391, 399, 83 S.Ct. 822, 827, 9 L.Ed.2d 837 (1963). The doctrine that no person may be illegally deprived of his liberty is a cornerstone of our legal system and of our society. However, during a proceeding to determine whether the letter of the law has been followed in a criminal proceeding, the issue of the actual guilt or innocence of the defendant can be obscured by the examination of the legalities involved. This Court is not commenting here on the propriety of this obfuscation. Rather the Court deems it important and appropriate to remember that the source of our due process guarantees is the principle that no innocent person should ever be deprived of his liberty. The legalities examined by the courts in habeas proceedings were formulated to achieve this goal to the extent it is humanly possible.

The crimes for which these petitioners were convicted are not relevant to the existence vel non of constitutional infirmities in their trials and sentences. However, our criminal justice system works a delicate balance between the constitutionally protected liberty of the individual, and the interest of society as a whole in the efficient curtailment and punishment of crime. The following recitation⁶ will emphasize the gravity of this balance here, for while the very lives of the petitioners are at stake, society has been grievously wronged as well by individual acts of premeditated and brutal violence.

William "Billy" Mitchell

On Sunday morning, August 11, 1974, at 7:00, Mrs. James Carr and her fourteen-year-old son Christopher opened I.G.A. Store Number 13, a convenience grocery store in Worth County, Georgia. About fifteen minutes later, while the two were preparing the store for the business day, Mitchell entered the store. He walked over to the soft drink cooler, then returned to the check-out counter near the door. There he confronted Mrs. Carr and Christopher, and demanded "all the money." This demand was repeated, and Mitchell produced a small pistol from his coat pocket, pointing it at Mrs. Carr from across the counter. She handed him about one hundred fifty dollars in bills from the cash register. Mitchell then demanded and received the money Mrs. Carr and her son had in their personal possession.

Mitchell then ordered the two to go to the back of the store. They were marched into the storage area in the rear at gunpoint, walking through a meat room to a door leading to a cooler. Christopher was carried into the cooler by Mitchell. He stepped back out, saying to Mrs. Carr, "I've never had a white bitch before," and shoved her towards the adjoining bathroom. When Mrs. Carr cried out, "Oh my God, no!" the petitioner ordered her into the cooler, and pushed her inside with her son. Both got on the floor, Christopher sitting and his mother squatting.

Facing her son (with Mitchell behind her) Mrs. Carr heard a shot and saw a red hole appear on her son's chest. Then, she felt a jolt and a burning sensation in her head. Mrs. Carr testified that she heard the petitioner leave the cooler, then return in a few minutes. She had slumped to the floor, and saw only the legs of the assailant. Christopher, now lying on the floor of the cooler, was shot again in the back of the head, and Mrs. Carr was shot three more times in the arms and back. The petitioner left the cooler again. Mrs. Carr was able to get up and go to a telephone which was by the door of the cooler. She called the police and an ambulance.

In the front of the store, two boys had entered to find Mitchell behind the counter. They were ordered to the rear....