Nelson v. Zant, S91A0524

• Decision Date: 25 June 1991
• Docket Number: No. S91A0524,S91A0524
• Citation: 261 Ga. 358,405 S.E.2d 250
• Parties: NELSON v. ZANT, Warden.
• Court: Georgia Supreme Court

Page 250

405 S.E.2d 250

261 Ga. 358

NELSON v. ZANT, Warden.

No. S91A0524.

Supreme Court of Georgia.

June 25, 1991.

Emmet J. Bondurant, II, Edward B. Krugman, James W. Kimmell, Jr., L. Suzanne Forbis, Bondurant, Mixon & Elmore, Atlanta, for Nelson.

Michael J. Bowers, Atty. Gen., Atlanta, for Zant.

Mary Beth Westmoreland, Sr. Asst. Atty. Gen., State Law Dept., Atlanta, Atty. Register.

BELL, Justice.

Gary Nelson appeals from the denial of his petition for writ of habeas corpus. Nelson's conviction and death sentence originally were affirmed by this court on direct appeal in Nelson v. State, 247 Ga. 172, 274 S.E.2d 317 (1981). As noted in the opinion, the conviction was based upon circumstantial evidence: A ten-year-old friend of the victim saw the victim at Nelson's residence shortly before the victim was murdered; a hair found on the victim was consistent with that of Nelson; a knife found near the scene could have been in Nelson's possession. Soon after our original affirmance, Nelson filed a state habeas corpus petition. In Count One of his petition, Nelson contended the evidence was not sufficient to support the conviction. The habeas court severed Count One, ruling that a hearing would be held on Count One only and that Nelson was relieved from any responsibility to conduct discovery or otherwise prepare for trial on any of the other issues. Following a hearing, the habeas court granted relief on Count One. The state appealed, and we reversed, holding that the evidence was sufficient to support the conviction. Zant v. Nelson, 250 Ga. 152, 296 S.E.2d 590 (1982). We remanded the case to the habeas court for resolution of the remaining issues. The matter finally was heard on August 15, 1989. The day before the hearing, Nelson filed an amended petition, fleshing out previous claims and adding new ones based, according to Nelson, on matters learned only as a consequence of the lengthy discovery process. The state objected to the amendments to the petition, and the habeas court refused to consider them. After hearing, the court denied relief. We reverse the court's refusal to consider the amendments and denial of relief.

1. In Johnson v. Caldwell, 229 Ga. 548, 192 S.E.2d 900 (1972), this court held:

that the Civil Practice Act [presently codified at OCGA §§ 9-11-1 through 9-11-132] applies to habeas corpus proceedings insofar as questions arise therein regarding the sufficiency of pleadings, the admissibility of evidence under the petition as drawn, amendments, and those other elements of pleading and practice enumerated in § 81 of the Act as amended. [Id. at 552. (Emphasis supplied.)]

We have continued to adhere to our decision in Johnson v. Caldwell, supra, observing in Giles v. Ford, 258 Ga. 245(1), 368 S.E.2d 318 (1988), that, in habeas corpus proceedings, "the CPA governs the sufficiency of pleadings, admissibility of evidence under the petition as drawn and amendments to the petition." (Emphasis supplied.)

Accordingly, the CPA governs whether or not Nelson's amended petition should have been allowed and considered.

2. The state contends Nelson lost his right to amend the petition, raising essentially two grounds: (a) there was a hearing on Count One of the petition that resulted in a final judgment, i.e., the grant of habeas relief "in its entirety," and (b) the amendment was filed almost eight years after the original petition was filed.

The CPA provides that a party "may amend his pleading as a matter of course and without leave of court at any time before entry of a pretrial order." OCGA § 9-11-15(a). Absent a pretrial order, this "unfettered right to amend" ceases only when the trial begins. Jackson v. Paces Ferry Dodge, Inc., 183 Ga.App. 502, 503, 359 S.E.2d 412 (1987).

In this case, the habeas judge did hear and dispose of Count One of the petition, but specifically reserved all other issues, stating in his written order of February 25, 1982:

(d) Pending further order of Court, counsel for the petitioner and counsel for the respondent are hereby relieved from the obligation of conducting any discovery or otherwise preparing for a hearing on the merits of petitioner's claims for relief under Counts Two through Twenty of his petition for writ of habeas corpus; if the Court denies petitioner's claim for relief under Count One of the petition, the Court will allow the parties a reasonable time to conduct discovery and otherwise prepare for a hearing on petitioner's claims for relief under Counts Two through Twenty.

Since the order granting relief on Count One was reversed on appeal, all the other issues remained "still pending" and Nelson was entitled to amend his petition as of right at any time before the hearing on these remaining issues. Stokes v. Stokes, 246 Ga. 765(1), 273 S.E.2d 169 (1980); Price v. Price, 243 Ga. 4, 5, 252 S.E.2d 402 (1979); Ellington v. Tolar Construction Co., 142 Ga.App. 218, 235 S.E.2d 729 (1977).

While we do not approve of the eight-year delay that occurred between filing the petition and the amendment, we cannot accept the state's implication that Nelson is solely responsible for the delay. Moreover, delay in and of itself is not a justification for refusing to consider an amendment to a petition, so long as it precedes both the hearing on the issues and the entry of a pretrial order, which either party may insist on. See Smith v. Davis, 121 Ga.App. 704, 175 S.E.2d 28 (1970), and § 9-11-16 (pretrial conference and order mandatory if sought by either party).

The habeas court erred by refusing to consider Nelson's amended petition.

3. It is not necessary that we remand this case to the habeas court for consideration of the amended petition, however. Nelson is entitled to relief based on his original petition and the evidence considered by the court.

As we have twice noted, the evidence in this case was circumstantial. Zant v. Nelson, supra, 250 Ga. 152, 296 S.E.2d 590; Nelson v. State, supra, 247 Ga. 172, 274 S.E.2d 317. A critical item of evidence was a hair found on the victim's body. According to testimony by the state's expert witness, the hair not only could have come from Nelson, it could only have come from about 120 people in the entire Savannah area.

Unknown to the defense at the original trial, the hair sample had been examined not just by the expert who testified for the state at trial but also by the FBI crime laboratory. The FBI concluded, in a report dated April 5, 1978, that the state's hair sample "is not suitable for significant comparison purposes." The FBI supervisor who approved this report (then the unit chief of the Microscopic Analysis Unit of the FBI Laboratory in Washington, D.C.) explained in this habeas proceeding that limb hairs are unsuitable for comparison purposes. Limb hairs, he testified, in contrast to head hairs and pubic hairs "lack sufficient individual microscopic characteristics to be used for significant comparison purposes," and "are so fine and small" that they are unsuitable either to include or to exclude a particular individual as the source of the hair. He testified:

The state...