Park v. Huff

• Decision Date: 20 January 1975
• Docket Number: No. 73-1897,73-1897
• Citation: 506 F.2d 849
• Parties: A. C. PARK, Petitioner-Appellant, v. H. T. (Tommy) HUFF, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 849

506 F.2d 849

A. C. PARK, Petitioner-Appellant, v. H. T. (Tommy) HUFF, Respondent-Appellee.

No. 73-1897.

United States Court of Appeals, Fifth Circuit.

Jan. 20, 1975.

Wesley R. Asinof, Fayetteville, Ga., for petitioner-appellant.

Tony H. Hight, Dist. Atty. Assoc., Arthur K. Bolton, Atty. Gen., Atlanta, Ga., Nat Hancock, Jefferson, Ga., David L. G. King, Jr., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

COLEMAN, Circuit Judge.

Floyd Hoard was the Solicitor General (District Attorney) of the Piedmont Judicial Circuit of the State of Georgia. On the morning of August 7, 1967, by means of a dynamite bomb attached the previous night to the ignition system of his automobile, the Solicitor General was precipitately dispatched from this world. Among those soon indicted for murder in connection with this heinous occurrence was A. C. Park, the present habeas corpus appellant.

A jury in Jackson County convicted Park, with no recommendation for mercy. He was sentenced to death by electrocution. On appeal to the Supreme Court of Georgia, the conviction was reversed for the failure to have accorded Park the right to both open and close the jury arguments in compliance with certain provisions of a Georgia statute which had been in effect since 1852 Park v. State, 224 Ga. 467, 162 S.E.2d 359, 368 (1968).

At the second trial, Park was again convicted and the conviction was affirmed, Park v. State, 225 Ga. 618, 170 S.E.2d 687 (1969).

On petition for certiorari, the United States Supreme Court, without reaching the merits, vacated the death penalty and remanded the case to the Supreme Court of Georgia for further proceedings, Park v. Georgia, 408 U.S. 935, 92 S.Ct. 2845, 33 L.Ed.2d 749 (1972). This resulted in a life sentence, Park v. State of Georgia, 229 Ga. 731, 194 S.E.2d 410 (1972).

This did not end matters. Park next instituted habeas corpus proceedings, attacking the constitutional validity of his conviction. In an extensive written opinion (which does not appear to have been reported in Federal Supplement), the District Court for the Northern District of Georgia denied relief, (1973).

On appeal to this Court, that judgment was reversed, one Judge dissenting, Park v. Huff, 493 F.2d 923 (1974).

The case was subsequently ordered reheard en banc, with oral argument, 493 F.2d 935 (1974).

Upon such rehearing, we are convinced that Park's conviction involved no collision mwith the Confrontation Clause of the Sixth Amendment. We affirm the judgment of the District Court.

Four men were indicted along with Park.

J. H. Blackwell had connected the bomb to the automobile ignition. With full knowledge of the scheme, Lloyd G. Seay and George Ira Worley had assisted in obtaining the dynamite at a store in Anderson, South Carolina. They were lurking near the Hoard residence on the Sunday night when the deadly deed was done, having gone there in the same automobile with Blackwell.

Douglas Pinion initiated the $5,500 contract for the killing and later paid the fee to Seay, but he did not go to the murder scene.

At the time of Park's second conviction, Pinion, Blackwell, Seay, and Worley were all serving life sentences for the murder. Seay and Blackwell pleaded guilty upon a recommendation for life sentences. Juries convicted Pinion and Worley, see Pinion v. State, 225 Ga. 36, 165 S.E.2d 708; also unreported opinion of District Judge Sidney O. Smith, jr. (App. 395).

The extensive trial and appellate records compiled prior to the filing of the petition for habeas corpus raise no substantial dispute as to the roles respectively played by Blackwell, Seay, Worley, and Pinion in the paid assassination.

The legal battle, the one we are concerned with here, has been, and is, over the conspiratorial part allegedly played by Park, of which he stands convicted and from which he seeks escape by the federal habeas corpus door.

On Park's second appeal, the Supreme Court of Georgia held that the evidence at the second trial 'was at least as strong as on the first trial and amply authorized the verdict', 170 S.E.2d at 691.

FACTS RECITED BY THE GEORGIA SUPREME COURT

Our reading of the record prompts us to adopt, as amply supported by the record, the recitation of the evidence recited by the Georgia Supreme Court in its opinion disposing of the first appeal, 162 S.E.2d 361-363:

'About the latter part of March 1967, Solicitor General Hoard was concerned about the illegal sale of alcoholic beverages being made from a garage at the residence at the defendant Park and also from a building owned by him and known as 'the yellow house,' both located in Jackson County, where the sale of alcoholic beverages was not legal. There was evidence that since 1965 Park and the co-indictee Pinion had worked together in such sales. In late March Hoard began an investigation of these sales. This investigation was begun without telling local sheriff Perry, but later Hoard apparently informed him.

'Hoard obtained the assistance of an agent of the Georgia Bureau of Investigation, and in turn other law enforcement personnel were brought in. Several of these men made purchases at the above named places in order to obtain evidence for a contemplated padlock proceeding. One testified that 'this was an open operation and there-- nothing hidden about the thing. You just walked in there and asked him for some liquor and he sold it to you and it was more or less generally, known it was carried on that way.'

'A raid was scheduled for Saturday afternoon, May 6, 1967. However, on Friday evening it was discovered that Park was attempting to move large quantities of alcohol from these two places. Thereupon, the scheduled raid was immediately made and $21,700 of contraband, consisting of 31 cases of whiskey and 2,254 cases of beer, was taken. Park and Albert Funderburk, who had been employed at 'the yellow house' by Park for almost two years, were arrested. Criminal cases were made against the two men by Hoard.

'On May 23, 1967, upon Hoard's petition, an order was issued directing that the two places be padlocked.

'On July 11, 1967, Park, Funderburk and another employee of Park entered pleas of guilty for such illegal alcohol operations, and their fines, totaling $6,300, were paid by Park. Also, on this date, an appeal from the padlock order was dismissed. About this time Funderburk made plans to move back into the yellow house in August.

'Neither this padlock order nor the confiscation order on the alcohol seized was carried out until after the death of Hoard. There is no evidence as to why these orders were not executed.

. . . .is

'Next, we recite the salient testimony of events immediately surrounding the murder.

'This testimony was given by the coindictee Blackwell, to whom the State had offered to recommend a life sentence provided he would testify fully, fairly and completely, and also by the co-indictee Seay. No mention of any such offer to Seay appears.

(BLACKWELL'S TESTIMONY)

'Blackwell's testimony, insofar as material on these issues, was that which follows.

'Prior to Solicitor General Hoard's death Seay asked Blackwell if he had the nerve to kill anybody and two weeks later inquired of him if he would 'blow that man up,' without identifying anyone. No affirmative answer appears to have been given.

'On Thursday before Hoard's death on Monday, August 7, 1967, Seay, Blackwell, and another co-indictee, Worley, met by pre-arrangement at a named highway restaurant in another county and drove to Anderson, South Carolina, where Blackwell, with money provided by the others of that group, purchased sticks of dynamite and caps. On Saturday Seay showed Blackwell how to connect these to the coil of an automobile.

'On Sunday evening Blackwell, Seay and Worley met. Seay offered Blackwell $1,500 if he would go with them and watch while Seay or Worley put the dynamite on the car. One of them, Seay he thought, told Blackwell 'the man wanted it done that night before he went to court on Monday.' Worley pointed out Hoard's house, and Seay made a short trip to verify it and the car parked there as Hoard's. During this time Blackwell and Worley went to a nearby place, wired several sticks of dynamite together, and returned to a point near Hoard's residence.

'Then Blackwell went to Hoard's yard where his car was parked, placed the dynamite and one cap to the coil of the car, and rejoined Seay and Worley. The three drove away, and at a bridge the shoes and gloves Blackwell had worn were thrown out.

'Later on the same night Blackwell went to Wrightsville, Georgia, and during the morning heard of Hoard's death over the radio.

'On the following Wednesday, Seay gave Blackwell $700 in cash and an automobile valued at $800.

'Blackwell identified certain photographs, including places and objects associated with the murder.

(SEAY'S TESTIMONY)

'The testimony of the co-indictee Seay, insofar as material here, was that which follows.

'He had known Blackwell about eight months, Worley four or five years, and Pinion some six to eight years. He was 23 years of age and had known Park since childhood.

'He had not had any direct dealings with Park.

'In June, about two months before Hoard's death, Pinion asked Seay if he wanted to make some 'easy money,' and later told him that 'he wanted a man done away with,' saying it was Hoard. He did not say who wanted it done, but mentioned to him 'the old man' several times.

'Pinion had told Seay on a number of occasions that he was working with Park, and Seay once talked with both of them about their buying liquor from him. They talked about payment and arrangements in connection with this, and one of them told him that whenever he needed money he could come to Park's place and pick...