Parrish v. Hopper

• Decision Date: 14 February 1977
• Docket Number: No. 31446,31446
• Citation: 238 Ga. 468,233 S.E.2d 161
• Parties: J. W. "Billy" PARRISH v. Joe S. HOPPER, Warden.
• Court: Georgia Supreme Court

Page 161

233 S.E.2d 161

238 Ga. 468

J. W. "Billy" PARRISH v. Joe S. HOPPER, Warden.

No. 31446.

Supreme Court of Georgia.

Feb. 14, 1977.

Rehearing Denied March 9, 1977.

James C. Bonner, Jr., Jackson, for appellant.

Arthur K. Bolton, Atty. Gen., John B. Ballard, Jr., Asst. Atty. Gen., Atlanta, for appellee.

PER CURIAM:

On this appeal from the Tattnall County Superior Court's denial of his habeas corpus petition, Parrish attacks two unrelated but concurrent 1971 sentences one for burglary, and one for armed robbery. Challenging his burglary conviction, Parrish presents here a constitutional attack on the instructions given his jury governing the inference to be drawn from his recent possession of stolen property. The sole issue presented in challenge to the armed robbery conviction is the validity of a police search of a certain suitcase belonging to him following his arrest.

1. The charge which Parrish attacks as burden-shifting is in pertinent part as follows:

"I charge you on the law of this State relative to recent possession of stolen goods. I charge you that if you find from the evidence that a burglary was committed as charged in this indictment, and that recently after such burglary this defendant was found in possession of some of the articles alleged to have been stolen as a result of said burglary, that belonged to Mr. Green, that would be such a circumstance and inference from which you would be authorized to convict him of the burglary, unless he makes an explanation of his possession of the stolen goods, consistent with his innocence in your opinion, all of which you are to be the judges.

"This being an inference of fact and not of law, the same is therefore rebuttable, but there is a burden upon the defendant, if you find that he was that a burglary was committed and that recently thereafter the defendant was in possession of some of the articles alleged to have been stolen, there is a burden upon him to prove to your reasonable satisfaction that he came in possession of those articles in a legitimate way and manner, that burden is upon him to satisfy your mind of that fact."

In our opinion the first paragraph is not burden-shifting, but is crucially different from the charge condemned in Byrd v. Hopper, 402 F.Supp. 787 (N.D.Ga.1975). Although it places some duty on defendant to go forward with the evidence, it does not shift from the State the ultimate burden of persuading the jury of his guilt beyond a reasonable doubt. Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973) (presumption of guilty knowledge from possession of recently stolen mail.)

In the second paragraph, however, the trial court fell into fatal error in instructing the jury that if they found recent possession "there is a burden upon him to prove to your reasonable satisfaction that he came in possession of these articles in a legitimate way and manner, that burden is upon him to satisfy your mind of that fact." This language had the effect of suggesting to the jury that defendant had a burden of persuasion. It seemed to place on him a burden of proof of innocence at odds with the State's burden of proving guilt beyond a reasonable doubt, and thus rendered this trial fundamentally unfair. Cf., Smith v. Smith, 454 F.2d 572, 579 (5th Cir. 1972) (alibi charge). The second paragraph of this charge is far more damaging than the charge given in our recent decision, Thomas v. State, 237 Ga. 690, 229 S.E.2d 458 (1976).

2. At Parrish's armed robbery trial the State introduced into evidence the gun taken in the robbery, which was found by Kentucky police in Parrish's suitcase following his arrest in that state on misdemeanor charges. The admissibility of this weapon was hotly contested during the trial, and either was or could have been contested further on appeal. In these circumstances, we will apply the rationale of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) and deny further review of this issue on habeas corpus. Accordingly, the sole issue raised concerning the armed robbery conviction is without merit. See also, Jacobs v. Hopper, 238 Ga. 461, 233 S.E.2d 169.

Judgment affirmed in part and reversed in part; conviction for burglary vacated.

All the Justices concur in division 1 except HALL, J., who concurs specially, and NICHOLS, C. J., and UNDERCOFLER, P. J., who dissent.

All the Justices concur in division 2, except GUNTER and INGRAM, JJ., who dissent.

HALL, Justice, concurring specially.

The most important issue in this appeal is one which the per curiam opinion does not address; namely, was the objection to the burden-shifting charge waived by counsel's failure to assert it at trial? This issue cannot be decided apart from the more general considerations of what it takes to waive certain constitutional rights, and what issues are reviewable on habeas corpus. In my opinion the court's refusal to articulate a coherent position on this subject leaves our past decisions a welter of contradictions. I will attempt here to state my own position on constitutional waiver.

A. Waiver Shoemake v. Whitlock Outdated

As an initial matter, the state contests on two grounds Parrish's right to raise on habeas any complaint concerning jury charges given at his trial. The state argues that such complaints are not cognizable at all on habeas, and that in any event Parrish waived this point by failing to object at trial.

It is true that Shoemake v. Whitlock, 226 Ga. 771, 177 S.E.2d 677 (1970) stated that jury charges could not be challenged on habeas corpus; but I do not believe that any member of the court thinks that this states the law correctly in all instances. The proper standard allows jury charges to be considered on habeas if their deficiencies rendered the trial fundamentally unfair, as was recognized in Byrd v. Hopper, 234 Ga. 248, 215 S.E.2d 251 (1975) which modified Shoemake, but stopped short of overruling it. It should be noted that after he failed to obtain relief in this court, Shoemake's writ was granted by the federal district court in a decision plainly spurning any contention that objections to jury charges in a proper case are not cognizable in federal habeas. Smith v. Smith, 454 F.2d 572 (5th Cir. 1972). This court has not recently applied Shoemake, but to avoid confusion, Shoemake should be overruled to the extent that it implies that even charges violative of defendant's fundamental constitutional rights are not cognizable on habeas. It follows that other decisions which were grounded in Shoemake, such as Martin v. Smith, 227 Ga. 668, 182 S.E.2d 443 (1971), Montgomery v. Smith, 227 Ga. 601, 182 S.E.2d 316 (1971), and Stynchcombe v. Clements, 227 Ga. 244, 179 S.E.2d 917 (1971) are similarly unreliable.

B. Waiver The Georgia Habeas Corpus Statute

With Shoemake out of the way, what is presented by Parrish's appeal is whether he waived his right to contest this charge by failure to object to it at trial, when no such objection is clearly required under state law to preserve a point for habeas review. The law of this state governing appeals stipulates that jury charges may be attacked on appeal even though not objected to at trial. Code Ann. § 70-207(c). There is nothing in the habeas corpus statute, Code Ann. § 50-127, which requires contemporaneous objection for such charges to be considered on habeas. The State argues that an unobjected-to charge cannot be the "substantial" denial of rights referred to in Code Ann. § 50-127(1); but I think it may be. Thus, state law is somewhat unclear on the need for an objection.

It is true that our habeas corpus statute, Code Ann. § 50-127(1), purports to contain its own waiver test:

"Except for objections relating to the composition of a grand or traverse jury, rights conferred or secured by the Constitution of the United States shall not be deemed to have been waived unless it is shown that there was an intentional relinquishment or abandonment of a known right or privilege which relinquishment or abandonment was participated in by the party and was done voluntarily, knowingly, and intelligently."

It has been my position for quite some time that this statutory waiver provision is not enforceable, because it represents an attempt by the legislature to control what is not a legislative matter. What shall be effective to waive federal constitutional rights is a federal constitutional question. This court and not the legislature is entrusted with the interpretation of the Federal Constitution, (Ga.Const. Art. VI, § 2, Par. 4, Ga.Code Ann. § 2-3704 (Rev.1973)), and our decision on this point is directed ultimately by rulings of the United States Supreme Court. An attempt by the legislature, such as we have here, to take one such ruling and enshroud it in statutory concrete to prevent any further modification by further court rulings, must fail.

It is beyond question that waiver of a federal constitutional right is a federal constitutional question.

"The question of a waiver of a federally guaranteed constitutional right is, of course, a federal question controlled by federal law." Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1247, 16 L.Ed.2d 314 (1966).

"(W)e follow our consistent holdings that the adequacy of state procedural bars to the assertion of federal questions is itself a federal question." Douglas v. Alabama, 380 U.S. 415, 422, 85 S.Ct. 1074, 1078, 13 L.Ed.2d 934 (1965).

"The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards." Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969).

"Whether a waiver of constitutional rights is effective is an issue governed by federal standards." Griffith v. Wyrick, 527 F.2d 109, 112 (8th Cir. 1975). See Jackson v. Denno, 378 U.S. 368, 377, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). See generally Kamisar, LaFave, and Israel, Modern Criminal Procedure, pp. 742-744 (1974).

The...