Shaw v. Stone

• Decision Date: 27 January 1981
• Docket Number: Civ. A. No. 79-56-MAC.
• Citation: Shaw v. Stone, 506 F.Supp. 571 (M.D. Ga. 1981)
• Parties: John Lee SHAW, Petitioner, v. Allen STONE, Warden, Houston Correctional Institution, and Arthur K. Bolton, Attorney General of the State of Georgia, Respondents.
• Court: U.S. District Court — Middle District of Georgia

506 F. Supp. 571

John Lee SHAW, Petitioner, v. Allen STONE, Warden, Houston Correctional Institution, and Arthur K. Bolton, Attorney General of the State of Georgia, Respondents.

Civ. A. No. 79-56-MAC.

United States District Court, M. D. Georgia, Macon Division.

January 27, 1981.

COPYRIGHT MATERIAL OMITTED

F. Robert Raley, Macon, Ga., for petitioner.

Arthur K. Bolton, Atty. Gen., Daryl Robinson, Asst. Atty. Gen., State of Ga., Atlanta, Ga., for respondents.

OWENS, Chief Judge:

Petitioner in the above styled action seeks federal habeas corpus relief under 28 U.S.C.A. § 2254. Petitioner is presently serving a life term of imprisonment imposed by the Superior Court of Crawford County, Georgia on March 4, 1977 following his conviction by jury in that court of murder. Pursuant to 28 U.S.C.A. § 636(b)(1)(B), the petition was referred to United States Magistrate John D. Carey, who on October 29, 1980 filed proposed findings of fact and recommendations for disposition by the court. This habeas corpus petition is now ready for determination by the court.

The Magistrate found that the trial court's admission over objection of the double hearsay testimony of witness Malcolm Giles rendered the trial fundamentally unfair and thus denied petitioner the due process guaranteed by the Fifth and Fourteenth Amendments. For this reason the Magistrate recommends that this petition for habeas corpus relief be granted.

It is fundamental that federal courts possess only limited authority to consider state evidentiary rulings in a habeas corpus proceeding by a state prisoner. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); Nordskog v. Wainwright, 546 F.2d 69, 72 (5th Cir. 1977). The "mere violation of evidentiary rules by the state trial court does not in itself invoke habeas corpus relief, but only where the violation of the state's evidentiary rules results in a denial of fundamental fairness should habeas be granted," Cronnon v. State of Alabama, 587 F.2d 246, 250 (5th Cir. 1979); Pentecost v. Estelle, 582 F.2d 1029, 1031 (5th Cir. 1978); Anderson v. Maggio, 555 F.2d 447, 451 (5th Cir. 1977), a stringent requirement that the error be "material in the sense of a crucial, critical, highly significant factor." LaRoche v. Wainwright, 599 F.2d 722, 726 (5th Cir. 1979); Cronnon v. State of Alabama, supra, 587 F.2d at 250; Hills v. Henderson, 529 F.2d 397 (5th Cir. 1976), cert. den. 429 U.S. 850, 97 S.Ct. 139, 50 L.Ed.2d 124.

The relevant portion of the Malcolm Giles testimony is set out in the Magistrate's report. On appeal the Georgia Supreme Court held that the hearsay objection to the Giles testimony was not specific enough to preserve the point for review. However, the Georgia Supreme Court apparently recognized that the testimony contained double hearsay and stated that at least part of the testimony was admissible to show the victim's state of mind. See, Shaw v. State, 241 Ga. 308, 310, 245 S.E.2d 262 (1978). Pretermitting the questions of whether the objection was specific enough and whether the testimony was inadmissible double hearsay, this court has carefully considered the objectionable testimony in the context of the entire trial and finds that its admission by the trial court, even if erroneous, was not so prejudicial as to have denied petitioner fundamental fairness. There was considerable evidence presented at trial regarding the ill feelings between the Shaws and the victim, including testimony as to several specific confrontations during which threats and even blows were exchanged. See, Testimony of Bobby Joe Causey, Tr. 728; Testimony of Allen O'Neal, Tr. 758; Testimony of Robert Ray, Tr. 771, 776. Moreover, the cross examination of Malcolm Giles by petitioner's attorney cast serious doubt on the credibility of Giles' testimony, which the jury could not help but recognize. Mr. Giles testified on cross examination that he didn't know when, where, or under what circumstances his conversation with the victim took place, and could only estimate that the conversation had occurred some eights months before the victim's death. With the considerable additional evidence of the animosity between petitioner and the victim, and with the accuracy of Malcolm Giles testimony seriously questioned, the admission of the one statement constituting a threat by petitioner against the victim clearly was not so critical or prejudicial as to have denied petitioner a fair trial. For these reasons, the court declines to adopt the recommendation of the Magistrate, and holds that admission of the Giles testimony by the state trial court did not constitute constitutional error cognizable in habeas corpus.¹

Since the Magistrate found petitioner to be entitled to relief on the grounds the trial court admitted inadmissible double hearsay testimony, he did not enter findings and recommendations as to petitioner's other asserted grounds for relief. This court having carefully considered these other asserted grounds and being of the opinion that they do not raise errors of constitutional proportions, it is unnecessary to remand this petition to the Magistrate for his recommendations. This court will rule on petitioner's claims seriatim.

(1) Petitioner claims that he was denied due process and equal protection due to the fact that the Chief Justice of the Georgia Supreme Court participated in decision of the case even though he had retired from the courtroom after the call of petitioner's case and thus did not hear any of the oral argument. Petitioner argues that, had the Chief Justice heard the oral argument, he might have voted with the two Justices who dissented from the majority opinion on the question of the admissibility of the Malcolm Giles testimony, and may have persuaded others to dissent on the same grounds. Petitioner's argument is without merit. Rules governing oral argument before the Supreme Court of Georgia are within that court's discretion. Whether the rules adopted by that court for oral argument are proper, and whether that court abides by those rules in every case are not constitutional matters subject to review by this court. Moreover, petitioner's assertion that oral argument may have changed the opinion of the Chief Justice is mere speculation. The Chief Justice had a transcript of the trial, briefs of both sides, supplemental briefs, and briefs on a motion for rehearing, all of which addressed the question of Malcolm Giles' testimony. The two dissenting justices had ample opportunity to present their view to the Chief Justice. It must be presumed that the Chief Justice fairly considered petitioner's arguments regarding the Giles testimony and found them unpersuasive. The absence of the Chief Justice from oral argument clearly does not create an error of constitutional due process proportions.

(2) Petitioner complains that it was a denial of due process for the trial court to refuse to admit the victim's guilty plea to obstructing a police officer in order to show the victim's state of mind toward petitioner. As already pointed out, this court cannot review state evidentiary questions unless they constitute errors which are so prejudicial that they denied petitioner a fair trial. Cronnan v. State of Alabama, supra. While this evidence probably should have been admitted to show the victim's state of mind, its exclusion by the trial court was only minimally prejudicial, if at all, as there was ample evidence of the hostility between the victim and petitioner.

(3) Petitioner claims that he was denied his right to a fair trial due to the failure of the prosecutor to disclose that a witness had seen a GBI agent pick up a full whiskey bottle from the cab of the truck. Petitioner argues that since this bottle was not on the police inventory of the contents of the truck, it must have been stolen from the scene, and thus the victim's alleged gun could also have been stolen from the scene. The Dunbar affidavit shows that the full whiskey bottle was removed by the GBI agent; the bottle simply was not inventoried by the police. The police would not have failed to inventory a gun found on the scene. The facts related by the Dunbar affidavit do not support petitioner's speculative inference that the victim's alleged gun, like the full whiskey bottle, could have been stolen or otherwise disappeared from the scene. See, Shaw v. State, supra, 241 Ga. at 314, 245 S.E.2d 262.

In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court held that a prosecutor has a constitutional duty to volunteer material exculpatory evidence to the defendant. Evidence is material for purposes of disclosure by the prosecutor "if it creates a reasonable doubt that did not otherwise exist." Id., 427 U.S. at 112, 96 S.Ct. at 2401, 49 L.Ed.2d at 355. The mere possibility that undisclosed information may have affected the outcome of the trial does not establish materiality in the constitutional sense. Id., 427 U.S. at 109, 96 S.Ct. at 2400, 49 L.Ed.2d at 353. It is the court's opinion that this evidence that a GBI agent had taken a full whiskey bottle from the truck which had failed to appear on the police inventory clearly was not so exculpatory as to create a reasonable doubt in a juror's mind as to petitioner's guilt, a reasonable doubt that otherwise did not exist here. It is reasonable to assume that the prosecutor did not make the same inference from the absence of the bottle on the police inventory as that which petitioner raises here. Since this information was not materially exculpatory, the prosecutor had no duty to voluntarily disclose it to the defense.

(4) Petitioner next contends that he was denied a fair trial due to improper questions and tactics on the part of the special prosecutor. Misconduct by the prosecution does not present a claim of constitutional magnitude which is cognizable in a proceeding under 28 U.S.C.A. § 2254 unless the prosecutor's acts, taken as a whole and in...