Smith v. Francis

• Decision Date: 29 January 1985
• Docket Number: 41504,Nos. 41276,s. 41276
• Citation: 253 Ga. 782,325 S.E.2d 362
• Parties: William Alvin SMITH v. Robert O. FRANCIS, Warden.
• Court: Georgia Supreme Court

Page 362

325 S.E.2d 362

253 Ga. 782

William Alvin SMITH v. Robert O. FRANCIS, Warden.

Nos. 41276, 41504.

Supreme Court of Georgia.

Jan. 29, 1985.

Rehearing Denied Feb. 19, 1985.

Stephen B. Bright, Atlanta, Stephen B. Glickman, Zuckerman, Spaeder, Moore, Taylor & Kolker, Washington, D.C., for William Alvin Smith.

Michael J. Bowers, Atty. Gen., Paula K. Smith, Staff Asst. Atty. Gen., Susan V. Boleyn, Asst. Attys. Gen., for Robert O. Francis, Warden.

HILL, Chief Justice.

William Alvin Smith was convicted of the murder and armed robbery of Daniel Turner and sentenced to death. Smith v. State, 249 Ga. 228, 290 S.E.2d 43 (1982), cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982). This is his appeal from the denial of habeas corpus.

In his original petition for habeas corpus, Smith raised 14 grounds. Following a hearing, the habeas court issued a lengthy order finding the applicable facts and deciding each point raised. Smith then filed an application for a certificate of probable cause to appeal, raising 14 enumerations of error. This court granted the application to appeal, which brings the entire case before this court. ¹

1. In granting this application, the court was particularly interested in Smith's numerous allegations that he had been denied effective assistance of counsel. Having reviewed the transcript of the original trial as well as that of the hearing in this habeas case, we have concluded that those allegations are unfounded.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth the standards for judging a defendant's contention that the Sixth Amendment requires a conviction or death sentence to be set aside because of actual ineffective assistance of counsel at trial or sentencing. ² The standards adopted apply to trials of criminal cases and to death penalty sentencing proceedings, but not to sentencing in other criminal cases. The Court set forth a two-step test, saying (104 S.Ct. at 2064): "A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense." The Court emphasized that the burden is on the defendant to make both showings, and that a reviewing court could find lack of sufficient prejudice without deciding whether counsel's performance was deficient (104 S.Ct. at 2069-70).

Concerning counsel's performance, the Court noted that all federal courts of appeal and most state courts have adopted the "reasonably effective assistance" standard, as Georgia has, ³ and approved it (104 S.Ct. at 2064). The Court went on to note that the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances, and stated that every effort must be made to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel's perspective at the time (104 S.Ct. at 1065). The Court also pointed out that a reviewing court should recognize that counsel is entitled to a "strong presumption" (which the defendant must overcome) that counsel's conduct falls within the wide range of reasonable professional conduct and that all significant decisions were made in the exercise of reasonable professional judgment (104 S.Ct. at 2066).

Concerning the prejudice component, the Court held that the defendant must show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel's unprofessional errors, the result of the proceeding would have been different (104 S.Ct. at 2068). Regarding death penalties, the question is whether there is a reasonable probability that, absent the errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death (104 S.Ct. at 2069).

Applying the foregoing standards we find that Smith has failed to show that he was not provided reasonably effective assistance of counsel considering all the circumstances. ⁴ We find further that Smith has failed to show that there is a reasonable probability sufficient to undermine confidence in the outcome that, but for counsel's alleged unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, supra.

In reaching these conclusions we have undertaken to evaluate counsel's conduct from his perspective at the time of trial. For example, the defendant elected to plead not guilty to the charges of murder and armed robbery, and it was counsel's duty to provide assistance to him in the guilt-innocence as well as the sentencing phase of the trial. Defendant is now critical of his counsel for, inter alia, having asserted an unfounded defense of insanity, but faced with a not guilty plea, a confession and a witness who arrived during commission of the crimes who knew (and hence could positively identify) the defendant, Smith v. State, supra, 249 Ga. at 233-234, 290 S.E.2d 43, counsel's choice of the insanity defense (as opposed to alibi, self defense, coercion, etc.) was reasonable under the circumstances.

The habeas court did not err in denying relief upon this ground.

2. At oral argument in this court, Smith's attorneys focused their attention on his contention that in instructing the jury during the sentencing phase the trial court erred by failing to explain what mitigating circumstances are, and their function in the jury's deliberations.

At defendant's trial, the court commenced the sentencing phase by informing the jury as follows:

"Now, ladies and gentlemen of the jury, the defendant in this case, William Alvin Smith, has been found guilty of the offense of murder and it now becomes your duty to determine, within the limits prescribed by law, what penalty shall be imposed for this offense. The Court will impose the penalty for the armed robbery and you will impose the penalty for the offense of murder.

"The law provides that when a person is found guilty in such a case, in which the State is demanding the death penalty and in which the death penalty may be imposed, it is the duty of the presiding Judge to hold a second phase of the trial and to offer the State an opportunity to present evidence in aggravation of the punishment and the accused an opportunity to present evidence in extenuation and in mitigation of punishment. We are now in that phase of the trial...."

After the introduction of evidence during the sentencing phase and after argument of counsel, the court instructed the jury in pertinent part as follows:

"Now, ladies and gentlemen of the jury, you should consider all of the evidence, both the evidence submitted during the sentence phase, as well as the evidence submitted at the prior phase of this trial, in arriving at your verdict as to the sentence to be imposed. This includes any evidence of mitigating circumstances received by you in this case.

"Ladies and gentlemen of the jury, even if you find beyond a reasonable doubt that the state has proved the existence of aggravating circumstances in this case which would justify under the law the imposition of a death sentence, you are not required to recommend that the accused be put to death. You would be authorized under these circumstances to recommend the death penalty, but you are not required to do so. The sentence to be imposed in this case is a matter entirely within your discretion and you may provide for a life sentence for this accused for any reason that is satisfactory to you or without any reason if you care to do so. The law vests the exclusive right with the jury to either make or withhold a recommendation for the death penalty." ⁵

Smith contends that this charge does not meet the requirements set out in Spivey v. Zant, 661 F.2d 464, 471 (5th Cir. Unit B 1981), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982), and its progeny. ⁶ In Spivey the court found that in death penalty cases the jury must receive clear instructions which not only do not preclude consideration of mitigating factors, but which also guide and focus the jury's objective consideration of the particularized circumstances of the individual offense and the offender. The court went on to say (661 F.2d at 471): "In most cases, this will mean that the judge must clearly and explicitly instruct the jury about mitigating circumstances and the option to recommend against death; in order to do so, the judge will normally tell the jury what a mitigating circumstance is and what its function is in the jury's sentencing deliberations."

In Spivey, the court's sentencing instructions did not use the word "mitigation" and, hence, did not inform the jury that it should consider evidence of mitigating circumstances. Moreover, the court did not inform the jury that even if...