Smith v. Hopper, 32635

Decision Date18 October 1977
Docket NumberNo. 32635,32635
Citation239 S.E.2d 510,240 Ga. 93
PartiesJohn Eldon SMITH, a/k/a Anthony Galldo Machetti v. Joe S. HOPPER.
CourtGeorgia Supreme Court

Robert C. Glustrom, Sidney L. Moore, Jr., Decatur, Anthony G. Amsterdam, Stanford, Cal., David E. Kendall, New York City, for appellant.

Arthur K. Bolton, Atty. Gen., G. Stephen Parker, Asst. Atty. Gen., Atlanta, for appellee.

HILL, Justice.

John Eldon Smith is under a sentence of death based upon his convictions of two shotgun murders for profit. See Smith v. State, 236 Ga. 12, 222 S.E.2d 308 (1976). He appeals the Tattnall Superior Court's denial of habeas corpus relief and dissolution of a stay of execution ordered after an evidentiary hearing, enumerating as error rulings of the habeas court that found no basis for granting the writ in the exclusion of prospective jurors and the introduction into evidence of a letter.

After petitioner's convictions for the murders of Mr. and Mrs. Joseph Ronald Atkins and the sentences of death were affirmed in Smith v. State, supra, the United States Supreme Court denied certiorari. Smith v. Georgia, 429 U.S. 932, 97 S.Ct. 339, 50 L.Ed.2d 302 (1976).

1. Petitioner contends that he was deprived of the constitutional right to be tried by an impartial jury representing a true cross section of the community as required by Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), because persons who would automatically vote against imposing the death penalty without regard to the evidence were excused from the jury. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). He also urges that evidence was presented to the habeas court showing that a Witherspoon qualified jury is guilt-prone and hence more likely to convict at the guilt phase of a bifurcated trial.

Because this is a death penalty case, we will assume without deciding or finding that there is cause to allow these objections to the composition of the traverse jury after the convictions and sentences have otherwise become final. Code Ann. § 50-127(1); Fountain v. York, 237 Ga. 784, 229 S.E.2d 629 (1976); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149, decided May 3, 1976; see also Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594, decided June 23, 1977.

Taylor v. Louisiana, supra, found that the Sixth Amendment and due process of law requirements that a traverse jury be selected from a representative cross section of the community is violated by the systematic exclusion of women from jury panels. The burden of petitioner's argument is that Taylor v. Louisiana has declared unconstitutional that which Witherspoon v. Illinois allowed. We do not find that to be the case. See Porter v. State, 237 Ga. 580(1), 229 S.E.2d 384 (1976). Moreover, we decline to interpret the Sixth Amendment more restrictively than has the United States Supreme Court. See Oregon v. Hass, 420 U.S. 714, n. 4, at 719, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975).

Regarding the alleged guilt-proneness of a Witherspoon qualified jury, the evidence remains uncompelling. Wilkins v. Hopper, 232 Ga. 796, 209 S.E.2d 147 (1974); see House v. Stynchcombe, 239 Ga. 222, 236 S.E.2d 353 (1977); Porter v. State, supra; Witherspoon v. Illinois, supra, 391 U.S. at 518, 88 S.Ct. 1770; United States ex rel. Clark v. Fike, 538 F.2d 750 (7th Cir. 1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 791, 50 L.Ed.2d 781 (1977).

2. Petitioner contends that the murder trial judge erred in failing to inquire of two excused prospective jurors whether they were able to make their personal views on the death penalty subservient to their legal duty as jurors. This issue was considered on direct appeal, and this court found that excuse of these jurors ". . . was entirely proper since they indicated that they would never vote to impose the death penalty under any circumstances." Smith v. State, supra, 236 Ga. at 21, 222 S.E.2d 308, 316, cert. denied. Compare Davis v. State of Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976). This matter, therefore, cannot be relitigated on writ of habeas corpus. Brown v. Ricketts, 233 Ga. 809(1), 213 S.E.2d 672 (1975); McCorquodale v. Stynchcombe, 239 Ga. 138(2), 236 S.E.2d 486 (1977).

3. Petitioner contends that a letter from him to his wife, a party in these crimes, should not have been allowed in evidence in rebuttal and as impeachment to testimony elicited from him on cross examination that he did not own a shotgun. Smith v. State, supra, (10). He urges that at his trial he was denied a full and fair opportunity to litigate the issue of the state's seizure of the letter. At that trial he was not denied a hearing. He took the position that the state had the...

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26 cases
  • Collier v. State
    • United States
    • Georgia Supreme Court
    • October 30, 1979
    ...v. State, 241 Ga. 376, 247 S.E.2d 45 (1978); Alderman v. State, supra. This enumeration of error is without merit. Smith v. Hopper, 240 Ga. 93, 239 S.E.2d 510 (1977); Hawes v. State, 16. Appellant's twenty-eighth enumeration of error attacks the constitutionality of Ga.L.1968, pp. 1249, 127......
  • Legare v. State, 34444
    • United States
    • Georgia Supreme Court
    • June 22, 1979
    ...This contention has been rejected in earlier cases by this court and the Supreme Court of the United States. Smith v. Hopper, 240 Ga. 93, 239 S.E.2d 510 (1977); Porter v. State, 237 Ga. 580, 229 S.E.2d 384 (1978). Enumeration 9 is without merit. 10. In Enumeration 10 the appellant alleges: ......
  • Spencer v. Kemp
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • January 23, 1986
    ...435 U.S. 937, 98 S.Ct. 1513, 55 L.Ed.2d 534 (1978); Fountain v. York, 237 Ga. 784, 229 S.E.2d 629 (1976). But see Smith v. Hopper, 240 Ga. 93, 239 S.E.2d 510 (1977), cert. denied, 436 U.S. 950, 98 S.Ct. 2859, 56 L.Ed.2d 793 (1978); House v. Stynchcombe, 239 Ga. 222, 236 S.E.2d 353, cert. de......
  • Smith v. Kemp, 83-8611
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • September 9, 1983
    ...for he cited Taylor in 1977 during the Georgia Supreme Court's review of his first state petition for habeas corpus. Smith v. Hopper, 240 Ga. 93, 239 S.E.2d 510 (1977). Referring to the Taylor case, Smith claimed his jury did not represent a true cross-section of the community because juror......
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