Smith v. Smith, Civ. A. No. 14304

• Decision Date: 23 December 1970
• Docket Number: 14305.,Civ. A. No. 14304
• Citation: 321 F. Supp. 482
• Parties: Jack Henry SMITH v. S. Lamont SMITH, Warden, Georgia State Prison. Tracy SHOEMAKE v. J. W. WHITLOCK, Warden, Coweta County Work Camp.
• Court: U.S. District Court — Northern District of Georgia

321 F. Supp. 482

Jack Henry SMITH v. S. Lamont SMITH, Warden, Georgia State Prison.

Tracy SHOEMAKE v. J. W. WHITLOCK, Warden, Coweta County Work Camp.

Civ. A. Nos. 14304, 14305.

United States District Court, N. D. Georgia, Atlanta Division.

December 23, 1970.

John McGuigan, Atlanta, Ga., for Jack Henry Smith.

Glenn Zell, Atlanta, Ga., for Tracy Shoemake.

Arthur K. Bolton, Atty. Gen. of Ga., for S. Lamont Smith.

Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Courtney Wilder Stanton, Asst. Attys. Gen., Atlanta, Ga., Sanders, Mottola, Haugen, Wood & Goodson, Newnan, Ga., for J. W. Whitlock.

ORDER

EDENFIELD, District Judge.

Petitioners are state prisoners who have been allowed to file in forma pauperis their respective petitions for the writ of habeas corpus.

Petitioner Shoemake was convicted on two counts of burglary in the Superior Court of Coweta County, Georgia, on March 12, 1969, and is presently serving concurrent sentences of five years on each count in the Coweta County Prison Work Camp. Petitioner sought habeas corpus relief in the Superior Court of Coweta County. Relief was denied and petitioner appealed to the Georgia Supreme Court which affirmed the lower court in Shoemake v. Whitlock, 226 Ga. 771, 177 S.E.2d 677 (1970), on the ground that the issue was not one properly raised by habeas corpus. Exhaustion of state remedies is therefore sufficient under 28 U.S.C. § 2254.

Petitioner Smith was convicted for the offense of robbery in the Superior Court of Fulton County, Georgia, on May 9, 1968, and was sentenced to a ten-year term of imprisonment. Exhaustion of state remedies is alleged and is sufficient under 28 U.S.C. § 2254, in that petitioner sought habeas corpus relief in the Superior Court of Tattnall County. Relief was granted, but on appeal the Supreme Court of Georgia reversed the lower court's decision in Smith v. Smith, 226 Ga. 748, 177 S.E.2d 230 (1970), following the decision in Shoemake v. Whitlock, supra.

The cases were consolidated and set for hearing on November 23, 1970.¹

Petitioners attack their respective convictions solely on the ground that the trial court's charge to the jury, regarding the defense of alibi, was in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Specifically, petitioners contend (1) that the charge placed upon each of them the burden of proving his defense of alibi, thereby shifting the burden of proof to him; (2) that the charge deprived him of the presumption of innocence and relieved the State of the burden of proving each element of the crime charged beyond a reasonable doubt; and (3) that the charge was inconsistent and confusing to the jury.

In Smith's case the trial court gave the following charge on the alibi defense:

"He contends and sets up in his defense under the law what is known as an alibi, and I charge you alibi as a defense involves the impossibility of the accused's presence at the scene of the offense at the time of its commission, and the range of the evidence in respect to time and place must be such as reasonably to exclude the possibility of presence. Alibi as a defense must be established to the reasonable satisfaction of the jury, and must be such as reasonably to exclude the possibility of the presence of the defendant at the scene of the offense at the time of its commission. When so established to the reasonable satisfaction of the jury, the jury should acquit. Any evidence in the nature of an alibi should be considered by the jury in connection with all other evidence in the case, and if in doing so the jury should entertain a reasonable doubt as to the guilt of the accused, they should acquit.

"The law of alibi consists of two branches. The first is to overcome proof of guilt strong enough to exclude all reasonable doubt, the onus is on the accused to verify his alleged alibi, not beyond reasonable doubt, but to the reasonable satisfaction of the jury. The second is that, nevertheless, any evidence whatever of alibi is to be considered on the general case with the rest of the testimony, and if a reasonable doubt of guilt be raised by the evidence as a whole, the doubt must be given in favor of innocence."²

The charge given in Shoemake's case is substantially similar.³

Jury charges on the defense of alibi have had a long and stormy history in Georgia case law. Alibi as a defense is established by statute.⁴ As is true in the cases presently under consideration, Georgia trial courts have traditionally included the language of the statute in jury charges when alibi is present in the case. The major controversy in the case law, however, relates to the phrase, "Alibi as a defense must be established to the reasonable satisfaction of the jury," which also has long been included in jury charges. The cry often heard, and the cry heard here, is that the above-quoted phrase places the burden of proving his alibi on the defendant.⁵

Charges comparable to those presently before the court have often been criticized by both scholars and the Georgia courts. Much of the criticism has centered around the confusing nature of the alibi charge and the fact that Georgia law treats alibi as an affirmative defense.

Professor Green has stated:

"The proposition that the burden of proof is on the defendant to establish alibi and certain other defenses in a criminal case to the reasonable satisfaction of the jury, but that the evidence of the defense is to be considered by the jury in determining whether the State has established guilt of the defendant beyond a reasonable doubt, is contradictory. * * * If an accused may legally be acquitted because evidence of alibi, insanity, or justification raises a reasonable doubt in the mind of the jury, the burden remains on the prosecution to prove the defendant's complicity, mental capacity, and malice. Then why not be satisfied with telling the jury that the burden of establishing guilt beyond a reasonable doubt is on the State? Why not leave out the confusing, contradictory, indeed, meaningless charge that the accused has the burden of proving alibi, etc.?" Green, Georgia Law of Evidence, § 21, at 75-77.

Professor Agnor has made the following criticism:

"The Georgia courts have treated several defenses as affirmative defenses that are not true affirmative defenses. One is the matter of alibi as a defense. Alibi is not a true affirmative defense. It is simply evidence rebutting the case for the prosecution. It is a denial of the charge against the defendant. * * * The jury is charged that the defendant must establish alibi by a preponderance of the evidence, but then must also be charged that the evidence as to alibi must be considered with all the other evidence in the case and that if they then have a reasonable doubt as to his guilt they must acquit. In other words, first he must prove by a preponderance of the evidence that he was not present at the scene of the offense at the time of its commission, but no, really all he must do is raise a reasonable doubt as to his presence. First it is an affirmative defense, then it is not an affirmative defense." 11 Encyclopedia of Georgia Law (Evidence), § 138 at 379.

Judge Powell, in Smith v. State, 3 Ga. App. 803, 61 S.E. 737 (1907), stated:

"In such cases where affirmative defense is asserted it is logically consistent to charge that the burden of establishing the case in chief beyond a reasonable doubt rests upon the state, but that the defendant may avoid responsibility, and thereby obtain an acquittal, if he establishes his defense to the reasonable satisfaction of the jury. Alibi is no such defense, and it is confusing and incongruous so to classify it. In truth, the burden of proving an alibi is never on the defendant. The burden of proving his presence is on the state throughout the trial, and the evidence of his absence tends merely to weaken or disprove the testimony of the state's witnesses on this point." At 806, 61 S.E. at 739.

Though criticized, the Georgia charge on alibi has consistently been upheld, primarily on the authority of Harrison v. State, 83 Ga. 129, 9 S.E. 542 (1889). There the Georgia Supreme Court stated:

"Touching alibi, the rule in Georgia, as established by authority, consists of two branches: The first is that, to overcome proof of guilt strong enough to exclude all reasonable doubt, the onus is on the accused to verify his alleged alibi, not beyond reasonable doubt, but to the reasonable satisfaction of the jury. The second is that, nevertheless, any evidence whatever of alibi is to be considered on the general case with the rest of the testimony, and, if a reasonable doubt of guilt be raised by the evidence as a whole, the doubt must be given in favor of innocence." At 130, 9 S.E. at 542.

Even in announcing this rule Chief Justice Bleckley did not pass up the opportunity to criticize Georgia's law regarding alibi.⁶

It is under the second principle of the two-pronged approach of Harrison that the Georgia courts have upheld the alibi charge. E. g., Chaffin v. State, 225 Ga. 602, 170 S.E.2d 426 (1969); Young v. State, 225 Ga. 255, 167 S.E.2d 586 (1969); Laminack v. State, 187 Ga. 648, 2 S.E.2d 99 (1939); Jones v. State, 130 Ga. 274, 60 S.E. 840 (1908); Cochran v. State, 113 Ga. 726, 39 S.E. 332 (1901); Bone v. State, 102 Ga. 387, 30 S.E. 845 (1897); Hale v. State, 110 Ga.App. 236, 138 S.E.2d 113 (1964); Copeland v. State, 33 Ga.App. 150, 125 S.E. 781 (1924). To fail to charge the jury as to the second prong of the alibi defense has been held to be error. Moody v. State, 17 Ga.App. 121, 86 S.E. 285 (1915); Callahan v. State, 14 Ga.App. 442, 81 S.E. 380 (1914). Use of the two-pronged alibi charge has expressly been held not to be confusing. Davis v. State, 205 Ga. 719, 55 S.E.2d 214 (1949). Thus it appears that Georgia law permits a charge which requires defendant to prove by some quantum of evidence his defense of alibi, if the charge also instructs...