Smith v. Smith, 71-1311.

• Decision Date: 01 February 1972
• Docket Number: No. 71-1311.,71-1311.
• Parties: Jack Henry SMITH, Petitioner-Appellee, v. S. Lamont SMITH, Warden, Georgia State Prison, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

454 F.2d 572 (1972)

Jack Henry SMITH, Petitioner-Appellee, v. S. Lamont SMITH, Warden, Georgia State Prison, Respondent-Appellant.

No. 71-1311.

United States Court of Appeals, Fifth Circuit.

December 14, 1971.

Rehearing and Rehearing Denied February 1, 1972.

Arthur K. Bolton, Atty. Gen. of Ga., Courtney Wilder Stanton, Atlanta, Ga., respondent-appellant.

John McGuigan, Atlanta, Ga., petitioner-appellee.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

Rehearing and Rehearing En Banc Denied February 1, 1972.

THORNBERRY, Circuit Judge:

This is an appeal from the district court's determination on petition for habeas corpus that the Georgia alibi charge violates due process standards, 321 F.Supp. 482.

On March 12, 1969, petitioner was convicted by a jury of two counts of burglary. During the trial, petitioner asserted the impossibility of his guilt based on alibi. Petitioner, along with three other witnesses, testified that he was in Dallas, Texas at the same time the crime was committed in Atlanta, Georgia. In rebuttal, the State introduced into evidence prior inconsistent statements by both petitioner and his alibi witnesses, along with other facts tending to discredit the witnesses' credibility. The issue of petitioner's presence at the scene of the crime was thus hotly contested at the trial.

The trial judge, in accordance with settled Georgia law,¹ charged the jury as follows:

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.

The State contends that the Georgia charge, considered in its entirety, did not shift the burden of proving alibi to the defendant. Moreover, it argues that any possibility of prejudice was cured by the trial court's further instruction that the burden was on the State to prove beyond a reasonable doubt all essential elements of the crime, which necessarily included the element of presence.

Petitioner's due process contention depends primarily upon the application of a number of Eighth Circuit cases dealing with the Iowa alibi charge.

In the first applicable case, Johnson v. Bennett, 8th Cir. 1967, 386 F.2d 677, the Iowa court had charged the jury that the defendant had the burden to prove his alibi defense by a preponderance of the evidence. The trial court, however, had added:

The evidence upon this point is to be considered by the jury, and if upon the whole case including the evidence of an alibi, there is a reasonable doubt of defendant\'s guilt, you should acquit him.

386 F.2d at 682.

The Eighth Circuit panel, finding no merit to defendant's due process contention, stated:

. . . . In other instructions the court stressed the presumption of innocence, reasonable doubt and the necessity of the State proving all essential elements of the case beyond a reasonable doubt. It is difficult to say on the basis of the instructions as a whole that the defendant was deprived of any substantial constitutional right.

386 F.2d at 682.

The Supreme Court immediately granted certiorari. Johnson v. Bennett, 390 U.S. 1002, 88 S.Ct. 1247, 20 L.Ed.2d 102 (1968). Before final determination of Johnson, however, the Eighth Circuit went en banc to consider Stump v. Bennett, 8th Cir. 1968, 398 F.2d 111, involving the same Iowa charge:

Before you can acquit the defendant by reason of this defense alibi you must find that he has established it by a preponderance or greater weight of the evidence bearing upon it.

398 F.2d at 115.

The Eighth Circuit, with the three members of the Johnson panel dissenting, found that the Iowa charge, in spite of the added reasonable doubt instruction, tended to burden the defendant with proving that he was not present at the scene of the crime. Such a burden of proof on an essential element of the crime was found to violate due process standards. The Court reasoned:

By shifting the burden of proof to a person who claims to have been elsewhere at the time of the crime, there is created an irrational and arbitrary presumption of guilt. It arises not by reason of a proof of fact from which a fair inference might be drawn but from the mere happening that the defendant offers testimony in an attempt to establish innocence. When this occurs, unless the defendant can succeed in overbalancing the state\'s evidence, the jury is expressly told he cannot be acquitted by reason of his sole claim to innocence. . . . This presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime. . . . Incriminating presumptions are not to be improvised by the judiciary.

398 F.2d at 116.

Moreover, the Court went on to state:

Beyond violating petitioner\'s right to have the state assume the burden to prove (beyond a reasonable doubt) his presence at the crime, we think the Iowa instruction and its judicial application is patently offensive in other ways to the defendant\'s basic constitutional rights. . . . Only when the defendant seeks to produce witnesses to corroborate his non-presence does the Iowa rule incongruously penalize him with the burden of persuasion as to his non-presence . . . . Thus an innocent person, whose only refuge of innocence may be proof of his non-presence and non-participation in the crime itself, must risk this greater burden because he tries to bring witnesses forward to substantiate his story. He must choose between the exercise of two constitutionally guaranteed rights. He must surrender either the right to offer corroborative evidence of his innocence or else his traditional right to have the state assume the burden of proving his guilt beyond a reasonable doubt. Under the Iowa rule he cannot have both. Such a procedure can have no other purpose than to "chill the assertion of constitutional rights by penalizing those who choose to exercise them . . ." This is an impermissible burden.

398 F.2d at 120.

Shortly after Stump, the Supreme Court vacated Johnson for reconsideration in light of Stump. Johnson v. Bennett, 393 U.S. 253, 89 S.Ct. 436, 21 L. Ed.2d 415 (1968). On the same day, the Court denied certiorari in Stump. Bennett v. Stump, 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466 (1968). The Eighth Circuit, upon en banc consideration of Johnson in light of Stump, reversed the earlier decision of the Johnson panel and held there was no real factual distinction between the two cases. Johnson v. Bennett, 8th Cir. 1969, 414 F.2d 50. The court noted in passing:

We have read with interest the many Iowa cases where the alibi instruction was under challenge. The very number of the cases, and the constant resubmission of the issue to the court, indicate the concern which the instruction has occasioned. Although the Iowa court has been unanimous in opinion in a large majority of its cases, the court was split in its early opinions and again has been split in the most recent ones. In the intervening unanimous opinions there are, nevertheless, some indications of struggle in the decisional process.

414 F.2d at 53.

We note a similar struggle in the decisional process of Georgia courts in dealing with the alibi charge at issue here. Shortly after the Eighth Circuit decisions, the Georgia Appeals Court held the charge involved in the instant case unconstitutional on the basis of Stump and Johnson. Parham v. State, 120 Ga. App. 723, 171 S.E.2d 911 (1969). The Georgia Supreme Court, however, in Thornton v. State, 226 Ga. 837, 178 S.E. 2d 193 (1970), held the Georgia charge to be distinguishable on its face from the Iowa charge and refused to follow Parham.

Earlier Georgia cases are often confusing and similarly irreconcilable in their interpretation, application, and assessment of the effect of the alibi charge. The Georgia alibi doctrine was first enunciated in Harrison v. State, 83 Ga. 129, 9 S.E. 542 (1889), wherein the Georgia Supreme Court approved the following charge:

Well, now, the next thing is as to the strength of the evidence of alibi,— what that evidence (considering the credibility of the witnesses, and what the witnesses testified to) amounts to. The law says that it must outweigh the evidence introduced on the part of the state, provided, as I have charged you, if the state\'s evidence is sufficiently strong, without more, to produce a conviction in your minds of the guilt of the prisoner beyond a reasonable doubt. In order to remove that,—the alibi,—the testimony sustaining the alibi, in the judgment of the jury, should outweigh or preponderate over the evidence for the state. (Emphasis added)

9 S.E. at 543.

Somewhat later, in Bone v. State, 102 Ga. 387, 30 S.E. 845 (1897), the court again...