Spencer v. Hopper, 34285

• Citation: 243 Ga. 532,255 S.E.2d 1
• Decision Date: 24 April 1979
• Docket Number: No. 34285,34285
• Parties: SPENCER v. HOPPER.
• Court: Georgia Supreme Court

Page 1

255 S.E.2d 1

243 Ga. 532

SPENCER v. HOPPER.

No. 34285.

Supreme Court of Georgia.

Submitted Dec. 1, 1978.

Decided April 4, 1979.

Rehearing Denied April 24, 1979.

John H. Ruffin, Jr., Augusta, John Charles Boger, Jack Greenberg, James M. Nabrit, III, Joel Berger, New York City, Anthony G. Amsterdam, Stanford, Cal., for appellant.

Richard E. Allen, Dist. Atty., Arthur K. Bolton, Atty. Gen., Kirby G. Atkinson, Asst. Atty. Gen., for appellee.

HILL, Justice.

On January 15, 1975, James Lee Spencer was convicted in the Superior Court of Burke County for the offenses of murder, aggravated assault and escape. He was sentenced to death for the murder, and to 10 years imprisonment on each of the other charges, to run concurrently. On direct appeal, this court affirmed the convictions and sentences on April 6, 1976. Spencer v. State, 236 Ga. 697, 224 S.E.2d 910 (1976), cert. den., 429 U.S. 932, 97 S.Ct. 339, 50 L.Ed.2d 302 (1976). It will be recalled that Spencer shot a deputy in the eye and killed the deputy's father-in-law while attempting to escape from the vehicle transporting him to Reidsville Prison.

On March 22, 1977, Spencer filed a petition for a writ of habeas corpus in the Superior Court of Tattnall County. His execution having been set for March 28, 1977, the superior court stayed the execution and set the habeas hearing for May 12, 1977. That hearing commenced on May 12, was continued on petitioner's motion and was concluded on July 13, 1977. On August 18, 1978, the habeas court entered an order denying Spencer habeas corpus relief and dissolving the stay of execution. This court subsequently granted Spencer's application for a certificate of probable cause to appeal, and granted his motion for stay of execution pending this appeal.

1. Spencer's first ground for relief in his petition for a writ of habeas corpus was that neither his conviction nor his death sentence could stand "because he was indicted by a grand jury and convicted and sentenced to die by a trial jury, which were selected through procedures that systematically excluded black persons and women from service on those respective juries," and that the failure of the convicting court to conduct a hearing on his motion challenging the trial jury violated his rights under Code Ann. § 2-109. ¹ In this appeal, he enumerates as error the habeas court's order denying habeas relief and finding that he waived his challenge to the trial jury by failing to timely raise it. He does not enumerate on this appeal any error regarding grand jury composition.

On the opening day of trial, January 6, 1975, at a point after 42 jurors' names had been called but before examination of them began (see Code Ann. §§ 59-802, 59-803), Spencer presented one or more motions pro se, although his appointed attorney was present. The record does not show the nature of the motions except that one apparently was a special plea of insanity. At the prosecutor's suggestion, the hearing on the special plea commenced at once and was completed the next day.

The trial of the main case resumed on January 7 and after both sides had announced ready, Spencer personally addressed the court: "May it please the Court, Your Honor, I'd like to present a petition of removal which I filed in Federal Court." The trial court reviewed a copy of the pro se petition for removal, which was addressed to Judge Anthony A. Alaimo of the U. S. District Court for the Southern District of Georgia, Augusta Division, and sought removal pursuant to 28 U.S.C. § 1443(1, 2) on the ground that blacks were systematically excluded from Burke County jury rolls and underrepresented on Burke County juries. The petition referred to the petitioner's special plea of insanity and a motion for change of venue but did not mention a jury challenge having been made in the trial court. The district attorney stated that the removal petition was contained in a letter addressed to Judge Alaimo and that as of that morning it was still in the Richmond County jail and had not been received by Judge Alaimo or by the Federal Court. The district attorney took the "position that it hasn't been filed properly and (concluded) that it has no effect on this court's jurisdiction until that time." The trial court then ruled that it retained jurisdiction.

Witnesses were then sequestered and voir dire began. Nineteen jurors qualified tentatively. The next morning, January 8, 1975, before continued voir dire began, Spencer again addressed the court directly: "May it please the Court, Your Honor, I have a motion here that I would like to file to challenge the array of the jurors. I . . ." At this point in the trial transcript, two pages are missing from the copy of the transcript filed in the habeas corpus proceeding. The habeas court, however, found as a fact that "the pro se motion to challenge the jury was in fact filed on January 8, 1975." ²

Qualification of the jury panel was completed on January 14, 1975. On January 15, 1975, the trial judge asked the district attorney if he was ready. The DA responded: "Your Honor, we will announce ready with the understanding that there are two motions pending. One is a challenge to the array and the other is a motion for change of venue, and the state is ready to hear those motions if they're insisted upon by counsel for the accused." Defendant's counsel responded: "I was under well, I wasn't aware of the pendency of the motions, I thought they had been disposed of." The trial judge then stated: "Well, I was under the impression that they had been disposed of too." (The ruling appears in the transcript on file in this court.) The DA then asked: "May I inquire as to whether or not the accused insists on them?", and the defendant's attorney responded "Not while I'm under the impression that they have been disposed of." The defendant's attorney then argued a motion to sever, the jury was struck, and trial commenced.

The habeas court held: "The motion challenging the array was not filed until January 8th after the jury had already been put upon the defendant on January 7th, following a delay occasioned by another special plea filed pro se. No evidence was even offered to support it during the next several days of voir dire in the jury selecting process extending through January 14th. Finally, on January 15, after completion of voir dire by counsel and before the prospective jurors were put upon defendant for final reduction to the trial panel, the district attorney again expressly raised the question of the motion. The state announced it was ready to proceed on the challenge to the array. The defense elected not to pursue the motion. It necessarily follows that the motion was thereby finally waived, if, under any construction, it could be said to have been still viable at this point in the trial." The habeas court's findings are supported by the evidence. However, Spencer argues that since his motion was filed pro se, it could not be waived absent the trial judge questioning the defendant directly as to his wishes in this matter. But this overlooks the rule that whether or not to proceed with such a motion is a decision of trial tactics in counsel's hands. See Reid v. State, 235 Ga. 378, 379, 219 S.E.2d 740 (1975). Defense counsel refused to allow the district attorney to direct the question to the defendant personally and although the defendant had spoken out previously, he evidenced no objection to his attorney's refusal to pursue the motion at that time. It would appear that the defendant and his attorney were satisfied with the jury which had been selected, at least with the panels as composed prior to striking. After a jury was selected and returned its verdict of guilty, it was not permissible to reassert the defendant's pro se challenge to the composition of the jury. Spencer has at no time asserted ineffectiveness of counsel as to this or any other matter; in fact, he was represented by his appointed trial counsel on his direct appeal to this court and his appointed trial counsel, in association with additional counsel, filed this habeas. ³

In order to pursue this matter in habeas, Spencer would have to satisfy Code Ann. § 50-127(1): "The right to object to the composition of the grand or traverse jury will be deemed waived under this Section, unless the person challenging the sentence shows in the petition and satisfies the court that cause exists for his being allowed to pursue the objection after the conviction and sentence has otherwise become final." This has not been done. ⁴ Judge Alaimo's determination in the case of Sapp v. Rowland, Civ.No. CV176-94, May 20, 1977, that the 1976 Burke County grand and traverse juries were unconstitutionally composed does not meet the requirements of § 50-127(1); nor does the evidence in that case as to the 1974 and 1975 Burke County juries satisfy those requirements. Fountain v. York, 237 Ga. 784(1), 229 S.E.2d 629 (1976); Mitchell v. Hopper, 239 Ga. 781(4), 239 S.E.2d 2 (1977); Harris v. Hopper, 243 Ga. 244, 253 S.E.2d 707 (1979).

We therefore find that Spencer's jury challenge was not timely made in the trial court, was not supported by evidence in the trial court, was waived before the trial began, and was not urged on direct appeal. Also, cause has...