Stephens v. Balkcom, 35642
| Decision Date | 18 March 1980 |
| Docket Number | No. 35642,35642 |
| Citation | 245 Ga. 492,265 S.E.2d 596 |
| Parties | STEPHENS v. BALKCOM. |
| Court | Georgia Supreme Court |
Joseph L. Stephens, pro se.
Arthur K. Bolton, Atty. Gen., Mary Beth Westmoreland, Staff Asst. Atty. Gen., for appellee.
Defendant Joseph L. Stephens, convicted on two counts of robbery, is serving two concurrent ten-year sentences. His convictions were upheld on appeal in Stephens v. State, 144 Ga.App. 779, 242 S.E.2d 371 (1978). In October, 1978, Stephens filed a petition for a writ of habeas corpus, which was denied. We granted his application to appeal the denial of his petition for habeas corpus.
1. Stephens complains that the trial court denied him a full hearing on his allegations when the court failed to enter his trial transcript as evidence in support of his allegations. By the transcript Stephens sought to show that there was no evidence connecting him with the robberies and that the evidence presented did not prove the charges of the indictment.
As we have recently held in Littles v. Balkcom, 245 Ga. 285, 264 S.E.2d 219 (1980) There was no error in the court's failure to admit the trial transcript.
2. Stephens complains that his rights were violated by having two unrelated counts joined in a single indictment. This allegation was raised on appeal and decided adversely to Stephens. Stephens v. State, supra. After an appellate court has reviewed an issue, the same issue will not be reviewed in a hearing on a petition for writ of habeas corpus. Smith v. Hopper, 240 Ga. 93(2), 239 S.E.2d 510 (1977); Brown v. Ricketts, 233 Ga. 809(1), 213 S.E.2d 672 (1975); Elrod v. Ault, 231 Ga. 750, 204 S.E.2d 176 (1974).
3. Stephens complains that he was denied effective assistance of counsel at the habeas corpus hearing in Tattnall County. There is no merit to this argument because there is no federal or state constitutional right to appointment of counsel in a habeas corpus proceeding. McClure v. Hopper, 234 Ga. 45, 214 S.E.2d 503 (1970).
4. Stephens complains that he was denied effective assistance of counsel at trial, as demonstrated by his attorney's failure to object to certain illegal evidence produced by the state during the trial and the attorney's failure to subpoena a witness.
The "illegal evidence" petitioner refers to is a statement made by the district attorney in his opening remark to the jury in which he made reference to Stephens' aiding and abetting in the robberies when the indictment made no reference to aiding and abetting. Under Code Ann. § 26-802, one who participates in a crime by being a party to the crime or by aiding and abetting another can be indicted and convicted for the actual commission of the crime. In his opening remarks the district attorney was merely stating what the state sought to prove. There was no error in trial counsel's failure to object on the ground that the charge of aiding and abetting was not covered by the indictment.
Stephens' allegation that his trial counsel refused to subpoena his co-defendant to testify at trial was refuted by a deposition submitted by the trial coun...
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Gibson v. Turpin, S97R1412.
...S.Ct. 1990, 95 L.Ed.2d 539 (1987); State v. Davis, 246 Ga. 200, 201-02, 269 S.E.2d 461 (1980) (capital case); Stephens v. Balkcom, 245 Ga. 492, 492-93(3), 265 S.E.2d 596 (1980). Under the United States Constitution, the state is required to provide counsel to indigent defendants for their t......
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