Tucker v. Kemp
Decision Date | 07 January 1987 |
Docket Number | No. 43568,43568 |
Citation | 256 Ga. 571,351 S.E.2d 196 |
Parties | TUCKER v. KEMP. |
Court | Georgia Supreme Court |
Eric G. Kocher, Kocher, Wilson, Korschun & Cobb, Robert B. Remar, Remar, Arnold, Zimring & Graettinger, Atlanta, for William Boyd Tucker.
Michael J. Bowers, Atty. Gen., William B. Hill, Jr., Sr., Asst. Atty. Gen., for Ralph Kemp, Warden.
We granted the appellant's application for certificate of probable cause to appeal the superior court's dismissal of his petition for a writ of habeas corpus under OCGA § 9-14-51 on the ground that the claim sought to be litigated could reasonably have been raised in a prior habeas corpus proceeding. For reasons which follow, we affirm.
In March of 1978, the appellant was convicted of murder, robbery by intimidation, and kidnapping with bodily injury. The evidence showed that, on the day of the crimes, he had been drinking heavily and smoking marijuana. He went to a Majik Market, which he robbed. The store's operator was Kathleen Perry, whom he kidnapped. He took her from the store and killed her by stabbing her four times. He was observed by several witnesses leaving the murder scene. He made an incriminating statement to police admitting the robbery by intimidation and kidnapping, but, according to his testimony at trial, he could not remember a knife or the murder. A death sentence was imposed for the murder conviction. On direct appeal, all convictions and sentences were affirmed. Tucker v. State, 244 Ga. 721, 261 S.E.2d 635 (1979).
In 1980, the appellant filed a petition for a writ of habeas corpus in the Butts Superior Court. This petition was denied by the superior court. The application for certificate of probable cause to appeal was denied by this court in 1981. The United States Supreme Court denied certiorari. Tucker v. Zant, 454 U.S. 1022, 102 S.Ct. 555, 70 L.Ed.2d 417 (1982).
In 1982, the appellant filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia. During the pendency of protracted proceedings in the federal district court and the Eleventh Circuit Court of Appeals, the appellant, on May 29, 1985, filed the present petition for a writ of habeas corpus in the Butts Superior Court. In this petition, the appellant presents for the first time a claim that at the guilt/innocence phase of his trial, the jury instructions on intent were unconstitutionally burden-shifting as being in violation of the Due Process Clause of the Fourteenth Amendment. The appellant argues that in a line of cases commencing with Skrine v. State, 244 Ga. 520, 260 S.E.2d 900 (1979), the jury instructions under attack here had been repeatedly upheld by this court; however, the Supreme Court of the United States, on April 25, 1985, in Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), held that jury instructions virtually identical to those given here are unconstitutionally burden-shifting. The court dismissed the appellant's habeas corpus petition as being successive. Held:
Georgia's habeas corpus statute, OCGA § 9-14-51, provides:
Smith v. Zant, 250 Ga. 645, 647(2), 301 S.E.2d 32 (1983).
As we alluded to in Stevens v. Kemp, 254 Ga. 228(1), 327 S.E.2d 185 (1985), footnote 1 of Hammock v. Zant, 243 Ga. 259, 260, 253 S.E.2d 727 (1979), states that However, the change in the law which transpired in Bunn v. Burden, supra, was that the statute under which the habeas petitioner had been convicted was subsequently held to be unconstitutional by this court. In Jarrell v. Zant, 248 Ga. 492 (n. 1), 284 S.E.2d 17 (1981), we allowed another habeas petitioner under a death sentence to raise in a successive habeas corpus petition the claim that the trial court's instructions to the jury at the sentencing phase of the trial violated Spivey v. State, 241 Ga. 477, 246 S.E.2d 288 (1978), and its predecessors, Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977), and Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977), in that these cases were not decided until after the hearing of that petitioner's first habeas action.
However, this holding in Jarrell v. Zant, supra, is equally supportable under the rationale of Stynchcombe v. Floyd, 252 Ga. 113, 311 S.E.2d 828 (1984). 252 Ga. at p. 115, 311 S.E.2d 828. However, this ruling in Stynchcombe does not apply to the jury instructions in the guilt/innocence phase of a death penalty trial. See Rivers v. State, 250 Ga. 303(7), 298 S.E.2d 1 (1982). In Rivers, we held that the defendant who had been given the death sentence there was precluded from raising a claim of an unconstitutionally burden-shifting jury instruction given during the guilt/innocence phase of his trial, because the trial court asked defense counsel if there were any objections to the jury charge and defense counsel did not raise this objection. Accord, Zant v. Akins, 250 Ga. 5(2), 295 S.E.2d 313 (1982).
The appellant contends that his successive claim of an unconstitutionally burden-shifting jury instruction could not reasonably have been raised in his original petition. We must disagree. The appellant's contention in this regard is belied by the fact that the habeas petitioner in Francis v. Franklin, supra, was in fact a Georgia prisoner whose murder conviction was affirmed by this court on January 4, 1980. Franklin v. State, 245 Ga. 141, 263 S.E.2d 666 (1980). In Franklin v. State, supra, Franklin argued that the trial court's jury instructions on the mandatory rebuttable presumption of intent were unconstitutionally burden-shifting, and this argument was rejected. 245 Ga. at pp. 152-154(8) 263 S.E.2d 666. This demonstrates that this claim could reasonably have been raised in the state habeas petition which the appellant filed in 1980.
Contrary to the appellant's argument that the Supreme Court's decision in Francis v. Franklin, supra, constituted some sort of change in the law, the five-Justice majority in Franklin held to the contrary. 105 S.Ct....
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