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Billy Sunday BIRT

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery - Torture - Key member of Georgia's notorious "Dixie Mafia"
Number of victims: 3 +
Date of murders: 1972 - 1973
Date of birth: 1937
Victims profile: Donald Chancey / Lois, 72, and Reed Oliver Fleming, 75
Method of murder: Shooting / Strangulation
Location: Georgia, USA
Status: Sentenced to death in 1975. Overturned in 1979. Sentenced to life in prison in 1980 for the 1972 murder of Donald Chancy, a former associate
 
 

 
 

Billy Sunday Birt was born in Borrow County in North Georgia in 1938. "He was from right poor people, " says former Douglas County Sheriff Earl Lee, who probably knows as much about Birt as anyone on the right side of the law. " I always felt that if he'd had a better start at life and been able to get himself a little education and all, he'd might not'a turned out like he did. As it is, he's kind to animals. He told me He'd heap rather kill a man than a dog. I believe him!" says Sheriff Earl Lee. 

According to Sheriff Earl Lee, Birt has killed 56 people, making him the number one multiple murderer in the state of Georgia.

Even with Birt's reputation as a serial killer he has only been convicted of three murders, the 1972 shooting of Donald Chancey, in Barr County and the 1973 strangulation of an elder couple, Mr. and Mrs. R.O. Fleming, in Wren, Georgia.

Birt originally came to the attention of Georgia Law Enforcement back in the 60's, when he was a runner in the North Georgia moonshine operation of Harold Chancey. Donald Chancey, Harold's cousin, and Billy Wayne Davis were also involved. These men and others like them formed a loosely knit gang that dealt in every thing from illegal liquor and drugs to stolen gasoline. State Police knew them as the Dixie Mafia.


Billy Sunday Birt, 60, and Bobby Gene Gaddis, 56, were sentenced to death in Jefferson County for the Dec. 22, 1973, torture and killing of Lois and Reed Oliver Fleming, ages 72 and 75. Three other men, including the man who arranged the robbery-killings, were granted immunity. A third man, Charles Reed, was sentenced to life in prison.

Four years after Mr. Birt and Mr. Gaddis were sentenced to death for killing the white couple, their sentences were overturned by a state judge reviewing the fairness of their trials. Nothing has been done since and this year the Department of Corrections moved Mr. Birt and Mr. Gaddis off death row.


Killers receive reprieve

The Augusta Chronicle

March 6, 1997

Two convicted killers who robbed, tortured and strangled an elderly Jefferson County couple 23 years ago are off death row.

Billy Sunday Birt and Bobby Gene Gaddis - convicted for the December 1973 slaying of R.O. Fleming, 75, and his wife Lois, 72, of Wrens - were taken off death row in Jackson, Ga., and moved to Georgia State Prison at Reidsville.

The two were among five convicted murderers whose status changed this week because no recent efforts have been made to resentence them since their death sentences were overturned.

Their removal makes room on death row for other convicts, said Karen Kirk, spokeswoman for the Georgia Department of Corrections.

Prosecutors are still working on the cases of Mr. Birt, Mr. Gaddis and others, but "it's sad that it has taken so long for them to go through the justice system," said Attorney General Mike Bowers. "It's just typical of everything that's wrong."

Mr. Birt and Mr. Gaddis had their death sentences overturned in 1979 and 1980, respectively. Both are serving life sentences for other crimes.

Many consider their crime the most gruesome in Wrens history. According to testimony, on the night of Dec. 22, 1973, Mr. Birt, Mr. Gaddis, and a third man, Charles David Reed, approached the Flemings' house, where Mr. Fleming, a retired car dealer, was known to keep large amounts of cash.

The three men tortured and strangled the couple with coat hangers and made off with $4,000 in pennies, nickels and dimes buried in fruit jars in the Fleming's smokehouse.

Authorities found the couple with their hands and feet bound and coat hangers wrapped around their necks.

"It was tough on the community," said Maj. Mark Williamson of the Jefferson County Sheriff's Department, who investigated the double murders 24 years ago.

The three men were eventually found guilty of murder and Mr. Gaddis and Mr. Birt were sentenced to death, while Mr. Reed was given four life sentences.

But news that Mr. Gaddis and especially Mr. Birt had been taken off death row did not come as good news to some.

"Billy Sunday Birt may be the worst murderer in Georgia history," said Rick Malone, district attorney in the Middle Judicial District.

Maj. Williamson, who was surprised by the news and described Mr. Birt as "mean," said, "I'd have volunteered to pull the switch on (him)."

Mr. Birt, a key member of Georgia's notorious "Dixie Mafia" in the 1970s, was convicted and sentenced to life in 1980 for the 1972 murder of Donald Chancy, a former associate.


BIRT v. THE STATE.

30638.

(236 Ga. 815)
(225 SE2d 248)
(1976)

HILL, Justice.

Murder. Jefferson Superior Court. Before Judge McMillan.

This is a death case. Following trial by jury in Jefferson County, Billy Sunday Birt was found guilty of one count of burglary, two counts of armed robbery by use of offensive weapons and two counts of murder. He was sentenced to twenty years for burglary, to life for each of the offenses of armed robbery (to be served concurrently), and to death for each of the offenses of murder. These offenses all related to Mr. and Mrs. Reid Oliver Fleming Sr., and occurred on December 22, 1973. The defendant was found not guilty of the December 21st burglary of the home of Jerry Haymon.

The case is before this court on appeal and for review of the death sentences. The state presented evidence from which the jury was authorized to find the following:

Carswell Tapley was employed by George Leisher on Leisher's farm in Washington County, Georgia. Leisher lived in Marietta and operated a used car lot. He made occasional visits to his farm. In late 1973, Leisher informed Tapley that if Tapley knew anyone who had money, Leisher knew some men who would "look into it" and pay 20% for help in "setting up a job." Tapley informed Leisher that a Mr. Fleming kept from $50,000 to $60,000 in his home.

Leisher saw Billy Wayne Davis, also in the used car business and formerly a business partner of Leisher's, and informed him that Tapley had information for him and gave Davis Tapley's phone number and a means of identification, the code word "hogs." 1

When Leisher returned to the farm he told Tapley that he had gotten "in touch with the boys" who would contact Tapley shortly. Later, a person who identified himself as Jim Gordon called Tapley and stated he was calling from Leisher's car lot. The caller said he would be by for Tapley at nine o'clock that evening "to go get the hogs." Upon his arrival Tapley showed him the Flemings residence in Wrens. Gordon asked Tapley what he knew about Jerry Haymon and where he lived.

According to Davis, a few days later Birt described two houses in Wrens, Georgia, to Davis. Davis contacted Larry Bethune who operated a body shop in Austell, and asked Bethune if he wanted to "pick up some money. Bethune indicated interest and on December 19, 1973, Bethune followed Davis to Wrens. Once they reached Wrens, Bethune got into Davis' car in which they drove by the Fleming residence and stopped at Haymon's filling station. An unfamiliar car was in the Fleming driveway and they left Wrens.

According to Davis, on Friday, December 21, 1973, Birt called Davis and asked him to come to a motel in Atlanta. Davis found Birt, Bobby Gaddis and Charles Reed at the motel. Girt explained to Davis that the three of them were planning a trip to Wrens to "take care of the business." Birt borrowed a car from Davis for the trip and also borrowed Davis' pistol.

The following morning, Saturday, December 22, 1973, Birt was waiting when Davis arrived at his car lot in Austell. According to Davis, Birt said that he had been awake all night, and that he planned to get some rest before going back to Wrens that evening. Further, Birt told Davis that he needed to have another car, as the one he had borrowed had already been seen in Wrens.

On Saturday afternoon, December 22, 1973, Davis took his car to Bethune to swap. When Bethune examined the trunk, it contained three guns and some coins which were identified as being stolen from Jerry Haymon's house. Bethune traded with Davis who received a 1971 green Cadillac, which, according to Davis, he turned over to defendant Birt.

Before Mr. Fleming closed his used car business on December 22, 1973, Bobby Gene Gaddis went to the car lot and made inquiries about a pickup truck. A customer who was in Mr. Fleming's office at the time made an in-court identification of Gaddis in a lineup.

Davis asked for the return of his pistol and Reed remembered last seeing it in the Flemings' home. According to Davis, he and Birt and Gaddis then drove the '71 Cadillac to Wrens to retrieve the gun. Approximately twelve miles outside of Wrens they experienced car trouble and Birt flagged down a passing car by use of his flashlight.

About 4 a.m. on December 23, 1973, Mr. John Alley was flagged down by at least two motorists with car trouble a few miles outside Wrens, Georgia. Mr. Edgar Chance who worked with Mr. Alley also stopped. Defendant Birt accompanied Mr. Chance and Mr. Alley to their place of employment to obtain jumper cables. They both identified Birt. Mr. Chance identified the automobile used by Birt as a Cadillac and testified that Birt stated that they were going to Florida.

Davis testified further that after the car was started, Davis, Gaddis and the defendant proceeded to the Fleming residence, where Davis obtained tools to repair the Cadillac from the Flemings' garage. Birt failed to find the missing pistol in the Fleming home but later found it down the road where the Flemings' automobile had been abandoned.

They repaired the Cadillac and left Wrens. En route back to the motor home at I-20 and Route 11, Birt and Gaddis described the events of that evening to Davis. According to Davis they said that after dark defendant Birt, Gaddis and Reed approached the Fleming residence. When Mr. Fleming responded to their knocks at his door they told him they wished to purchase the pickup truck Gaddis had looked at earlier. When Mr. Fleming told them to return in the daylight hours, they forced their way into the house and proceeded to tie their victims. While Gaddis stood guard, Birt and Reed drove the Cadillac and the Flemings' car down a side road away from the Fleming home and returned in the Flemings' automobile. They then proceeded to torture Mr. and Mrs. Fleming. With mirth they reported to Davis that Mrs. Fleming was hard of hearing but that her hearing improved considerably when a coat hanger was tightened about her throat. Gaddis and Birt also told Davis that they had obtained $4,000 from the Flemings. The money had been buried in fruit jars in the Flemings' smokehouse. Davis drove the motor home and Birt and Gaddis followed Davis to Austell, where Birt paid Davis $850 in cash for a car. Birt insisted that the bill of sale be made out to his son. The only witness for the state who testified as to the events of the night of December 22 and morning of December 23, with the exception of Mr. Alley and Mr. Chance, was Billy Wayne Davis.

On Sunday morning, December 23, 1973, when his father failed to attend church services, Hugh Fleming drove to his parents' home to investigate. Arriving at their residence, Hugh recognized that something was wrong when he found that the back door was unlocked and that the interior of his parents' home had been ransacked. Hugh found his 73-year-old mother lying face down on her bed with a coat hanger twisted around her neck. Hugh reported to law enforcement officials and they found his 75-year-old father at the foot of his wife's bed. The elder Fleming had a coat hanger and the cords to an electric drill and an electric clock wrapped around his neck. The hands and feet of both victims had been bound by bedsheets.

Dr. Larry Howard of the State Crime Laboratory performed the autopsies on Mr. and Mrs. Fleming. Dr. Howard determined that Mr. Fleming's death was due to strangulation performed quite abusively. Dr. Howard found severe abrasions and contusions around the throat of the deceased. He also observed two lines on Mr. Fleming's throat which were caused by repeated applications of a ligature. There were multiple hemorrhages about the throat, face and scalp.

In addition, Dr. Howard noted abrasions on the deceased's right ear and cheek, as well as multiple contusions about Mr. Fleming's eyes. Dr. Howard observed that other head injuries were possibly caused by multiple impacts of Mr. Fleming's head against the floor. Dr. Howard also noted that Mr. Fleming's left thumb nail was split down the middle. The injuries to the structure of Mr. Fleming's throat, and the signs of oxygen deprivation, indicated that there were several episodes of asphyxia due to oxygen deprivation prior to Mr. Fleming's death. The injuries around Mr. Fleming's neck indicated that his bonds were tightened, and loosened, only to be tightened again.

Mrs. Fleming's death also resulted from strangulation. Dr. Howard noted that her eyes were bulging and hemorrhaged and that her tongue was pushed forward. He noted a bruise on her neck that had been caused by the friction created by the rubbing of the coat hanger around her neck. Blood and fluid were found in Mrs. Fleming's nose and mouth.

Dr. Howard concluded that the deaths of the two victims were not instantaneous, but resulted from prolonged episodes of abuse. He expressed the opinion that the time of death was about 10 to 11 p.m. on December 22.

Police officers testified that the Flemings' home had been completely ransacked, that the lock on the smokehouse door had been broken and that fruit jars were found inside, and that the Flemings' Ford automobile was found about 2 miles from their home.

The defendant offered his own testimony and that of four alibi witnesses. His witnesses testified that he was at his home in Winder from six p.m. until after eleven p.m. on the evening of December 22, 1973. The defendant's wife testified that he did not leave the house until 2:30 a.m., December 23, 1973, when Davis arrived.

The defendant testified that he wanted to buy his fourteen-year-old son an automobile for Christmas, that he went to Davis' car lot on Thursday, December 20th to do so, that he picked out a car needing body work which Davis agreed to have done by Monday, that Davis arrived at his home in Winder at 2:30 a.m. on Sunday morning, December 23, saying he was about to leave town and if Birt wanted the automobile he would have to come to the lot in Austell and get it now, that en route to the lot Davis asked Birt to look in the glove compartment for his pistol, that the pistol was not there, that Davis turned around and started toward Athens, stating that he had to go to Wrens, that the car developed fan belt trouble, that only the two of them were in the car, that after they cut a loose piece off the fan belt the car would not start, that two passersby stopped, that Birt rode with them to get jumper cables, that he said they were going to Florida because he would have appeared foolish to say he didn't know where he was going, that after they got the car started they drove to where a Ford was parked, that Davis retrieved his pistol, that they then drove to Austell and went to Davis' car lot, and that Birt paid $850 cash for the car, part of which amount he had borrowed earlier from OG Finance Company in Winder. He stated that he returned to his home in Winder, arriving there about 9:30 or 10 a.m. Sunday morning. He acknowledged knowing Gaddis and Reed since childhood. He denied robbing or killing the Flemings.

In rebuttal, a witness for the state testified that he owned Colonial Finance Company which acquired OG Finance three years earlier, that he had searched the records, and that neither OG Finance nor Colonial made a loan to defendant Birt. The defendant took the stand again and testified that he got the loan from a Mr. Sheppard who used to work for OG Finance before he started his own finance company.

1. Defendant urges that the trial court erred in admitting into evidence over objection, and in failing to strike on motion, the testimony of witnesses Tapley, Leisher and Davis, because they admittedly were conspirators with each other and alleged conspirators with defendant but there was no other evidence to prove the conspiracy independent of their testimony. As can be seen, defendant's first enumeration deals with admissibility of evidence.

The defendant urges that the testimony of Davis, Tapley and Leisher cannot be used to prove the fact of conspiracy and that the remainder of the evidence did not prove the conspiracy. Absent the testimony of Davis, Tapley and Leisher, the remainder of the evidence bearing on the alleged conspiracy would be as follows: The Flemings were horribly murdered on the night of December 22. The lock on the smokehouse had been broken and fruit jars were found on the dirt floor. Their car was located about 2 miles away from their home. Gaddis had been seen at Mr. Fleming's car lot on the afternoon of December 22. Defendant Birt was seen on the road about 12 miles from Wrens at about 4 a.m. on December 23 in company with at least one other person. It is true, as defendant contends, that absent the testimony of Tapley, Leisher and particularly Davis, the evidence does not prove a conspiracy. However, certain portions of their testimony are admissible.

Code Ann. 38-306 deals with admissibility (Cf. Code Ann. 38-121, which deals with sufficiency). Code Ann. 38-306 is an exception to the rule which prohibits the admission into evidence of hearsay. See Code Ann. 38-301.

Code Ann. 38-306 provides: "After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all." This Code section deals with the admissibility of declarations of one conspirator upon the trial of another conspirator. Contrary to defendant's contention, it does not render all testimony by a conspirator inadmissible until the fact of the conspiracy be proved by independent evidence. It does not render a conspirator incompetent to testify as to facts it simply prohibits a conspirator from testifying as to declarations made by one conspirator outside the presence of, and upon the trial of, another conspirator. "The testimony of a coconspirator as to facts within his knowledge involves no hearsay problem, since the statements are given on the stand and are open to cross examination." Developments in the Law of Criminal Conspiracy, 72 Harv. L. Rev. 922, 984 (1959).

Moreover, Code Ann. 38-306 does not render Davis' testimony as to defendant Birt's declarations inadmissible upon Birt's trial. Wall v. State, 153 Ga. 309 (2) (112 SE 142) (1922). Davis' testimony that Birt admitted that he, Gaddis and Reed committed the two murders, is admissible at Birt's trial as an admission of guilt just as a confession by Birt to a law enforcement officer would be admissible as against Birt. See Code Ann. 38-414. Statements by Gaddis to Davis made in Birt's presence during their conversations in the car following the murders are also admissible against Birt. Smith v. State, 148 Ga. 332 (1c) (96 SE 632) (1918).

Considering Davis' testimony as to facts (e.g., his several meetings and trips with Birt) and Birt's declarations as testified to by Davis made at the motel on December 21, at Davis' car lot on the morning of December 22, at the motor home on I-20 at 2 a.m. on December 23, and Birt's and Gaddis' admissions during the trip from the motor home to the Fleming home and car and back to the motor home, there was more than ample evidence to prove the conspiracy and render the testimony of Tapley and Leisher and any remainder of Davis' testimony, admissible.

As stated in Chappell v. State, 209 Ga. 701, 702 (75 SE2d 417) (1953), the existence of a criminal conspiracy may be shown by direct or circumstantial evidence. Davis provided direct evidence of the conspiracy in this case.

The fact that Tapley and Leisher testified prior to Davis' taking the witness stand does not create reversible error. Barrow v. State, 121 Ga. 187 (2) (48 SE 950) (1904); Harrell v. State, 121 Ga. 607 (3) (49 SE 703) (1904); Wail v. State, 153 Ga. 309 (3) (112 SE 142) (1922).

Defendant cites four cases which he argues stand for the proposition that a conspiracy cannot be shown by the testimony of a conspirator but must be shown by independent proof. Wall v. State, supra; Lanier v. State, 187 Ga. 534 (1 SE2d 405) (1939); Pritchard v. State, 224 Ga. 776 (164 SE2d 808) (1968); and Caldwell v. State, 227 Ga. 703 (182 SE2d 789) (1971). He relies particularly on Wall v. State, supra, where the court said (p. 318): "The criminal conspiracy can not be shown by declarations of alleged conspirators, not in the presence of, and without the knowledge of, others sought to be bound thereby; but must be established by aliunde proof sufficient to establish prima facie the fact of conspiracy between the parties." Wall did not involve any declaration by defendant Wall. Wall holds that the conspiracy cannot be shown by declarations of alleged conspirators not the defendants and not in the presence of and without the knowledge of the defendants on trial. Wall held that a witness could testify as to a declaration made by co-defendant Lewis who was tried jointly with Wall.

Lanier v. State and Pritchard v. State, supra, relied upon by the defendant, involved the sufficiency of the evidence to corroborate the testimony of the accomplice. Although Caldwell v. State, supra, discusses both admissibility and sufficiency, it found the corroboration insufficient and hence the testimony of the conspirators to be inadmissible. In our view, the question of admissibility should be kept apart from the question of sufficiency, which latter question we turn to next, after stating that the trial court did not err in admitting, and in overruling the motion to strike, the testimony of Davis, Tapley and Leisher.

2. Defendant's second enumeration of error is that the trial court erred in overruling his motion for directed verdict and in overruling his motion for new trial on the general grounds in that there was not sufficient evidence to corroborate the testimony of accomplice Davis so as to connect the defendant with the crimes.

Code Ann. 38-121 provides that the testimony of a single witness is generally sufficient to establish a fact except that to convict in any case of felony where the witness is an accomplice, corroborating circumstances are required. This Code section deals with the sufficiency of the evidence (testimony and corroboration) to convict in felony cases where an accomplice testifies as a witness.

The leading case interpreting and applying this Code section and the cases decided under it is West v. State, 232 Ga. 861 (2) (209 SE2d 195) (1974), which should be considered in full and which we quote in part (pp. 864, 865): "The law is settled in Georgia that the corroborating facts or circumstances must connect the defendant to the crime or lead to the inference that he is guilty, and that such corroboration must be independent of the accomplice's testimony. Allen v. State, 215 Ga. 455 (111 SE2d 70); Price v. State, 208 Ga. 695 (69 SE2d 253).

"When an accomplice's testimony is corroborated in material part, other uncorroborated testimony may be believed by the jury, with one important exception. Under 38-121, testimony which concerns the identity of other participants must be corroborated by some means independent of the testimony of the accomplice. One who is guilty of a crime in which he participated will always be able to relate the facts of the case and if the corroboration goes only to the truth of that history, without identifying the person accused, it is really no corroboration at all.

"Therefore, a distinction must be made between evidence which tends to prove the truth of the accomplice's general testimony and that which tends to prove the identity and participation of the accused. . . [A]n accomplice's testimony is more believable when it is corroborated in material part. But insofar as the participation and identity of the accused is concerned, there must be independent corroborating evidence which tends to connect the accused with the crime.

"Simply because an accomplice's testimony is corroborated in most details, it does not follow that his testimony alone as to the identity and participation of the accused is sufficient to justify conviction." A host of cases can be found in support of this decision. See Allen v. State, 215 Ga. 445 (2) (111 SE2d 70) (1959), and cases cited.

Thus, regarding sufficiency (as opposed to admissibility) the testimony of an accomplice must be corroborated by independent evidence as to the identity and participation of the accused which tends to connect the accused with the crime or leads to the inference that he is guilty. As stated in Allen v. State, supra, the corroborating facts and circumstances must do more than merely cast on the defendant a grave suspicion of guilt.

Davis' testimony as to the history of these crimes is amply corroborated by other evidence.

Moreover, Davis' testimony as to defendant Birt's identity and participation in the murders is corroborated by the testimony of the two men who identified Birt as being in a disabled Cadillac about 4 a.m. and 12 miles from Wrens, within a few hours of the murders and about 100 miles from Birt's home in Winder. The testimony of these two independent witnesses corroborates Davis' testimony, tends to connect the accused with the crime and leads to the inference that he is guilty.

Davis' testimony as to Birt's identity and participation is further corroborated by Birt's testimony that he and Davis went to the Flemings' abandoned car and retrieved Davis' pistol.

The corroborating evidence as to Birt's identity and participation in the crimes was sufficient to satisfy the requirement of Code Ann. 38-121 that such corroboration do more than tend to cast a grave suspicion of guilt on the accused, and was sufficient to tend to connect the accused with the crime and lead to the inference that he is guilty.

The defendant urges that his testimony showed his reason for being in a disabled Cadillac 12 miles from Wrens at 4 a.m. on Sunday morning. He urges that the evidence corroborating Davis' testimony was thus explained. However, defendant's testimony seeking to explain the evidence of corroboration could not dispel that evidence; it merely made a question for the jury to decide. See Harris v. State, 236 Ga. 242, 244 (1976). The jury found against the defendant's explanation of the corroborating evidence.

As was stated in Brown v. State, 232 Ga. 838, 840 (209 SE2d 180) (1974): " 'It is not required that this corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular. Taylor v. State, 110 Ga. 151; Dixon v. State, 116 Ga. 186. Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict. Evans v. State, 78 Ga. 351; Roberts v. State, 55 Ga. 220. The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant's guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence or corroboration connecting the defendant with the crime, it can not be said, as a matter of law, that the verdict is contrary to the evidence. Chapman v. State, 109 Ga. 165.' Hargrove v. State, 125 Ga. 270, 274 (54 SE 164); Slocum v. State, 230 Ga. 762 (3) (199 SE2d 202)."

The evidence corroborating the testimony of the accomplice was sufficient to warrant submitting the case to the jury and the trial judge did not err in overruling the defendant's motion for directed verdict or in overruling his motion for new trial on the general grounds.

3. Defendant argues that the trial court erred in overruling his motion for directed verdict on the armed robbery counts in that there was no competent evidence to show that any money was taken or the amount of money taken.

Davis testified that Birt and Gaddis told him that after torturing Mr. Fleming to make Mrs. Fleming disclose where the money was hidden, $4,000 was found buried in fruit jars in the Flemings' smokehouse. This testimony was corroborated by the physical evidence at the scene of the crimes. Davis' testimony that Birt paid him $850 cash for a car on the morning of December 23 was corroborated by the bill of sale signed in the name of the defendant's 14-year-old son. "It is not required that this corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular." Brown v. State, supra.

The trial court did not err in failing to direct a verdict as to the armed robbery counts.

4. Defendant urges that the trial court erred in not requiring the state to elect which charge of armed robbery, of Mr. Fleming or Mrs. Fleming, would be submitted to the jury. He urges that the evidence will not support both armed robbery convictions in that there is no evidence to show which victim owned or possessed the money or which victim died first.

The evidence was sufficient to support a conviction for armed robbery. Clements v. State, 84 Ga. 660 (1) (11 SE 505) (1890); Welch v. State, 235 Ga. 243 (1) (219 SE2d 151) (1975); Moore v. State, 233 Ga. 861, 864 (213 SE2d 829) (1975). Although the state sufficiently established the taking of the money, the state was unable to show in this case from which victim the money was taken. Under these circumstances, the trial judge did not err in overruling the motion to require the state to elect. Apparently no jury instructions regarding this matter were requested and none were given. Under the circumstances of this case and in view of the lack of evidence on this point one conviction for armed robbery should be set aside upon remand. See Creecy v. State, 235 Ga. 542 (5) (221 SE2d 17) (1975); Jackson v. State, 236 Ga. 98 (222 SE2d 380) (1976).

The defendant cites Davis v. State, 100 Ga. App. 308, 313 (111 SE2d 116) (1959), which would indicate that where a defendant is convicted of two offenses, one included within the other as a matter of fact, a new trial as to both is required. However, even the Davis opinion notes that where the evidence shows only a single crime and where the jury is instructed as to two crimes and returns guilty verdicts as to both, the error would have become harmless if the trial court had imposed sentence upon the defendant only for one offense. Id., p. 311.

Rather than require new trials as to both armed robbery counts, one armed robbery conviction should be set aside. Creecy v. State, supra; Jackson v. State, supra.

5. Defendant urges that the trial court erred in failing to give the charge he requested on impeachment of witnesses and erred in the charge given on impeachment by charging that a witness could be impeached by conviction of a felony but by failing to give a definition of "felony."

Defendant's request to charge on impeachment was general in its terms, and did not request a definition of "felony." The charge given by the court substantially covered the subject of impeachment and we find no error in the court's failure to give the charge requested by the defendant. Leutner v. State, 235 Ga. 77 (5) (218 SE2d 820) (1975), and cits.

As noted above, defendant did not request a definition of "felony." The evidence showed that witness Davis had pled guilty to the charge of possession of counterfeit money and was serving a 20-year sentence for bank robbery (see United States v. Gaddis, -- U. S. -- (96 SC 1023,47 LE2d 222) (1976)). The jury was instructed generally as to credibility of witnesses and impeachment. In a criminal case it is the duty of the trial judge, with or without request, to give the jury appropriate instruction as to the law on each substantive point or issue involved in the case, but the trial court is not required to charge, without request, as to any collateral matter. Driver v. State, 194 Ga. 561 (1) (22 SE2d 83) (1942).

In the case of Edwards v. State, 233 Ga. 625 (212 SE2d 802) (1975), the trial court failed to charge the elements of a felony in a felony murder case. In Edwards, the felony issue was one of the substantive issues involved in the case. Edwards v. State, supra, is distinguished from the case before us by the nature of the issues involved. Perhaps it should be noted, however, that the court below did define the word "felony" in charging the jury as to the crimes charged against this defendant.

We find no error in the trial court's charge on impeachment.

6. The defendant challenges the constitutionality of the Georgia death penalty statute. That statute (Ga. L. 1973, pp. 159-172, Code Ann. 27-2534.1), has been attacked with regularity since its enactment. Beginning with the first case considered by this court under that statute ( Coley v. State, 231 Ga. 829 (204 SE2d 612) (1974)), the statute has been upheld against all general attacks. But see Arnold v. State, 236 Ga. 534 (1976). An attack similar to one raised here was overruled in Smith v. State, 236 Ga. 12 (5) (222 SE2d 308). This enumeration is found to be without merit.

7. Sentence Review: To authorize affirmance, the death penalties imposed in this case must conform to the standards set forth in Code Ann. 27-2534.1. This court must determine (a) whether the sentences of death were imposed under the influence of passion, prejudice, or any other arbitrary factor; (b) whether the evidence supports the jury's findings of statutory aggravating circumstances; and (c) whether the sentences of death are excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Code Ann. 27-2537 (c) (1-3).

In recommending the death penalty as to both murder counts the jury found as follows: (1) The offense of murder was committed while the offender was engaged in the commission of another capital felony, armed robbery (Code Ann. 27-2534.1 (b) (2)); (2) The offense of murder was outrageously or wantonly vile, horrible or inhumane in that it involved torture or depravity of mind (Code Ann. 27-2534.1 (b) (7)); and (3) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value (Code Ann. 27-2534.1 (b) (4)).

The evidence supports the jury's findings of statutory aggravating circumstances as to each of the counts of murder. After considering both the crimes and the defendant and after comparing the evidence and sentences in this case with those of previous murder cases reviewed, we are of the opinion that the sentences of death in this case are not excessive or disproportionate to the penalties imposed in similar cases.

The sentences of death imposed in this case are affirmed.

APPENDIX.

Notes

1  Tapley, Leisher and Davis testified for the state after being granted immunity. Neither Tapley nor Leisher identified defendant Birt in their testimony. According to Davis' testimony, defendant Billy Sunday Birt had previously told Davis that he would be well paid for such information, and Davis passed the information to the defendant and instructed him how to contact Tapley.

H. Reginald Thompson, District Attorney, Arthur K. Bolton, Attorney General, Lois F. Oakley, Assistant Attorney General, for appellee.

O. L. Collins, for appellant.

ARGUED JANUARY 13, 1976 -- DECIDED APRIL 20, 1976 -- REHEARING DENIED MAY 17, 1976.


709 F.2d 690

Billy Sunday Birt, Petitioner,
v.
Charles N. Montgomery, Warden, Georgia State Prison, Respondent

United States Court of Appeals, Eleventh Circuit.

July 11, 1983

Appeal from the United States District Court for the Southern District of Georgia.

Before HENDERSON and HATCHETT, Circuit Judges, and TUTTLE, Senior Circuit Judge.

HATCHETT, Circuit Judge:

Billy Sunday Birt, a state prisoner, appeals the denial of his federal habeas corpus petition challenging state convictions for murder, armed robbery, and burglary. Birt contends that he was denied the right to counsel of his choice as guaranteed by the sixth and fourteenth amendments. Because the factfinding procedure employed by the state habeas corpus court did not afford a full and fair hearing on this contention, we vacate the denial of Birt's petition and remand to the district court for further proceedings consistent with this opinion.

On January 31, 1975, a Jefferson County, Georgia, grand jury returned an indictment charging Birt and three others with one count of burglary, two counts of armed robbery, and two counts of murder in connection with the deaths of Reid and Lois Fleming, husband and wife. At the time of indictment, Birt was incarcerated in Illinois on an unrelated federal conviction and did not learn of the indictment until March or April of 1975. He was not transferred to Georgia until shortly before arraignment on June 7, 1975. After a six-day trial in the Jefferson County Superior Court beginning on June 23, 1975, a jury found Birt guilty of all charges and recommended that he be sentenced to death. On June 28, 1975, the trial court imposed two sentences of death for the murder counts, two concurrent life sentences for the armed robbery counts, and twenty years imprisonment for the burglary count. On direct appeal, the Supreme Court of Georgia affirmed the convictions and sentences. Birt v. State, 236 Ga. 815, 225 S.E.2d 248, cert. denied, 429 U.S. 1029, 97 S.Ct. 654, 50 L.Ed.2d 632 (1976).

Birt filed a petition for writ of habeas corpus in the Superior Court of Tattnall County, Georgia. After an evidentiary hearing, that court determined that the constitutional inadequacies of the sentencing phase jury instructions required vacating Birt's death sentences and that a new sentencing hearing be held.2 All other asserted grounds for relief involving alleged defects in the guilt-innocence phase of Birt's trial were denied. The Georgia Supreme Court upheld the decision of the state habeas corpus court. Birt v. Hopper, 245 Ga. 221, 265 S.E.2d 276, cert. denied, 449 U.S. 855, 101 S.Ct. 150, 66 L.Ed.2d 68 (1980).

Birt next sought collateral relief in the United States District Court for the Southern District of Georgia and requested an evidentiary hearing. Finding that the state courts accorded Birt a full and fair hearing on all asserted grounds for relief and that none of the statutory exceptions in 28 U.S.C.A. Sec. 2254(d)(1)-(8) applied, the district court presumed the state court's factual findings to be correct. Thus, the district court held no evidentiary hearing. On February 16, 1982, the court entered an order denying habeas corpus relief. Birt v. Montgomery, 531 F.Supp. 815 (S.D.Ga.1982). Upon obtaining a certificate of probable cause, Birt timely filed this appeal.

Birt raises five issues on appeal. He contends (1) that the factfinding procedures employed by the state habeas corpus court did not afford a full and fair hearing because Georgia law at the time did not recognize the validity of subpoenas issued beyond an 150-mile range of the courthouse, and therefore, crucial witnesses on Birt's behalf, though subpoenaed, failed to attend; (2) that he was denied the right to counsel of his choice as guaranteed by the sixth and fourteenth amendments; (3) that he was denied the effective assistance of counsel because of his appointed lawyer's failure to investigate the population figures of Jefferson County and the percentages of blacks and women on Jefferson County jury rolls; (4) that he was denied the right to a jury pool comprised of a representative cross-section of the community; and (5) that the security measures employed at trial deprived him of an impartial jury and due process in violation of the sixth and fourteenth amendments.

The standard of review for habeas corpus petitions filed by state prisoners is that stated in 28 U.S.C.A. Sec. 2254(d).3 Written determinations concerning factual issues entered after a hearing on the merits by a state trial or appellate court of competent jurisdiction are presumed correct unless the petitioner can show that one of the conditions set forth in 28 U.S.C.A. Sec. 2254(d)(1)-(8) exists. Hance v. Zant, 696 F.2d 940, 946 (11th Cir.1983). If such a showing is made, the presumption no longer applies and the petitioner has the burden of proving, by a preponderance of the evidence, the facts supporting his substantive federal claim. Thomas v. Zant, 697 F.2d 977, 985-987 (11th Cir.1983). If none of the conditions of section 2254(d)(1)-(8) are found to exist, the petitioner must be given an opportunity to rebut the presumption and establish by convincing evidence that the state court was erroneous. Sumner v. Mata, 449 U.S. 539, 546, 101 S.Ct. 764, 768, 66 L.Ed.2d 722 (1981); Hance, 696 F.2d 940, 946. The presumption of correctness accorded state court findings does not apply to legal findings or to mixed questions of fact and law. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980).

A. The Right to Counsel of Choice and the Denial of a Federal Evidentiary Hearing

In his first substantive argument, Birt alleges that he was denied the right to counsel of his choice by the trial court's refusal to allow him a meaningful opportunity to secure private counsel to prepare his defense. The facts pertaining to this claim, as found by the state habeas corpus court, are as follows. At the time of the indictment on January 31, 1975, Birt was incarcerated in the federal penitentiary in Marion, Illinois, on an unrelated federal conviction. Birt did not learn of the indictment until March or April when he received a telephone call from O.L. Collins, the attorney appointed by the Superior Court of Jefferson County to represent him. In this telephone conversation, Birt strenuously objected to appointed representation and told Collins to inform the Superior Court that upon transfer to Georgia, he would hire an attorney.4 Birt was not transferred to Georgia until shortly before arraignment on June 7, 1975. At arraignment, with Collins present, Birt continued his objection to appointed counsel and informed the court that, given the opportunity to speak with his wife, he would hire an attorney.5 Collins's testimony at the state habeas corpus hearing confirms Birt's objections to appointed counsel. The state habeas corpus court found that Birt objected to appointed counsel at arraignment, but that the trial court exercised its discretion in keeping Collins on the case in the event Birt was unable to retain counsel.

Although incarcerated in Augusta, Georgia, some 200 miles from his family in Marietta, Georgia, Birt and his family succeeded in retaining a private attorney, Eugene Reeves, to represent him at the upcoming trial. According to Collins, he, Reeves, and Birt met for the first time at the Richmond County jail on Sunday night, June 22, 1975, with trial scheduled to begin the next morning. Collins testified that when Reeves revealed his intention to seek a continuance in order to prepare for trial, he advised Reeves that Judge McMillan (who was also the arraigning judge), was unlikely to grant any continuances. Collins testified further that, after independent conversations with both attorneys, Birt decided to keep both of them.6 Birt's testimony to the contrary was rejected by the state habeas corpus court.7 Birt proceeded to trial represented by both Collins and Reeves. The record indicates that Reeves cross-examined the state's principal witness and handled most of the defense, examining Birt and his alibi witnesses.

The state habeas corpus court found that Birt voluntarily accepted the assistance of both Collins and Reeves and thereby waived the right to counsel of his choice. This finding was affirmed on appeal. Birt v. Hopper, 245 Ga. 221, 223, 265 S.E.2d 276, 278. As discussed above, this finding is entitled to the presumption of correctness unless one of the 28 U.S.C.A. Sec. 2254(d) circumstances applies. Birt contends that section 2254(d)(2) is applicable because, according to Birt, the factfinding procedure employed by the state habeas corpus court was not adequate to afford a full and fair hearing on the right to counsel question. The basis of Birt's argument is the Georgia statute in effect at the time of the habeas corpus hearing which restricted the enforceability of subpoenas to 150 miles from the courthouse where the habeas corpus proceeding is held. Ga.Code Ann. Sec. 38-801(e) (revised and recodified at Sec. 24-10-21 (1982)).8 This statute prevented Birt from compelling the attendance of Reeves, Birt's retained attorney, at the state habeas corpus hearing. Although he subpoenaed Reeves, Birt could not compel Reeves attendance because his residence in Lawrenceville, Georgia, is more than 150 miles from Tattnall County, Georgia. Consequently, Reeves was outside the range for an enforceable subpoena. Reeves allegedly would have testified to the Sunday night conversation between him, Collins, and Reeves, during which, according to the state habeas corpus court, Birt waived the right to counsel of his choice. The state urges us to decline consideration of Birt's objection to the subpoena range statute because of his failure to challenge the statute on appeal from the denial of the state habeas corpus petition.9 Notwithstanding this failure, the state claims that the hearing Birt received in state court was full and fair. Because we agree with Birt that the procedural statute prevented a full and fair hearing on the right to counsel of choice question, we hold that it was error for the district court to presume the factual findings entered by the state habeas corpus court to be correct. It is therefore our view that Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963), mandates a federal evidentiary hearing on this issue.

In Townsend v. Sain, the Supreme Court delineated six situations where a federal evidentiary hearing is required even though a state court has previously entered factual findings. One of the situations envisioned by the Court is that presently codified in 28 U.S.C.A. Sec. 2254(d)(2). See footnote 3. Townsend governs the threshold question of when a federal evidentiary hearing is mandatory while section 2254(d) establishes a presumption of correctness for state court findings unless one of its exceptions is established. Thomas v. Zant, at 984; Guice v. Fortenberry, 661 F.2d 496, 501 (5th Cir.1981) (en banc). Section 2254(d) also allocates the burdens of proof once a Townsend hearing is deemed necessary. Thomas, at 984. When one of the statutory exceptions applies, the state's factual findings, while no longer entitled to a presumption of correctness, are not presumed incorrect, nor does the state have the burden of proving that the petitioner is not unconstitutionally confined. "Rather, any presumption of correctness simply drops out of the picture, and the traditional rules as to burden and standard of proof continue." Developments in the Law--Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1142 (1970) (footnote omitted). Thus, at the Townsend hearing, Birt must establish by a preponderance of the evidence that he was denied the right to counsel of his choice. If he succeeds in establishing a prima facie case for an unconstitutional denial, the state may rebut the prima facie case by proving, with a preponderance of the evidence, that Birt voluntarily waived his right to counsel of his choice. See Thomas, at 985-87.

Our conclusion that the factfinding procedure employed by the state habeas corpus court was not adequate to afford a full and fair hearing on Birt's sixth amendment claim stems from the fact that Reeves, the attorney retained by Birt and his family, could not be compelled to testify at the state hearing. The state brings to our attention the fact that under the Georgia habeas corpus statute, Birt could have obtained the testimony of Reeves by other methods, such as deposition or sworn affidavit. Ga.Code Ann. Sec. 50-127(7) (recodified at Sec. 9-14-48 (1982)). The state habeas corpus court record reflects that Birt did in fact request an opportunity to introduce an affidavit from Reeves when it appeared that he was not going to honor the subpoena. The state habeas corpus court, however, concluded the hearing with a simple notation of Birt's objection.10

Birt offers no suggestion as to what Reeves's testimony would disclose. It can be inferred from the absence of any objections from Birt on the morning of trial, and the absence of a motion by Reeves for a continuance, that Birt did waive his right to counsel of his choice and voluntarily chose to proceed to trial with retained and appointed counsel. We choose not to base our holding on such an inference, however, especially when the state habeas corpus hearing resulted in a virtual swearing match. Caution is dictated because the swearing match was between, on the one hand, a convicted felon, and on the other, the attorney appointed to represent him, himself a former district attorney charged in Birt's petition with rendering ineffective assistance. It is not difficult to predict the victor in such a match. In this regard, the sixth amendment, while not providing an absolute right, guarantees a defendant a fair opportunity to secure counsel of his choice. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932). Whether Birt waived this guarantee deserves more inquiry than just Birt's word against Collins's. Because we find that statutory procedures then in force prevented a full and fair inquiry on this issue, Townsend directs that an evidentiary hearing be held in federal court. At that hearing, the respective burdens are as discussed above. If it is found that Birt's right to counsel of his choice was denied, his convictions must be overturned and a new trial granted.

Birt claims that the traverse jury list from which his trial jury was selected substantially underrepresented blacks and women by percentages violative of both the sixth amendment right to a jury pool representative of a fair cross-section of the community and the fourteenth amendment guarantee of equal protection. See Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). On appeal from the denial of Birt's state petition, the Georgia Supreme Court found that according to Georgia law in effect at the time of trial, the traverse jury challenge was waived for purposes of habeas corpus review due to the failure to assert the challenge prior to trial. The court thus refused to entertain the claim. Birt v. Hopper, 245 Ga. 221, 223, 265 S.E.2d 276, 278.11 The district court entered a similar finding, and, concluding that cause for the failure to object had not been established, refused to reach the merits. Birt v. Montgomery, 531 F.Supp. 815, 818 n. 2.

Under Georgia law at the time of Birt's trial, "the right to object to the composition of the ... traverse jury will be deemed waived ... 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 sentence and conviction have otherwise become final." Ga.Code Ann. Sec. 50-127(1) (recodified at Sec. 9-14-42(b) (1982)). To assert a jury composition challenge collaterally in federal court when such right has been waived under state law, Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), requires the petitioner to demonstrate both cause for the failure to challenge and actual prejudice. Although arising in the context of a challenge to the composition of a grand jury, Francis v. Henderson has been applied to traverse jury attacks as well. See, e.g., Huffman v. Wainwright, 651 F.2d 347 (5th Cir.1981); Evans v. Maggio, 557 F.2d 430, 434 n. 6 (5th Cir.1977); Cunningham v. Estelle, 536 F.2d 82, 83-84 (5th Cir.1976). "Absent cause for the procedural default and actual prejudice from the error, principles of comity and federalism prevent federal courts from granting habeas relief to state prisoners whose claim is non-reviewable in state court because of the default." Washington v. Estelle, 648 F.2d 276, 278 (5th Cir.), cert. denied, 454 U.S. 899, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981).

Birt's federal petition lacks any discussion on the failure to challenge. In his brief on appeal, Birt argues that, because no evidentiary hearing was held in federal court, he lacked a full opportunity to demonstrate cause and prejudice. Even absent a full hearing, however, Birt claims the following combine to constitute sufficient cause: (i) the denial of the right to counsel of his choice, (ii) his appointed attorney's misunderstanding of jury selection law, and (iii) Birt's non-participation in appointed counsel's decision not to challenge the traverse jury. We reject Birt's contention that the failure to hold a federal evidentiary hearing precluded the opportunity to demonstrate cause and prejudice. Because Birt's federal petition failed to allege any facts which, if proved, would have demonstrated cause and prejudice and therefore would have entitled Birt to relief, the district court was not required to hold an evidentiary hearing on this question. See Baldwin v. Blackburn, 653 F.2d 942, 947 (5th Cir.1981), cert. denied, 456 U.S. 950, 102 S.Ct. 2021, 72 L.Ed.2d 475 (1982); Rutledge v. Wainwright, 625 F.2d 1200, 1205 (5th Cir.1980), cert. denied, 450 U.S. 1033, 101 S.Ct. 1746, 68 L.Ed.2d 229 (1981). The allegation concerning appointed counsel's misunderstanding of jury selection law, interpreted properly, is a claim of ineffective assistance. Bare claims of ineffective assistance are insufficient to establish the requisite cause. Sullivan v. Wainwright, 695 F.2d 1306, 1311 (11th Cir.1983); Lumpkin v. Ricketts, 551 F.2d 680, 682 (5th Cir.), cert. denied, 434 U.S. 957, 98 S.Ct. 485, 54 L.Ed.2d 316 (1977). A finding of ineffective assistance, however, may satisfy the cause requirement. As discussed in the next section of this opinion, we make such a determination and find that Birt's appointed counsel (Collins) rendered ineffective assistance due to his deficient investigation of Jefferson County population percentages and their relation to the county traverse jury list. Despite this determination of sufficient cause, Birt is not entitled to substantive relief on this issue because nothing in the record indicates that Birt satisfies the other requirement of Francis v. Henderson, that is, that he was actually prejudiced by the failure to challenge. Assuming that the Jefferson County traverse jury pool was composed unconstitutionally, Birt could benefit from such violation only if it worked to his actual and substantial disadvantage. See United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816, 832 (1982). If challenged prior to trial, a movant is not required to demonstrate prejudice flowing from an unconstitutionally composed jury pool. The prejudice is presumed. Cf. Rose v. Mitchell, 443 U.S. 545, 554, 99 S.Ct. 2993, 2999, 61 L.Ed.2d 739 (1979) (challenge to grand jury foreperson on equal protection grounds); Alexander v. Louisiana, 405 U.S. 625, 628, 92 S.Ct. 1221, 1224, 31 L.Ed.2d 536 (1972) (challenge to grand jury on equal protection grounds). On collateral attack in federal court, however, when the challenge has been waived under state law, the burden of demonstrating prejudice resulting from underrepresentation is much greater than the presumption accorded the violation when raised prior to trial. Cf. Frady, 456 U.S. 152, 164-66, 102 S.Ct. 1584, 1592-93, 71 L.Ed.2d 816, 828-29 (federal prisoner challenging jury instructions for first time in 28 U.S.C.A. Sec. 2255 proceeding); Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) (state prisoner challenging jury instructions initially in 28 U.S.C.A. Sec. 2254 proceeding). Although difficult to define with precision, an actual and substantial disadvantage--that which must be demonstrated on collateral attack--means something more than disparity in population percentages on a traverse jury list. Because Birt failed to demonstrate anything more than disparity in the full and fair hearing held in the state habeas corpus court on this issue, no federal habeas corpus relief on this ground is warranted.

Birt challenges as ineffective only one aspect of appointed counsel's representation. He contends that, although cognizant of the fact that prior Jefferson County traverse jury lists had underrepresented blacks and women and that the lists had been recently revised under challenge, appointed counsel nevertheless rendered ineffective assistance in failing to challenge the June 1975 list from which Birt's jury was selected. Birt claims that appointed counsel knew neither the constitutional standards governing jury selection procedures nor the population percentages of blacks and women in the Jefferson County population. Thus, according to Birt, he lacked the mathematical means necessary to assess the representativeness of the traverse jury list and his decision to forego challenging that list was not an informed and tactical one.

Birt's statistics show an absolute disparity of underrepresentation on the June 1975 list of 32.9% for blacks and 17.6% for women, figures which the state does not dispute.12 The statistics also indicate that traverse jury pool lists for previous years comprised even fewer blacks and women and therefore involved higher race and gender disparities.13 Testimony of Jefferson County jury commissioners at the state habeas corpus hearing revealed that potential jurors were occasionally selected by accepting or rejecting names on the county voter registration lists based upon the commissioners personal knowledge of the individuals or their family background. The commissioners acknowledged that they did not obtain population figures for Jefferson County or calculate the proportionate representation of minorities in the general population.14

Birt's statistical evidence appears to establish a prima facie case of unconstitutional composition under both the sixth and fourteenth amendments. The percentage disparities are sufficiently disproportionate to fall within the approximate boundaries delineated in other cases. See, e.g., Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 532 (1970) (23%); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (14%); Preston v. Mandeville, 428 F.2d 1392 (5th Cir.1970) (13.3%). For purposes of the equal protection violation, the subjective judgments of the Jefferson County jury commissioners certainly renders the method of selection susceptible to possible abuse. See Castaneda v. Partida, 430 U.S. 482, 497, 97 S.Ct. 1272, 1281, 51 L.Ed.2d 498 (1977). For purposes of the sixth amendment right to a jury of a representative segment of the community, the disparities of blacks and women on Jefferson County traverse jury lists over a period of time indicates systematic exclusion of these two groups.

The state concedes that Collins was aware that an attack could be made on the composition of the traverse jury list. The state maintains, however, that Collins's habeas corpus testimony, which was adopted by the state courts, is conclusive on the decision to forego a jury challenge. Collins testified that no challenge was made because, based upon his discussions with the jury commissioners, he was satisfied with the method of selection, and based upon his investigation and discussion with citizens of the county, he was satisfied with the composition of the jury list. According to the state, Collins's investigation, accompanied by Birt's insistence on proceeding to trial, makes the decision not to challenge one of trial strategy.

The district court characterized Collins's decision not to challenge the traverse jury as a matter of trial strategy. The court noted that Collins filed a motion for change of venue with the stipulation that he would not insist upon such a change if the defense were able to draw a satisfactory jury. Collins testified that he was satisfied with the jury ultimately selected and he accordingly withdrew the change of venue motion.

The sixth amendment guarantees criminal defendants the right to counsel reasonably likely to render and rendering reasonably effective assistance given the totality of the circumstances. See, e.g., Washington v. Strickland, 693 F.2d 1243, 1250 (5th Cir. Unit B 1982) (en banc); MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir.1960), adhered to en banc, 289 F.2d 928 (5th Cir.), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). Whether counsel has rendered adequate assistance is a mixed question of fact and law requiring application of legal principles to the historical facts of the case. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980); Young v. Zant, 677 F.2d 792, 798 (11th Cir.1982). "The district court's conclusion on this issue is entitled to no special deference and this court must review counsel's performance and determine independently whether the constitutional standard was met." Sullivan v. Wainwright, 695 F.2d 1306, 1308,citing Proffitt v. Wainwright, 685 F.2d 1227, 1247 (11th Cir.1982). Nor is the state court's conclusion on this issue entitled to a presumption of correctness under 28 U.S.C.A. Sec. 2254(d). Goodwin v. Balkcom, 684 F.2d 794, 804 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1798, 76 L.Ed.2d 364 (U.S.1983). Effective counsel need not be errorless counsel, nor should counsel's performance be judged ineffective with the benefit of hindsight. Mylar v. State, 671 F.2d 1299, 1301 (11th Cir.1982), petition for cert. filed, 51 U.S.L.W. 3079 (U.S. Aug. 10, 1982) (No. 81-2240); Baty v. Balkcom, 661 F.2d 391, 394 (5th Cir.1981), cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982). Essential to effective representation, however, is the independent duty to investigate and prepare. Goodwin, 684 F.2d 794, 805.

The charge of ineffective assistance directed at Collins implicates the extent of his investigation into a plausible line of defense. See Washington v. Strickland, 693 F.2d 1243, 1253. Before making a strategic choice as to which lines of defense to employ at trial, Washington v. Strickland teaches that "counsel should ideally perform a substantial investigation into each potential line." 693 F.2d at 1253 (emphasis added).

When an attorney makes a strategic choice after satisfying this rigorous and extensive duty to investigate, courts will seldom if ever find that the choice was the result of ineffective assistance of counsel .... Whereas a strategy chosen after full investigation is entitled to almost automatic approval by the courts, a strategy chosen after partial investigation must be scrutinized more closely in order to safeguard the rights of criminal defendants.

Washington, 693 F.2d at 1254-55. In most cases, strategy employed without a reasonably substantial investigation into all plausible lines of defense will be in part based upon the attorney's professional assumptions regarding the probable success of each line. The courts have found that a reasonable strategic choice based upon reasonable assumptions makes investigation into other plausible lines of defense unnecessary. See, e.g., Jones v. Kemp, 678 F.2d 929, 931-32 (11th Cir.1982); Gray v. Lucas, 677 F.2d 1086, 1093-94 (5th Cir.1982). Conversely, courts have found counsel ineffective where the failure to investigate is not based upon a reasonable set of assumptions or when those assumptions are not reasonable. See, e.g., Young v. Zant, 677 F.2d 792, 798-800; Kemp v. Leggett, 635 F.2d 453, 454-55 (5th Cir.1981).

Collins's habeas corpus testimony convinces us that the decision not to challenge the traverse jury pool, while arguably the result of a reasonably substantial investigation, was not based upon an adequate understanding of the facts and applicable law. Collins testified that, although the revised jury list may not have accurately reflected a cross-section of the community, as far as he was concerned, it was fair. As the statistics indicate, however, in reality it was not. No matter how many times the jury commissioners were interviewed or jury lists examined, without knowledge of the racial and gender composition of Jefferson County, Collins was in no better position than one who had chosen not to investigate the jury pool at all. We cannot say that Collins's assumption that the revised jury list was fair was a reasonable one. Nor can we say that Collins's choice not to challenge the traverse jury was a fully informed strategic decision. We therefore hold the district court's finding to the contrary clearly erroneous. See Washington v. Strickland, 693 F.2d at 1257 n. 24; Beckham v. Wainwright, 639 F.2d 262, 265-66 (5th Cir.1981). Accordingly, we reject the district court's conclusion that Collins rendered effective assistance.15 A finding of ineffective assistance, however, does not end the inquiry. To prevail on this claim, "the petitioner must show that ineffectiveness of counsel resulted in actual and substantial disadvantage to the course of his defense." Washington v. Strickland, 693 F.2d at 1262. To demonstrate the allegedly prejudicial consequences of Collins's failure to challenge the traverse jury pool, Birt introduced the testimony of Dr. John H. Curtis, a university sociologist. Dr. Curtis opined that, based on his study of three South Georgia counties, blacks and women are more reluctant to convict and sentence to death than are whites and men generally.

Because both the state courts and the district court found Collins's assistance to be reasonably effective, neither court reached the question of prejudice, an inquiry upon which Washington v. Strickland requires there be resolution. Because we are remanding to the district court for further proceedings on the question of Birt's right to counsel of his choice, we deem it appropriate to let the district court, in the first instance, address the issue of prejudice. As a preliminary matter, Birt must be given the opportunity to demonstrate that he suffered actual and substantial detriment because of Collins's ineffective assistance. If Birt can demonstrate actual and substantial detriment, the district court must then give the state the opportunity to demonstrate that, in the context of the entire case, the detriment suffered was harmless beyond a reasonable doubt. See Washington v. Strickland, 693 F.2d at 1264.

Birt alleges that the security measures employed during trial turned the courtroom into an armed camp of law enforcement officials communicating apparent guilt and imminent dangerousness to the jury. He claims the security was unnecessarily excessive and deprived him of an impartial jury and due process in violation of the sixth and fourteenth amendments.

This claim has been addressed by the state courts in habeas corpus and by the district court. See Birt v. Hopper, 245 Ga. 221, 225, 265 S.E.2d 276, 279; Birt v. Montgomery, 531 F.Supp. 815, 819-20. In each instance, the court found the measures reasonable and justified in light of threats to the lives of Birt and his co-indictees and reports indicating that Birt would attempt to escape during trial. Both the state courts and the district court found that the state trial judge did not abuse his discretion in approving tight security nor did the measures deprive Birt of a fair trial. Upon review of the state court record, we agree with these findings.16 While security at Birt's trial was unquestionably stringent, we find no deprivation of constitutional rights.

This case is remanded to the district court for further proceedings to determine whether Birt's sixth amendment right to counsel of his choice was denied, and whether appointed counsel's ineffective assistance caused actual and substantial detriment to the conduct of Birt's defense. If it is determined that Birt was denied the right to counsel of his choice, the district court is instructed to issue a writ of habeas corpus discharging Birt from state custody subject to the state's right to retry him within a reasonable time. If it is determined that appointed counsel's ineffective assistance caused actual and substantial detriment to Birt's defense at his state trial, and that such detriment was not harmless beyond a reasonable doubt, the district court is instructed to issue a writ of habeas corpus subject to the conditions previously mentioned.

VACATED and REMANDED.

*****

ALBERT J. HENDERSON, Circuit Judge, dissenting.

The majority remands this case for a federal evidentiary hearing for two reasons: (1) that the statutory factfinding procedures prevented Birt from receiving a full and fair state hearing on the issue of his right to counsel of his choice, and (2) that, contrary to the district court's holding, Birt's appointed trial counsel rendered ineffective assistance, and Birt must now have the opportunity to show that he suffered actual prejudice as a result thereof. Because I do not believe that a new hearing is required for either reason, I respectfully dissent.

In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the United States Supreme Court cited six situations in which a hearing is mandated, one of them being when "the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing." Id., 372 U.S. at 313, 83 S.Ct. at 757, 9 L.Ed.2d at 788. Although that is the basis of Birt's first claim, this case does not fall within that category. In his federal habeas corpus petition, Birt sought an evidentiary hearing but failed to point out any inadequacy in the state court post-conviction hearing which would necessitate new factfinding inquiry.1

Birt now belatedly urges that the state process was inadequate because the applicable Georgia statute limited the range of subpoenas to 150 miles from the courthouse, and Birt was thus prevented from compelling his retained trial counsel, Eugene Reeves, to appear at the state habeas corpus proceedings, presumably to testify as to the ineffectiveness of his court appointed lawyer. Ga.Code Ann. Sec. 38-801(e) (revised and recodified as Off.Code Ga.Ann. Sec. 24-10-21 (1982)).2 In agreeing with Birt, the majority glosses over the critical reason why the subpoena statute did not deprive Birt of a full and fair hearing. The issuance of subpoenas to compel the attendance of witnesses was not the only means available to Birt to secure Reeves's testimony. The statutes expressly provide for proof by depositions and sworn affidavits as well as oral testimony. Ga.Code Ann. Sec. 50-127(7) (recodified as Ga.Code Ann. Sec. 9-14-48 (1982)).3 Birt's habeas counsel was aware from the start that Reeves's attendance could not be compelled because he resided in Lawrenceville, Georgia, more than 150 miles from the hearing in Reidsville, Georgia. Thus, although he had no realistic belief that Reeves would voluntarily appear, Birt neglected to procure Reeves's testimony by affidavit or deposition. Instead, he waited until the close of the hearing to suggest--almost as an afterthought--that he be permitted to obtain and submit an affidavit. His request was untimely, for the pertinent statute clearly requires that affidavits shall be served on the opposing party at least five days in advance of the hearing. Ga.Code Ann. Sec. 50-127(7) (recodified as Off.Code Ga.Ann. Sec. 9-14-48(b) (1982)). Therefore, the state habeas corpus judge did not err in concluding the proceedings without the delayed submission of an affidavit.4 A party who ignores discovery options should not be permitted to blame the statutory factfinding procedures for any perceived inadequacies at the evidentiary hearing. Any shortcoming lies not in the state's statutory procedure, but rather, in the party who neglected to avail himself of routine remedies.

Furthermore, as the court stated in Guice v. Fortenberry, 661 F.2d 496, 503 (5th Cir.1981) (en banc ), a hearing is not required unless the petitioner alleges facts that, if proved, would entitle him to a writ of habeas corpus. The core of Birt's complaint is that he was deprived of the counsel of his choice. According to the majority opinion, Reeves appeared on the scene the day before the trial, at which time he met with Birt and his appointed counsel, Collins. There is evidence that Reeves discussed the possibility of a continuance, but the idea was abandoned after Collins advised of the futility of this strategy. At the same conference, Birt insisted that the trial proceed as scheduled so that he could confront one of his co-conspirators who was to testify for the state. It was then agreed by Birt, Reeves and Collins to proceed with the trial with Reeves assisting Collins in Birt's defense. No motion for continuance was made nor was any complaint made to the trial court that Birt or his attorneys were unprepared to go forward with the case. This finding of the state habeas court and the district court is amply supported by the record and is not clearly erroneous.5 In my view, Birt did not prove his claim although the legal resources for that purpose were available to him at the state habeas level. Therefore, a new hearing on this issue is not necessary.6

I also disagree with the majority's conclusion that Birt's trial counsel was ineffective and that a hearing is necessary to determine whether Birt suffered actual prejudice because of these alleged shortcomings. Collins's handling of the case was branded ineffective solely because he did not challenge the composition of the traverse jury list. After a review of the trial record and Collins's testimony at the state habeas corpus hearing, I agree with the district court that Collins's decision was a "reasoned choice" that "can best be characterized as a matter of trial strategy." Birt v. Montgomery, 531 F.Supp. 815, 819 (S.D.Ga.1982). Collins weighed several factors, including his discussions with the jury commissioners and citizens of the county, his knowledge that the jury list had recently been revised, his monitoring of jury selection in another trial in the same county, and Birt's express insistence that they proceed immediately to trial without challenging the composition of the jury. As part of his strategy, Collins filed a motion for change of venue, but withdrew it after he was satisfied that a fair jury could be selected in Jefferson County. The majority now concludes that Collins made a mistake by not challenging the jury list. However, as this court has repeatedly held, a defendant is not entitled to perfect, error-free counsel, Mylar v. Alabama, 671 F.2d 1299, 1300 (11th Cir.), petition for cert. filed, 51 U.S.L.W. 3026 (U.S. Aug. 2, 1982) (No. 81-2240), nor should the representation be judged ineffective based on hindsight. Young v. Zant, 677 F.2d 792, 798 (11th Cir.1982). An attorney who makes strategy choices based on reasonable assumptions has rendered effective assistance. Washington v. Strickland, 693 F.2d 1243, 1256 (5th Cir. Unit B 1982) (en banc ), cert. granted, --- U.S. ----, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983). Many times it is not clear whether a particular line of defense resulted from the attorney's conscious choices or from his neglect of various alternatives. Courts, however, generally presume that counsel's actions are based on competent, tactical decisions. Id. at 1257.

The district court's determination that Collins's choice was a reasonable and strategic one is a finding of fact, binding unless--as the majority has held--it is clearly erroneous. Id. at 1256 n. 23; 1257 n. 24; see also, Pullman-Standard v. Swint, 456 U.S. 273, 287-290, 102 S.Ct. 1781, 1789-91, 72 L.Ed.2d 66, 79-81 (1982). The basis for the majority's finding of ineffective assistance is that Collins's decision not to challenge the traverse jury was grounded on inadequate knowledge. Although Collins believed that the impaneled jury would be "fair", he was unaware that the revised jury selection list did not reflect a statistical cross section of the community. See note 12, infra. and accompanying text. Considering Collins's actions in context, I cannot say that his decision constitutionally infected his representation.7

The majority acknowledges that its threshold finding of ineffective assistance of counsel does not warrant the grant of habeas corpus relief. Birt must prove that the purported ineffective assistance created not only "a possibility of prejudice, but that [it] worked to his actual and substantial disadvantage, infecting his whole trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816, 832 (1982) (emphasis in original), quoted in Washington v. Strickland, 693 F.2d at 1258. Even though Birt has not met his initial burden of producing evidence of prejudice, the majority would remand for a hearing on the issue. I firmly believe that such a hearing would be a waste of judicial resources. This court should not require a hearing for consideration of "speculative and inconcrete claims." Baldwin v. Blackburn, 653 F.2d 942, 947 (5th Cir. Unit A 1981); United States v. Gray, 565 F.2d 881, 887 (5th Cir.), cert. denied, 435 U.S. 955, 98 S.Ct. 1587, 55 L.Ed.2d 807 (1978). Birt has not offered any documentation that the racial and sexual composition of the jury resulted in actual prejudice to him. The jury consisted of three white males, five white females, three black males and one black female, 531 F.Supp. at 819 n. 3, which--although not statistically perfect--is certainly a reasonably balanced representation of Jefferson County citizens. In an effort to show that this jury rendered his entire trial fundamentally unfair, the only evidence offered by Birt was the testimony of a sociologist who had performed studies in Lowndes, Coffee, and Ware counties in Georgia. The research did not involve Jefferson County, the locale of Birt's trial. The sociologist suggested that blacks and females may be more hesitant than white males to return a guilty verdict. Thus, Birt, a white male, appears to argue that the presence of three white males on the jury may have resulted in a prosecution-prone panel. I fail to see how one sociologist's hypothesis about the inclination of jurors in different counties could possibly be probative of any issue concerning Birt's Jefferson County trial jury. Birt simply failed to meet his evidentiary burden with respect to actual prejudice.

Moreover, "even if the defense suffered actual and substantial disadvantage, the state may show in the context of all the evidence that it remains certain beyond a reasonable doubt that the outcome of the proceedings would not have been altered ..." Washington, 693 F.2d at 1262. In a case such as this one, "constitutional deprivation of the assistance of counsel is not shown until prejudice also is shown," id. at 1264 n. 33, and these facts plainly do not reveal any actual harm. Without rehashing the gruesome and overwhelming evidence of Birt's guilt, I would conclude that even if error resulted from Collins's failure to challenge the traverse jury list, it was harmless beyond a reasonable doubt. See generally, Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 711 (1967).

Accordingly, I concur in the district court's denial of an evidentiary hearing and would affirm its judgment denying the writ of habeas corpus.

Opinion on Rehearing

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK, Circuit Judges, and TUTTLE, Senior Circuit Judge.*

BY THE COURT:

A majority of the judges in active service, on the court's own motion, having determined to have this case reheard en banc,

IT IS ORDERED that this cause shall be reheard by the Court en banc on briefs without oral argument on a date hereafter to be fixed. The clerk will specify a briefing schedule for the filing of en banc briefs.

*****

1

The facts of this case are summarized in the published opinion of the Georgia Supreme Court, Birt v. State, 236 Ga. 815, 225 S.E.2d 248, cert. denied, 429 U.S. 1029, 97 S.Ct. 654, 50 L.Ed.2d 632 (1976). Only those facts that are relevant to the issues presented in this appeal are discussed

2

As of the date of oral argument, no resentencing hearing had been scheduled

3

Title 28 U.S.C.A. Sec. 2254(d) provides that:

In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit--

(1) that the merits of the factual dispute were not resolved in the State court hearing;

(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at the State court hearing;

(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;

(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law in the State court proceeding;

(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:

And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.

4

Birt testified as follows:

Q: Well your best recollection is that he called you in March or April of '75?

A: April or March, somewhere, the best I remember.

Q: What did he tell you at that time?

A: He told me that he had been appointed as my attorney on a murder case in that court.

Q: Did you give him any response?

A: Yeah, I told him, I asked him what in the hell was he talking about, I told him I didn't, if I wanted an attorney when I got down there I would hire me one. I didn't want him for no attorney down there in Georgia.

Q: Well did he say anything in response?

A: Well he said he had been appointed by the Judge and uh, he was my attorney. So I told him to go back and inform the Judge that when they brought me to Georgia for arraignment, I would hire me an attorney.

Q: Do you recall what Mr. Collins said in response to that?

A: He said he, he said he would tell the Judge ....

5

Birt's testimony is as follows:

Q: Do you recall how long you spoke with Mr. Collins at the time of the arraignment?

A: I didn't talk to him none. Judge, went before for the arraignment, Judge told me I appointed this man for attorney and I told the Judge I didn't want him, I said I don't want this man for no attorney. I even talked to him on the phone. I told the Judge I didn't want him. All I wanted to do was make a phone call to my wife and I would hire me an attorney.

Q: What did the Judge say in response, do you recall?

A: Judge told me, well he, I appointed this man for your attorney. He is going to be your attorney.

6

Collins's habeas corpus testimony is as follows:

The man had been brought here and I had been appointed and had what I felt like at the time to prepare the case and uh, I didn't feel like the judge would grant a continuance simply on Mr. Reeves not being prepared. So uh, he wondered what I thought would happen then. I said well I think the case is going to be tried, I think either I'll try it with your help or you'll try it with my help, it's just up to Mr. Birt and what he wants to do. So I was sent out of the room and Mr. Birt and Mr. Reeves had a conference and I was brought back, we talked a few minutes and Mr. Reeves was sent out of the room and Mr. Birt and I had a conference and uh, that conference that I had with Mr. Birt at that time concerned how he would go about uh, getting his retainer or money back from Mr. Reeves if I was going to handle the case. I said I have nothing to do with that Mr. Birt, I don't know nothing about that, that's your problem I don't know. We were both called back in and then a serious discussion became as to who would have the mechanics of getting this case tried.... The next morning when we came to court, it was agreed that night to with Mr. Birt's consent, I would be leading counsel so to speak, Mr. Reeves would assist me. So the man would go to trial with an appointed counsel and as retained counsel both working in his interest. When we came to the courtroom, why I was sitting at the table here, Mr. Birt was between us and Mr. Reeves was to his right.

7

Birt's testimony is as follows:

Q: All right, now, isn't it true that during the, during the trial or prior to the trial that you and Mr. Reeves agreed that even, even though Mr. Reeves had been retained that Mr. Collins would stay on, stay on the case because he knew the people in Jefferson County?

A: No, Mr. Reeves wanted to, wanted to get rid of him.

Q: In other words, if Mr. Collins testified that Mr. Reeves wanted him, that you two agreed that Mr. Collins would be lying, is that what you're saying?

A: Mr. Reeves wanted me to get rid of him.

....

Q: What I'm saying is if Mr. Collins comes in this courtroom and testifies that you and Mr. Reeves agreed to let Mr. Collins stay on, uh, that Mr. Collins is wrong and you're right?

A: No, he would be lying.

Q: All right.

A: I told, I told the Judge, I told Mr. Collins both, I did not want him. Because Mr. Reeves told me that he would do a better job without Mr. Collins. Mr. Reeves told me that. I believe I can do a better job if I don't have this man, but the Judge put him on me, I couldn't get rid of him. I mean, I could not get him off.

8

Ga.Code Ann. Sec. 38-801(e) was amended in 1980 to provide for statewide service of subpoenas. Acts 1980, pp. 70-71

9

At oral argument, considerable discussion focused on the burden of pleading the fullness and fairness (or lack thereof) of the state court hearing. It is the state's position that the petitioner has the burden of pleading that the state court hearing was not full and fair, and that such a burden is a prerequisite to a federal court's consideration of whether to hold another evidentiary hearing. Birt emphasizes that he is not raising the inadequacy of the state factfinding procedures as a constitutional claim. Rather, he claims that Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), mandates a federal hearing because of the inadequacy of those procedures. Birt's federal petition requests the district court, among other things, to "conduct a hearing at which proof may be offered concerning the allegations of this petition." The state's answer asserted that Birt had a full and fair hearing in state court and requested the district court to decide the case on the state record, without holding an evidentiary hearing. It is our opinion that both parties have pleaded adequately. Birt requested a hearing; the state countered by alleging that the state hearing was full and fair and therefore no federal hearing was necessary. Because we find that Birt has alleged facts sufficient to justify habeas corpus relief and that the factfinding procedures employed by the state habeas corpus court did not afford a full and fair hearing, we conclude that the district court erred in failing to hold an evidentiary hearing

10

The colloquy at the conclusion of the hearing went as follows:

THE COURT: All right. Are there any evidence in rebuttal?

MR. BOGAR: Your Honor, I'm not sure whether the out of town witnesses have arrived.

THE COURT: All right. Mr. Warden, did Mr. Reeves and who was the other witness?

MR. BOGAR: Mrs. Wages.

THE COURT: Mrs. Wages, are they here? Would you check out there and make sure they are not here. Did they indicate they were coming?

MR. BOGAR: We understood that they were under subpoena but we understand that an hour or two ago they may not have been on the way, suggest they might not get here. Your Honor, at this time we would like to renew our motion on our experts, investigators based on our showing that we've made. We would like to renew our motion for discovery as well to just particularly your Honor, in respect to these two witnesses that didn't arrive that might be appropriate in view of the limited funds of the Petitioner has had to work with that we be given a short period to put in an affidavit from either of these witnesses the possibility of a counter affidavit by the State.

THE COURT: What does the State wish to say in response?

MR. DUNSMORE: Well, your Honor, these witnesses weren't subpoenaed and, of course, this is all in the discretion of the court. We would oppose, but we will defer to whatever the court will do.

MR. BOGAR: These witnesses are under subpoena.

MR. DUNSMORE: Well I don't know whether the funds were given to them to the question whether it's a valid subpoena or not.

THE COURT: Were funds given to them? And Lawrenceville is more than 150 miles radius.

MR. BOGAR: I believe that's correct. It's more than a 150 miles.

THE COURT: Well the court is going to conclude the hearing but uh, the record will so note the objection made to it....

11

The state habeas corpus court found that Birt personally relinquished his right to challenge the composition of the grand jury, a finding affirmed on appeal. Birt v. Hopper, 245 Ga. 221, 223, 265 S.E.2d 276, 278. Birt apparently acquieses in this finding because he raises no grand jury challenge in his federal petition

12

Census figures reveal that blacks represented 54.5% of the Jefferson County population and that women represented 52.5%. The traverse jury pool was made up of 21.6% blacks and 34.9% women. The actual jury that tried Birt was composed of three white males, five white females, three black males, and one black female

13

On the September 1970 pool, the statistical disparity of blacks was 42.7%, of women 50.7%. On the January 1972 pool, the disparity of blacks was 42.5%, disparity of women was 49.2%. On the March 1975 pool, disparity of blacks was 40%, disparity of women 47.7%

14

Commissioner McGahee explained the process by which the jury lists were revised to remedy underrepresentation:

A: We took the voter registration list and went right back over it like we did before and just added on, tried in our own mind of the people that we knew from the districts that we had, to uh, to put what we thought would be an average pro rata share and I thought of blacks, females and teenagers, with no, no given percentage in mind.

Q: Well pro rata share meant what to you?

A: Just as I stated, what we thought would be the logical thing to do.

Q: Okay, what do you mean, what would be the logical thing to do?

A: Well from the voter registration list that we had, we picked people that we though were suitable and would do a good job as a juror.

15

We do not mean to imply that counsel, in order to render constitutionally effective assistance, need investigate and challenge jury compositions in every case. We only point out that when such investigation is undertaken, it should be performed with a sufficient degree of background knowledge regarding population percentages and Supreme Court guidelines in this area of law. It is this lack of investigation, coupled with an apparently prima facie case of unconstitutional composition which we find inexcusable in this case

16

The restrictive subpoena range statute discussed in section III.A. of this opinion prevented the compelled attendance of certain Georgia Bureau of Investigation (GBI) officials subpoenaed by Birt to testify at the state habeas corpus hearing. Birt sought to demonstrate by their testimony that the concern over threats and attempted escapes was unfounded. Because we conclude that the security measures employed were not unnecessarily excessive, we need not address Birt's challenge to Ga.Code Ann. Sec. 38-801(e) (revised and recodified at section 24-10-21 (1982)) as it relates to the GBI officials



Billy Sunday Birt

 

 

 
 
 
 
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