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
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
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.
(236 Ga. 815)
(225 SE2d 248)
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
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."
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
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
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
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
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'
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
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)
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),
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
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)
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
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
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:
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).
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).
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
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
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
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
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
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
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).
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.
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
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
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,
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
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.
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
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
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
VACATED and REMANDED.
ALBERT J. HENDERSON, Circuit Judge,
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.
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)).
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
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.
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.
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
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
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.
Before GODBOLD, Chief Judge, RONEY,
TJOFLAT, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT,
ANDERSON and CLARK, Circuit Judges, and TUTTLE, Senior Circuit Judge.
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.
Billy Sunday Birt