Mitchell v. Hopper

239 Ga. 781 (1977) 239 S.E.2d 2

MITCHELL
v.
HOPPER.

32535.

Supreme Court of Georgia.

Submitted July 13, 1977. Decided September 7, 1977. Rehearing Denied September 28, 1977.

Hill, Jones & Farrington, Bobby L. Hill, Jack Greenberg, David E. Kendall, Anthony G. Amsterdam, James M. Nabrit, III, Lynn Walker, Joel Berger, for appellant.

Thomas H. Pittman, District Attorney, Arthur K. Bolton, Attorney General, for appellee.

NICHOLS, Chief Justice.

This is an appeal from an order of the trial court denying Mitchell habeas corpus relief. Mitchell was indicted on October 28, 1974 for the August 11, 1974 murder of 14-year-old Christopher Carr. His sentence of death was affirmed by this court in Mitchell v. State, 234 Ga. 160 (214 SE2d 900) (1975). We affirm the trial court's denial of habeas corpus relief.

1. Petitioner argues that the trial court erred in denying habeas corpus relief by finding petitioner to have received effective assistance of counsel. We agree with the trial court that petitioner was adequately represented by able and experienced counsel. See Barksdale v. Ricketts, 233 Ga. 60, 61 (209 SE2d 631) (1961).

2. Petitioner argues that the trial court erred in not finding that the death penalty violated the United States and Georgia Constitutions. This argument was treated in petitioner's original appeal and will not be addressed here.

3. Petitioner argues that the trial court erred in not finding that the indictment failed to put him on notice of the aggravating circumstances upon which the sentencing court would rely, to wit: aggravated assault and armed robbery. The trial court correctly found that pretermitting the question of whether such notice is required, the petitioner had actual notice that the aggravating circumstances would be the assault and armed robbery.

4. Petitioner enumerates as error the trial court's finding with regard to grand jury composition. The trial court correctly found that not only was this issue waived when not attacked until the habeas petition was filed (Code Ann. § 50-127 (1)), but petitioner has made no showing of prejudice sufficient to reverse the conviction. Francis v. Henderson, 425 U.S. 536 (96 SC 1708) (1976).

5. The petitioner argues that the trial court erred in not finding that the death sentence given petitioner was being exacted according to a practice and pattern which discriminates on the basis of race, sex and poverty. We see no merit in this argument, as the sentence was reviewed by this court in accordance with the policies set out in Coley v. State, 231 Ga. 829, 834 (204 SE2d 612) (1974).

6. We have reviewed the remaining contentions of the petitioner and find them to be without merit.

Judgment affirmed. All the Justices concur.