Ervin G. Taylor v. Joseph S. Hopper, Warden, Georgia State Prison

596 F.2d 1284, 1979 U.S. App. LEXIS 13939
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 15, 1979
Docket78-2623
StatusPublished
Cited by7 cases

This text of 596 F.2d 1284 (Ervin G. Taylor v. Joseph S. Hopper, Warden, Georgia State Prison) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ervin G. Taylor v. Joseph S. Hopper, Warden, Georgia State Prison, 596 F.2d 1284, 1979 U.S. App. LEXIS 13939 (5th Cir. 1979).

Opinions

COLEMAN, Circuit Judge.

This habeas corpus appellant, Ervin G. Taylor, was indicted in the Superior Court of Muscogee County, Georgia, for the offenses of criminal attempt-armed robbery, a felony, Ga.Code Ann., §§ 26-1001, 26-1006, and felony murder, Ga.Code Ann., § 26-1101(b). He was tried and convicted, along with a co-defendant, Michael Farley.1 Both men were sentenced to serve consecutive terms of life for felony murder and ten years for attempted armed robbery.2

[1285]*1285Taylor took no direct appeal. After-wards, acting pro se, he sought writs of habeas corpus in the state courts on the ground that his confinement violated his constitutional right as an indigent to the assistance of counsel. The Supreme Court of Georgia affirmed the denial of habeas corpus relief, Taylor v. Ricketts, 239 Ga. 501, 238 S.E.2d 52 (1977).

With the assistance of counsel, Taylor then petitioned the United States District Court, which adopted the findings of the state courts and dismissed the petition. From this, Taylor has appealed and we heard oral argument in Atlanta on February 15, 1979.

This was not a case in which an indigent was denied the assistance of counsel. Counsel, whose competency stands unchallenged, had been appointed for him and stood ready to represent him at trial, but the defendant, on his own motion and without cause, dismissed his counsel after a jury had been selected and jeopardy had attached.

We affirm the denial of habeas corpus relief.

I

The Trial on the Merits in State Court

We have read the transcript of the state court trial, which began on March 22, 1976.

William S. Cain, Esq., of the Columbus, Georgia Bar, appeared for Mr. Taylor. Michael E. Garner, Esq., also of Columbus, appeared for the defendant Farley. The trial jury was selected and sent to the jury room.

At this point, the following transpired:

THE COURT: All right, was there something you wanted to say to the Court, Mr. Taylor?
MR. TAYLOR: Yes, sir. Your Honor, Mr. D.A., I wish not for Mr. Cain to represent me.
THE COURT: You wish to represent yourself?
MR. TAYLOR: Yes, I would.
THE COURT: All right, he has that right. You have mighty competent counsel, Mr. Taylor. You couldn’t have hired any more competent or vigorous counsel than Mr. Cain. He would represent you vigorously, the Court is confident, without any reservations, but you do have the choice of representing yourself. But I want the record to show, Mr. Reporter, that Mr. Cain is available and has represented him up to this point and is willing to continue representing him. However, there is no law that allows us to force counsel on a defendant. And if it’s your choice to represent yourself, you are doing that voluntarily at this point, and I will relieve Mr. Cain if you insist, but it’s at your insistence.
MR. TAYLOR: Well, Your Honor, it’s like he just might not be in my best favor.
THE COURT: Well, Mr. Taylor, I’m not questioning that that might be your opinion, but I can state that I know that that is not true. But still it’s your choice to represent yourself, and if you want to represent yourself you may do so.
MR. TAYLOR: Yes, sir, I would like to.
THE COURT: Then, Mr. Cain, you are relieved of this case.
MR. CAIN: Your Honor, I do feel that in fairness I would like to put the motion into the record at a later time, the motion that we discussed.
THE COURT: You may do that.
MR. CAIN: I feel as though I do have that moral responsibility.
THE COURT: You may do so.

After the prosecutor made his opening statement and Mr. Garner reserved his, the following took place:

THE COURT: Mr. Taylor, you have the right to make an opening statement, which would not be an argument of the ease, but merely a statement of what you intend the evidence to show on your behalf. You may make that at this time or at the conclusion of the State’s presentation of the evidence, since you have chosen to represent yourself. The Court [1286]*1286wants you to understand that. Do you care to make any opening statement to the jury as to what you expect the evidence to show?
MR. TAYLOR: Yes, sir. I would just like the evidence to show the emotions of the case and whereabouts I was and the eye witness.
THE COURT: All right.
MR. TAYLOR: Thank you, sir.

Harland Norris, a state witness, was at the TCR service station on Brown Avenue at about 9:20 P.M., June 20, 1975. He was talking to James Allen:

Then there was (sic) two guys came up on the station lot, and they came around and kindly to our side, and then walked up there and pulled a gun. The one that shot James told him that this was a robbery. And James throwed his hand into his pocket and that’s when he shot him.
Q. First he said, this is a holdup, is that right?
A. Yes.
Q. And then James did what?
A. Then James turned around and then he said, oh, no, and then he throwed his hand into his back pocket.
Q. Which back pocket?
A. In his right back pocket.
Q. Do you know for a fact what he had there in his pocket?
A. Sir?
Q. Do you know for a fact what James had in his back pocket?
A. Yes, I did.
Q. What was it?
A. It was a short .22 pistol.
Q. Was he able to get that pistol out?
A. No sir, he was not.
Q. Do you know if he got his hand to it or not?
A. No, sir, he didn’t. I don’t believe he did.
Q. What happened next?
A. Then the guy, the one that shot him, turned the gun on me and this girl screamed and then they ran.

The witness identified Farley as one of the two men who came up, but said that Farley did not do the shooting. There was a five foot fence behind the service station.

Mr. Taylor, the appellant here, cross-examined the witness, who admitted that he did not know Taylor and did not see him at the station on the night of the homicide.

A doctor, who examined Allen’s body when it arrived at the emergency room at the hospital, testified that Allen had been shot with a shotgun loaded with birdshot and had bled to death from the main artery leading from the chest to the right arm. Taylor declined to cross-examine this witness.

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Bluebook (online)
596 F.2d 1284, 1979 U.S. App. LEXIS 13939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ervin-g-taylor-v-joseph-s-hopper-warden-georgia-state-prison-ca5-1979.