Opposition — Eberheart v. Georgia

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

RECEIVED

NOV 39 BA,

- 74-5174 4 OFMCK OF The CLERK

tebit pie NIE euner, Ut

RO —— -

JOHN WALLACE EBERHEART, JR.,

Pte re

euntatenne. BicGriial oe

v.

STATE OF GEORGIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

CP THE STATE OF GEORGIA

a

BRIEF FOR THE RESPONDENT IN OPPOSITION

ARTHUR K. BOLTON

Attorney General

ROBERT S. STUBBS, II

Executive Assistant

Attorney General

Please serve: RICHARD L. CHAMBERS

Assistant Attorney General

B. DEAN GRINDLE, JR.

132 State Judicial Bldg. G. THOMAS DAVIS

40 Capitol Square, S.w.

Atlanta, Georgia 30334

(404) 656-3358 B. DEAN GRINDLE, JR.

Assistant Attorney Genera.

VICKERS NEUGENT

District Attorney

Assistant Attorney General

So py

STATEMENT ° F THE CASE . . . al . *. . * . . . . . . . .

REASONS FOR NOT GRANTING THE WRIT

I. The imposition and carrying out

of the sentences of death in this

case would not be violative of the

eighth amendment prohibition of

cruel and unusual punishment .......

II. The issue of whether the appel-

late review mechanism of Ga.

Laws 1973, pp. 159 - 172

(Ga. Code § 27-2537) deprives

petitioner of due process and

equal protection under the law,

as well as the effective

assistance of counsel, has not

been seasonably presented to

the Supreme Court of Georgia. .....4.-.

III. Two prospective jurors, stating

that they could not, under any cir-

cumstances, consider imposition of

the supreme penalty, were properly

excused for cause. ...+.+++s+++s2e-ee se

CONCLUS ION . . . . . . . . . . . . . . . . 7 . . . .

CASES

Bohannan v. Arizona, 389 U.S. 1 (1967) ....2.2.2.-.

~-F T Vv Vv 9

aun Welle Gree Geemaee taneer cee ee ee he 6 tél

Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974). .

Dillard v. North Carolina, No. 73-6875 .......

Duncan v. Louisiana, 391 U.S. 145 (1968). .....-.

Eberheart v, State, 232 Ga. 247, 206 S.E.2d 12 (1974)

Furman v. Georgia, 408 U.S. 238 (1972) .......

Hanson v. Denckla, 357 U.S. 235, 243-244 (1958) ...

ll

13

21

13

18

5,12.15,17

6,9,12

13

ea — =<

Herndon v, Georgia, 295 U.S. 441 (1935) .....-.

Vv ’

aoe Gene & Gee ee eee ee eee eee

Lloyd v, Matthews, 155 U.S. 222 (1894) ......

Lovell _v. City of Griffin, 303 U.S. 444 (1938)...

Miller v. California, 413 U.S. 15, 34 n. 14 (1973).

Mills v. Alabama, 384 U.S. 214 (1966) ......-.

Trop _v. Dulles, 356 U.S. 86, 101 (1958) ......

Williams v. Illinois, 399 U.S. 235, 243 (1970)...

Williams v. New York, 337 U.S. 241, 247 (1949)...

v « 391 U.S. 510, 519

n. 15 (1968) 2 Pa ef 2 2 2 & 2.6 8 2 2 @

GEORGIA STATUTES CITED

Ga. Laws 1973, Pp. 159-172. o . * ll . ll . al . ll . >

Code of Ga., § 27-2837(c) . .-. «2 es ee ee eevee

Code of Ga. ’ § 59-806 * bel * . * . >. . * * al > * *. .

OTHER AUTHORITY

87 Harv. L. Rev., 1690 (1974) a . . . . * . . . . .

ii.

7,16,17,18,19

7,11,12,15

9, ll

16

10

Se

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

NO. 74-5174

JOHN WALLACE EBERHEART, JR.,

Petitioner,

v.

STATE OF GEORGIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF GEORGIA

BRIEF FOR THE RESPONDENT IN OPPOSITION

STATEMENT OF THE CASE

Indicted for rape and kidnapping by the grand jury of Cock

County, Georgia, Petitioner, John Wallace Eberheart, Jr., was

tried before a jury and found guilty of each charge. Petitioner

was sentenced to death on each charge.

The victim of the kidnapping and rape was motoring from

Detroit, Michigan, to join her husband in Florida. The victim

had remained in Michigan to complete her college studies befrcre

joining her husband in Florida.

ee

On July 13, 1973, the victim was motoring south on

Interstate Highway 75 when she experienced automotive problems

near Cordele, Georgia. After having two tires replaced in

Cordele, the victim continued on her journey. Shortly

thereafter, however, one of the new tires blew out and the

victim found herself stranded alone on the interstate highway

near Adel.

It was near dusk and the victim switched on the emergency

blinking Lights of her automobile. The victim also ripped up

a bedsheet into strips and placed these strips on the radio

antenna and the outside mirrors of her automobile. The victim

then sought unsuccessfully to operate the jack in an effort to

replace the blown-out tire with the spare.

” Eddie Dean Anderson, John Wesley Hooks, and Petitioner

Eberheart were out driving around in the Adel area on the

evening of July 13, 1973. While motoring south on the interstate

highway, the above trio picked up two hitchhikers bound for

Plorida. Shortly thereafter the group passed the victim as she

attempted to change the tire on her disabled automobile.

Hooks was driving and as he passed the victim he pulled

over in the emergency lane and came to a stop. Hooks, Anderson,

Eberheart, and one of the hitchhikers got out of the car in

which they were riding and started back toward the victin.

Anderson asked if the group could be of assistance. Frightened

by the presence of four male rescuers, the victim declined the

offer of assistance and asked them to send for help. The group

ee ee ee ere

ee

—— a eS

departed and the hitchhikers were let out at the next exit.

Having ascertained that the victim was alone, the trio

returned north on the interstate highway, passed the victim,

exited, and returned south on the interstate highway toward

the victin.

After Hooks pulled in behind the victim, the trio alighted

from their automobile and approached their victim. Eberheart

and Hooks struck the victim and continued to beat upon her.

In the meantime Anderson returned to the automobile in which

the trio had been riding and pulled alongside the victim's

automobile. Eberheart opened the rear door and Hooks threw

the screaming, struggling victim into the automobile driven

by Anderson. Anderson started to pull away while the door was

still open. In his excitement to get under way, Anderson

left Eberheart on the highway.

Anderson drove to a secluded area as Hooks continued to

pummel the victim. When Anderse» reached the secluded area,

Hooks removed the victim from the automobile and dragged the

victim by her hair across as asphalt roadway. As Anderson

returned to get Eberheart, Hooks raped the victim and jammed

his penis down the victim's throat. Having satiated his

sexual appetite, Hooks pulled up his trousers and spat upon

the victim.

In the meantime, Anderson returned with Petitioner

Eberheart. Eberheart then proceeded to rape the victim

but had difficulty maintaining an erection. Eberheart

then jammed his penis into the victim's mouth but continued

to experience difficulty in maintaining an erection.

Frustrated, Eberheart got up and walked away. The victim

was then raped by Anderson.

After Anderson ravished the victim, the trio departed

and the victim, severely beaten and in near hysterics, made

her way to a nearby home where she summoned help.

Apart from the anguish and degradation suffered by

the victim as a result of the multiple rapes, the evidence

in this case also reflects that the victim was beaten

unmercifully about the head and shoulders. As a result of

the beating, the victim suffered a dislocated jaw and a

broken nose. As well, the beating sheared off two of the

victim's molers and uprooted two other teeth. Too, a

pierced earring was ripped from the victim's earlobe. The

victim was also kicked and choked. After the victim had

been abducted and taken to a secluded area she was dragge!

by her hair across an asphalt roadway, inflicting severe

asphalt burns on her left thigh and buttock. Finally, the

victim was placed between two stumps to be raped. One

stump was infested with large red ants, known locally as

“cowboys,” and the victim suffered many bites from the insects.

I 6 i OE ARE NRC aR ih a a Bab RE AT

Ee a Mehmet

ee

Prom the judgments of conviction and the sentences of

death, Petitioner Eberheart appealed to the Supreme Court of

Georgia. The judgments of conviction ont sentences of geath

were affirmed. Eberheart v. State, 232 Ga. 247, 206 S.E. 2d

12 (1974).

Additional facts will be developed subsequently, as

necessary, for a more thorough illumination of any issue

raised by the petition.

REASONS FOR NOT GRANTING THE WRIT

I. THE IMPOSITION AND CARRYING OUT

OF THE SENTENCES Of DEATH IN THIS

CASE WOULD NOT BE VIOLATIVE OF THE

EIGTHTH AMENDMENT PROHIBITION OF

CRUEL AND UNUSUAL PUNISHMENT.

(Question 1).

A. “Arbitrary Selectivity”

The thrust of Petitioner's argument “is that the arbitrary

selectivity condemned in Purman v. Georgia (408 U.S. 238 (1972)]

has been carefully preserved in Georgia's modified capital

procedures.” Petition, p. 45. In inviting the Court to review

this case, involving a statutory response to Furman permitting

a@ modicum of discretionary sentencing, and in inviting the

Court to review the “mandatory” (Petition, p. 46) response to

Furman evidenced by Dillard v. North Carolina, No. 73-6875,

Petitioner has revealed his true argument; Petitioner would

condemn both responses in that, in his view, both perpetuate

the “arbitrary selectivity” condemned in Furman. In effect,

Petitioner's argument may be summarized with the epigram

“discretion is discretion -- as death is death."

The “discretion is discretion” argument mistakenly

assumes that Furman condemned discretion under the Eighth

Amendment per se. In view of the fact that the justices of

this Court comprising the majority in Furman expressly

or implicitly relied on “the evolving standards of decency

that mark the progress of a maturing society" (Trop v. Dulles,

356 U.S. 86, 101 (1958)], it would be anomalous ir the

capital punishment procedures permissible in the wake of

Purman are procedures that must be devoid of any element

of discretion. Indeed, in a prior opinion of the Court,

a majority, including Mr. Justice Brennan, Mr. Justice

Marshall, and Mr. Justice Stewart, recognized that without

the “link between contemporary community values and the

penal system" provided by jury discretion, “the determination

of punishment could hardly reflect “those same ‘evolving

standards of decency.'" Witherspoon v. Illinois, 391 U.S.

$10, 519 n. 15 (1968).

Respondent submits that, if the majority in Purman

can be viewed as having agreed upon any single factor in

rendering the sentences before them unconstitutional, then

that factor was not discretion, but the discrimination

presumed to have tainted the exercise of that discretion.

It should also be observed that there is absolutely

nothing in the record sub judice to indicate that the

Giscretion permitted by Ga. Laws 1973, pp. 159-172 has

been discriminatorily exercised. The historical approach

followed by some of the majority in Furman and reliance

upon empirical evidence outside the record is precluded

sub judice, for the procedures sub judice are a break with

ae

the past. To invalidate the statute under review, the Court

would have to hold that the discretion permissible under the

statute is so broad as to infect it with an impermissible

potential for arbitrary action, a potential so likely to

become realized as to justify the Court in quelling it even

in the absence of proof of discrimination. While statutes

have often been voided under similar circumstances in

First Amendment cases [exemplified by Lovell v. City of

Griffin, 303 U.S. 444 (1938); cf., Mills v. Alabama,

384 U.S. 214 (1966)], where freedoms vital to our self-

government were at stake, there is no precedent for taking

such a course in a case arising under the Eighth Amendment.

Precluding a jury from exercising a strictly controlled

discretion as provided for in the statute under review would

foster the creation of a draconian system with no capacity

for mercy. The Court, however, has only recently reaffirmed

a rejection of the notion that “every offense in a like

legal category calls for an identical punishment without

regard to the past life and habits of a particular offender.”

Williams v. Illinois, 399 U.S. 235, 243 (1970), quoting

Williams v. New York, 337 U.S. 241, 247 (1949). Surely, the

Eighth Amendment is broad enough to encompass the exercise

of a controlled sentencing discretion, for even the

dissenters in Furman “...could more easily be persuaded that

mandatory sentences of death, without the intervening and

amelioratory impact of lay jurors, are so arbitrary and

doctrinaire that they violate the Constitution.” Furman v.

Georgia, supra at 402.

b. Excessiveness

Petitioner argues that "the punishment of death is

excessive, disproportional, and aberrational for rape and

kidriapping.” Petition, p. 47. Petitioner does not

distinguish between those rapes that, because of the victim's

fear or threat of harm by the attacker, involve no more

physical force than an ordinary act of sexual intercourse

and those rapes that can only be discribed as heinous and

atrocious.

The Georgia statute provides for appellate review of

whether “the sentence of death is excessive or disproportionate

to the penalty imposed in similar cases, considering both the

crime and the defendant. Code of Georgia § 27-2537(c).

Respondent submits that consideration of the circumstances

of the crime and the defendant on a case by case basis is

the only meaningful measure of whether a sentence of death,

in any particular rape case, is excessive.

-9-

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edes that 4 sentence of deat

t conc

Responden pete

jority of rape cases will

coley v= state. 231 Ga. &29-

,’ however,

th in a rape and ki

es of any particu

be deemed

erally deemed

vast ma 204 S.E. 24

tc.

612 (1974). Responden

sentence of dea

, the circumstance

the penalty can

certainly does not

dnapping

concede that 4 lar

case is always excessive

ase must pe scrutinize? before

e

excess ive.

that mer

Even assuming arguendo

itutional under

€ the case sub judice:

ely because 4 sentence

the Eighth

is excessive, it 18 aa

the circumstances ©

Amendment, under Paes ecsust excessive-

ene penalty of death con DS

a

petitioner apparently

“(eyne rarity with ae

he

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Pp 3c garlier, petitioner

petition, APP-* *° cae

£ his present argument when h uded

facile nature © a

Pp- 46.

ital

uthorizing c@P* "

tates 4 a

t that most §

subsequently enacted

n of capital puni

the fac

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legislation,

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974).

-10-

in a manner thought to be constitutionally acceptable under

the Eighth Amendment, refutes Petitioner's “contemporary

standards of decency” argument.

II. THE ISSUE OF WHETHER THE

APPELLATE REVIEW MECHANISM OF

GA. LAWS 1973, PP. 159-172

(GA. CODE § 27-2537) DEPRIVES

PETITIONER OF DUE PROCESS AND

EQUAL PROTECTION UNDER THE LAW,

AS WELL AS THE EFFECTIVE

ASSISTANCE OF COUNSEL, HAS NOT

BEEN SEASONABLY PRESENTED TO

THE SUPREME COURT OF GEORGIA.

(Question 2).

Petitioner frames the second issue upon which he seeks

certiorari review, as follows:

"2. Whether the provisions for appellate

review of death sentences established by

the new Georgia capital punishment statute,

Ga. Laws, 1973, pp. 159-172, Act No. 74,

violate the rights of an indigent defendant

to the effective assistance of counsel

guaranteed by the Sixth Amendment of the

Constitution of the United States and to

the Due Process of Law and Equal Protection

of the Laws guaranteed by the Constitution

of the United States?” Petition, p. 2.

alin

ee a ee

As noted previously, Petitioner attacks Ga. Laws 1973,

pp. 159-172 on the basis of a perceived unconstitutionality

of the statute under Furman v. Georgia, 408 U.S. 238 (1972).

In arguing that the statute is plagued with “arbitrary

selectivity” Petitioner, in effwct, has argued that the

appellate review mechanism provided for under the statute

does not ameliorate what Petitioner perceives to be an

otherwise arbitrary statute subject to condemnation under

Furman; indeed, argues Petitioner, the review mechanism

results in “a perpetuation of the Eighth Amendment

Arbitrariness condemned by this Court on June 29, 1972,"

Petition, p. 40. The second issue framed by Petitioner,

however, exceeds the “perpetuation” attack and asserts

that the review mechanism fosters constitutional deficiencies

separate and apart from asserted Eighth Amendment prohibitions

against capital punishment.

The question of whether the appellate review mechanism,

separate and aparc from any asserted deficiencies under

Furman, deprives the indigent capital defendant of due

process and equal protection under the law, as well as the

effective assistance of counsel, was initially presented to

the Supreme Court of Seorgia in Petitioner Eberheart's motion

for rehearing. See Petition, pp. 16-17. The Supreme Court

of Georgia denied the petition for rehearing without opinion.

hea Vv tate, supra, 232 Ga. at 255, 206 S.E. 2d at 12.

- eer

—— ee oe

For purposes of review in this Court, Petitioner’: attempt

to raise a federal question in the Supreme Court of Georgia

after judgment, upon a motion for rehearing, is untimely.

See Bohannan v. Arizona, 389 U.S. 1 (1967); Herndon v. Georgia,

295 U.S. 441 (1935); Jett Bros. Distilling Co. v. Carrollton,

252 U.S. 1 (1920): see also Miller v. California, 413 U.S. 15,

34 n. 14 (1973); Hanson v. Denckla, 357 U.S. 235, 243-244 (1958).

The second question framed by Petitioner is not ripe

for consideration by the Court.

III. TWO PROSPECTIVE JURORS, STATING

THAT THEY COULD NOT, UNDER ANY CIR-

CUMSTANCES, CONSIDER IMPOSITION OF

THE SUPREME PENAI *Y, WERE PROPERLY

EXCUSED FOR CAUSE. (Question 3),

Petitioner urges the Court to review the exclusion of

two prospective jurors, having expressed opposition to capital

punishment, from the jury that found him guilty of rape and

kidnapping and sentenced him to death. Petitioner advances

three separate and distinct arguments in support of his

contention that the two jurors were unconstitutionally excluded

from jury service.

Under either argument advanced by Petitioner, this

case is not worthy of consideration by the Court. Each argument

will now be considered.

aiSe

A. Exclusicn from Guilt-Innocence Jury

Petitioner's initial argument is premised on the fact

that the statute in question provides for a bifurcated

procedure in determining guilt or innocence and, if guilt,

punishment. Petitioner argues that the statute does not

require, nor express, a preference that the sentencing

jury be identical to the jury that finds the capital

Gefendant guilty. Petitioner's argument is further based

upon his supposition that there is no empirical evidence

to suggest that unalterable opposition to capital punishment

would preclude a juror from deciding a capital defendant's

guilt or innocence if another jury was required to fix the

Defendant's punishment? upon a verdict of guilty. Concludes

Petitioner, the exclusion of jurors Kretlow and Day, after

having expressed unalterable opposition to capital punishment,

from service upon the jury that deliberated his guilt or

innocence deprived him of due process and equal protection

under the law.

Petitioner's initial premise is faulty and, under the

circumstances of this case, he has failed to raise a

substantial federal question.

_ 2under the statute in question a sentence of death ig,

of course, not mandatory upon a verdict of guilty.

ehte

As a practical matter, the jury that found Eberheart

guilty of rape and kidnapping also fixed his punishment at

death by electrocution. Moreover, under the statute, whether

the jury that deliberates a defendant's guilt or innocence

is to be the same jury that set the defendant's punishment

in the event of a guilty verdict is peculiarly a matter of

state law. Cf., Brinkerhoff-Farris Trust & Savings Co. v.

Hill, 281 U.S. 673, 680-681 (1929); see Lloyd v. Matthews,

155 U.S. 222 (1894). Too, under any reasonable construction,

Ga. Laws 1973, pp. 159, 161-162 (Ga. Code Ann. § 27-2534)

does not provide for the empaneiling of separate juries

for determinations of guilt and punishment respectively.>

The strained construction of the statute advanced by Petitioner

was implicity rejected by the Supreme Court of Georgia. *

Eberheart v. State, supra 232 Ga. at 250-251, 206 S.E. 2d

at 15-16.

The questions presented to the Court by Petitioner would

be appropriate for consideration only if, under the statutory

scheme provided, separate juries did, in fact, adjudicate guilt

and fix punishment. As one jury did not find Petitioner guilty

3the statute provides, in part, as follows:

"Where the jury... returns a verdict...

of guilty, the court shall resume the

trial and conduct a pre-sentence hearing

. before the jury...at which time the only

issue shall be the determination of

punishment to be imposed.”

(Emphasis added.)

4te should also be noted that the construction advanced

by Petitioner is contrary to settled Georgia practice since

the advent of bifurcated criminal proceedings in 1970.

xT

bE

ee

——

gs *

of rape and kidnapping and another fix his punishment at

death by electrocution, Petitioner would have the Court

render an advisory opinion on the question presented.

See Witherspoon v. Illinois, 391 U.S. 510, 520 n. 18 (1968).

B. Unalterable Opposition to Capital Punishment

Petitioner's second argument simply invites the Court

to ascertafA whether the jury sub judice was properly

Geath-qualified under Witherspoon v. Illinois, 391 U.S.

510 (1968).

Code of Georgia § 59-806(4) (1933) provides that inquiry

as to opposition to capital punishment should be propounded

on the jurors voir dire. Thus, jury panels are aware,

before they hear any evidence in any particular capital case,

of the magnitude of the punishment that may be suffered by

the defendant.

Sub judice, two jurors were excused for cause at the

instance of the State. In response to the statutory voir

dire question propounded by the district attorney, each juror

expressed general conscientious opposition to capital

punishment. Upon more incisive questioning, one juror

indicated that he “could not under any circumstances even

consider the imposition” of the supreme penalty. Likewise,

the other juror indicated that he was so conscientiously

alge

opposed to the imposition of the supreme penaity that he

“could not even consider the imposition of the death penalty

in any capital felony case.”

The trial judge was satisfied that, under Witherspoon

v,. Illinois, supra, the jurors were properly excused for

cause in that ach unmistakably answered that his reservation

toward capital punishment was such that he could never vote

to impose the death penalty regardless of the facts in a case.

The Supreme Court of Georgia also concluded that the

exclusion of the jurors in question was permissible under

Witherspoon. Eberheart v. State, supra, 232 Ga. at 250-251,

206 S.E. 2d at 15-16.

Tnere is no further need for this Court to review the

question presented by Petitioner. The state trial court and

the state supreme court, applying appropriate federal

constitutional principles, have previously found Petitioner's

contentions to be without merit. Under the facts of this

case, the conclusion reached by the Supreme Cour* of Georgia

is undeniably correct; there is no need for further review

of a legally sound opinion.

aiPe

C. Representative Jury

Citing Duncan v. Louisiana, 391 U.S, 145 (1968),

Petitioner argues that the exclusion of prospective jurors

expressing unalterable opposition to capital punishment

deprives him of his Sixth Amendment right to a jury that is

representative of the community. In essence, Petitioner

would have the Court adopt the concurring opinion of Mr.

Justice Douglas in Witherspoon v. Illinois, supra, 391 U.S.

Respondent submits that the Sixth Amendment certainly

does not mandate the inclusion of those unziterably opposed

to capital punishment on juries that may be asked to impose

the supreme penalty on a defendant. As to the issue of

punishment, such jurors would obviously be partial to the

defendant and “[nJo one is guaranteed a partial jury.”

Witherspoon v. Illinois, supra, 391 U.S. at 530 (separate

opinion of Douglas, J.).

As to whether the exclusion of those unalterably opposed

to capital punishment from a jury that is required to determine

guilt, as well as to fix punishment, deprives a defendant of

a “representative” Sixth Amendment jury, the record is devoid

of any factual information that would be of assistance to the

Court. Petitioner has made nc :ffort to establish that the

jury that found him guilty of rape and kidnapping was

-18-

unrepresentative on the issue of guilt. Even if a Defendant

were successful in demonstrating that his jury, arguably

neutral with respect to penalty, was biased in favor of the

prosecution with respect to guilt,

"...the question would then arise

whether the State's interest in

submitting the penalty issue to a

jury capable of imposing capital

punishment may be vindicated at the

expense of the defendant's interest

in a completely fair determination

of guilt or innocence -- given the

possibility of accommodating both

interests by means of a bifurcated

trial, using one jury to decide

guilt and another to fix punishment.“

Witherspoon v. Illinois, supra, 391

U.S. at 520 n. 18.

As noted above, however, Petitioner Eberheart has made

no effort to demonstrate that his jury was guilt-biased.

Petitioner's effort to set aside his conviction on the basis

-19-

of the death-qualification of the jury must fail for the

same reasons that the Court rejected William Witherspoon's

5

contentions. Id. at 516-518.

Spetitioner Eberheart, in essence, implores the Court

to reconsider Witherspoon because he has mounted a Sixth,

as well as Fourteenth, Amendment attack on the exclusion of

venireman opposed to capital punishment. Petitioner has

overlooked the fact that Witherspoon was apparently Jecided

under the Sixth as well as the Fourteenth Amendments.

391 U.S. at 518.

CONCLUSION

The Court should refuse to grant the writ of certiorari

because no sufficient reason for review has been set forth by

Petitioner Eberheart.

Respect fully “i

om

Attorney “General

wir a

Executive Assistant

Assistant a General

aS , oO

CAMA,

a 7 MUM AL

“ tS. THOMAS DAVIS

Ld ya

un LEMS)

B. Los et oR.

Assistant Attorney a

(sana. Lhugect

VICKERS NEUGENT

District Attorney

“

—_

Please serve:

B&B. DEAN GRINDLE, JR.

132 State Judicial Bldg.

40 Capitol Square, S.W. .

Atlanta, Georgia 30334

(404) 656-3358

-21-