Petition — HOOKS v. GEORGIA (No. 74-5954)

© ee eee

IN THE

SUPREME COURT OF THE UNITED S RECEIVED

October Term, 1974 FEB y 975,

. Bo. 74- : | OFFICE OF THE CLERK

7 _~* @ 4 ®t SUPKEME COURT, U.S,

be . aed =.

a as =

JOHN WESLEY HOOKS,

Petitioner,

ee

STATE OF GEORGIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

JACK GREENBERG

JAMES M. NABRIT, III

DAVID EVAN KENDALL

PEGGY C. DAVIS

10 Columbus Circle

New York. New York 10019

ANTHONY G. AMSTERDAM

Stanford University Law School

Stanford. California 94305

CARSON DANE PERKINS

Post Office Box 155

Nashville, Georgia 31639

Attorneys for Petitioner

INDEX

Citations to Opinions Below ...ssescccesscsesesseseseses

TUTASGAICCION cncccccecccccccccccecccsssesceseseseesesece

Questions Presented 2... ceeeccccersereessesseessessesess

Constitutional and Statutory Provisions Involved .......

STATEMENT wcrc eeeceeeecesecseserseseeesesessesesseseess

How the Federal Questions Were Raised and Decided Below.

Reasons for Granting the Writ:

I. The Court Should Grant Certiorari to Consider

Whether the Imposition and Carrying Out of

the Sentence of Death for the Crime of Rape

Under the Law of Georgia Violates the Eighth

or Fourteenth Amendment to the Constitution

Of the United States ....cesereccerecssccvecs

II. The Court Should Grant Certiorari to Consider

Whether the Provisions for Appellate Review

of Death Sentences Established by the New

Georgia Capital Punishment Statute, Georgia

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 to the Constitution

of the United States and to the Due Process

of Law and Equal Protection of the Laws

Guaranteed by the Fourteenth Amendment to

the Constitution of the United States .......

III. The Court Should Grant Certiorari to Consider

Whether Petitioner's Sixth and Fourteenth

Amendment Rights to Fair Notice, Confronta-

tion, and an Opportunity to Defend his Life

in a Capital Sentencing Proceeding Were

Denied by the State's Failure to Provide

Him with a Statutorily Required Notice, on

which He Was Entitled to Rely, that Evidence

of “Aggravating Circumstances” Would Se

Presented Following his Guilty Plea to a

Charge Of RAPE ccccccccccccscccccecsccescocsese

Conclusion ree ee eee ewe eee errr eer eer eee eee hc eC eee ee ee ee

Appendix A: Decision of the Georgia Supreme Court,

v. State, Ga. Sup. Ct. No.

29103 (October 17, 1974) ...ccesecees

Page

14

17

17

19

27

la

ii

Appendix B: Complete transcript of the hearing at

which petitioner's guilty plea was

accepted, sentencing evidence heard,

and sentence imposed, State v. John

Wesley Hooks, Case No. 9856, Cook

Superior Court, December Term, 1973

SUGGS BBs BOVE) ceeccsdcecececesococe

Appendix C: Petition for Certiorari, Eberhear* v.

Georgia, No. 74-5174 (filed August

te 1974) Ppp. 19-58 | .

Page

lb

-

a)

Bruton v. United States,

TABLE OF CASES

391 U.S. 123 (1968)

Chambers v. Mississippi, 410 U.S. 284 (1973)

Cole v. Arkansas,

Dutton v.

Evans,

400 U.S.

333 U.S. 196 (1948)

74 (1970)

Eberheart v. Georgia, No. 74-5174 (filed Aug. 19,1974)

Eberheart v. State,

232

Ga. 247,

206 S.E.2d 12 (1974)

Floyd v. State, Ga. Sup. Ct. No. 29315 (Nov. 26, 1974)

Fowler v. North Carolina,

Purman v. Georgia, 408 U.S.

408 U.S. 238 (1972)......

238 C2078) ccoccccccces

Gregg v. State, 233 Ga. 117, _S.E.2d _ (Oct.17,1974)

Hooks

In re

State,

Oliver,

v. State, Ga. Sup. Ct. No.

(October 17,

v. Georgia, No. 74-5196

v.

1974

232 Ga.

333 U.S.

Deecedsonceoseoess

(filed Aug.

140,

257 (1948)

29103, slip op. 5

23, 1974)...

205 S.E.2d 217 (1974)....

McCorquodale v. State, Ga. Sup. Ct. No. 29131 (Dec. 3,

BOVE) coceseesecececoecesesesesesooceceses

Manness v. Meyers, _U.S.__, 43 U.S.L.W. 4143 (Jan. 15,

BUTE coceceeeseeeeeeooees

Pointer

Vv.

Texas,

380 U

-S. 400 (1965)....

Raley v. Ohio, 360 U.S. 423 (1959).......

Ross v. State, Ga. Sup. Ct. No.

“ee eeeee

29083 (Nov. 18, 1974)

State v. Anderson, Cook County Superior Ct. No. 9854

(Oct. Term 1973)

Wardius v. Oregon, 412 U.S. 470 (1973)... .eeeeseceuces

Washington v.

Statutes:

Ga.

Georgia

Georgia

Georgia

Georgia

Georgia

Code Ann.

Texas,

AAAAAANM

26-2001

27-2302

388 U.S. 14

Webb v. Texas, 409 U.S. 95 (1972) ..

(1967)

(1973)

26-3102 er

27-2514

27-2534

27-2503

27-2537

pp.

p.-

1974, p.

PP-

Pp. 171,

ob “ee ee

159-172, Act No.

162, Act No. 74

Act No. 74

333, 357 “eee

355-358, Act No.

74

854

14

25

RPrRONN UF © Www we

+16

,27

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1974

No. 74-

JOHN WESLEY HOOKS,

Petitioner,

-V.°-

STATE OF GEORGIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

© THE SUPREME COURT OF GEORGIA

Petitioner prays that a writ of certiorari issue to review

the judgment of the Supreme Court of the State of Georgia entered

on October 17, 1974, rehearing denied, November 5, 1974.

CITATIONS TO OPINIONS BELOW

The opinion of the Supreme Court of Georgia is reported at

Ga. ’ S.E.2da (1974) and is set out in Appendix A

hereto, pp. la-lla, infra.

JURISDICTION

The judgment of the Supreme Court of the State of Georgia

was entered on October 17, 1974, and ir set out in Appendix A,

hereto. Jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(3), petitioner having asserted below and asserting here

deprivation of rights secured by the Constitution of the United

States.

~_—_— ~

QUESTIONS PRESENTED

1. Whether the imposition and carrying out of the sentence

of death for the crime of rape under the law of Georgia violates

the Eighth or Fourteenth Amendment to the Constitution of the

United States?

2. Whether the provisions for appellate review of death

sentences established by the new Georgia capital punishment

statute, Georgia 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 to the Constitution

of the United States, and to the Due Process of Law and Equal

Protection of the Laws guaranteed by the Fourteenth Amendment to

the Constitution of the United States?

3. Whether petitioner's Sixth and Fourteenth Amendment rights

to fair notice, confrontation, and an opportunity to defend his

}

life in a capital sentencing proceeding were denied by the State's

failure to provide him with a statutorily required notice, on

which he was entitled to rely, that evidence of “aggravating

circumstances” would be presented following his guilty plea to a

charge of rape?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. This case involves the Sixth, Sighth, and Fourteenth

Amendments to the Constitution of the Unite’ States.

2. This case also involves the follow:ig provisions of the

Code of Georgia:

Ga. Code Ann. § 26-2001

"Rape. A person commits rape when he has carnal

knowledge of a female, forcibly and against her will.

Carnal knowledge im rape occurs when there is any

penetration of the female sex organ by the male sex

o>

= a

organ. A person convicted of rape shall be punished

by death or by imprisonment for life, or by imprison-

ment for not less than one nor more than 20 years.

No conviction shall be had for rape on the unsupported

testimony of the female.”

Ga. Code Ann. § 26-3102

. ses; ju Vv t sentence.

Where, upon a trial by jury, a person is convicted

of an offense which may be punishable by death, a

sentence of death shall not be imposed wniless the

jury verdict includes a finding of a least one

statutory aggravating circumstance and a recommenda-

tion that such sentence be imposed. Where a statutory

aggravating circumstance is found and a recommenda-

tion of death is made, the court shall sentence the

defendant to death. Where a sentence of death is not

recommended by the jury, the court shall sentence the

defendant to imprisonment as provided by law. Unless

the jury trying the case makes a finding of at least

one statutory aggravating circumstance and recommends

the death sentence in its verdict, the court shall

not sentence the defendant to death, provided that

no such finding of statutory aggravating circumstances

shall be necessary in offenses of treason or aircraft

hijacking. The provisions of this section shall not

affect a sentence when the case is tried without a

jury or when the judge accepts a plea of guilty.”

7- 7

“Recommendation to mercy. In all capital cases,

other than those of homivide, when the verdict is

guilty, with a recommendation to mercy, it shall be

legal and shall mean imprisonment for life.”

Ga. Code Ann. § 27-2514

e . a _

tend i and e of conveyi prisoner

s.-Upon a verdict or judgment

of death made by a jury or a judge, it shall be the

duty of the presiding judge to sentence such convicted

person to death and to make such sentence in writing,

which shall be filed with the papers in the case

against such convicted person, and a certified copy

thereof shall be sent by the clerk of the court in

which said sentence is pronounced to the superintendent

of the State penitentiary, not less than 10 days prior

to the time fixed in the sentence of the court for the

execution of the same; and in all cases it shall be

the duty of the sheriff of the county with one deputy

or more, if in his judgment it is necessary, and pro-

vided that in all cases the number of guards shall be

-3-

ee a ee

approved by the trial judge, or if he is not

available, by te ordinary of said county in which

such prisoner is sentenced, to convey such con-

victed person to said penitentiary, not more than

20 days nor less than two days prior to the time

fixed in the judgment for the execution of such

condemned person, unless otherwise directed by ‘ie

Governor, or unless a stay of execution has been

caused by appeal, granting of a new trial, or

other order of a court of competent jurisdiction,

and the expense for transporting of said person to

the penitentiary for the purpose of electrocution

shall be paid by the ordinary of the county wherein

the conviction was had, or the board of county com-

missioners, the county commissioner, or other person

er persons having charge of the county funds, out of

any funds on hand in the treasury of such county.”

7- 4.

"Mitigating and aggravating circumstances; death

penalty.-(a) The death penalty may be imposed for

the offenses of aircraft hijacking or treason, in any

case.

(>) In all cases of other offenses for which the

death penalty may be authorized, the judge shail con-

sider, or he shall include in his instructions to the

jury for it to consider, any mitigating circumstances

or aggravating circumstances otherwise authorized by

law and any of the following statutory aggravating

circumstances which may be supported by the evidence:

41) The offense of murder, rape, armed robbery or

kidnapping was committed by a person with a prior record

of conviction for a capital felony, or the offense of

murder was committed by a person who has a substantial

history of serious assaultive criminal convictions.

(2) The offense of murder, rape, armed robbery,

or kidnapping was committed while the offender was

engaged in the commission of another capital felony,

or aggravated battery, or the offense of murder was

committed while the offender was engaged in the com-

mission of burglary or arson in the first degree.

(3) The offender by his act of murder, armed

robbery, or kidnapping knowingly created a great risk

of death to more than one person in a public place by

means of a weapon or device which would normally be

hazardous to the lives of more than one person.

(4) The offender committed the offense of murder

for himself or another, for the purpose of receiving

money or any other thing of monetary value.

(5) The murder of a judicial officer, former

judicial officer, district attorney or solicitor or

former district attorney or solicitor during or be-

cause of the exercise of his official duty.

(6) The offender caused or directed another to

commit murder or committed murder as an agent or em-

ployee of another person.

(7) The offense of murder, rape, armed robbery

or kidnapping was outrageously or wantonly vile,

horrible or inhuman in that it involved torture, de-

pravity of mind, or an aggravated battery to the victim.

(8) The offense of murder was committed against

any peace officer, corrections employee or fireman

while engaged in the performance of his %fficial duties.

(9) The offense of murder was committed by a per-

son in, or who has escaped from, the lawful custody of

a peace officer or place of lawful confinement.

(10) The murder was committed for the purpose of

avoiding, interfering with, or preventing a lawful

arrest or custody in a place of lawful confinement,

of himself or another.

(c) The statutory instructions as determined by the

trial judge to be warranted by the evidence shall be

given in charge and in writing to the jury for its delib-

eration. The jury, if its verdict be a recommendation of

death, shall designate in writing, signed by the foreman

of the jury, the aggravating circumstance or circumstances

which it found beyond a reasonable doubt. In non-jury

cases the judge shall make such designation. Except in

cases of treason or aircraft hijacking, unless at least

one of the [statutory] aggravating circumstances enumer-

ated in Code section 27-2534.l(a) is so found, the death

penalty shall net be imposed.”

7- 7

“Review of death sentences.-(a.-Whenever the

death penalty is imposed, and upon the judgment

becoming final in the trial court, the sentence

shall be reviewed on the record by the Supreme

Court of Georgia. The clerk of the trial court,

within ten days after receiving the transcript,

shall transmit the entire record and transcript

to the Supreme Court of Georgia together with a

notice prepared by the clerk and a report prepared

by the trial judge. The notice shall set forth

the title and docket number of the case, the name

of the defendant and the name and address of his

attorney, a narrative statement of the judgment,

the offense, and the punishment prescribed. The

report shall be in the form of a standard question-

naire prepared and supplied by the Supreme Court of

Georgia.

af

(>) The Supreme Court of Georgia shall consider

the punishment as well as any errors enumerated by

way of appeal.

(c) With regard to the sentence, the court shall

determine:

(1) Whether the sentence of death was imposed

under the influence of passion, prejudice, or any other

arbitrary factor, and

(2) Whether, in cases other than treason or air-

craft hijacking, the evidence supports the jury's or

judge's finding of a statutory aggravating circumstance

as enumerated in Code section 27-2534.1(b), and

(3) Whether the sentence of death is excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant.

(4) Both the defendant and the State shall have

the right to submit briefs within the time provided by

the court, and to present oral argument to the court.

(e) The court shall include in its decision a

reference to those similar cases which it took into

consideration. In addition to its authority regarding

correction of errors, the court, with regard to review

of death sentences, shall be authorized to:

(1) Affirm the sentence of death; or

(2) Set the sentence aside and remand the case for

resentencing by the trial judge based on the record and

argmentof counsel. The records of those similar cases

referred to by the Supreme Court of Georgia in its de-

cision, and the extracts prepared as hereinafter provided

for, shall be provided to the resentencing judge for his

consideration.

(f) There shall be an Assistant to the Supreme

Court, who shall be an attorney appointed by the Chief

Justice of Georgia and who shall serve at the pleasure

of the court. The court shall accumulate the records

of all capital felony cases in which sentence was im-

posed after January 1, 1970, or such earlier date as

the court may deem appropriate. The Assistant shall

provide the court with whatever extracted information

it desires with respect thereto, including but not

limited to a synopsis or brief of the facts in the

record concerning the crime and the defendant.

(g) The court shall be authorized to employ an

appropriate staff and such methods to compile such data

as are deemed by the Chief Justice to be appropriate and

relevant to the statutory questions concerning the

validity of the sentence.

a

(h) The office of the Assistant shall be attached

to the office of the Clerk of the Supreme Court of

Georgia for administrative purposes.

(i) The sentence review shall be in addition to

direct appeal, if taken, and the review and appeal shall

be consolidated for consideration. The court shall

render its decision on legal errors enumerated, the

factual substantiation of the verdict, and the validity

of the sentence.”

97 1 Act No. 74

“At the conclusion of all felony cases heard by

a jury, and after argument of counsel and proper

charge from the court, the jury shall retire to con-

sider a verdict of guilty or not guilty without any

consideration of punishment. In non-jury felony cases,

the judge shall likewise first consider a finding of

guilty or not guilty without any consideration of

punishment. Where the jury or judge returns a verdict

or finding of guilty, the court shall resume the trial

and conduct a pre-sentence hearing before the jury or

judge at which time the only issue shall be the de-

termina~ion of punishment to be imposed. In such hear-

ing, subject to the laws of evidence, the jury or judge

shall hear additional evidence in extenuation, miti-

gation, and aggravation of punishment, including the

record of any prior criminal convictions and pleas of

guilty of pleas of nolo contendere of the defendant,

or the absence of any such prior criminal convictions

and pleas; provided, however, that only such evidence

in aggravation as the State has made known to the de-

fendant prior to his trial shall be admissible. The

jury or judge shall also hear argument by the defendant

or his counsel and the prosecuting attorney, as pro-

vided by law, regarding the punishment to be imposed.

The prosecuting attorney shall open and the defendant

shall conclude the argument to the jury or judge.

Upon the conclusion of the evidence and arguments, the

judge shall give the jury appropriate instructions and

the jury shall retire to determine the punishment to

_ be imposed. In cases in which the death penalty may

“be imposed by a jury or judge sitting without a jury,

the additional procedure provided in Code section

27-2534.1 shall be followed. The jury, or the judge

in cases tried by a judge, shall fix a sentence within

the limits prescribed by law. The judge shall impose

the sentence fixed by the jury or judge, as provided by

law. If the jury cannot, within a reasonable time, agree

to the punishment, the judge shall impose sentence within

the limits of the law; provided, however, that the judge

shall in no instance impose the death penalty when, in

cases tried by a jury, the jury cannot agree upon the

punishment. If the trial court is reversed on appeal

because of error only in the pre-sentence hearing, the

new trial which may be ordered shall apply only t~ the

issue of punishment.”

>

a 197: 7 74

“Any person who has been indicted for an offense

punishable by death may enter a plea of guilty at

any time after his indictment, and the judge of the

superior court having jurisdiction may, in his dis-

cretion, during term time or vacation, sentence such

person to life imprisonment, or to any punishment

authorized by law for the offense named in the indict-

ment. Provided, however, that the judge of the

superior court must find cone of the statutory aggra-

vating circumstances proviced in Code section 27-2534.1

before imposing the death penalty except in cases of

treason or aircraft hijacking."

STATEMENT

This is a petition for a writ of certiorari to review the

judgment of the Supreme Court of Georgia, entered on October 17,

974, affirming petitioner's death sentence. Petitioner, John i

Wesley Hooks, a black man, pleaded guilty on December 10, 1973,

in Cook County Superior Court to an indictment charging him with

the rape of Mrs. Lucille Frances Jones, a white — Before

the plea was accepted, the trial court examined petitioner and

inquired whether pe-:itioner had read the indictment and endusouned

the charges against him, whether petitioner was agreeing to waive

a jury trial and the presentation of witnesses against him,

whether petitioner understood “that for the offense of Rape you

can be sentenced to death in the electric chair,” T. 2, despite

any recommendation by the district attorney, whether petitioner

was represented by counsel satisfactory to him, whether petitioner

was entering the plea “freely and voluntarily” and not under the

influence of any “promises or threats" or “force,” T. 3, and

whether petitioner committed the crime cf rape and was guilty as |

charged, ibid. All answers were affirmative. |

l/ Cook County Superior Court Indictment No. 9856 (Oct. 1, 1973).

On the same date, petitioner was indicted for one count of kid-

napping, Cook County Superior Court Indictment No. 9859; this

indictment charged that petitioner did “abduct and steal away

Lucille Frances Jones, a person, without lawful authority, and

held such person against her will, and did commit bodily injury

to her by having carnal knowledge of the said Lucille Frances

Jones forcibly and against her will.” As of this date, peti-

tioner has not been tried on Indictment No. 9859.

2/ The complete transcript of the plea hearing is attached as

Appendix B, Supra.

After the court accepted the guilty plea, the State

introduced the testimony of three witnesses, Mrs. Lucille Frances

Jones and two deputy sheriffs who had investigated the crime. Mrs.|

Jones, a resident of Detroit, Michigan, testified that on July 13,

1973, she was driving on Interstate I-75 through Cook County,

Georgia, when her right front tire blew out. She pulled over to

the side of the road, tied a strip of bed sheet to her radio

aerial, and unsuccessfully attempted to change the tire herself.

She then decided to wait for assistance, and after about an hour,

at approximately 9:00 p.m., a car containing petitioner and two

other black males, John Wallace Eberheart and Eddie Dean Anderson,

and an unidentified white male, stopped briefly and then left. A

few minutes later, the same car returned with only the three black

males in it. Mrs. Jones testified that, after the three had |

approached her car, Anderson said "there ain't no way we're going |

to help you, lady,” T. 7, and petitioner and Eberheart began nite |

ting her and kicking her, finally forcing her into their car.

She testified that she wrestled and struggled with petitioner in

the back seat as the car drove away:

"I kept resisting and I kept fighting

him, and he told me that ‘I had better stop

or he would kill me,' and he kept hitting

me and hitting me and swearing at me. Finally,

he got both his arms around my neck -- or,

his hands around my neck, pushed them in the |

center of my neck and he told me, ‘that if

I moved again he would kill me' -- and then

he tightened his grip and I couldn't breathe

-- and I begged him to please let me breathe.

He wouldn't.

{After the car had travelled some distance

away from the interstate highway and had |

stopped in a secluded wooded area] Anderson

got out -- opened the car door -- and...

|

|

{petitioner] said, ‘get up you fucking honky

bitch, get up,’ and I couldn't get up he had

-10-

been hitting me so nard. Then, I tried

very hard to get up; but, I was not success-

ful. So, he hit me again and dragged me by

the arm and my hair across the pavement.

That action resulted in my pants being shred-

ded on the highway -- and I was burned on my

left thigh.

He drug me into the woods and ripped off my

clothes and started to raping me -- and did

rape me.

He penetrated my vaginal area with his penis.

(Hle (then) lost his erection and started

swearing -- and crawled up on me with his legs

around my neck and said -- leaned over and said

to we, ‘I'm going to put my cock in your mouth

and you will suck it or I will kill you' -- and

he proceeded to do just that.

And then he raped me again.

He got up -- pulled his pants up -- and spat on

me.

(H]is friends were coming back sort of coming

toward the right -- and, as he was pulling his

pants up he said, ‘well, I'm done with this

fucking honky bitch, who is next?’ And he walked

off to the right.” (T. 8-9)

She testified that Anderson and Eberheart then raped her and

that Eberheart committed oral sodomy upon her. The three men

then released her, and she made her way to a farmhouse where she

summoned the police and received medical treatment. As a result

of her abduction,

"I received a dislocated jaw. I had numerous

oral and dental injuries -- a broken nose.

Some internal stomach injuries. I had numer-

ous lacerations, bruises. I had cuts all wer

my body. And I had a burn on my left thigh.”

elie

Deputy Sher-ff James Lokey testified that he had seen Mrs.

Jones at 11:00 p.m., on July 13, 1973, and that she was “hysteri-

cal" and appeared to have been “beat up.” T. 16. Deputy J. w.

Snead aiso testified that he saw Mrs. Jones at 11:45 p.m. that

night at a hospital and that “[s]he was badly beaten up:*

“Well, her left leg was bruised all up and

down it; and, her left side; and her arms;

and she had bites -- some kind of bites all

over her shoulders and back. Her nose was

swollen badly. And her lips were swollen

out; and her right ear was badly swollen.”

T. 18. He investigated the rape and found an earring and a sani-

tary napkin which she reported losing in a wooded area near a

country road in Cook County.

The petitioner offered no evidence, and the trial court

pronounced sentence:

"Now, you having plead [sic] guilty, and after

hearing the testimony in this case, I find

that the offense of rape was outrageously

violent, horrible, and that it involved torture

to the victim. I further find the offense of

rape was committed while you were in the com-

mission of another capital felony, to wit:

forcibly kidnapping the person of Lucille

Frances Jones, and the said Lucille Frances

Jones having received bodily injury.

Therefore, it is the sentence of the Court that

you be put to death by electrocution in the

State Penitentiary, or such a place as the State

Department of Corrections may direct, on a date

to be fixed later.”

T. 20-21.

On October 17, 1974, the Georgia Supreme Court, with one

ee eS

Justice dissenting on the ground that the Georgia capital punish- —

ment statute was unconstitutional, affirmed peti*ioner's death

sentence. The Court denied rehearing on November 5, 1974, with

-12-

ee eS

y/

one Justice dissenting.

3/ Mr. Eddie Dean Anderson was convicted and sentenced to death

after a jury trial in Cook County Superior Court for the rape of

Mrs. Jones on October 9, 1973, but his motion for a new trial was

partially granted, and a new sentencing hearing was ordered by

the trial court. State v. Anderson, Cook County Superior Ct. No.

9854 (Oct. Term 1973). This resentencing hearing has not yet been

held, and the case is presently pending in Cook County Superior

Court.

Mr. John Wallace Eberheart was convicted of both the rape and >

the kidnapping of Mrs. Jones after a jury trial on December 10,

1973, and received a sentence of death on each conviction. The

Georgia Supreme Court affirmed the convictions and death sentences

with one Justice dissenting, Eberheart v. State, 232 Ga. 247, 206

S.E.2d 12 (1974), rehearing den. May 21, 1974, and this case is

now pending before the Court on a petition for certiorari.

Eberheart v. Georgia, No. 74-5174 (filed August 19, 1974).

oi 3=

HOW THE FEDERAL QUESTIONS WERE RAISED AND DECIDED BELOW

I. After sentence was pronounced, petitioner moved for a new

trial and to vacate sentence on the grounds, inter alia, that the

death penalty imposed upon him constituted cruel and unusual

punishment under the Eighth Amendment to the Constitution of the

United States. This motion was denied by the trial court. In

the Supreme Court of Georgia, petitioner's Enumeration of Error

I(c) alleged that denial of this motion was error "(b]ecause said

sentence constitutes ciuel and unusual punishment which is il-

legal under the laws and the Constitution of the State of Georgia

and of the United States." The Eighth Amendment contention was

briefed and rejected by a majority of the Supreme Court. Hooks

v. State, Ga. Sup. Ct., No. 27103, slip op. at 6 (Oct. 17, 1974)

(App. A., infra, at 6a). Petitioner again raised the issue in

q 1 of his petition for rehearing, but this petition was denied.

2. In support of a timely rehearing petition in the Georgia

Supreme Court, petitioner urged the following grounds:

"2. The standard of appellate review utilized

by this Court in this case (and see Coley v.

State, __ Ga. ___, 204 S.E.2d 612 (1974);

House v. State, ___ Ga. ___, 205 S.E.2d 217 (1974);

v a oe Fe BT

(1974)) magnifies the unconstitutionality of

the new Georgia capital punishment statute under

Furman v. Georgia, supra, since this standard

utilizes some of the very pre-Furman cases in

which the death penalty was found to be "freakish"

408 U.S. at 310 (opinion of Mr. Justice Stewart)

and “arbitrary” 408 U.S. at 256 (opinion of Mr.

Justice Douglas) in Furman. This reliance on

an unconstitutional standard perpetuates the

error originally condemned by the United States

Supreme Court. See Lane v. Wilson, 307 U.S.

268 (1939).

3. Furthermore, the standard of appellate review

utilized by this Court under the new Georgia

capital punishment statute is so arbitrary

and defective as to violate the Due Process

-14-

and Equal Protection Clauses of the Fourteenth

Amendment to the United States Constitution,

see Schware v. Board of Bar Examiners, 353

U.S. 232 (1957); Reed v. Reed, 404 U.S. 71

(1971) in that it considers only those cases

in which a conviction was appealed. A standard

which uses only appellate cases as a basis for

comparison ignores all of the rape cases in

which plea bargaining occurred and a plea of

guilty was accepted for a lesser offense or

for a sentence of less than death for rape

and all those cases in which a life sentence

was imposed and no appeal was taken.

5. Since its standard of appellate review requires

the Court to analyze the “evidence and sentence

- « « (in) previous cases” and to consider the

“factual situations and... aggravating cir-

cumstances” in previous cases, Coley v. State,

—_.. Ga» __» 204 S.E.24 612, 616-617 (1974),

appellant is denied both equal protection and

due process of law under the Fourteenth Amendment

to the United States Constitution, see Griffin v.

Tllinois, 351 U.S. 12 (1956), since he is unable,

as an indigent, to obtain the records in the i

cases which this Court is using as a standard of

review. The appellate reports of these cases,

which are available to appellant, frequently do |

not dislcose the factual circumstances of the

conviction and sentence, and provide an inadequate

basis of comparison.

6. For the reasons described in Paragraph 5, supra,

appellant is also deprived of the effective

assistance of counsel guaranteed by the Sixth

Amendment of the Constitution of the United States,

since the procedures whereby the Court affirms

or vacates a death sentence deny indigent death-

sentenced defendants the effective assistance of

"counsel acting in the role of an advocate,”

Anders v. California, 386 U.S. 738, 743 (1967)

on the question of life or death. See Douglas v.

California, 372 U.S. 353 (1963); Powell v. Alabama,

287 U.S. 45 (1932)."

The rehearing petition was denied.

3. Petitioner's Enumeration of Error 3 alleged “That error was

committed when the State presented evidence in the sentencing

phase of the trial without giving prior notice to... |

{petitioner] which evidence State intended to use." Petitioner's

brief in the Georgia Supreme Court argued that this failure by

st =

the State to give notice of evidence in aggravation which would

be introduced at the sentencing hearing resulted in petitioner's

being deprived of “the time... [and] .. .means in which to

prepare a proper cross-examination and rebut said evidence in a

manner deserving and consistent with a capital felony charge,"

~

Brief of Appellant, Hooks v. State, Ga. Sup. Ct. No. 29103, at 39,

and that “such failure to give .. [petitioner] a notice is a

denial of .. . [petitioner's] rights of equal protection and due

process of law.” Id. at 10. The Supreme Court rejected this

contention. Hooks v. State, Ga. Sup. Ct. No. 29103, slip op. at

5 (Oct. 17, 1974) (App. A., infra, at Sa).

-16-

et Mi eS ——

I. THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE IMPOSITION AND

CARRYING OUT OF THE SENTENCE OF DEATH

FOR THE CRIME OF RAPE UNDER THE LAW OF

GEORGIA VIOLATES THE EIGHTH OR FOURTEENTH

AMENDMENT TO THE CONSTITUTION OF THE

UNITED STATES.

|

REASONS FOR GRANTING THE WRIT |

!

II. THE COURT SHOULD GRANT CERTIORAR TO CON-

SIDER WHETHER THE PROVISIONS FOR APPEL-

LATE REVIEW OF DEATH SENTENCES ESTABLISHED

BY THE NEW GEORGIA CAPITAL PUNISHMENT

STATUTE, GEORGIA LAWS, 1973, PP. 159-172,

ACT NO. 74, VIOLATE THE RIGHTS OF AN INDI-

GENT DEFENDANT TO THE EFFECTIVE ASSISTANCE

OF COUNSEL GUARANTEED BY THE SIXTH AMEND-

MENT TO THE CONSTITUTION OF THE UNITED ;

STATES AND TO THE DUE PROCESS OF LAW AND

THE EQUAL PROTECTION OF THE LAWS GUARANTEED

BY THE FOURTEENTH AMENDMENT TO THE CONSTI-

TUTION OF THE UNITED STATES.

In order to avoid burdening the Court with lengthy and

repetitious matter, petitioner adopts the “Reasons for Granting

the Writ” section of the Petition for Certiorari to the Supreme

Court of Georgia, Eberheart v. Georgia, No. 74-5174, at pp. 19-

¥/

58.

Since the certiorari petition in Fowler v. North Carolina,

No. 73-7031, was filed on July 9, 1974, 84 additional persons have

been sentenced to die in this country, making a national total of

205 persons presently condemned to death as a result of eon-

|

tences imposed subsequent to Furman v. Georgia, 408 U.S. 238 the

In Georgia, 25 persons have been sentenced to death under

Georgia's post-Furman capital punishment statute, and the Georgia

Supreme Court has now affirmed death sentences imposed on seven

4/ This portion of the Eberheart certiorari petition is attached |

as Appendix Cc.

-l7-

3/

defendants.

5/ In addition to petitioner's case,the Georgia Supreme Court

has affirmed death sentences in the following cases: Eberheart

v. State, 232 Ga. 247, 206 S.E.2d 12 (1974), pending on petn. for

cert. sub nom. Eberheart v. Georgia, No. 74-5174 (filed Aug. 19,

1974); House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974), ndin

on petn. for cert. sub nom. House v. Georgia, No. 74-5196 (filed

Aug. 23, 1974); Floyd v. State, Ga. Sup. Ct. No. 29315 (Nov. 26,

1974); McCorquodale v. State. Ga. Sup. Ct. No. 29131 (Dec. 3,

1974); Gregg v. State, 233 Ga. 117, _S.E.2d __ (Oct. 17, 1974),

rehearing denied, Oct. 29, 1974); Ross v. State, Ga. Sup. Ct. No.

29083 (Nov. 18, 1974), rehearing denied, Dec. 17, 1974). Mr.

Justice Gunter dissented in each of these cases on the grounds of

the unconstitutionality of the new Georgia death-sentencing pro- |

cedure. See, e.g., Greqg v. State, supra, 233 Ga. at 129-130:

“I dissent because it is my view that Georgia's

death penalty statutes are unconstitutional.

See the concurring part of my concurring and dis-

senting opinion in Coley v. State, 231 Ga. 829.

Also, 1974 enactments by the Georgia General

Assembly on this subject are as follows: “In all

capital cases, other than those of homicide, when

the verdict is guilty, with a recommendation to

mercy, it shall be legal and shall be a recommenda-

tion to the judge of imprisonment for life. Such

recommendation shall be binding upon the judge.”

Ga. L. 1974, p. 353. And, “in all cases in which

the death penalty may be imposed and which are tried

by a jury, upon a return of a verdict of guilty by

the jury, the court shall resume the trial and conduct

a presentence hearing before the jury. Such hearing

shall be conducted in the same manner as presentence

hearings conducted before the judge as provided in sub-

section (a) of this section. Upon the conclusion of

the evidence and arguments, the judge shall give the

jury appropriate instructions, and the jury shall

retire to determine whether any mitigating or aggravat-

ing circumstances, as defined in Code Ann. § 27-2534.1,

exist and whether to recommend mercy for the defendant. |

Upon the findings of the jury, the judge shall fix a

sentence within the limits prescribed by law.” Ga. L.

1974, p. 357.

I conclude that these 1974 enactments by the

Georgia General Assembly expressly place discretion

in the sentencing fact-finder to impose or not impose !

the death penalty in any case. And this is what I

understand to be constitutionally impermissible under

the decision of the Supreme Court of the United States

in Purman v. Georgia, 408 U.S. 238 (92 SC 2726, 33 LE2d

346).

I respectfully dissent.”

III. THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER PETITIONER'S SIXTH

AND FOURTEENTH AMENDMENT RIGHTS TO FAIR

NOTICE, CONFRONTATION, AND AN OPPORTUNITY

TO DEFEND HIS LIFE IN A CAPITAL SENTENCING

PROCEEDING WERE DENIED BY THE STATE'S FAILURE

TO PROVIDE HIM WITH A STATUTORILY REQUIRED

NOTICE, ON WHICH HE WAS ENTITLED TO RELY,

THAT EVIDENCE OF “AGGRAVATING CIRCUMSTANCES”

WOULD BE PRESENTED FOLLOWING HIS GUILTY PLEA

TO A CHARGE OF RAPE.

Section 1 of the 1973 Georgia capital punishment statute,

Ga. Laws, 1973, p. 162, Act No. 74, amending Ga. Code Ann.

§27-2534, establishes a bifurcated proceeding in capital cases. |

It provides for separate, successive determinations of guilt

and sentence, and expressly guarantees “that only such evidence

in aggravation as the State has made known to the defendant prior)

6/

to his trial shall be admissible” at the sentencing stage.

6/ Georgia Laws, 1973, p. 162, Act No. 74, is quoted in its

entirety at pp. 7-8, supra. After petitioner's sentence was im-

posed but before the Georgia Supreme Court affirmed his sentence,

this provision was repealed in its entirety by Ga. Laws, 1974,

pp. 355-358, Act Noe. 854 (approved March 20, 1974), and a new

provision, Ga. Code §27-2503, was substituted. Subsection (a)

of Ga. Code §27-2503 reenacts without change the provision of

Ga. Laws 1973, p. 162, Act No. 74, guaranteeing a capital de-

fendant advance notice of any “evidence in aggravation” which

the State will introduce at the sentencing hearing:

“(a) Except in cases in which the death

penalty may be imposed, upon the return

of a verdict of ‘guilty’ by the jury in

any felony case, the judge shall dismiss

the jury and shall conduct a presentence

hearing at which the only issue shall be

the determination of punishment to be im-

posed. In such hearing the judge shall hear

additional evidence in extenvation, mitiga-

tion, and aggravation of punishment, including

the zecord of any prior criminal convictions

and pleas of guilty or pleas of nolo contendere

of the defendant, or the absence of any prior

conviction and pleas; Provided, however, that

only seuch-—evidence in aggravation as the State

has made known to the defendant prior to his

trial shall be admissible. The judge shail

also hear argument by the defendant or his

counsel and the prosecuting attorney, as

-19-

Petitioner here was given no notice that “evidence in aggravation'

would be introduced after his guilty plea was accepted. However,

the State presented three witnesses who testified in detail

concerning the brutality of the crime to which he had pleaded

guilty. After making findings based upon this evidence, the

trial judge sentenced petitioner to death.

The Supreme Court of Georgia rejected petitioner's

contention that the failure by the State to give notice was a

prejudicial constitutional error, ruling that "[(a] review of

the hearing transcript shows that the state's evidence was

introduced solely to present to the trial judge a complete set

of facts on the rape charge to enable the court to insure that

6/ cont'd.

provided by law, regarding the punishment to

be imposed. The prosecuting attorney shall

open and the defendant shall conclude the

argument. In cases in which the death penalty

may be imposed, the judge when sitting without

a jury shall follow the additional procedure

provided in Code section 27-2534.1. Upon the

conclusion of the evidenc. and arguments the

judge shall impose the sentence or shall recess

the trial for the purpose of taking the sentence |

to be imposed under advisement. The judge shall

fix a sentence within the limits prescribed by law.

If the trial court is reversed on appeal because i

of error only in the presentence hearing, the new

trial which may be ordered shall apply only to |

the issue of punishment.”

Georgia Laws, 1973, p. 171, Act No. 74, provides that a trial

judge may sentence to death “in his discretion” a capital defend-!

ant who pleads guilty “[(p] rovided. however, that the judge of the!

superior court must find one of the statutory aggravating cir- |

cumstances provided in Code section 27-2534.1 before imposing

the death penalty except in cases of treason or aircraft hi-

jacking."

-20-

defendant's plea of guilty was not improvidently entered.”

uv |

(Slip op. at 5, p.5 infra.) But the transcript of this proceeding,|

which is relatively brief and is attached as Appendix 8B, simply |

does not support this characterization. This record clearly

indicates that the plea of guilty was entered and accepted before |

the three witnesses were heard.

The trial judge examined petitioner in detail as to peti-

tioner's understanding of the charge against him and then asked,

“Understanding all your right[s], do you want to enter a plea

of guilty to this offense?”, whereupon petitioner answered,

“Yes, sir,” and signed a formal statement pleading guilty. T.2.

Sentence was not pronounced at this time, however, and the trial

7/ In support of its ruling, the Court quotes (slip op. at 5,

p-Sa infra)its recent decision in Eberheart v. State, 232 Ga. 247, |

206 S.E.2d 12, 17 (1974): “[{t]he bifurcated trial was created

to withhold matters inadmissible on the issue of guilt or

innocence from the jury until that issue had been determined.

The statute is clear that the pre-sentence hearing is for

additional evidence and in no way excludes from consideration

on sentence the matters heard on the issue of guilt or innocence.’

The applicability of this statement to petitioner's case is

utterly unclear, for Eberheart was a case in which a defendant

was tried before a jury and convicted for rape and kidnapping;

neither the State nor the defendant introduced any evidence at

the sentencing hearing, and the jury imposed the death sentence

on the basis of the evidence introduced at the guilt-innocence

stage. On appeal, the defendant contended that the new Georgia

capital punishment statute required discrete evidentiary demon- |

strations on the separate issues of guilt and sentence, a claim |

rejected by the Georgia Supreme Court in the language quoted

above.

e Ze

judge announced: "I will complete this later. This will be

completed later on this afternoon, when, if they wish, they

can introduce any evidence they might wish to in the case.” T.4.

When the case was reopened a few hours later, the State —

~ ‘\

announced, “We have some witnesses,” T. 5, and proceeded to wit

present the testimony of three persons. There was no statement

as to why this testimony was being offered or received, and there

is not the slightest hint in the record that the trial judge was

seeking to ascertain the factual basis for the already-accepted

guilty plea. After hearing the three witnesses, the judge did

not announce that he was accepting petitioner's guilty plea; nor

did he make any findings, statements, or references regarding the

acce>tability of the plea that he had already taker earlier in

the afternoon before the sentencing evidence was presented.

Rather upon, determining that the defense had no evidence “in

answer” to present, and that the petitioner himself had nothing

"“thac you would like to say to the Court before I complete

e sentence ir " (T. 20) (emphasis added), the

judcse proceeded immediately to make the findings concerning

“aggravating circumstances" required by the 1973 Georgia

capital punishment statute and pronounced the death sentence:

“Now, you having plead [sic] guilty, and

after hearing the testimony in this case,

I find that the offense of rape was out-

rageously violent, horrible, and that it

involved torture to the victim. I further

find the offense of rape was committed

while you were in the commission of another

capital felony, to-wit: forcibly kidnapping

the person of Lucille Frances Jones, and the

said Lucille Frances Jones having received

bodily injury.

@233-

Pe SS ae ee a

Therefore it is the sentence of the Court

that you be put to death by electrocution

in the State Penitentiary, or such a place

as the State Department of Corrections may

direct, on a date to be fixed later.”

T. 20-21.

The Supreme Court of Georgia trerefore “has not affirmed

- « « [this] convictio[n] on the basis of the trial petiti.e([r]

- + + (was) afforded.” Cole v. Arkansas, 333 U.S. 196, 201 (19438)

Petitioner is “entitled to have the validity of . .. [his]

convictio(n] appraised on consideration of the case as it was

tried and as the issues were determined in the trial court.”

Id. at 202. He was clearly subjected to a sentencinco hearing

under the 1973 Georgia capital punishment statute, and he was

clearly not given the notification guaranteed by that statute

of the “evidence in aggravation” which the State introduced

against him. The question presented is whether this error

violated petitioner's federal due process rights.

"The right of an accused in a criminal trial to due process

of law is, in essence, the right to a fair Opportunity to defend

against the State's accusations." hambers v. Mississippi, 410

U.S. 284, 294 (1973). “[(A]}lthough the Due Process Clause has

little to say regarding the amount of discovery which the parties

must be afforded ... it does speak to the balance of forces

between the accused and his accuser.” Wardius v. Oregon, 412

U.S. 470,474 (1973). No question is presented here of the

nature or amount of discovery which a State is constitutionally

a = ay

obligated to afford a defendant in a criminal case. Cf. Wardius

v. Oregon, suora, 412 U.S. at 475. The question instead is

whether, when a State has explicitly provided for discovery

procedures and has said on.the face of the applicable sentencing

statute that only evidence previously revealed to a defendant

may be used against him for sentencing purposes, it is a denial

of fundamental fairness for the State suddenly to present un-

announced evidence in support of a death sentence.

Surely, petitioner was entitled to rely upon the statute

and to expect no evidence to be presented without the statutory

notice. Raley v , 360 U.S. 423 (1959), holds as much. In

that case, a state Un-American Activities Commission investigat-

ing subversive activities had asrured witnesses appearing before

it that they had a right to claim a privilege against self-in-

crimination. The witnesses were later prosecuted and convicted

for contempt on account of their having claimed the privilege.

The Ohio Supreme Court affirmed their convictions on the ground

that the witnesses were presumed to know that a state immunity

statute deprived them of any right to claim the privilege against

self-incrimination before the Commission and obligated them to

testify. But this Court held that, since the practical effect of

the Commission's assurances was “to deceive” the witnesses, the

judgment of the Ohio Supreme Court violated the Due Process

Clause of the Fourteenth Amendment.

@24-

“After the Commission, speaking for the Stte,

acted as it did, to sustain the Ohio Supreme

Court's judgment would be to sanction an in-

defensible sort of entrapment by the State --

convicting a citizen for exercising a privi-

lege which the State had clearly told him

was available to him.”

Id. at 425-426. Thus, the State's “active misleading” of a party

in the course of a formal hearing, was held to be fundamentally

unfair. Id. at 438. Cf. Manness v. Meyers, _U.S.__, 43 U.S.L.W.

4143, 4151-4152 (January 15, 1975) (concurring opinion of Mr.

Justice White’.

Similarly, in this case,"“petitioner cannot be faulted for

taking the legislature at its word.” Wardius v. Oregon, supra,

412 U.S. at 478 (footnote omitted). He was misled and prejudiced

by the prosecution's failure to provide him with the statutorily

promised notice, since his counsel was thereby disabled from

investigating the State's evidence before the sentencing hearing

and preparing to meet it. Until the hearing was under way, peti-

tioner was unaware of any need to defend against evidence pre-

sented by the St.te. He had elected to plead guilty. The indict-

ment to which he pleaded charged simply the crime of rape; it did

not specify any statutory “aggravating circumstances” for which

the death penalty could be sought. In this manner, petitioner was)

deprived of that “reasonable notice of the charges against him"

which is an indispensable element of due process. In re Oliver,

333 U.S. 257, 273 (1948); Cole v. Arkansas, supra, 333 U.S. at

201. His ability to cross-examine the State's witnesses effective

ly

«ene «

was severely impaired. And he was unfairly denied the opportunity

to prepare to meet the State's evidence with evidence of his

2/

own. The result was a palpable deprivation of “an opportunity

8/ "The right of cross-examination is more

than a desirable rule of trial procedure.

It is implicit in the constitutional right

of confrontation and helps assure the ‘accuracy

of the truth-determining process.’ .. . It is,

indeed, ‘an essential and fundamental requirement

for the kind of fair trial which is this country's

constitutional goal.' .. . [I) ts denial or

significant dimunition calls into question the

ultimate ‘“integrity of the fact-finding process.”

Chambers v. Mississippi, 410 U.S. 284, 295 (1973). See also

Pointer v. Texas, 380 U.S. 400, 405 (1965); Dutton v. Evans,

400 U.S. 74, 89 (1970); Bruton v. United States, 391 U.S. 123,

136-137 (1968).

x “The right to offer the testimony of wit-

nesses, and to compel their attendance,

if necessary, is in plain terms the right

to present a defense, the right tc present

the defendant's version of the facts as

well as the prosecution's to the jury so

it may decide where the truth lies. Just

as an accused has the right to confront

the prosecution's witnesses for the pur-

pose of challenging their testimony, he

has the right to present his own witnesses

to establish a defense. This right is a

fundamental element of due process of law.”

Washington v. Texas, 388 U.S. 14, 19 (1967). See also Chambers

v. Mississippi, supra, 410 U.S. at 302; Webb v. Texas, 409 U.S.

95, 98 (1972).

ep eee —

to be heard in his defense -- a right to his day in court,”

In re Oliver, 333 U.S. 257, 273 (1948), on the issue of life

or death.

CONCLUSION

Petitioner prays that the petition for a writ of certiorari

be granted.

Respectfully submitted,

JACK GREENBERC

JAMES M. NABRIT, III

DAVID EVAN KENDALL

PEGGY C. DAVIS

10 Columbus Circle

New York, New York 10019

| ANTHONY G. AMSTERDAM

Stanford University Law School

|

'

Stanford, California 94305

CARSON DANE PERKINS

Post Office Box 155

Nashville, Georgia 31639

ATTORNEYS FOR PETITIONER