Petition — Davis v. Georgia

_ RECEIVED |

y~ StP 18 15/6

76-5403 CC, aS oe Snel

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 76- SYUS ®

CURFEW DAVIS, Petitioner

Vv.

STATE OF GEORGIA, Respondent

ee ee ee

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

ra

4

Vsoun R. MYER

2415 National Bank of Georuvia

Building

34 Peachtree Street, NW

Atlanta, Georgia 30303

‘eCLINTON E. DEVEAUX — : abet tl teen

1204 Life of Georgia Tower

Atlanta, Georgia 30308

JOY SMATHERS

157 Peachtree Street, NE

Suite 721

Atlanta, Georgia 30303

DAVID E. KENDALL

Suite 2030

! 10 Columbus Ciscle

New York, New York 10019

ATTORNEYS FOR PETITIONER

a

¥

INDEX

Citation to Opinion Below. ....++++e8e-s

GaBSeSietieh. « ee sce eeeeceeeeeeeees

Questions Presented ....+ ++ «© s+ + ese eee

Constitutional and Statutory Provisions Involved.

Statement . + s+ ee eceeseeeeeeveeeveeee eo

How the Federal Questions Were Raised and

Dec ided Be low . . . . .* . . . . . . . . . . .

Reasons for Granting the Writ:

I. The Court Should Grant Certiorari to

Consider Whether the Exclusion for

Cause of Veniremen of the Grounds of

Their Expressed Attitudes Toward the

Death Penalty Violated Petitioner's

Rights Under the Sixth and Fourteenth

Amendments to the Constitution of the

GmaGee Steees. « es se sce eeeeeees

II. Certiorari Should Be Granted to Con-

sider Whether the Exclusion of Venire-

men in Violation of the Minimum Stan-

dards Set Forth in Witherspoon v.

Illinois, 391 U.S. 510 (1968), Is a

Denial of Petitioner's Rights Under

the Sixth and fourteenth Amendments

to the Constitution of the United

ee eee ee

III. Certiorari Should Be Granted Because

the Inadequacy of the Transcript In-

fringed Upon the Petitioner's Rights

to the Effective Assistance of Coun-

sel on Appeal and Due Process of Law

Guaranteed by the Sixth and Fourteenth

Amendments to the Constitution of the

Umatesg States. . - es ee eeeetses

GURBBEGRGRse cc ce eee seeeeeee ee eee

Appendix A Statutes Involved. .....+.4+-+s+s«e-s

Appendix B Opinion Below. .....++e+eee-s

Appendix C Voir dire - -—-eaiaies

Motion, Affidavit, Order. .. “2 a a a a

13

16

21

la-2a

lb-1l1lb

le-47c

Adams v. Washington,

$58 (1969) rev'd 403 U.S. 947

TABLE OF CASES

76 Wash.

Aiken v. Washington, 75 Wash.

403 U.S.

232 rev'd

Bernette v.

2d 793 (1970) rev'd 403 U.S.

Boulden v.

Chessman v.

Coker v.

State,

Illinois,

Holman,

Teets,

Glasser v. U.S.,

946

(1971)

394 U.S.

354

234 Ga.

U.S.

45 Tll.

478

2d 650, 458 P.

(1971). .

2d 421,

2d 227,

947

452 P.

2d

2d

258 N.E.

(1971)

(1969).

156 (1957

$55, 216 S.E.

315 U.S.

60 (1942)

782 (1975).

Harris v. Texas, 457 S.W. 2d 903 (Tex. Cr. APP.

1970) rev'd 403 U.S. 946 (1971)

Irvin v.

Dowd,

Ladetto v. Massachusetts,

2a 415 (1969) rev'd 403 U.S.

Marion v

Mathis v. New Jersey,

(1968) rev'd 403 U.S.

366 U.S. 717

(1961).

356 Mass.

947 (1971)

541,

Beto, 434 F.2d 29 (Sth Cir.

Maxwell v.

Miller v

Owens v.

Bishop,

State,

State,

398 U.S.

224 Ga.

People v. Schader,

Ross v.

State,

Segura v.

rev'd 403 U.S. 946

Patterson,

Simmons v.

(1970).

State,

233 Ga.

457

233 Ga.

52 N.J.

946 (1971).

238,

254

1971)

262 (1970).

627,

163 S.E.

869 (214 S.E.

P.

N.E.

245 A. 2d 20

2d 730 (1969).

2¢@ 173)

2d 841 (Cal.

361,

(1971)

226 Ga.

211 S.E.

110,

1969).

2d 356

172 S.E.

402 F2d 249 (10th Cir.

(1975).

(1974).

1971)

2d 680

14,20

Speck v. Illinois, 41 Ill. 24 177, 242 N.E. 2d

208 (1968) rev'd 403 U.S. 946 (1971). ....26-.

Turner v. Louisiana, 379 U.S. 466 (1965). .....

Turner v. Texas, 462 S.W. 24 9 (Tex. Cr. App. (1969)

rev'd 403 i ® 947 (1971) . . . . . . .

Whan v. Texas, 438 S.W. 2d 918 (Tex. Cr. A 1969

rev'd 403 U.S. 946 (1971)... eee ee °

Wigglesworth v. Ohio, 18 Ohio St. 2d 171, 248 N.E.

24 607 (1969) rev'd 403 U.S. 947 (1971) .....-.

Witherspoon v. Illinois, 391 U.S. 510 (1968)...

Woodards v. raepepte 303 F. Supp. 690 (S.D. Ohio

1969) . . . . . . . . . . . . . . . . . . . . .

STATUTES

Georgia Code Annotated §6-805(d) (1965) ......

Georgia Code Annotated §6-805(f) (1965)

13,14

13,15

8,9,

13,17,

19,20

14

2,3.

16,18

2,5,

18

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

_ No. 76-

CURFEW DAVIS, Petitioner

Vv.

STATE OF GEORGIA, Respondent

PETITION FOR WRIT OF CERTIORARI

TO 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 April 15, 1976, rehearing denied May

6, 1976.

CITATION TO OPINION BELOW

The opinion of the Supreme Court of Georgia is re-

ported at 236 Ga. 804, 225 S.E. 2d 261 (1976) and is set

our in Appendix B hereto, pp. 16-116, infra.

JURISDICTION

The judgment of the Supreme Court of the State of

Georgia was entered on April 15, 1976 and is 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 concededly improper exclusion of one

venireman in a death penalty case required reversal of

the sentence by the court below.

2. Whether the transcript below showed plainly that

more than one venireman was improperly excluded as the re-

sult of questions about scruples concerning the death

penalty which failed to meet the Witherspoon standard.

3. Whether the voir dire transcript's incompleteness

and the trial court's amendment thereof were unconstitu-

tional denials of petitioner's right to effective counsel

and due process of law.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. This case involves the Sixth and Fourteenth

Amendments to the Constitution of the United States.

2. This case also involves the following provision

of the Code of Georgia:

Georgia Code Annotated §6-805(d) (£) (1965)

STATEMENT

On July 19, 1974, at approximately 1:30 p.m., Ann

Starnes was seen as she picked up medical specimens at

The Woman's Clinic in LaGrange, Troup Gounty, Georgia, to

carry to a laboratory in Columbus, Muscogee County, Georgia

(T46,47) She was, apparently, never seen alive again.

Her disappearance was unsolved until August 28, 1974, when

Curfew Davis, the petitioner, carried various officers to

a location in the eastern part of Troup County where the

remains of a body were found. The remains are alleged to

be the remains of Ann Starnes. (Indictment, T-48,49,70-

72, 89, 93-100)

The case received much pretrial publicity, with the

defendant originally being charged and entering a plea

5

Ae

of guilty to the theft of the automobile driven by Ann

Starnes. (T-l0JC, Newspapers)

No witness for the state testified to seeing peti-

tioner with the deceased Ann Starnes at any time or place.

The only connection between the petitioner and the body

was the petitioner's leading the officers to the body.

(T-70-72) The petitioner did not testify at the trial.

At the trial a voir dire was conducted of 53 venire-

men. (Transcript, 1-43; Appendix C pp. lc-43c). Ques-

tioning of only eleven of the first panel of twelve

veniremen is reflected in the transcript, (T., 1-12) so

that questioning of only fifty-two of the fifty-three

veniremen is transcribed; twelve panel members from each

of the second, third and forth panels and five from the

fifth. (T. 1-43)

Six jurors were dismissed over petitioner's objection

for expressions of scruples concerning imposing the death

penalty. (Juror Lamb T.-4; Juror Cotten T.-15; Juror

Bankston T.-16; Juror Gray T.-18; Juror Lucan T.-29-30;

Juror Meacham T.-30.)

Eight months after the trial the state moved to

correct the voir dire transcript over objection by peti-

tioner's trial counsel. (Record 106, 108-109; Appendix

C pp. 44c - 47c)

— <- - 2

Py

HOW THE FEDERAL QUESTIONS WERE

RAISED AND DECIDED BELOW

I. During selection of petitioner's jury, defense coun-

sel made objections to the exclusion of six veniremen for

cause on account of their conscientious scruples against

the death penalty. (T.-2,3,15,16,18,30.)

In the court below, petitioner's Enumeration of

Error asserted:

l. The Court erred in excluding potential

jurors who stated that they had conscientious

objections to capital punishment.

2. The Court erred in overruling the defen-

dant counsel's objections to the exclusion of

these jurors.

This issue was briefed and rejected by a majority of the

Supreme Court of Georgia, Davis v. State 236 Ga. 804,

(1976). Petitioner again raised this issue in §5 of his

rehearing petition, but this petition was denied.

II. In support of a timely rehearing petition, petitioner

urged the following grounds:

4. The Court erred in finding that each juror

excused for cause on the ground that he was

conscientiously opposed to capital punishment

stated that he would not vote for the death

penalty under any circumstances, when the

record shows this not to be the fact.

The rehearing petition was denied.

III. In the Court below, petitioner's Enumerations of

Error asserted:

3. The record of the proceedings held before

the Superior Court of Troup County, Georgia,

does not reflect the voir dire examination of

the jurors as regard: questiuns relating to the

imposition of the death penalty under the rul-

ings of Withers nv. Illinois, 291 U.S. 510,

as adopted by 355 Supreme court of the State of

H

Georgia in Owens vs. The State, 233 Ga. 869,

decided February 12, 1975, and in Ross vs.

The State, 233 Ga. 361, decided November 18,

, in The Supreme Court of the State of

Georgia.

ll. The Court erred in issuing its order of

August 8, 1975, which attempts to correct

the transcript in this case inasmuch as the

same is in violation of the law as set forth

in the case of Owens vs. The State, 233 Ga.

869, decided February If, Tf °

12. The Court erred in issuing its order of

August 8, 1975, inasmuch as it is not a

"correction" of the transcript, but is in

effect a rewriting of the transcript, the

court reporter having no notes other than as

Originally transcribed, said notes being the

highest and best evidence of the proceedings.

13. The provisions of Section 6-805 of the

Georgia Code Annotated does not diminish the

requirement that all proceedings be tran-

scribed in this matter.

This issue was briefed and rejected by a majority of the

Supreme Court of Georgia, Davis v. State, 236 Ga. 804,

(1976). Petitioner again raised this issue in §4 of his

rehearing petition, but this petition was denied.

—_ + oe

REASONS FOR GRANTING THE WRIT

2. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER THE EXCLUSION FOR CAUSE OF VENIREMEN ON THE

GROUNDS OF THEIR EXPRESSED ATTITUDES TOWARD THE DEATH

PENALTY VIOLATED PETITIONER'S RIGHTS UNDER THE SIXTH

AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE

UNITED STATES.

During the voir dire of the venire, the court excused

six veniremen for cause on the ground of their opposition

to the death penalty. The first of these excused veniremen

was excluded on the basis of the following examination:

THE COURT: Are any of you conscientiously opposed to

capital punishment?

JUROR LAMB: Yes.

MR. FLEMING [The District Attorney]: You are?

JUROR LAMB: Yes.

MR. FLEMING: They're qualified, your Honor.

MR. WELDON [Defense counsel]: Your Honor, I object

to that. We have a right to a fair and impartial jury

just because he's opposed to capital punishment, I

mean, capital felony. We've got a man that’s got just

about as much right to a fair trial as anybody else.

THE COURT: Well, -

MR. FLEMING: (Responding). Your Honor, please, I

consider that as an improper statement. The fact that

a person opposes capital punishment or believes in

capital punishment doesn't make them fair or impartial,

one way or the other. The Witherspoon case very

clearly holds that if a person withunder no circum-

stances go for it be instructed (sic).

THE COURT: Have you got your objections, Mr. Weldon,

for the record?

MR. WELDON: (Responding.) Yes, I feel that this

Juror should be allowed to remain, assuming that she's,

that would be fair and imparital towards both sides,

and the fact that she's opposed to capital punishment

should not disqualify her (sic).

THE COURT: Alright, Mr. Weldon. Disqualify the jury

for cause. Come out of the jury box, please. (T. 3-4.)

The second of these excused veniremen was excluded on

the basis of the following examination:

MRS. TRAYLOR: (The Clerk) Virgil Matthews Cotten.

JUROR: Virgil Matthews Cotten. (standing)

THE COURT: Have a seat, Mr. Cotten.

JUROR: Yes sir.

MR. FLEMING: Mr. Cotten, are you conscientiously

opposed to capital punishment, sir?

JUROR: Yes sir.

MR. FLEMING: Would you vote for it under any condi-

tions?

JUROR: No sir. I would not.

THE COURT: Excuse “he juror for cause. (Call the

(

a ee ee

next one, Mrs. Traylor.) Do you want to put in an

objection in the Record, Mr. Weldon?

MR. WELDON: Yes sir, Judge. I object to him being

excused. We need people of all ideas to show that

they're fair and impartial.

THE COURT: I'll overrule the objection. (T. 14-15.)

(Mr. Cotten was then excused.)

The third of these eliminated veniremen was excused

on the basis of the following:

JUROR: Ethel Bankston.

MR. FLEMING: Mrs. Bankston, you've heard any, or

ay questions to the other jurors on the panel here.

e you conscienticusly o sed to capital ?

JUROR: No. _ - panes

(Mr. Fleming propounded individual questions

juror on hand.) ” er ee

MR. WELDON: I object to that.

MR. FLEMING: Now, your Honor, -

THE COURT: Alright. The juror is excused for cause.

Overrule the objection. Call the next juror, Mrs.

Traylor.

MR. WELDON: I object to that on the grounds because

ie would be impossible to select a fair and impartial

ury.

THE COURT: I'll overrule the objection. (T. 16-17.)

(Mrs. Bankston was then excused.)

The fourth of these excluded veniremen was excused on

the basis of the following examination:

JUROR: C.L. Gray.

THE COURT: Alright, Mr. Fleming. Go ahead.

MR. FLEMING: Yes sir. You heard me ask those other

people questions.

(Mr. Fleming propounded individual questions to the

Juror at this time.) Do you believe in capital pun-

ishment?

JUROR: No sir.

MR. FLEMING: Regardless of what the evidence was you

would never vote for the death penalty?

JUROR: No sir.

MR. FLEMING: Alright. We ask that he be excused,

your Honor.

MR. WELDON: I object to it on the same grounds.

(T. 17-18.) (Mr. Gray was then excused. )

The fifth of these excluded veniremen was excused on

the basis of the following examination:

JUROR: Ledria Lucan.

MR. FLEMING: Do you believe in capital punishment?

JUROR: No sir.

MR. FLEMING: I beg your pardon?

JUROR: No, I don't.

=

fe

MR. FLEMING: If the evidence in this case satis‘*:ied

you, would you vote for it?

JUROR: No sir, I wouldn't.

THE COURT: Alright, Mr. Weldon, your juror.

MR. WELDON: Did you read about this in the news-

paper s?

JUROR: Yes sir.

MR. FLEMING: Now, - |

MR. WELDON: How's that?

JUROR: Not too much.

(Continued propounding questions to the Juror.)

THE COURT: I believe we're going to have to excuse

that Juror for cause, Mr. Weldon. (T. 29-30.).

(Ledria Lucan was then excused.) j

i

The sixth of these excluded veniremen was excused on

the basis of the following examination: |

JUROR: Mrs. Walter Meacham.

MR. FLEMING: Mrs. Meacham, are you opposed to cap-

ital punishment?

JUROR: Yes sir.

MR. FLEMING: You would not vote for it?

JUROR MEACHAM: No, I would not.

THE COURT: Excuse the Juror for cause.

MR. WELDON: I want to interpose the same objection

for the Record, your Honor. (T. -30.).

In affirming the conviction and death sentence the

Georgia Supreme Court found only one of the above exclu-

sions to be improper.

"with one exception, each juror excused for cause on

the ground that he was conscientiously opposed to

capital punishment stated that he would not vote for

the death penalty under any circumstances.” (Opinion

below, at 807.)

The Georgia Supreme Court recognized that Juror Lamb had

been improperly excluded and that “... the examination of

this juror as indicated by the reporter's transcript is

inadequate under Witherspoon v. Illinois, 391 U.S. 519

(88 S.C. 1770, 20 L.Ed. 2d 776) (1968), as amplified in

Boulden v. Holman, 394 U.S. 478 (89 S.C. 1138, 22 L.Ed.

2d 433) (1968), and Maxwell v. Bishop, 398 U.S. 262 (90

S.C. 1578, 26 L.Ed. 2d 221) (1970), “Id, at 808, but went

on to hold the inadequate examination to be an enumeration

of error without merit. Id., at 810. That holding above

4

presents an issue which should be determined by this

court, as is discussed infra.

But it is also clear that the Supreme Court of

Georgia failed to recognize that the test of exclusion

used below did not meet the minimum standards of the Sixth

and Fourteenth Amendments to the constitution of the United

States regarding juror exclusion on the basis of opposition

to the death penalty.

In Witherspoon v. Illinois, 391 U.S. 510 (1968), this

Court held that veniremen who express general objections

or conscientious or religious scruples against the death

penalty, cannot be excluded for cause unless the veniremen

make it:

++-unmmistakably clear (1) that they would automa-

tically vote against the imposition of capita

Sant aitent without regard to any evidence that

might be developed at the trial of the case before

them, or (2) that their attitude toward the death

penalty would prevent them from making an impar-

A eaga as to the defendant's guilt. Id.,

-23. n. 21. nat

This Court based its holding upon the defendant's

Sixth Amendment right to an impartial trial and the

Fourteenth Amendment's incorporation of that right in state

trials, citing Turner v. Louisiana, 379 U.S. 466, 471-473

(1965), Irvin v. Dowd, 366 U.S. 717, 722-723 (1961), Glasser

Vv. 3.8... 315 om 60, 84-86 (1942).

The examinations of the six veniremen excused for

cause on the basis of their opposition to the death penalty

were inadequate under the Witherspoon test. The veniremen

were not asked if they could consider all the penalties

and could perform their duties as jurors under oath to obey

the law of the state. Boulden v. Holman, 394 U.S. 478

(1969). The veniremen were not instructed as to their dual

f

A

role of determing guilt and sentence separately, so they

might express whether their opinions would interfere with

a determination of guilt, nor were they asked if their

opinions would interfere with a determination of guilt.

The excluded veniremen were not asked if they could impose

the death penalty if aggravating circumstances were proven

beyond a reasonable doubt. Although one venireman was

asked “Regardless of what the evidence was you would rever

vote for the death penalty,” (T. = 17-18) the court failed

to question him further to clarify his "no" (T. 17-18)

response, excusing him for cause, even though his "no"

response to that question, as a double negative meant that

he would vote for the death penalty.”

Finally, the questions asked these veniremen as re-

corded, were too brief and abstract to satisfy the

2/

Witherspoon standard. Something more than a few

i /

Th Boulden v. Holman, supra, two jurors clearly responded

to questions using the adverb “never”.

“THE COURT: You think you would never be willing

to inflict the death penalty in any type of case?"

"MR. NELSON: Yes, sir.”

"THE COURT: You mean you would never inflict the

death penalty on [sic] any case?"

"MR. MOON: That's right.” (p. 482, 428 n.6)

In the transcript below where the adverb “never” was used

in a question, the “no" response of the venireman was 4

double negative. The court construed the response to mean

the opposite of its grammatical meaning, excusing the juror

for cause. The indicates that the court implied that the

venireman did not know what he was saying or that the

court did not understand. This exchange was thus further

aT and ambigious. [See the voir dire of Juror

supra.

2 / The exclusion of Mrs. Bankson is included because the

Objection of defense counsel indicates that she was ex-

cluded for her opinions on the death penalty. The murki-

ness of the record however, does make it difficult to be

certain.

0.

19

perfunctory and mechanical questions is necessary to dem-

onstrate that degree of absolute opposition to the death

penalty required for proper exciusica. =

In fact, during the voir dire, the court and the

District Attorney made statements implying that if the

petitioner were found guilty, the jury had no alternative |

4/

under Georgia law other than to impose the death penalty.

These statements confuse the jurors' duty under their oaths.

Even if the court below were correct in finding that

only one potential juror was improperly excluded, that in

itself would require reversal of the imposition of the

death penalty and a remand on sentencing. But the fact is,

as the record clearly shows, that a number of veniremen

were excused after cursory and constitutionally insuffi-

cient questioning.

_3/ In fact, the questions asked these veniremen greatly

resemble some of those found insufficient in Maxwell v.

ae 398 U.S. 262, (1970), and Boulden, 397 U.S. 73

*Q. Do you entertain any conscientious scruples

about imposing the death penalty?”

Maxwell, at 264.

HE COURT: Do you have a fixed opinion against

capital punishment?

MR. MOON: Capital punishment.

THE COURT: You mean you would never inflict the

death penalty on [sic] any case?”

Boulden, n.6 at 486.

_4_/ MR. WELDON: Would you consider a lesser punishment

for the Defendant?

MR. FLEMING: I don't think that's a proper question.

THE COURT: I don't think so either, Mr. Fleming.

MR. FLEMING: [t's a question of law.

THE COURT: That's right.

MR. FLEMING: The Court will charge the jury on what

the law is. The only thing we're inquiring here is

whether a man is prejudiced or biased.

THE COURT: That's right. Go ahead to some other

questions, Mr. Weldon.

MR. WELDON: Yes sir. I'm asking him some questions

about the death penalty, your Honor.

THE COURT: Call your next juror, Mrs. Traylor. (T.-9)

ii

ll

4 / con't. II. CERTIORARI SHOULD BE GRANTED TO CONSIDER WHETHER

R hink maybe he might be confused, THE EXCLUSION OF VENIREMEN IN VIOLATION OF THE

Judge. Now, you see the law is that. you can find a MINIMUM STANDARDS SET FORTH IN WITHERSPOON V.

fellow guilty and get a light sentence. ILLINOIS, 391 U.S. S10 (1968), —

MR. FLEMING: (Interrupting.) Wait a minute. Wait PETITIONER'S RIGHTS UNDER THE SIXTH AND FOUR-

just a minute, Mr. Weldon. That is not the law; and, TEENTH AMENDMENTS TO THE CONSTITUTION OF THE

Honor, we're not supposed to get into a discussion. UNITED STATES.

’ . not su sed to get into the law,

Ke. Weldon. peste rig ‘i ; In Witherspoon v. Illinois, supra, this Court held

‘ 7 se to just question the

—<_ aakagl reoncianiaen ; 7 that the death penalty cannot be carried out:

THE RT: If you find him gusty: and you would i |

ie the eat pens ty, and i: you fin im not ..edf the jury that imposed or rec ar

SET ERSCHRIE LCE GG t's all you re supposed to do. was chosen by excluding veniremen for cause

es ve any bias or opinion and they're not a } roe pees voiced | ene objections

. : . Weldon. (T. = 33.) ! ° e death penalty or express conscientious or

(phasis added.) religious scruples against its infliction. No

(Emphasis added.) defendant can constitutionally be put to death

at the hands of a tribunal so selected. (Id.

at 522-523)

{

|

|

is

In the opinion below, the Georgia Supreme Court

| decided that the Rule P established by Witherspoon and its

| progeny is not violated where one potential juror who ex-

presses qualms about capital punishment is improperly ex-

cluded. (Opinion below, at 809.) In fact, however, this

Court has on more than one occasion reversed a sentence

of death for having been unconstitutionally imposed where

> J

a single juror was improperly excused.”

5 / The number of jurors improperly excluded has varied

from one to forty-seven. Witherspoon v. Illinois, supra

{47 excluded]; Boulden v. Holman, 534 US. ea (1969)

{1S excluded}; Maxwell v. Bishop, 398 U.S. 262 (1970)

[several excluded); Ladetto v. lassachusetts, 356 Mass.

———— eee

|

541, 254 N.E. 24 415 (1969) rev'a 40) U.5. 947 (1971) [3

| excluded); Wigglesworth v. Ohio, 18 Ohio St. 2d 171, 24%

M.E. 2d 607-1969) rev'd US U's. 947 (1971) 11 excluded);

Bernette v. Illinois, 45 rll. 2d 227, 258 N.E. 24 793

(1575) rev'd «05 0.5. 947 (1971) {2 excluded]; Speck v.

Illinois, 41 rll. 2d 177, 242 N.E. 24°208 (1968) rev a 403

O.s. 946 (1971) [17-50 excluded]; Turner v. Texas, 46. S.

W. 24 9 (Tex. Cr. App. 1969) rev'd TOS U.S. S97 71971) [6

excluded); Harris v. Texas, 457 S.w. 2d 903 (Tex. Cr. App.

1970) rev'd FOS UlS. STS (1971) (1 excluded); whan v. Texas,

438 s.W. td 918 (Tex. Cr. App. 1969) rev'd 403 U.S. 946

(1971) [1-2 excluded); Aiken v. Washington, 75 Wash. 2d

421, 452 P. 2d 232 rev'T JOT U.S. 34 (isl) [19 excluded];

Adams v. Washinaton, °o Wash. 2d 650, 458 P.2d 558 (1969)

rev'd 403 U.5. 947 (1971) {1 excluded]; Mathis v. New

Jersey, 52 N.J. 238, 245 A.2d 20 (1968) Fev’a B03 0.5. 946

<9) {3 excluded); Secura v. Patterson, 452 F2d 249 (lOth

Cir. 1971) rev'd 403 U.S. © (19/2) {3 excluded]; Marion

1}

—— —_

In Marion v. Beto, 434 F2d 29 (Sth Cir. 1971) the

Court of Appeals for the Fifth Circuit phrased the issue

of numbers thusly:

The bare question here then is whether the

improper exclusion for cause of a relatively

small number of the total number of veniremen

questioned on the grounds of mere conscientious

scruples against the death penalty deprives the

defendant of the impartial jury required by the

Sixth and Fourteenth Amendments. 434 F.2d at 32.

The court reversed and remanded the case, finding

that:

»+»-one improperly excluded juror may mean

the difference between life or death for a de-

fendant. Although a defendant certainly has no

assurance that a properly empanelled jury will

not impose the death penalty, it seems to us

that in light of the vast difference in treat-

or a Single venireman,

is prejudicial to the r ts of a

capitai case. (Emp -) ia .

The fact that three of the eight or nine death-

tad

o

®

3

o

3

fad

mins

in

|

win

scrupled veniremen in the instant case were allowed to re-

main on the venire is irrelevant to the issue of whether

the petitioner's rights were violated by the improper ex-~

clusion of the other death-scrupled yd

The court below relies on its finding that there was

no systematic exclusion of a qualified group of jurors.

But even accepting that as true this petitioner was none

the less stripped of constitutional guaranties by the im-

proper exclusion of individual jurors. Harris v. Texas,

5 /con't. v. Beto, 434 F.2d 29 (Sth Cir. 1971) [3 ex-

Gluded]; Woodards v. Maxwell, 303 F. Supp. 690 (S.D. Ohio

1969) [2 excluded); People v. Schader, 457 P.2d 841 (Cal.

1969) [1 excluded]; Simmons v. state, 226 Ga. 110, 172 SE

24 680 (1970) [2 octaeD Willer v. State, 224 Ga. 627,

163 SE 2d 730 (1969) (2 excluded). —

6 / Bernette v. Illinois, 45 Ill. 2d 227, 258 N.E 2d 793

TIS70) rev’a 403 U.s. 947 (1971); Whan v. Texas, 438 5.¥.

2d 918 Trex. Cr. Are. 1969) rev'd TOT US. STE (1971);

Marion v. Beto, supru: People v. Schader, 457 P. 2d. 841

457 S.W. 24 903 (Tex. cr. App. 1970); Aiken v. Washington,

75 Wash. 2d 421, 452 P.24 558 (1969) rev'd 403 U.S. 947

(1971); Adams v. Washincton, 76 Wash. 2d 650, 458 P.2d

558 (1969) rev'd 403 U.S. 947 (1971); Mathis v. New Jersey,

52.N.J. 238, 245 A. 24 20 (1968) rev'd 403 U.S. 946 (1971);

Marion v. Beto, supra.

Nor does the fact that the state could have removed

all death-scrupled veniremen by its peremptory strikes

rectify the denial of petitioner's rights. —~ Speck v.

Illinois, 41 Ill. 24 177, 242 N.E. 24 208 (1968) rev'd

403 U.S. 946 (1971); Bernette v. Illinois, supra; Mathis

Vv. New Jersey, supra; Wigglesworth v. Ohio, 18 Ohio St. 2d

171, 248 N.E. 2d 607 (1969) rev'a 403 U.S. 947 (1971);

Whan v. Texas, supra.

The Court should therefore grant review here to de-

cide whether veniremen who were excluded from the jury in

petitioner's trial because of their Scruples about the

death penalty were eliminated in Violation of the consti-

tutionals rights to a fair and impartial jury and due

process of law.

7 / Whether any of the thr

' ! ee unexcused death-

en neg were included in petitioner's jury eeean che

rman of striking is impossible to discern from the

cord. (Appendix C, voir dire transcript)

i

III CENTIONARI SHOULD 8F CRA'TED BECAUSE THE

INADEQUACY OF THE TRANSCRIPT INFRINGED

UPON THE PETITIONER'S RIGHTS TO THE

EFFECTIVE ASSISTANCE OF COUNSEL ON

APPEAL AND DUE PROCESS OF LAW GUARANTEFD

BY THE SIXTH AND FOURTEENTH AMENDMENTS

TO THE CONSTITUTION OF THE UNITED STATES.

The necessity of an adequate and comolete

transcript of trial proceedings to the effective assis-

tance of counsel is settled in both “Seorgia and Federal |

law. See Chessman v. Teets 354 U.S. 156 (1957); See Owens

v. State 233 Ga. 869 (1975); Ga. Code Ann. §6-805(d) (1965).

Chessman dealt with the completion of an incom-

plete trial transcript following the death of the original

court reporter. “r. Justice Harlan sveaking for the five

8,

members of the court held that the defendant was unconsti-

tutionally denied representation at settlement conferences

to complete the transcript despite a waiver of appointed

counsel at the trial itself. Chessman at 162-163.

“Under the cirsumstances which have been

summarized, we must hold that the ex »arte

settlement of this state court record violated

petitioner's constitutional right to procedural

due process. We think the petitioner was

entitled to be reovresented throughout those

proceedings either in person or by counsel.

(Cases cited) Id.,

The imoortance of a correct transcrinot under such

circumstances had been recoanized by California Statute in

that the California Civil Procedure Code eMnowered the |

trial judge to set aside the judgment and order a new trial

when death or disability of a court reporter made the makine

of a trial transcript impossible. Chessman n.*? at 158,

n.9 at 162. Although this statute did not apoly in crimina:

a’

Mr. Justice Douglas dissented, joined by “r. Justice

Clark:

"I agree with the general princiole announced by

the Court. Sut I think it is misaprlied here.”

Mr. Justice Burton dissented similarly and Chief ‘uctice

Warren did not participate in the decision. Chessman at

163.

L

ii on

cases, Justice Harlan suggested that California would

logically place at least equal importance on transcriots

in a criminal eriai.

The Petitioner contends that this Court places

a similar importance on the adequacy and completeness of

a voir dire transcript where veniremen are admittedly

excluded for scruples about the imposition of the death

penalty. Clearlv had the voir dire transcrint in Withers>o

Boulden and “Maxwell been inadequate for proper review, that

in itself would have denied those defendants due process

by preventing this Court from determining where svecific

abuses had occurred.

The Georgia Supreme Court should have found that

the voir dire transcript and the Trial Court's Order amend-

ing it were constitutionally and statutorily deficient.

That court ignored its own statutes and case law as well as

Federal law in holding that the Davis trial transcript was

adequate for review. (Opinion below, at 307) A careful

examination for the voir dire transcript shows freauent and

material deliberate omissions, as well as considerable con-

fusion in the transcription. The entire voir dire (Trans-

Script, 1-43) as well as the state's “Motion to Correct

Transcript” (Record, 106), a pertinent affidavit from the

defense attorney at trial and the Trial Court's Order

amending the voir dire transcript (Record, 108-109) are

9 /

"...However, it is obvious that if the reporter's

transcript is so important as to give the court

such power in a civil case, a fortiori it must

have such importance in a criminal case in which,

on the evidence to be transcribed, the accused

is sentenced to death. Cikewise its importance

is emphasized by the California law making the aopeal

automatic from death sentences. California Penal

Code, §1239(b)". Chessman n.9 at 162.

7.

1?

attached as Appendix C, p.p.1-47.

The Georgia Code required that all ...

proceedings which may be called in question

On appeal or other post-trial procedure shall

be reported, and where the reoort is transcribed,

all such matter shall be included in the written

transcript, it being the intention of this law that

all these matters appear in the record... Ga. Code

Ann. §6-805(d) (1965).

The trial court recognized the inadequacy of

the voir dire transcript by respectively moving on July

25, 1975 (Appendix C, p.44 ¢ attached) and ordering on

August 8, 1975 (Appendix C, ». 4c - 46c attached) a

general correction in an attempt to deal with Petitioner

Ly

Davis's challenge to the voir dire and its transcription.

0/

at t *

The Court erred in issuing its order of Aucust 3,

1975, which attempts to correct the transcriot in this

case inasmuch as the same is in violation of the law

as set forth in the case of Owens vs. The State, 233 “a.

869, decided February 12, 1975.

12. .

The Court erred in issuing its order of August 8,

1975 inasmuch as it is not a “correction” of the trans-

cript, but is in effect a rewriting of the transcrixt,

the court reporter havince no notes other than as oricina!’

transcribed, said notes beinc the highest and best evicenc

of the proceedings.

13.

The provisions of Section 6-395 of the “eorgia Code

Annotated does not diminish the requirement that al!

proceedings be transcribed in this matter.”

(Emphasis added). (n> 3-4, Brief of Appellant hefore

Supreme Court of Georgia below)

i

-—- —~<-

In Owens v. State, 233 Ga. 869 (214 SE 2d 173)

(1975) the Georgia Supreme Court upheld a trial court's

denial of a state motion to amend a transcriot, incomplete

as to the Witherspoon voir dire, stating that:

A post-trial examination of lawyers and court

officials, or of excluded veniremen, would not

@ be .a 53° 3S SS means for this court to perform

its re%ied * ton.

; We hold that failure to record the Witherspoon

voir dire in a case in which the sentence of death

1S imposed, is reversible error. We therefore

reverse the judcoment in this case insofar as it

imposed the death sentence and remand it to the

trial court for a new trial on the question of the

sentence. Horton v. State, 228 Ga. 699 (187 SE2a

677); Cash v. State, 231 Ga. 285 (201 SE2d 625);

Ross v. State, 233 Ga. 361, supra. Owens, at 273-874.

In this instance, the Georgia Supreme Court

attempted to distinguish Owens as inapplicable by usinc

a later case, Coker v. State 234 Ga. 355 (1975) where a

supplementation of the trial transcript had been allowed.

Coker however made clear that its rule was inappropriate

and that Owens controlled where veniremen were excluded

because of opposition to the death penalty. The Court

there said:

The Owens case is clearly limited to situations

where veniremen are excused because of onnp0sition

to the deat penalty and the death senalty is

subsequently imposed.

In the present case a judgment of the trial

judge on motion to correct the transcript pursuant

to Code Ann. §6-805(£) reflects: “no orospective

juror was excused on the basis of being conscien-

tiously opoosed to capital sunishment, but he did

mot receive an affirmative answer from a single juror,

and therefore the court did not excuse or disaualify

@ prospective juror on the grounds they were opposed

to capital punishment.”

No prospective jurors having been excused on

the grounc of opposition to cadital Dunishment, we

conclude this enumeration is without merit. cCoxer at

566-67.

The court below misapplied its own cases in

derogation of Petitioner's constitutional rights in failing

}1

19

to overturn and remand the sentencina phase of th

- 9 e CONCLUSION

trial. The discent beiow of Justice Ingram joined by

/

Chief Justice Nichols pointed to this error. For the foregoing reasons, this petition for a writ

of certiorari should be granted.

As the voir dire transcript reveals, the

questioning of individual veniremen is no where completely

transcribed. (See Appendix C) By failine to reach the

issue of the transcript's inadequacy the court below en-

gaged in a presumotion that the Witherspoon voir dire was

properly conducted. The vetitioner contends that such a

presumption is constitutionally impermissable in a case

where a death sentence may be imposed. It gives the court

reporter an impermissible lattitude to determine what is to

be recorded as well as transcribed. All of the voir dire

should have been recorded and a transcriot made of those

jurors who were excused.

This Court should grant this petition for

certiorari to determine whether the Georcia Supreme Court’

failure to overturn the imposition of the death sentence

because the transcription of the voir dire is incomplete

was unconstitutional. Further this Court should decide

whether the rationale of Chessman applies here so that the

supplementation of the voir dire transcript was an uncon-

stitutional denial of due process.

Ly

“In my judgment, Simmons and Owens contrel

the present case." (Opinion below, at 314)

Avs

20

ee ee eae

Respectfully submitted,

JOHY R. MYER \

2415 National Bank of Georgia

Building

34 Peachtree Street, Nw

Atlanta, Georgia 30303

’ Ss - \

(, EA doe ep

INTON E. DEVEAUX

1204 Life of Georgia Tower

Atlanta, Georgia 30308

fA

———-

~ 4 4

é > a

JOY SMATHERS

157 Peachtree Street, NE

Suite 721

Atlanta, Georgia 30303

ATTORNEYS FOR PETITIONER

yl

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