Petition — Brown v. Georgia

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

ROBERT FRANKLIN BROWN,

Petitioner,

vs.

THE STATE OF GEORGIA,

Respondent.

PETITION FOR THE WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

THE STATE OF GEORGIA

J. Metvin ENGLAND,

Counsel for Petitioner

Suite 1016

250 Piedmont Avenue, N.E.

Atlanta, Georgia 30308

Page

anni dacdgetdsvecodtencssandesatans 1

rar sr Ae Ts eheskasnoassianneews 1

rs. oda duweabehaseaeeedaaeks 2

Constitutioral Provisions Involved.................. 3

Statement of the Case............... IEP ee Oy ee 4

Reasons Relied Upon for the Allowance of the Writ. .13

a ese 2 re eee oe ieee ec’ 22

Appendix |

1. Opinion of Court of Appeals of Georgia....... A-3

2. Order of Court of Appeals of Georgia denying

i occ cdnacnebeedsces eee B-1

3. Order of Supreme Court of Georgia denying

petition for Writ of Certiorari................ C-1

4. Order of Supreme Court of Georgia denying

motion for Reconsideration .................. D-1

5. Judgment of Court of Appeals of Georgia. ..... E-1

CITATIONS

Cases:

Brewer v. Williams, 45 Law Week 4287, 20 CrL

I ie ea an oni dacaaee 16

Furman v. Georgia, 408 U.S. 238 (1972).............. 13

Gregg v. Georgia, 44 Law Week 5230 (3),

I 13

Michigan v. Mosley, 423 U.S. 96..............000055 16

CITATIONS—Continued

Cases—Continued :

Miranda v. Arizona, 384 U.S. 436................... 16

Sims v. Georgia, 385 U.S. 538...... 2.2.60... 00 00. 16

United States Constitution:

I 3

irs cn dc Gdeéu ka cusedben caddddesaud 4

Statutes:

Georgia Code Annotated Sec. 27-2534.1.......... 13, 14

ee <= =~

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No.

ROBERT FRANKLIN BROWN,

Petitioner,

vs.

THE STATE OF GEORGIA,

Respondent.

PETITION FOR THE WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

THE STATE OF GEORGIA

OPINION BELOW

The opinion of the Court of Appeals of Georgia is re-

ported in the 140 Ga. App. 160 (1976). The denial of a

motion for rehearing by the Court of Appeals of Georgia,

the denial of the writ of certiorari by the Supreme Court

of Georgia and the denial of a motion for reconsideration

by the Supreme Court of Georgia are not reported. The

opinion of the Court of Appeals of Georgia is attached on

Page A-3 of the Appendix.

JURISDICTION

On October 8, 1976, the Court of Appeals of Georgia

rendered and entered a judgment affirming the Petitioner’s

conviction and sentence of 15 years to serve for the

1

offense of voluntary manslaughter, which judgment of

conviction had been entered on October 9, 1975, as the

result of a jury verdict of September 24, 1975. On October

25, 1976, the Court of Appeals of Georgia denied a motion

for rehearing. On January 7, 1977, the Supreme Court of

Georgia denied a petition for the writ of certiorari. On

January 27, 1977, the Supreme Court of Georgia denied a

motion for reconsideration of the petition for the writ of

certiorari. The jurisdiction of this court is invoked under

28 USC Sec. 1257 (3) and U.S. Supreme Court Rule

19 (a), 28 U.S.C.A.

QUESTIONS PRESENTED

The questions presented are as follows:

1) Whether it poy Sf the 6th Amendment right of

Petitioner to an impartial jury and his 5th Amend-

ment right to due process of law for the trial judge

to excuse for cause three otherwise fully qualified

jurors for the sole reason that they were conscien-

tiously opposed to capital t in a case

where capital p ent was not a possible option

under the law.

2) Whether the trial court violated Petitioner’s 5th

Amendment 4 an to incriminate himself and

his 6th Amen t to counsel by allowing

into evidence — A A of the at oe

sheriff regarding an oral statement

by the Petitioner on Monday, after he bed bean in

custody from the time of the homicide on the pre-

vious Saturday, where the evidence of record shows

by the seated and unimpeached testimony of

the Petitioner that he did not understand all of his

5th and 6th Amendment “Miranda” rights and did

not affirmatively and intelligently waive such rights,

end that the alleged statement which was eritiesl ts

the State’s case was testified to have been heard by

—

the sheriff after repeated requests

for the assistance of counsel in his

3) Whether the trial court violated the Petitioner's 5th

of law and his 6th

a ay Se culinenes

y;

was scheduled for trial on the following Monday.

4) Whether the trial court violated Petitioner’s 5th

Amendment right to due process of law by ane,

the court ¢

in self-defense, voluntary manslaughter, involun-

tary manslaughter, pointing a pistol at another and

reasonable doubt.

CONSTITUTIONAL PROVISIONS INVOLVED

5th Amendment of The United States Constitution

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service

in time of War of public danger; nor shall any person be

subject for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty or property, without due process of law; nor shall

4

private property be taken for public use, without just

compensation.

6th Amendment of The United States Constitution

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and District wherein the crime shall have been

committed, which District shall have been previously as-

certained by law, and to be informed of the nature and

the cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for ob-

taining witnesses in his favor, and to have the Assistance

of Counsel for his defense.

STATEMENT OF THE CASE

The Petitioner, an employee of Lockheed-Georgia Corp.

for 23 years (T-191), lived in a mobile home on the out-

skirts of Douglasville, Georgia, (T-80) with his wife, (T-80),

the deceased, their twin babies and children of the de-

ceased by a former marriage. (T-141). On Saturday eve-

ning, March 29, 1975, Sheriff Earl Lee of Douglas County

received a call from Petitioner who, according to Lee, said

that he wanted the Sheriff to come to Petitioner’s resi-

dence because the deceased had shot erself. Petitioner

said he had called an ambulance. (T-83). The deceased

was lying in the yard with a pistol in her hand. (T-88).

The deceased was dead from two bullets, one of which had

entered the upper left chest below the shoulder (T-218)

and had exited through the upper right back (T-219). The

other had entered the left side of the midline (T-218) and

had exited through the right side (T-219). Sheriff Lee

arrested Petitioner but didn’t charge him at that time

(T-99, 100). The Sheriff did not advise Petitioner of any

constitutional rights at the scene, but interviewed Peti-

tioner at the jail (T-101). The Sheriff testified that at the

jail he advi« ed Petitioner of his “Miranda” rights. (T-101)

Petitioner testified that when interviewed he was sick, in

pain, had been vomiting, was in a weakened condition,

and had been unconscious (T-121-123). Petitioner testi-

fied that he did not understand that his right to have a

(T-124, 125, 126). Petitioner further testified that he did

not understand that he had the right not to answer a law

enforcement officer’s questions (T-124, 125, 126). Peti-

the

titioner was brought to Sheriff Lee at the Courthouse

(T-113, 126). The Sheriff testified that he interviewed

Petitioner at this time and testified to his recollection of

what Petitioner allegedly said, though the Sheriff admit-

ted to mental confusion about it (T-155). The alleged

oral statement was not reduced to writing (T-104, 115).

It was not tape-recorded. (T-104, 105, 115). Sheriff Lee

was busy in court for two to four hours before he went

to his office and reduced his recollections to report form

(T-150) from which he testified. The Sheriff admitted

that he kept no contemporaneous notes (T-150, 151). Lee

admitted that in the case of his recollection recorded in

his report of the interview there was a completely errone-

ous statement about Petitioner throwing a rock at de-

ceased when she allegedly ran from him (T-154-163),

which statement Lee had gotten from a child of the de-

ceased, David Wayne Brown, who was incompetent to

testify (T-262). Lee testified from the same portion of the

same report that Petitioner allegedly said that he fired two

shots at deceased when she had run about 6 to 8 feet from

him (T-164). On the contrary, Kelly Fite, State Crime

Laboratory Microanalyst, testified that in his opinion the

pistol could have been as much as 18 inches from the en-

trance wound in the left hip of deceased and his firm

opinion was that the muzzle distance from the chest

wound was about 12 inches (T-235, 236). He testified that

for the shot to have been from 6 to 8 feet away was “im-

possible.” (T-237). Sheriff Lee testified that after Peti-

tioner had been trying to obtain an attorney that Peti-

tioner made an additional statement on about Tuesday

or Wednesday (T-169, 170, 171). Lee testified that he

declined to ask Petitioner any questions at this time be-

cause of Petitioner’s desire for a lawyer but that Peti-

tioner insisted that Lee listen to him (T-173-6).

The Petitioner was indicted by the Douglas County,

Georgia, Grand Jury on August 26, 1975 for the alleged

murder of his wife, Shirley Ann Brown, on March 29,

1975. Petitioner was arraigned on Friday, September 19,

1975, and his trial was scheduled for the following Mon-

day, September 22, 1975. The following week was the

beginning of a three-week term of criminal cases. The

7

Petitioner’s counsel’s motion for a one-week continuance

was overruled by the court in spite of the showing that

trial counsel had been retained on Wednesday, Septem-

ber 17, 1975, first met the client on Thursday, September

18, 1975, appeared at arraignment on Friday, September

19, 1975 and requested only a week to prepare to defend

the case. The court based its denial of the motion for con-

tinuance on the fact that there had been a counsel listed of

record for the Petitioner for approximately three months.

The record reflected no service rendered by that attorney

in behalf of Petitioner. The above proceedings on arraign-

ment are reflected in the supplemental transcript con-

tained in the record. On the trial of the case on Monday,

September 22, 1975, the court, on motion of the district

attorney, dismissed three otherwise fully qualified jurors

for the sole reason that they were conscientiously opposed

to capital punishment. This was done over objection of

Petitioner’s counsel. On the same basis, Petitioner’s coun-

sel filed a written challenge to the array and a motion

for a mistrial, both of which were overruled by the trial

court. (T. 29, 31, 32, 33, 57, 58, 74, 75).

During the course of the trial and in a Jackson v. Denno

hearing evidence was adduced of some recitation by Sheriff

Lee of the “Miranda” rights to the Petitioner but evi-

dence was adduced in considerable detail that the Peti-

tioner did not understand that he had a right to have an

attorney present with him before questions were asked

and that he did not understand that he could decline to

answer when a law enforcement officer questioned him

(T. 124-126). The evidence further showed that the Pe-

titioner continued to request a lawyer from either the

Saturday night of his arrest (T. 101), or the following

Sunday morning and on through the period of alleged

statements taken on Saturday night, the following Mon-

day and later in the week (T-107, 126, 127). The testi-

mony of the Petitioner that he did not understand his

“Miranda” rights and did not intelligently waive them

was not challenged by the District Attorney either in

cross examination or by way of rebuttal evidence (T-90-

178).

After the jury had retired to deliberate, it returned and

requested a recharge (T-319). The court then recharged

on murder, justifiable homicide in self-defense, voluntary

manslaughter, involuntary manslaughter, pointing a pistol

at another and reasonable doubt. (T-319-321). Petitioner’s

counsel objected to the recharge on the basis, among other

things, that the court failed to recharge the defense theory

of accident though it had been in the original charge.

(T-322). Over Petitioner’s counsel’s objection the court

refused to recharge the jury on the theory of accident

(T-322).

The federal questions sought herein to be reviewed

were raised in the trial and appellate courts below in the

following manner:

1) The question of the excuse of three fully qualified

jurors in this case, where capital punishment was in

truth not a possible option, for the sole reason that they

were conscientiously opposed to capital punishment, was

raised by objection of Petitioner’s counsel when the

District Attorney moved to excuse the jurors for this

cause on voir dire, by written challenge to the array and

by motion for mistrial, all of which objections and motions

were overruled by the trial court. (T-29, 31, 32, 33, 57, 58,

74, 75).

The question was raised on motion for a new trial,

under Grounds “5”, “6” and “7’’, which were denied by

the trial court. The question was raised by Enumerations

of Error numbers “5’’, “6” and “7”, on appeal to the

Court of Appeals of Georgia, which court affirmed the

trial court in “Division 3”’ of its Opinion.

The question was raised by Ground “3” of Petitioner’s

motion to the Court of Appeals of Georgia for rehearing,

which was denied. The question was raised by Question

“(A)” in Petitioner’s Application to the Georgia Supreme

Court for the writ of certiorari, which was denied. Motion

for reconsideration was also denied.

2) The question of the denial of Petitioner’s 5th

Amendment right against self-incrimination and his 6th

Amendment right to assistance of counsel was raised by

Petitioner’s counsel after a Jackson v. Denno hearing by

motion to suppress alleged statements (T-119, 128). The

trial court overruled the motion (T-128). The first testi-

mony of alleged statements was admitted into evidence

before the jury (T-130) over Petitioner’s objection

(T-131). Petitioner maintained, with the permission of

the court, a continuing objection which incorporated all

prior objections to any alleged statements (T-134). The

alleged ‘‘Monday Statement” which is the alleged state-

ment critical to the State’s case, was admitted into evi-

dence over Petitioner’s continuing objection. (T-148).

This question was raised on motion for new trial by

ground “13”, which motion was denied by the trial

court. This question was raised by Enumeration of Error

“13” in Petitioner’s appeal to the Court of Appeals of

Georgia, which court affirmed the trial court in “Division

6” of its Opinion. The question was raised in motion for

rehearing before the same court, under Ground “4”, which

motion was denied. The question was raised by Question

“(B)” in Petitioner’s application to the Georgia Supreme

10

Court for the writ of certiorari, which was denied. Motion

for reconsideration was also denied.

3) The question of the denial of Petitioner’s 5th

Amendment right to due process of law and his 6th

Amendment right to the assistance of counsel by the

trial court’s denial of a one-week continuance was first

raised by the following motion which was filed at arraign-

ment:

“‘Now comes the defendant in the above styled case

and through his counsel shows the court as f :

1.

Counsel was retained to represent the defendant in

this case on Wednesday, September 17, 1975.

That counsel met the defendant for the first time

personally on Thursday, September 18, 1975 at which

time he conducted his initial interview of the defendant.

3

On Thursday, September 18, 1975 counsel discussed

the case briefly with the District Attorney for the first

time and received a copy of the indictment and list of

witnesses.

4.

In the aforementioned conference counsel was advised

that the defendant would be arraigned on Friday,

September 19, 1975 at which time motions, if any,

would be due to be filed.

5.

The District Attorney in the above mentioned con-

ference further advised counsel that the above captioned

case is the first case scheduled for trial on the following

- i LE OT

A a

11

Monday, September 22, 1975 and that the State is

seeking a life sentence in this case.

Counsel shows to the court that before even being

retained in this case he was already scheduled to appear

in court in DeKalb County, Georgia in a felony case on

Tuesday, September 23, 1975.

7.

The District Attorney advises counsel that the

current term of the criminal division of the court will

run three weeks beginning on next Monday.

8.

Counsel states in his place to the court that this

motion is not made for the purposes of undue delay.

9.

Defendant through his counsel shows to the court

that it is imperative that counsel have an capestunty

to investigate this case and properly prepare it for trial.

10.

The defendant through his counsel shows the court

that for him to be forced on trial under such circum-

stances as aforementioned would be denial of due

process of law to the defendant as guaranteed to him

under the Fifth Amendment of the United States Con-

stitution made applicable to the States through the

14th Amendment of the United States Constitution

and Article One Section One Paragraph Three of the

Georgia Constitution (Ga. Code Sec. 2-103).

11.

The defendant through his counsel shows to the

court that to be forced on trial under such circum-

stances as aforesaid would deny him his rights under

the Sixth Amendment of the United States Constitu-

12

tion as made applicable to the States through the 14th

Amendment of The United States Constitution and

under Article One Section One Paragraph Five of the

Georgia Constitution in that he would be denied

effective assistance of counsel.

WHEREFORE, the defendant through his counsel

moves the court for a continuance of Two Weeks for

the trial of the above captioned case in order that

counsel might have adequate opportunity for prepara-

tion and yet the case still be continued at the time

within the present term of this court.”

In open court counsel amended his motion to request just

a one week continuance (Supplemental Transcript-8).

This motion was overruled by the trial court. (ST-10).

Petitioner’s counsel explicitly perfected the record on

arraignment (ST-11), and on the commencement of trial

(T-3) as corrected by order of the trial court on Febuary

3, 1976. This question was raised under Ground “4” of

the Motion for New Trial, which was denied. The question

was raised in Enumeration of Error “4” in Petitioner’s

appeal to the Court of Appeals of Georgia, which court

affirmed the lower court in “Division 2” of its Opinion.

The question was raised under Ground “2” in motion for

rehearing, which was denied by the same court. The

question was raised as Question “(C)” in Petitioner’s

application to the Supreme Court of Georgia for the writ

of certiorari, which was denied. Motion for reconsidera-

tion was also denied.

4) The question of the trial court’s deniai of Petitioner’s

5th Amendment right to due process of law by refusing,

over objection and request of Petitioner’s counsel, to in-

clude in a recharge to the jury the sole defense theory of

accident was raised in the following manner: In the

Court’s original charge, the doctrine of accident was

13

charged (T-314). After deliberating the jury requested a

recharge (T-319). The court gave a recharge and did not

include therein the sole defense theory of accident (T-319-

321). Petitioner’s counsel excepted to the court’s failure

to include the theory of accident in the recharge and em-

phasized that it was part and parcel of the contact of the

questions which the jury addressed to the court. (T-322).

The_court declined to correct its recharge (T-322). This

question was raised under Ground “27” of the motion for

new trial, which was denied. The question was raised in

Enumeration of Error ‘‘23’’ in Petitioner’s appeal to the

Court of Appeals of Georgia, which court affirmed the

trial court in “Division 8” of its Opinion. The question

was raised under Ground “5” of Petitioner’s motion for

rehearing, which was denied by the same court. The

question was raised by Question ‘“(D)” in Petitioner’s

application to the Supreme Court of Georgia for the writ

of certiorari, which was denied. Motion for reconsidera-

REASONS FOR ALLOWANCE OF THE WRIT

1) Exclusion of Jurors

This Honorable Court should grant the Writ of Certio-

rari for the special and important reason that in this case

the lower courts have sanctioned an arbitrary and capri-

cious exclusion of fully qualified jurors as if the decisions

of This Court in Furman v. Georgia, 408 U.S. 238 (1972),

and Gregg v. Georgia, 44 U.S. Law Week, 5230(3); 49

L.Ed.2d (2) 859 (1976), had never been rendered, and as

if Georgia Code Section 27-2534.1 had not been enacted

after Furman and had not been construed by Gregg.

The ruling by the Georgia Court of Appeals, uncor-

rected by the Georgia Supreme Court, is based upon a

14

premise which, though formerly true, is now false in the

light of Furman and Gregg, supra.

The syllogism of the Court of Appeals of Georgia is as

follows:

Major Premise

All charges of murder are charges of capital offenses

unless the State waives the death penalty.

Minor Premise

The State did not waive the death penalty.

Therefore:

Conclusion

The State could successfully exercise challenges for

cause as in a capital case.

This conclusion is false because it flows from a major

premise that has been untrue since the case of Furman,

supra, which declared unconstitutional the Georgia law

of that time on the basis that it left juries with untram-

meled discretion to impose or withhold the death penalty.

In an earnest effort to comply with the standards and

concerns of Furman, the Georgia Legislature enacted in

1973, Georgia Code Section 27-2534.1, which provides,

among other things, in Section “C,” that “‘unless at least

one of the statutory aggravating circumstances enumer-

ated in Section 27-2534.(b) is so found, the death penalty

shall not be imposed.” The very heart of this Court’s

ruling in the case of Gregg, supra, is to the effect that

murder is a capital offense only where the clear and un-

equivocal criteria of a specified category of aggravation

under Georgia Code Section 27-2534.1 is complied with.

3. The statu under which -

| andl gtr Pag — by is per aN ne

15

The new procedures on their face satisfy the con-

cerns of Pu urman, since before the death penalty

can be imposed there must be specific jury findings

as to the circumstances of the crime or the charac-

ter of the defendant, and the State Supreme Court

thereafter reviews the comparability of each death

sentence with the sentences imposed on similarly

situated defendants to ensure that the sentence of

death in a particular case is not disproportionate.

Petitioner's contention that the changes in Geor-

gia’s sentencing procedures have not removed the

elements of arbitrariness and capriciousness con-

demned by Furman are without merit. Gregg v.

Georgia, Supra.

Therefore, in the light of Furman and the new Georgia

Statute as interpreted and upheld by Gregg, a mere charge

of murder, as serious as it is, is not a charge of a capital

offense where there is no possibility of the evidence ful-

filling the criteria of one of the statutory categories of

aggravating circumstances.

Therefore, such a non-capital charge no more justifies

the trial court in excusing otherwise fully qualified jurors

in such a case than would a charge of burglary, aggravated

assault or a misdemeanor allow such jurors to be excused

on the sole basis of conscientious scruples against capital

punishment.

Therefore, the truth of the matter is that the trial court

disqualified three fully qualified jurors for no lawful reason

and the Court of Appeals of Georgia, howsoever honorable

its motives, has compounded this error by affirming it as

if Furman and Gregg had never been decided and as if the

Georgia Legislature had never acted.

The addendum in Division three of the Georgia Court

of Appeals Opinion to the effect that Petitioner does not

have standing since he was not sentenced to death does

16

not correct or justify the error because the line of authority

relied upon grows from roots severed by Furman and looks

to fruits wilted by Gregg. Each of those cases cited by the

Court of Appeals of Georgia is applicable only where the

death penalty is a theoretical possibility based on the

evidence. This error is of such harmful infection that it

penetrates to the core of the entire proceeding and cor-

rupts everything that followed. Three kindly disposed

jurors, fully qualified under law, who might have voted

to acquit and free a man of no prior record, were denied

him on a purely arbitrary and capricious basis unworthy

of our Constitutional System and in violation of Peti-

tioner’s rights under the 5th and 6th Amendments of the

United States Constitution, as made applicable to the

States through the 14th Amendment of the United States

Constitution, to due process of law and to an impartial

jury.

2) 6th Amendment Right to Counsel and 5th Amendment

Privilege Against Self-Incrimination

This Honorable Court should grant the Writ of Cer-

tiorari for the special and important reason that in this

case the lower courts have sanctioned an application of

this Court’s ruling in the case of Miranda v. Arizona, 384

U.S. 436, in a way not in accord with this Court’s rulings

in the case of Brewer v. Williams, 45 U.S. Law Week 4287;

20 Criminal Law 3095 (3/23/77), Michigan v. Mosley, 423

U.S. 96, Sims v. Georgia, 385 U.S. 538, and Miranda,

supra, itself.

The ruling of the Court of Appeals of Georgia, un-

corrected by the Supreme Court of Georgia, contradicts

this Court’s rulings in two basic ways.

Firstly, it fails to adhere to this Court’s standard of

requiring the State to carry the burden of proving an

17

intentional relinquishment or abandonment by Petitioner

of iis 6th Amendment night to assistance of counsel. The

infringement of Petitioner's rights in this case exceeds

the actions condemned in Brewer v. Williams, supra. In

Williams the rights were clearly understood by the ac-

cused. Petitioner testified explicitly, unequivocally, with-

out cross-examination and without impeachment, that he,

in fact, did not understand that he had the right to have

a lawyer present at the time of interrogation, in contrast

to later (T-124-126). In Williams the accused knew that

he did not have to talk to the officers. Petitioner testified

clearly and without cross-examination or impeachment

that he did not understand that he was privileged not to

answer a question posed by a law enforcement officer. In

Williams, the accused did not request an attorney during

interrogation. The State’s case against Petitioner is based

upon an alleged oral Monday Statement after Petitioner

had repeatedly requested an attorney from either Satur-

day evening after the arrest (T-101) or from early Sunday

morning (T-107) and again on Monday morning (T-126,

127), before the critical alleged oral statement. In Wil-

liams this Court was perceptive of the psychologically

coercive atmosphere. Petitioner was in a far more coercive

atmosphere. Petitioner had talked with no lawyer and

had been in the custody of the Sheriff from the time he

left the death scene. Petitioner testified that when ar-

rested he was upset and his head was hurting (T-121);

that he had been involved in a struggle with his wife right

before the homicide (T-121); that he had been sick be-

tween struggles with his wife that evening (T-121); that

he had been in a weakened condition right before the

homicide (T-122); that right after the struggle in which

the shots were apparently fired, he found himself recover-

ing consciousness and lying on the ground (T-122); that

18

upon such recovery he had trouble walking (T-122); that

many people came onto the scene (T-123); that after

being taken to the Sheriff's office and jail that he was

sick and upset (T-123); that the interrogation began at

that time (T-123). Before the alleged oral Monday state-

ment a deputy sheriff took Petitioner for a polygraph “‘to

help him”’ in response to Petitioner’s renewed request to

see an attorney (T-126-127).

In addition, in Williams, the dissenting opinion by the

Chief Justice emphasizes the lack of risk of unreliability

of the accused’s statement. In the instant case the key-

stone of the State’s case is the alleged oral Monday state-

ment which the record shows to be of serious unreliability ;

which relates directly and materially to the issue of guilt

or innocence; and which places in question the entire fact

finding process. The testimony by the Sheriff regarding

this alleged oral statement is characterized by the follow-

ing elements of unreliability:

(1) It was never reduced to a tape recording. (T-102,

105, 115).

(2) It was never reduced to writing. (T-104, 115).

(3) Sheriff Lee, throughout his testimony, had a con-

fused memory regarding this case particularly

ase the alleged statements by the Petitioner.

-l

See two to four

oe Se Sens See eS eee y had

interview with the Petitioner and had the

opportunity to return to his office and record his

recollections. (T-150).

(5) Sheriff Lee admitted that he had no contempora-

neous notes of this alleged interview. (T-106, 151).

(6) Sheriff Lee admitted that during the two to four

Secondly, the ruling of the Court of Appeals of Georgia

failed to follow this Court’s requirement that in custody

statements of an accused are not admissible unless the

accused has clearly, affirmatively and intelligently waived

his applicable rights. The Court of Appeals of Georgia

assumed that the Sheriff testified that the Petitioner

fully understood his rights, whereas the record reflects

that the testimony in which the Sheriff sought to give

such an opinion was ruled out (T-101-102) and the

Petitioner testified explicitly, unequivocally, without

cross-examination and without impeachment that he, in

fact, did not understand his Miranda rights (T-124-126).

The Court erroneously assumed that testimony regard-

ing alleged advice of rights before a fourth statement

(T-168-173), which was in part exculpatory (T-189),

related to the critical third statement upon which the

entire case of the State was based, and further that be-

fore the critical third statement the Petitioner was prop-

erly advised of his rights, when, in fact, the Sheriff, after

first testifying that he fully advised Petitioner of his

rights (T-151), then admitted that on a preliminary

hearing he had testified that he had not on that occasion

advised Petitioner of his rights (T-152). The Sheriff was

unable to say which of his contradictory statements was

true (T-152). The Court concluded that there was suffi-

cient evidence in the Jackson v. Denno hearing to support

the finding that the statements had been made freely and

voluntarily after Petitioner had been advised of all his

constitutional rights. This was error because the State

failed to present a prima facie case, and further, what

evidence the State did present was unequivocally and

testimony of the Petitioner. The facts before the Court

did not carry the burden required by this Court.

These violations of Petitioner’s 5th and 6th Amend-

ment rights destroy the integrity of the State’s case and

if this Honorable Court does not correct them Petitioner

has no authority to whom to turn for protection of his

Constitutional rights.

3) Denial of One Week Continuance

This Honorable Court should grant the Writ of Certio-

rari for the special and important reason that in this case

the courts below violated this Court’s standard of “‘funda-

mental fairness” under the 5th Amendment due process

clause and the 6th Amendment requirement of effective

assistance of counsel by denial of Petitioner’s motion for

a one-week continuance.

The record shows that when Petitioner’s motion was

filed on the Friday arraignment that a three week term

defense theory of accident is no longer relevant to their

deliberations. This suggestion was made by glaring

charged properly in the original charge but when the

jury requested further clarification of its verdict options

the trial court charged every option but the defense

;

CONCLUSION CERTIFICATE OF SERVICE

For the reasons aforesaid, it is respectfully prayed that | I, J. Melvin England, attorney for the Petitioner here-

a Writ of Certiorari be granted to review the judgment of in, and a member of the Bar of The Supreme Court of

the Court of Appeals of Georgia. The United States, hereby certify that, on the 25th day

of April, 1977, | served three (3) copies of the foregoing

Petition to The Supreme Court of The United States, for

the Writ of Certiorari to the Court of Appeals of the State

of Georgia upon counsel for the Respondent, the State

of Georgia, The Honorable John T. Perren, District

Attorney, Tallapoosa Judicial Circuit, by depositing the

same in the United States Mail with proper postage there-

on and addressed to him at 215 Main Street, —

Georgia 30132. WM

/ §. Mervin ENGLAND

Suite 1016

250 Piedmont Ave., N.E.

Atlanta, Georgia 5J308

APPENDICES

Supreme Court of the United States

OCTOBER TERM, 1976

No.

ROBERT FRANKLIN BROWN,

Petitioner,

vs.

THE STATE OF GEORGIA,

Respondent.

PETITION FOR THE WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

THE STATE OF GEORGIA

The Clerk will enter ap as counsel for t

Petitioner. 77 Cle Or one

J. Metvin Enc

J. Metvin ENGLAND

Suite 1016

250 Piedmont Ave., N.E.

Atlanta, Georgia 30308

404/659-1990

The Clerk is requested to notify counsel of action of

the Court by means of regular mail.

A-l

a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No.

ROBERT FRANKLIN BROWN,

Petitioner,

vs.

THE STATE OF GEORGIA,

Respondent.

PETITION FOR THE WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

THE STATE OF GEORGIA

APPENDIX

Page

Opinion of Court of Appeals of Georgia............. A-3

Order of Court of Appeals of Georgia Denying

Motion for Rehearing.......................... B-1

Order of Supreme Court of Georgia Denying

Petition for Writ of Certiorari................... C-1

Order of Supreme Court of Georgia Denying

Motion for Reconsideration..................... D-1

Judgment of Court of Appeals of Georgia........... E-1

A-2

A-3

Sm to

52627. BROWN v. THE STATE. M-126

MARSHALL, Judge.

Appellant was indicted for the offense of murder with

malice and convicted by jury of voluntary manslaughter.

He was sentenced to serve 15 years. He brings this appeal

from that conviction and sentence, enumerating 23 errors.

Held:

1. Enumerations 1-3 are based upon the general

grounds. After a thorough review and analysis of the

evidence presented, we are satisfied that the evidence

presented was sufficient to justify a jury in finding the

appellant guilty of the offense of voluntary manslaughter.

These enumerations are without merit.

2. In enumeration 4, appellant alleges that he was

denied effective assistance of counsel and due process of

law when the trial court denied a motion for continuance.

Appellant retained his present counsel on a Wednesday,

arraignment was on the following Friday and the trial

commenced on the next Monday, September 22, 1975.

However appellant was also represented at trial by other

counsel who had been actively involved in appellant’s

defense since June, 1975.

All applications for continuance are addressed to the

sound discretion of the court and shall be granted or

refused as the ends of justice may require. There is no

fixed rule as to the number of days that should, of right,

be allowed counsel in a criminal case to prepare the case

for trial, but the trial judge, in the exercise of his discre-

tion to grant or refuse a continuance, has to consider the

facts and circumstances of each case to determine what

the ends of justice require. A statement by counsel for the

a

A-4

defendant that he has not had sufficient time to investi-

gate and prepare the defense is a mere conclusion. Ques-

tions of this nature must of necessity be entrusted to the

discretion of the trial judge. Smith v. State, 198 Ga. 849,

852 (33 SE2d 338); Foster v. State, 213 Ga. 601 (110 SE2d

426). An examination of this record discloses that the

trial court did not abuse its discretion in refusing the

requested continuance.

3. Enumerations 5-7 assert error in the excusing of

three jurors on the sole ground that they were conscien-

tiously opposed to capital punishment in a case in which

capital punishment, under the facts, would not have

been an authorized punishment. Regardless of the asser-

tion by appellant that there were no aggravating facts

adduced by the state that would have authorized the

imposition of the death penalty, the fact remains that

at the time of the voir dire examination, appellant was

charged with a capital offense. The state never stated

that it was not seeking the death penalty. Under these

circumstances we conclude that it was not improper for

the state’s attorney to inquire into the predisposition of

the prospective jurors in regards to this aspect of the

case. Moreover, since appellant was not sentenced to

death, he has no standing to object to the striking of

jurors opposed to the death penalty. Walker v. State,

225 Ga. 734 (1) (171 SE2d 290); Fountain v. State, 228

Ga. 306 (2) (185 SE2d 62); Pless v. State, 231 Ga. 228,

229 (2) (200 SE2d 897).

4. Enumerations 8 and 16 assert the trial court erred

in allowing the introduction of evidence that tended to

place appellant’s character in issue where appellant had

not introduced that issue. Each of these occurrences

involve questions of the marital status and relationship

~ te eres a eee eee eum ewe oe

A-5

existing between appellant and his deceased wife.

Our examination of the evidence of which complaint is

made convinces us that the evidence was relevant and

admissible. The witness whose testimony is in issue

simply stated that he believed the status of husband and

wife existed between the appellant and his wife but the

witness was not personally aware of a wedding ceremony.

The second reference concerned visits the witness had

made because of “fusses’” between the Browns. Such

testimony is innocuous at worst and did not tend to

place the appellant's character into issue. Even if the

references had had such a tendency, prejudice to appellant

would not have resulted. Where evidence is admissible as

showing motive or to connect the accused with the crime

charged, the mere fact that it may tend incidentally to

put the character of the accused in issue does not render

it inadmissible. Anderson v. State, 206 Ga. 527 (1) (57

SE2d 563); Whippler v. State, 218 Ga. 198, 200 (126 SE2d

744). These enumerations are without merit.

5. Enumerations numbered 9 and 10 contend that the

court erred in allowing a state’s witness to testify as an

expert and give opinion testimony without prover qualifi-

cation. The witness was the sheriff of the county and

testified that he had investigated many homicides. He

had attended training schools and had certain qualifica-

tions in wound identification. The evidence in question

concerned testimony as to entrance and exit wounds, the

probable position of the victim when she was shot and

whether she could have been holding the death weapon.

In each instance, the witness gave the basis of his opinion.

An expert is one who by habits of life and business has

a peculiar skill in forming an opinion on the subject in

dispute. Sims v. State, 40 Ga. App. 10, 13 (148 SE 769).

,

}

pert is a question for the sound discretion of the trial

court and such discretion, unless abused, will not be dis-

turbed. Rouse v. Fussell, 106 Ga. App. 259 (4) (126 SE2d

830). Generally nothing more is required to entitle one

to give testimony as an expert than that he has been

educated in the particular trade or profession; and special

knowledge in regard to a particular subject may be de-

rived from experience as well as study and direct

application. Carter v. Marble Products, Inc., 179 Ga. 1

(1) (175 SE 480); Frazier v. State, 138 Ga. App. 640,

We find no error in the admission of the opinion testi-

mony by the sheriff.

tae

statement was taken without the benefit of a Miranda

warning.

The evidence giving rise to this issue may at best be

described as confusing. Reconciling the testimony of the

interrogating officer as fully as possible, it reasonably

appears that the sheriff received a call from appellant

indicating that Mrs. Brown had shot herself and appar-

ently was dead. Upon arriving at the scene of the shoot-

ing the sheriff observed the deceased prostrate on the

ground, apparently dead, with a revolver clutched in her

right hand. He was handed by another officer at the scene

what appeared to be an authentic suicide note. Without

the benefit of a Miranda warning, the sheriff asked the

appellant what had happened since appellant was an eye-

witness to the incident. Appellant related what apparently

was a suicide. At this time appellant was detained but

not arrested. Appellant was taken to the police station

pending the outcome of an autopsy, but still not in a

status of arrest. Because of the nature of the wounds and

the results of the autopsy, appellant came under suspi-

cion. At that time he was fully warned of his Miranda

rights. Appellant contends that at this first station house

interview he was dazed and sick and did not fully com-

prehend his rights. The sheriff testified to the contrary

Appellant gave a statement reduced to a tape recording

5

|

an attorney but these efforts were ineffectual. Thereafter,

appellant agreed to give the specimens anyway. It is not

clear whether the request for handwriting specimens and

the polygraph suggestion occurred at this conference or

to give a statement without the presence of an attorney.

There is evidence of what might have been circumstances

A-8

surrounding the third statement or of yet another in-

“aaa t at which the sheriff plainly advised

appellant that since he had requested an attorney, the

sheriff could not talk to him without the presence of the

attorney. It is not controverted that at this time appel-

lant requested that even if no questions could be asked,

would not the sheriff simply listen to appellant’s story.

Lastly, the sheriff stated that the appellant had repeat-

edly requested interviews with the sheriff and that many

conversations had occurred between the two.

Based upon the foregoing recitation of facts, we are

satisfied that appellant’s rights against self incrimination

were not violated. As to the first statement given at the

scene of the homicide, we conclude that this was the

necessarily present. Miranda v. Arizona, 384 U.S. 436,

477-478 (86 SC 1602, 16 LEd2d 694).

ee eS eee

ee

A-9

theless, the trial court had before it evidence developed

in a Jackson-Denno type hearing (Jackson v. Denno, 378

U.S. 368, 84 SC 1774, 12 LEd2d 908, 1 ALR 3d 1206),

that was sufficient to support the finding that the state-

ments had been made freely and voluntarily after appel-

lant had repeatedly been advised of all his constitutional

rights as provided in Miranda, supra. Wilson v. State, 229

Ga. 395 (191 SE2d 783) ; Street v. State, 237 Ga. App. 307,

313.

The trial court did not err in overruling the motion to

suppress or in admitting the several statements of the

appellant nor in denying a motion for mistrial predicated

upon the alleged reference to the last statement prior to

a Jackson-Denno hearing but which subsequently was

admitted properly into evidence by the trial court.

7. Enumeration 17 complains that the trial court erred

when it refused to withdraw the verdict option of murder

from the jury. In substance this is tantamount to a mo-

tion for a directed verdict of acquittal as to the offense

of murder. In this case there was substantial evidence

pointing toward the offense of murder. Only where there

is no conflict in the evidence and a verdict of acquittal

is demanded as a matter of law is it error for a trial court

to refuse to direct a verdict of acquittal. Merino v. State,

230 Ga. 604 (198 SE2d 311); Davis v. State, 234 Ga. 730-

732 (218 SE2d 20); Allen v. State, 137 Ga. App. 302, 303.

Moreover, appellant has shown no harm in view of the

fact that he was acquitted of murder. Hollis v. State, 137

Ga. App. 298.

8. Enumerations 18-23 question the charges of the

court dealing with reasonable doubt, accident, involun-

tary manslaughter, and the felony murder rule. We have

carefully examined the charge of the court. In each in-

A-10

stance, either the charge of the court fully covered the

principle contended for by appellant in the appropriate

language of the statute involved or the evidence did not

reasonably raise an issue such as to require such an in-

struction. See Leutner v. State, 235 Ga. 77, 81 (218 SE2d

820); Crawford v. State, 236 Ga. 491, 493 (224 SE2d 365);

Pulliam ». State, 236 Ga. 460, 466 (224 SE2d 8); Nuckles

v. State, 137 Ga. App. 200, 204 (223 SE2d 245); Stonaker

v. State, 236 Ga. 1 (222 SE2d 354).

Judgment affirmed. McMurray and Smith, J. J., concur.

Court of Appeals

of the State of Georgia

ATLANTA, October 25, 1976

The Honorable Court of Appeals met pursuant to

adjournment.

The following order was passed:

52627. R. F. Brown v. The State

Upon consideration of the motion for a rehearing filed

in this case, it is ordered that it be hereby denied.

COURT OF APPEALS OF THE STATE OF GEORGIA

CLerk’s Orrice, ATLANTA Oct. 25, 1976

I certify that the above is # true extract from the

minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

/s/ MorGan Tuomas, CLERK.

B-1

_————

SUPREME COURT OF GEORGIA

ATLANTA, January 7, 1977

The Honorable Supreme Court met pursuant to

adjournment.

The following judgment was rendered:

Robert Franklin Brown v. The State

Upon consideration of the application for certiorari

filed to review the judgment of the Court of Appeals in

this case, it is ordered that the writ be hereby denied.

BILL OF COSTS, $30.00

SUPREME COURT OF THE STATE OF GEORGIA

CLERK’s OFFICE, ATLANTA

I certify that the above is a true extract from the

minutes of the Supreme Court of Georgia, and that

England & Weller

paid the above bill of costs.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

Clerk.

CASE NO. 52627

COURT OF APPEALS OF GEORGIA

REMITTITUR FROM SUPREME COURT

Filed in office

Clerk Court of Appeals of Georgia.

C-1

SUPREME COURT OF GEORGIA

ATLANTA, January 27, 1977

The Honorable Supreme Court met pursuant to

adjournment.

The following order was passed:

Robert Franklin Brown v. The State

Upon consideration of the Motion for Reconsideration

filed in this case, it is ordered that it be hereby denied.

SUPREME COURT OF THE STATE OF GEORGIA,

CLERK’s OFFICE, ATLANTA,

I certify that the above is a true extract from the

minutes of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

Clerk.

D-1

ls a A eae

Court of Appeals

of the State of Georgia

ATLANTA, October 8, 1976

The Honorable Court of Appeals met pursuant to ad-

journment.

The following judgment was rendered:

52627. R. F. Brown v. The State

This case came before this court on appeal from the

Superior Court of Douglas County; and, after argument

had, it is considered and adjudged that the judgment of

the court below be affirmed. Marshall, J., McMurray and

Smith, JJ., concur.

BILL OF COSTS, $30.00

COURT OF APPEALS OF THE STATE OF GEORGIA

Clerk’s Office, Atlanta, APR. 22, 1977

I certify that the above is a true extract from the

minutes of the Court of Appeals of Georgia, and that

paid the above bill of costs.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

/s/ MorGan Tuomas, CLERK.

E-1