Petition — Presnell v. Georgia

RECEIVED

JUN2 4978

OFFS we 45) CLERK

SUPREME Court, U.S.

ad

77-6885

SUPREME COURT OF THE UNITED STATES

IN THE

OCTOBER TERM, 1977

NO. 78-

VIRGIL DELANO PRESNELL, JUR.,

Petitioner

_e

STATE OF GEORGIA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

\

J. MILTON GRUBBS

P. O. BOX 1149

271 ROSWELL STREET

MARIETTA, GEORGIA, 30061

ADELE P. GRUBBS

P. O. BOX 1149

271 ROSWELL STREET

MARIETTA, GEORGIA, 30061

WILLIAM P. HOLLEY

223 WASHINGTON AVENUE, S. E.

MARIETTA, GEORGIA, 30060

ATTORNEYS FOR PETITIONER

RECEIVED

view 9 FRY

OFFICE UF The Ukr in

PSUPREME COURT, U

77-6889

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO. 78-

VIRGIL DELANO PRESNELL, JR., )

Petitioner )

vs. )

THE STATE OF GEORGIA, )

Respondent )

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

Petitioner respectfully prays that this Court issue

its writ of certiorari to review the judgment of the Supreme

Court of the State of Georgia entered in this case on March 7,

1978, on which rehearing was denied on March 28, 1978.

A. CITATION TO OPINION BELOW

This case is cited at 241 Georgia Supreme Court 49.

A copy of the opinion and its addition on denial of rehearing

are set out as Appendix A hereto.

B. JURISDICTION

The judgment of the Supreme Court of the State of

Georgia was entered on March 7, 1978, and the rehearing was

denied on March 28, 1978. These opinions are attached as

Pyppendix A.

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

C. §1257(3), the Petitioner having asserted below and

asserting here deprivation of rights secured by the Constitution

of the United States.

c. QUESTIONS FOR REVIEW

The Petitioner raises the five following questions

for review by this Court.

1. Was the Trial Court correct in ordering, on

motion by the State of Georgia, a full and complete psychiatric

examination of the Petitioner, over Petitioner's objection?

Further was the Trial Court correct in allowing the State of

Georgia in its case in chief, to present evidence arising out

of the Court ordered psychiatric examinatiun that the Petitioner

was sane at the time of the commission of these offenses? The

Petitioner did not present any psychiatric evidence at the

guilt or innocence part of the bifurcated trial. Was this

action by the Trial Court a violation of the Petitioner's

4th, 5th and 14th amendment constitutional rights?

2. The Petitioner was indicted and convicted of

kidnapping with bodily injury, said bodily injury being

aggravated sodomy. The Petitioner was also indicted and

convicted of forcible rape. The Supreme Court of Georgia

held that the conviction for forcible rape was one for

statutory rape and affirmed a conviction for statutory rape.

fhe Supreme Court of Georgia also held that the aggravated

sodomy, under the facts of this case, was not bodily injury.

However, the Supreme Court of Georgia affirmed the

Petitioner's conviction for kidnapping with bodily injury,

holding that the allegation of force used in the rape was

sufficient bodily injury. Further, the Supreme Court of

Georgia affirmed the Petitioner's sentence of death for

malice murder aggravated by kidnapping with bodily injury,

again using the allegation of force from the rape as bodily

injury, although the notice of aggravating circumstances

served on the Petitioner, which is required by Georgia Law,

said the malice murder was aggravated by kidnapping with

bodily injury, being aggravated sodomy. There was only one

act of penetration and no other injury to the victim against

whom the Petitioner was charged with kidnapping with bodily

injury. There were two victims in this case. Was this

ruling by the Supreme Court of Georgia, a violation of

the Petitioner's 5th, 6th and 14th amendment constitutional

rights?

3. Did the Supreme Court of Georgia deny the

Petitioner's 5th and 14th anendment constitutional rights,

by affirming the Petitioner's convictions for malice murder

and kidnapping with bodily injury after the State of Georgia,

in its brief to the Supreme Court of Georgia, conceded and

admitted that the Petitioner's convictions for these two

offenses should be reversed and that the Petitioner should have

2

— 4

been acquitted as to malice murder and kidnapping with

bodily injury?

4. Did the totality of the circumstances under

which the alleged statements and confession of the

Petitioner were made, including the promises by the

officer to tell the judge of Petitioner's cooperation as

well as the other promises that were made, render the

alleged statements and confession involuntary, being in

violation of the Petitioner's 5th and 14th amendment

constitutional rights, and therefore make the alleged

statements and confession inadmissible.

5. Is the death sentence in Georgia violative

of the 5th, 8th and 14th amendments to the Constitution

of the United States?

D. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1. This case involves the 4th, 5th, 6th, 8th and

14th Amendments to the Constitution of the United States.

2. This case also involves the following pro-

visions of the Law of the State of Georgia:

i) Georgia Laws 1968, pp 1249, 1276 being codified

in Georgia Code Section 26-1101:

"Murder (a). . . A person commits murder when he

unlawfully and with malice aforethought, either

express or implied,- causes the death of another

human being. Express malice is that deliberate

Lf

intention unlawfully to take away the life of

a fellow creature, which is manifested by

external circumstances capable of proof.

Malice shall be implied where no considerable

provocation appears, and where all the circum-

stances of the killing show an abandoned and

malignant heart.

"(b) A person also commits the crime of murder

when in the commission of a felony he causes the

death of another human being, irrespective of

malice.

"(c) A person convicted of murder shall be

pnished by death or by imprisonment for life."

ii) Georgia Laws 19638, pp 1249, 1299 being codified

in Georgia Code Section 26-2001:

“Rape - A person commits rape when he has carnal

knowledge of a female, forcibly and against her

will. Carnal knowledge in rape occurs when

there is any penetration of the female sex organ

by the male sex organ. A person covicted of

rape shall be punished by death or by imprisonment

for life, or by imprisonment for not less than one

nor more than 20 years. No conviction shall be

had for rape on the unsupported testimony of the

female."

yiii) Georgia Laws 1968, pp 1249, 1302 being codified

in Georg:4 Code Section 26-2018:

*Sittatutory Rape - A person commits statutory rape

waen he engages in sexual intercourse with any

2

female under the age of 14 years, not his

spouse: Provided, that no conviction shall

be had for this offense on the unsupported

testimony of the female. A person con~

victed of gtabatoty rape shall be punished

by imprisonment for not less than one nor

more than 20 years."

iv) Georgia Laws 1968, pp 1249, 1282 being codified

in Georgia Code Section 26-1311:

"Kidnapping - (a) A person commits kid-

napping when he abducts or steals away any

person without lawful authority or warrant

and holds such person against his will.

"(b) A person over the age of 17 commits

kidnapping when he forcibly, maliciously, oF

fraudulently leads, takes, OF carries away,

or decoys or entices away, any child under

the age of 16 years against the will of the

child's parents or other person having lawful

custody.

A person convicted of kidnapping shall be

punished by imprisonment for not less than one

nor more than 20 years: Provided that a person

convicted of kidnapping for ransom shall be

punished by life imprisonment or by death; and

Provided, further, that if the person kidnapped

shall have received bodily injury, the person

(

convicted shall be punished by life imprison-

ment or by death.”

v) Georgia Laws 1968, pp 1249, 1335, 1969,

mw 809 and 1973, pp 159, 170, being codified in Georgia Code

Section 26-3102:

"Capital Offenses; jury verdict and sentence.

"Where, upon a trial by jury, a person is con-

victed of an offense which may be punishable

by death, a sentence of death shall not be

imposed unless the jury verdict includes a

finding of at least one statutory aggravating

circumstance and a neptiinniaktan that such

sentence be imposed. Where a statutory

aggravating circumstance is found and a

recommendation 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 circumstance

shall be necessary in offenses of treason or

aircraft hijacking. The provisions of this

7

section shall not affect a sentence when the

case is tried without a jury or when the

judge accepts a plea of guilty."

vi) Georgia Laws 1924, pp 195, 197 and 1937-38

Extras Session, p 330, being codified in Georgia Code Section

"Electrocution substituted for hanging; place of

execution -

“All persons who shall be convicted of a capital

crime and who shall have imposed upon them the

sentence of death, shall suffer such punishment

by electrocution instead of by hanging.

In all cases in which the Defendant is

sentenced to be electrocuted it shall be the

duty of the trial judge, in passing sentence,

to direct that the defendant be delivered to

the Director of Corrections for electrocution

at such penal institution as may be designated

by said Director. However, no executions shall

be held at the old prison farm in Baldwin

County.”

vii) Georgia Laws 1924, p 195 and 1973, pp 159, i7l,

being codified in Georgia Code Section 27-2514:

"Sentence of Death; copy for penitentiary

superintendent. Time and mode of conveying

prisoner to penitentiary. Expenses.

“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 in which such convicted person is so

sentenced, together with one deputy or more, if

in his judgment it is necessary, and provided

that in all cases the number of guards shall be

approved by the trial judge, or if he is not

available, by the ordinary of said county in

which such prisoner is sentenced, to convey such

convicted person to said penitentiary, not more

than 20 days nor less than two days prior to the

time fixed “n the judgment for the execution of

svch condemned person, unless otherwise directed

by the Governor, OF 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 electro-

cution shall be paid by the ordinary of the

county wherein the conviction was had, or the

board of county commissioners, the county

commissioner, or other person or persons

having charge of the county funds, out of any

funds on hand in the treasury of such county."

viii) Georgia Laws 1973, pp 159, 163 being codified

as Georgia Code Section 27-2534.1:

"Mitigating and aggravating circumstances; death

penalty.

“(a) The death penalty may be imposed for the

offenses of aircraft hijacking or treason,

in any case.

"(b) In all cases of other offenses for which

the death penalty may be authorized, the judge

shall consider, 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.

(1) 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

wac committed by a person who has a sub-

stantial 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 commission 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 because of the exercise of his official duty.

(6) The offender caused or directed another

to commit murder or committed murder as an agent

or employee of another person.

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

robbery, or kidnapping was outrageously or

wantonly vile, horrible or inhuman in that it

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involved torture, depravity 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 official duties.

(9) The offense of murder was committed

by a person 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 deliberation. 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 leagt one of the

statutory aggravating circumstances numerated

in section 27.2534.1(b) is so found, the

death penalty shall not be imposed.

ix) Georgia Laws 1973, pp 159, 165 being codified

as Georgia Code Section 27-2537:

“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 10 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 pre-

pared 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 pre-

scribed. The report shall be in the form of a

standard questionnaire prepared and supplied by

the Supreme Court of Georgia.

"(b) The Supreme Court of Georgia shall consider

the punishment as well as any errors enumerated

by way of appeal. j

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

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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

aircraft hijacking, the evidence supports the

jury's or judge's finding of a statutory aggra-

vating circumstance as enumerated in section 27-

2534.1(b), and

(3) Whether the sentence of death is excessive

ox disproportionate to the penalty imposed in

similar cases, considering both the crime and the

defendant.

"(d) Both the defendant and the State shall have

the right to submit briefs within the time pro-

vided 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:

(L) Affirm the sentence of death; or

(2) Set the sentence aside and remand the

case for resentencing by the trial judge based

- }4-

a

on the record and argument of counsel. The

records of those similar cases referred to

by the Supreme Court of Georgia in its

decision, and the extracts prepared as here-

inafter provided for, shall be provided to the

resentencing jucge for his consideration.

"(£) 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 imposed 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.

"(h) The office of the Assistant shall be

attached to the office of the Clerk of the

Supreme Court of Georgia for administrative

purposes.

—

Ks

(i) The sentence review shall be in addition

to direct appeal, if taken, and the review

and appeal shall be consolidated for considera-

tion. The court shall render its decision on

legal errors enumerated, the factual sub-

stantiation of the verdict, and the validity

of the sentence.

E. STATEMENT OF THE CASE

The Petitioner, Virgil Delano Presnell, Jr., was

indicted and convicted by a jury of malice murder and kid-

napping of Lori Ann Smith, aged 8 years and the forcible

rape and kidnapping with bodily injury, being aggravated

sodomy of Andrea Furlong, aged 10 years. Sentences of

death were imposed by the jury and trial judge for malice

murder, rape and kidnapping with bodily injury, being

aggravated sodomy, and Petitioner received 20 years for

kidnapping.

In its judgment, on appeal of the case, the

Supreme Court of Georgia affirmed the death sentence for

malice murder, reversed the conviction and death sentence

for rape, reducing it to statutory rape, and reversed the

death sentence for kidnapping with bodily injury, but

affirmed the conviction therefor, finding the bodily injury

not to be aggravated sodomy but the alleged force in the

rage.

Petitioner asks this Court to issue its writ

of certiorari to correct the judgment of the Supreme

fourt of Georgia.

The facts developed at trial and at the various

hearings in these matters showed that the Petitioner read

a considerable amount of pornographic literature, (S

Exhibits 21, 22 and 23) and attended Adult Movie Theatres

in Atlanta, (T-488, 284), all concerning young girls. The

Petitioner liked to look at small girls and play with him-

self. (T-496). The day prior to the occurrences, the

Petitioner had watched Andrea Furlong on her way home from

school and wanted to be with her, because she reminded him

of a girl in one of his books. (T-505). On May 4, 1976, he

waited on Andrea Furlong, but when she came by with Lori Ann

Smith, whom he thought was a boy, he almost did not do any-

thing. (T-509). When they had just passed him, he grabbed

them both and made a threat. (T-35i). He tied them up and

taped their mouths for a few minutes and then undid every-

thing and put them in his car. (T-353). In the car, Andrea

Furlong placed her mouth over the Petitioner's private part

at his request. (T-354).

They all then stopped at a service station and

the Petitioner hoped the girls would leave. (T-515). He

then took them to the woods where they all undressed, and

after applying vaseline to himself, the Petitioner

peneti atial Andrea Furlong one time. (T-355,356,371).

o F<

The Petitioner left with Lori Ann Smith (T-357)

whom he had not touched. Lori ran ana the Petitioner ran

after her. Lori fell in the creek and the Petitioner fell

on top of her with her head at his waist. (T-523 and 524).

The Petitioner tried to get up and lifted Lori on to the

bank where she was gasping. He pressed on her chest

several times. (T-525).

The Petitioner then came back to Andrea Furlong

who testified his pants were wet. (T-357). The Petitioner

committed sodomy with Andrea Furlong again and they walked

to the car where he put her in the trunk: (T-358).

Petitioner went to his mother's house and changed clothes

and got his mother's gun. (T-528). The Petitioner's idea

was to return Andrea home and then kill himself. (T-528).

The car had a flat tire and he stopped at a Church and let

Andrea Furlong out; that was the first time Andrea saw a gun

and she testified that the Petitioner never pointed a gun at

her. (T-360 and 374).

The testimony at trial showed that the only blood

at the scene was that of Andrea Furlong, where she had bled

from the vagina as a result of the one penetration by the

Petitioner. (T-333 and 435). No one saw any other marks

on Andrea Furlong at all (T-206,383), including her doctor.

The medical examiner who conducted the autopsy

on Lori Ann Smith, who was Dr. Joseph L. Burton, stated that

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her bruises were located as if she fell. (T-399). The

cause of death was a@rowning, which could have occurred

in a matter of seconds or a couple of minutes. Although

there were some superficial marks at the back of the

neck, manual strarqulation was not 4 contributory factor

to death. (T-310-11). The medical examiner further

testified that his findings were consistent with the

Petitioner's version of the occurrence and that they were

consistent with an accident. There was no sexual trauma

to Lori Ann Smith. (T-317). He further testified that

Lori Ann could have died on the bank of the creek.

The Petitioner was arrested as he was changing

his tire to his car, by Det. Williams and Lt. Moss. He

was told that the Detectives had a girl who could identify

him in a lineup (T-423) and that they needed to find a girl

missing in the woods. (T-11 of June 10, 1976 transcript).

At first, the Petitioner said that he knew nothing about it.

The Detectives rode around with the Petitioner to the gas

station where he had bought the tire for the car. Finally,

the Petitioner said he would show the officers where he left

Lori Ann. (T-393). The Petitioner said the reason he decided

to help was because Detective Williams said he would tell the

judge that the Defendant showed the Detectives where everything

occurred. (T-39 of June 10, 1976; T-423). Detective Williams

agreed that he said he would tell the judge and that he told

the Petitioner that it would weigh heavy with the court and

tthe judge. (T-392, 436).

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After this conversation, the Petitioner and the

Detectires went to the site of the occurrence where the

Petitioner was advised that he was under arrest and was

handcuffed. (T-394). The Petitioner pointed out various

evidence and pointed to where he left the girl Lori Ann.

(T-395). Detective Williams told the Petitioner that if

the Petitioner was telling the truth, Lori Ann would have

run out by now, to which the Petitioner said she might be

hurt. Lori Ann Smith's body was found on the bank of the

creek.

At 9:30 P. M., on the same day; the Petitioner

was in the Cobb County Pciice Station, where he was given

his Miranda warnings and Detective Williams and Lt. Moss

took a statement from him. (T-405). The Petitioner was

handcuffed throughout the statement and one of the hand-

cuffs was too tight and had to be loosened. (T-407).

During the course of this statement, Det. Williams

told the Petitioner he would help him along (T-406), the

Petitioner was told to level with them as they had been

through it all before (t-409) and that they were not going

to get mad and raise hell and that they would not jump up

and slap and beat the Petitioner around. (T-412). At T-314,

the suspect said:

"Well, it is just in the past, they

promised me one thing and then I gave them

the information they wanted and then, you

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know, they didn't keep their half of it", ‘ . 3

kiadmapping and sodomy as exhibited in this case were wrong.

to which Det. Williams said - ;

The Petitioner was accused of committing these

“well, I've promised you a one-man

offenses on May 4, 1976. Counsel for the Petitioner were

cell have I not?" ;

appointed on May 7, 1976, and appearance of counsel and

Further, Det. Williams told the Defendant - "get .

demand for witnesses was made. (R-6). On the same date,

it off your chest you will feel better" (T-416) and when

the State made a motion for a psychiatric examination of

the Petitioner would not answer a4 question the Detective é

the Petitioner on the ground that the issue of sanity was

said, “Tell us all Virgil, we are almost there, partner,

expected to be raised at trial. (R-8).

just tell us the whole thing". The Detectives further

A hearing was held on May 18, 1976, at which the

promised the Petitioner a psychiatrist. (T-37, June 10,

Di Petitioner objected to such an examination and the issue

1976) idl =

was continued by the Court. (R-12). The Petitioner raised

William Dan West, an Auxiliary Police Officer

the issue of his constitutional rights to remain silent and

of the City of Smyrna said that Det. Williams told him that

not be forced to make incriminatory statements, and these

the Petitioner was going to show him where the dead girl was

were formalized in a Motion in Opposition to the Prosecution's

and that Det. Williams knew the girl Lori Ann was dead before

Motion. (R-14).

the Petitioner showed him where she was. (T-214-220).

A revocation of any waiver of rights Petitioner

The psychiatrist from Central State gave evidence ;

night have made was filed on June 8, 1976. (R-29). Various

in the sentencing portion of the bifurcated trial based on

notions for a commitment hearing in camera because of

Petitioner's statements to him at Central State, which is a

publicity and waiver of presence of the Petitioner were filed.

special issue in this case, that pedophilia is 4 mental dis-

(R-30). An order granting these motions was entered on June 8,

order and that a pedophiliac cannot control his desires.

1976 (R-36), and the record was sealed.

(T-469). The doctor found Virgil passive but did not in-

On June 17, 1976, the Trial Court ordered the

vestigate him for pedophilia. (T-476).

Petitioner to undergo a psychiatric examination. (R-48). The

The Petitioner testified that he did not intend to

orfia: tesited that questions had been raised as to the

hurt either girl (T-527) and that he did not realize rape,

Peiitimen's ability to stand.trial as well as his responsibility

» i «

« 92 =

ai

for the acts, and that the State had the burden of proof

on the issue of insanity. Further, the Court ordered the

report furnished to the State, counsel for the Petitioner

and the Court. (R-49). The Order was amended to order

the Sheriff of Cobb County to take the Petitioner to Central

State Hospital in Milledgeville for a full and complete

psyhicatric examination. (R-51).

On July 1, 1976, the first indictment against

Petitioner being nolle prosequied, the Petitioner was

reindicted under Indictment No. 76-0603 on which indictment

the Petitioner was tried on Counts l, 2, _3 and 5. (R-54).

A new Notice of Aggravating Circumstances was filed on

the new indictment and subsequently at trial, Paragraphs 2,

4 and 7 only were submitted to the jury. (R-59). The

Petitioner again waived arraignment and pled not guilty.

(R-64).

A motion to suppress the statements and two written

confessions of the Petitioner was made on the grounds that

they were induced by promises, threats and coercion and

therefore, were suppressible as being in violation of the

Constitutional rights of the accused. (R-70).

The Petitioner filed a motion attacking both the

indictment and the notice of aggravating circumstances. (R-74).

The issues raised against the indictment were conceded by the

State (R-79, R-103) and all the issues raised against the

Notice of Aggravating Circumstances were also conceded by the

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State except the constitutionality of the death sentence

and whether the murder could be aggravated by the kid-

napping with bodily injury, the same kidnapping with

bodily injury could be aggravated by the rape, and the

same rape could be aggravated by the same murder. (R-74;

R-102). The other question remaining was whether a capital

offense against one person could be aggravated by a capital

offense against another person. (R-74).

On the llth of August, 1976, the Trial Court

issued an Order granting the Petitioner's Motion to Suppress

as to the second confession which is dot at issue here, and

denying the Petitioner's Motion to Suppress the Petitioner's

initial statements and his first confession which are in

issue here. (R-89). One of the determinations made by the

Trial Judge in his Order, was that the Petitioner was sane

according to the report the Judge received from Central State

pursuant to his own Order and this was used to uphold the

Court's position that the statements were freely and voluntarily

made. (R-93). The Trial Judge further found that the testimony

of the Detective was uncontradicted in regard to his not knowing

that Lori Ann Smith was dead (R-95), which was not so at Trial,

as that testimony was contradicted. (T-214 and 220).

The State filed a withdrawal of certain aggravating

circumstances and one Count of the indictment. (R-102 and 103).

The Trial Court then ruled that the grounds of the Petitioner's

= 94°-

, ; including other examiners. However, the Trial Court

Motion to Quash the Notice of Aggravating Circumstances

would not allow the Petitioner's counsel to go into

not conceded by the State were overruled. (R-106).

findings as to sub-headings of sanity including

The case was tried before Judge Luther Hames,

| personality disorders, and neurosis which were a

Jr., and a jury on August 23, 24, 25 and 26, 1976.

ne fepa material part of a blanket finding of sanity, without

During the initial presentation of the State's

letting the entire conversations in and ruling that the

case at trial, Dr. Carl Smith, a psychiatrist, was allowed :

; rie Petitioner had waived all its objections. (R-461,462).

to testify that the Petitioner had spent eight days of

Further, the Trial Court ruled that the

examination and evaluation at Milledgeville State Mental

Petitioner could not go into the findings of the members

Hospital and that he had seen him for two hours. (T-450).

of the psychiatric team even though the Doctor's testimony

Based on the record of all the evaluations at Milledgeville

~ was admittedly based on them. (T-464).

and his own conversations with the Petitioner, Dr. Smith

; During his charge to the jury, the Trial Court

was allowed to give his opinion that the Petitioner was

ait At charged only on Statutory Rape using the language that

sane. (T-453-454). The Petitioner objected that opinions

force was immaterial. (T-640). On kidnapping with bodily

based on illegally and unconstitutionally obtained state-

aA? 13% injury, the Court charged that any crime committed against

ments would be also inadmissible. (R-454). The Petitioner

a person constituted bodily harm sufficient to increase

tendered no psychiatric evidence as to his sanity on the

kidnapping to kidnapping with bodily injury. (T-642).

guilt or innocence portion of the Trial and the State was ¥ Jury

; The jury found the Petitioner guilty on all counts,

allowed to put in evidence as to sanity on direct evidence

: ; ‘ ye P : (R-157) and the sentencing phase of the trial was undertaken.

in its case in chief. The Petitioner was not given his

Written specifications of aggravating conditions were sub-

constitutional rights to remain silent and have his attorney

; ; ’ mitted to the jury but the Trial Court did not charge on the

present prior to his examination by the psychiatrist.

specifications of mitigating circumstances. The jury came

The problems became even more complex on cross-~

back for a recharge and the Trial Court gave only instructions

examination by the Petitiomer's counsel. The Trial Court

in regard to the death sentence and none as to the giving of

had taken the position that Dr. Carl Smith could give his

a life sentence. (T-701).

opinions based on the entire record from Milledgeville,

The jury found three concurrent death sentences.

(R-157).

The Trial Court sentenced the Petitioner to

twenty years consecutive for the kidnapping of Lori Ann

Smith (T-712) which was changed to concurrent time in the

formal sentence. (R-158).

The Trial Court entered a formal Order of death

sentence on August 26, 1976. (R-160).

On appeal to the Supreme Court of Georgia, the

State of Georgia in its Appellee's brief conceded that the

conviction of the Petitioner for kidnapping with bodily

injury should be stricken and the conviction for malice

murder should be one for felony murder, and so moved the

Court in the conclusion of its Brief. See Appendix B,

Page 81.

However, the Supreme Court of Georgia affirmed

the Petitioner's conviction for malice murder and kid-

napping with bodily injury. See Appendix A, Page 27.

The Supreme Court also affirmed the psychiatric

examination as ordered and used in testimony in this case.

In regard to the rape and kidnapping with bodily

injury the Court held:

"1, The only evidence of bodily injury, to support

the crime of the kidnapping with bodily injury of

the older child, is the bodily injury which re-

sulted from the rape of that child. Thus, the

- 27 «-

convictions for both kidnapping with bodily

injury and forcible rape cannot be upheld.

State v. Estevez, 232 Ga. 316 (1) (206 SE2d

475) (1974). Because the jury was instructed

as to statutory rape as well as forcible rape

but was not instructed to show by their

verdict which offense was found, the latter

conviction cannot be upheld. Drake vs. State,

239 Ga. 232 (1) (236 SE2d 748) (1977); Reed vs.

State, 238 Ga. 457 (7) (233 SE2d 369) (1977).

The death penalty for rape therefore is

vacated. Compare Coker v. Georgia, vu. S&S.

( sc ’ LE2d )

(19 ). On remand, the court below is directed

to enter sentence for the crime of statutory rape,

not less than one nor more than 20 years. Code

Ann. § 26-2018.

As a consequence of the foregoing, there is

evidence of bodily injury, not a part of the crime

of statutory rape, to support the crime of kid-

napping with bodily injury.

The evidence supports convictions for the

murder and kidnapping of the younger child and

kidnapping with bodily injury and statutory rape

of the older girl. The State's erroneous

identification of the creek where the murder

- 28 -

occurred, called Nickajack Creek in the in-

dictment, is not a fatal variance. Dobbs

v. State, 235 Ga. 800 (221 SE2d 576) (1976).

The state's attempted reliance upon sodomy

as constituting the bodily injury associated

with the kidnapping of the older child is not

ground for retrial."

F. HOW THE FEDERAL QUESTIONS WERE RAISED AND DECIDED BELOW

l. The constitutional questions regarding the

psychiatric examination of the Petitioner were raised, prior

to indictment, by the Petitioner filing a motion in opposition

to the State's motion for psychiatric examination. See Appendix

B, R-14, R-8. The Order and amendment thereto requiring a full

psychiatric examination of the accused are in Appendix B, R-48,

R-51. Further, the Petitioner objected to the evidence of the

psychiatrist Dr. Smith when he was called to the stand in the

State's case in chief - See Appendix B, P-447-476. This issue

was raised by the Petitioner in the Supreme Court of Georgia

and on motion for rehearing before that Court, but the Supreme

Court affirmed. See Appendix A.

2. The Supreme Court of Georgia in its opinion in

this case - See Appendix A - change the charges against the

Petitioner and found that although the Petitioner had been

indicted by the grand jury for kidnapping with bodily injury,

- 29 =-

being aggravatea sodomy, he was not guilty of that charge,

but as the conviction for forcible rape was reduced to

statutory rape, he was guilty of kidnapping with bodily

injury being the alleged force used in the rape as well as

statutory rape. Further, the notice of aggravating

circumstances given the Petitioner stated the murder was

aggravated by kidnapping with bodiiy injury - aggravated

sodomy - (Appendix B, R 24), however the Supreme Court

changed this statutory notice and affirmed the death

sentence for malice murder aggravated by kidnapping with

bodily injury being the alleged force used in the rape.

These serious constitutional violations having first been

made by the Supreme Court of Georgia in its decision of

March 7, 1978, the Petitioner raised these constitutional

questions in its motion for rehearing - See Appendix B,

P. 82, which was denied with a short ruling - See Appendix

A - denial of motion for rehearing.

3. The judicial admissions made by the State that

the Petitioner could not be convicted of kidnapping with

bodily injury or malice murder were first made in the Supreme

Court of Georgia and the Supreme Court of Georgia violated

the Petitioner's constitutional rights by not following these

admissions. The Petitioner first raised this question in the

motion for rehearing - See Appendix B, P. 82, which was

denied.

4. A timely motion to suppress the Petitioner's

- 30 -

alleged statements, acts and confessions was made by the

Petitioner - see Appendix B, R 22 , and the Trial Court

held a Jackson v. Denno hearing prior to the trial and

ruled out one confession but allowed in the remainder.

See Appendix B, R

The Petitioner raised this issue in the Supreme

Court of Georgia who ruled only as to the written con-

fession stated:

"4. The defendant contends that the trial court

erred by refusing to suppress a confession by

the defendant. The ctetesdion was made on the

evening of the crimes while the defendant was

in the custody of police officers and was taped

on a dictaphone. In it the defendant acknowledged

understanding the police officer's earlier ex-

planation of his constitutional rights prior to

any discussion of the crimes. Prior to making

the recorded confession, he signed a complete

waiver. Miranda v. Arizona, 384 U. S. 436 (86 SC

1602, 16 LE2d 694) (1966). He signed the trans-

cription and initialed each page. The confession,

which also contained a complete waiver, was read

before the jury.

The defendant contends that a promise of

police officers to tell the judge of his aid

in locating the missing younger girl, a promise

cf a one man cell, and a promise to seek a

psychiatric examination, were such inducements

LO

as to compel the defendant to be a witness

against himself. After an evidentiary hearing

the trial court found the defendant was twenty-

two years old, sane at the time of the con-

fession and likely to have been familiar with

police procedures. The court found no evidence

of mistreatment and that the interrogation was

not intensive. The defendant was with

interrogating police officers from about six-

thirty in the evening, when the detectives

found him at his mother's home, until about nine

forty-five, when the taped confession was begun.

In this time he was questioned at home, trans-

ported at his direction to a filling station

where he had obtained a tire, transported at his

direction to the scene of the crime, held while

the scene was investigated and the body of the

younger child was located and transported to the

police station. The trial court's finding that the

defendant was not compelled to be a witness against

himself is amply supported by the evidence. Hurt

vy. State, 239 Ga. 665 (2) ( SE2d ) (1977);

Lego vs. Twomey, 404 U. S. 477 (92 SC 477, 30 Le2d

618) (1972).

5. Defendant contends that under Code Ann. §38-411

his confession was not voluntary because it was

induced by "hope of benefit." Pursuant to Code Ann.

- 32 -

§38-412 a confession made on promise of

"collateral benefit" is not inadmissible. We

find that a hope of lighter punishment (induced

by one other than the defendant) is usually the

"hope of benefit” to which Code Ann. §38-411

refers, Turner v. State, 263 Ga. 778 (1) (2)

(48 SE2d 522) (19 ); King vs. State, 155 Ga.

707, 715 (118 SE 368 (1923), and that agreeing

to the defendant's request to put him in a cell

by himself, to seek a psychiatric examination,

and to tell the judge of his cooperation, did

not constitute the kind of “hope of benefit"

which is contemplated by Code Ann. §38=411. The

trial court did not err in overruling the motion

to suppress or in admitting the confession.

Person vs. State, 235 Ga. 814 (2) (221 SE2d 587)

(1976); Hurt vs. State, supra. See also Mitchell

vs. State, 239 Ga. 456 ( SE2d }. 42577):«"

The issue was again raised on motion for rehearing

but was denied.

5. The question of the constitutionality of the

death sentence was raised in the trial court before Trial -

See Appendix B, R-38 - and was raised in the Supreme Court

of Georgia on the appeal and on the motion for rehearing -

a 33 =

sez Appendix B, P =z. . The Supreme Court of Georgia did not

mle on this issue even though it was raised and they were

specifically requested to in the motion for rehearing.

G. ARGUMENT AND CITATION OF AUTHORITY

1. Is it a violation of a defendant's Sth

Amendment Constitutional rights for a State Court to Order

a Defendant to submit to 4 psychiatric examination to

determine the Defendant's sanity at the time of the commission

of the offenses? This having been done, -is it a further

violation of the Defendant's constitutional rights to allow

one of the examining psychiatrists to testify during the

prosecution case in chief as to the Defendant's sanity at

the time of the commission of the offenses?

The Supreme Court of Georgia, in a case of first

impression, has held in its opinion in this case, See

Apendix A, that there is no violation of a defendant's

constitutional rights for the Trial Court to order a defenuant

to submit to 4 psychiatric examination to determine the

Defendant's sanity at the time of the alleged offenses. There

is no statute in Georgia authorizing such an examination. It

is submitted that this decision opens to the prosecution in

Georgia, a door formerly closed and protected py the 5th

-34-

Amendment to the U. S. Constitution, and is an issue that

this Court should earnestly consider as it is not in

accordance with the decisions of this Court.

The 5th Amendment to the U. S. Constitution states

that no person shall be compelled in any criminal case to be

a witness against himself. Obviously, in order to conduct

a psychiatric examination of a person, that person must

speak, and speak about himself. Not only must he make sounds,

but he must give statements and opinions about his inner

thought processes, and this the Defendant did in this case,

over his objection. This clearly violated his constitutional

right to remain silent and not incriminate himself.

In this case the Trial Court, in response to a

Motion by the State (Prosecution), ordered the Defendant to

submit to a full psychiatric examination. Appendix B, Pages

wes which included a determination of the Defendant's

sanity at the time of the commission of these offenses. The

Supreme Court of Georgia held, in affirming this order, that

such an examination was like a voice identification, lineup

or fingernail scraping procedure and did not force the

Defendant to be a witness against himself.

This is clearly contrary to this Court's rulings

in this matter, particularly in Schmerber vs. State of

Catiifornia, 384 U. S. 757. In that case this Court discussed

the self-incrimination privilege at length and said:

- 35 -

"Privileges against self-incrimination protects

an accused only from being compelled to testify

against himself or from otherwise providing the

State with evidence of a testimonial or

communicative nature."

"Protection of privilege against self-incrimina-

tion reaches an accused's communications, whatever

form they might take, and the compulsion of

responses which are also communications."

"To compel a person to submit to testing in which

an effort will be made to determine his guilt or

innocence on a basis of physiological responses,

whether willed or not, violates the privilege

against self-incrimination."

In the present case the Supreme Court of Georgia

has established as the law of Georgia a system whereby 2

Defendant may be compelled to undergo extensive psychological

testing, over a period of days, in which responses are re~

quired from him, in an effort to determine his innocence

or guilt, that being his sanity or insanity at the time of

committing the alleged acts. This clearly and absolutely

violates the Defendant's privilege against self-incrimination.

It is not a simple lineup, or a blood test - in which physical

items are involved, nor even a voice identification where a

Defendant is required to speak certain words. In a voice

identification a Defendant is not required to give opinions,

facts or feelings concerning anything, the only issue is

whether the voice is the same, not the contents of the

Defendant's mind. Under the present case, Georgia now

requires the Defendant to expose the inner workings of

his mind and this clearly violates his right to remain

silent and not incriminate himself.

Schmerber vs. State of California, 384 U. S.

757 went on to say:

"History and a long line of authorities in

lower courts have consistently limited its

(Sth Amendment) protection to situations

in which the State seeks to submerge those

values by obtaining the evidence against an

accused through the cruel, simple expedient

of compelling it from his own mouth - - ~-

In sum, the privilege is fulfilled only when the

person is guaranteed the right 'to remain silent

unless he chooses to speak in the unfettered

exercise of his own will’.

"Tt is clear that the protection of the privilege

reaches an accused's communications, whatever

form they might take and the compulsion of

responses which are also communications, for

example, compliance with a subpoena to produce

one's papers. Boyd vs. U. S.-, 116 U. S. 616.

On the other hand, both Federal and State Courts

have usually held that it offers no protection

ay

against compulsion to submit to fingerprinting,

photographing or measurements, to write or

speak for identification, to appear in Court, to

stand, to assume a stance, to walk, or to make

a particular gesture. The distinction which

has emerged, often sxpressed in different ways,

is that the privilege is a bar against compelling

"communications" or "testimony" but that compulsion

which makes a suspect Or accused the source of

“real or physical evidence does not violate it."

"Some tests, seemingly directed to obtain physical

evidence, for example, lie detector tests measuring

changes in body function during interrogation, may

actually be directed to eliciting responses which

are essentially testimonial. To compel a person

to submit to testing in which an effort will be

made to determine his guilt or innocence on the

basis of physiological responses, whether willed

or not, is to evoke the spirit and history of the

5th Amendment. Such situations call to mind the

principle that the protection of the privilege

‘is as broad as the mischief against which it

seeks to guard’. Counselman vs. Hithcock, 142

U. S. 547, 562."

In the present case the Supreme Court of Georgia

has not just approved physical responses to questions posed

to a Defendant, but the imposition of psychological findings

- 38 -

as to sanity at the time of the acts charged based on the

forced verbal statements of an accused. This is clearly

against the 5th Amendment to the U. S. Constitution. In

U. S. vs. Wade, 388 U. S. 218 the Court held:

"The privilege against self-incrimination pro-

tects an accused only from being compelled to

testify against himself or otherwise provide

the State with evidence of a testimonial or

communicative nature."

At the trial of this case the Trial Court allowed

the State to put in evidence the testimony of one of the

psychiatrists who had examined the Defendant for two hours

during the Defendant's eight day stay at the State mental

institution. The psychiatrist testified that based on all

the examinations made, the Defendant was sane at the time

of the commission of the alleged acts. See Appendix B,

Page=4+!,- |) which contains the psychiatrists testimony. This

testimony was presented to the jury during the State's case

in chief and was part of the State's main case. At this

point in the trial, the Defendant had tendered no evidence

at all nor had he had the opportunity to do so. In fact

during the guilty and innocence portion of the trial, the

Defendant tendered no psychiatric testimony whatsoever.

This action by the Trial Court was approved by

the Supreme Court of Georgia and is now a system that can

be used by all prosecutors in Georgia.

= 39 -

Clearly therefore, the forced statements of the

Defendarst were used against him in violation of his

constitutional rights. The psychiatrist said that the

Defenéant was sane at the time of the alleged acts and the

only basis for this was the statements made by the Defendant

to the psychiatrist when he was taken under Court order to

the State Mental Institution for examination. Very clearly

the Defendant was forced to testify against himself.

The Supreme Court of Georgia said that this

procedure was alright because the actual statements of the

accused were not testified to, only the results and opinions

of the doctor resulting therefrom.

In U. S. vs. Avila, 227 F. Supp 3 the Court held:

“'tThe fruit of the poisonous tree' doctrine is

to the effect that an unlawful search taints

not only the evidence obtained by the search

but the facts discovered by the process initiated

by the unlawful act."

In Davis vs. Mississippi, 394 U. S. 721, the Court

held:

"Illegally seized evidence is inadmissible at

trial, however relevant and trustworthy the

seized evidence may be as an item of proof."

In U. S. Vs. Castellana, 488 F 2d 65, the Court

said:

“Since we have found that Arwine's questions

constituted unlawful custodial interrogation

«= £46 =

and the handguns were the products of those

questions, Castellana's statements and guns

must be excluded from evidence."

Clearly therefore the initial intrusion into the

Defendant's mind being illegal, the ultimate opinion de-

rived therefrom is also inadmissible as evidence, being

the result of the illegal act and being the fruit of the

poisonous tree. The psychiatrist's testimony was definitely

inadmissible.

Further it is to be noted that this evidence was

used in the State's case in chief before_the Defendant had

a chance to speak, and in fact when the Defendant presented

its defense there was no psychiatric testimony presented.

The State did not use its psychiatrist as rebuttal to a de-

fense raised by the Defendant but in the main setting out

of its case. In the Supreme Court of Georgia there was a

special concurrence which agreed that the Court ordered

examination was unconstitutional but said the Defendant had

a duty to say he was not going to ‘use expert testimony of

sanity to exclude the testimony.

The constitutionally guaranteed right to due

process provides that the Defendant does not have to speak

in his defense until the State has presented a prima facie

case against him, and even then he does not have to speak

at all. There is no duty on him to reveal his witnesses

to the State prior to their testifying for him. Here the

’tate placed the expert psychiatrist on the stand during

their’ case in chief, and at a time when the Defendant could

|

not constitutionally be required to reveal its case. This

was mot rebuttal, as in fact, the witness would not have

been competent to testify in rebuttal as the Defendant

used no expert psychiatric testimony in its defense.

Therefore, there was no duty on the Defendant to tell the

State that he was not going to use such testimony at the

time the State chose to use theirs. The procedure used

and authorized in this case was therefore clearly un-

constitutional.

The difficulties of this newly authorized pro-

cedure in Georgia, and its obvious illegality and uncon-~

stitutionality can be seen in the course of the cross~

examination of the State's psychiatrist witness by

Defendant's counsel. Appendix B, Page 3° >, The Trial Court

took the position that the psychiatrist could give his

opinions based on the entire record from the State Mental

Institution including the reports of other persons who

examined the accused. The Defendant's counsel sought to go

into the results of these other examinations. The State

objected, but the Trial Court overruled the objection and said

the Defendant could go into them, but added the devastating

provision that if Defendant did so he would allow the State

to go into the actual statements of the accused and rule

that Defendant had waived his rights in this regard. Clearly,

= 42 <

the Trial Court acknowledged that the statements of the

accused used to form the basis of the sanity opinion

were self-incriminating and a violation of the Defendant's

constitutional rights. Under this‘ruling however, the

Defendant was denied the fair and constitutional right of

cross-examining the witness and his right to confront the

witness, without waiving other of his constitutional rights.

A Defendant's constitutional rights go hand in hand and

should not be used in a manner antagonistic to each other

as the Trial Court did here. Either the Defendant here

gave up his right to confront the witness placed against

him, or he gave up his right against self-incrimination.

Under this new procedure set out by the Supreme Court of

Georgia one of the rights of the accused have to be violated

and therefore the whole procedure must be illegal and

unconstitutional.

Therefore it is respectfully and earnestly sub-

mitted that the Supreme Court of Georgia in its opinion in

this case have authorized Trial Courts to compel a Defendant

to submit to a psychiatric examination and to allow into

evidence the results thereof as to the sanity of an accused

at the time of the commission of the alleged acts. This

procedure being clearly violative of a Defendant's

constitutionally protected rights against self-incrimination,

it is submitted that this Court should issue its writ of

- 43 -

certiorari to the Supreme Court of Georgia to correct this

gecious and far reaching error and to rule that this pro-

edure is illegal and unconstitutional and that the

avidence produced at Trial in this case in this regard

was illegally admitted and that a new trial should be

granted.

2. Is it a violation of the Defendant's rights

guaranteed under the 5th, 6th and 14th Amendments to the

Constitution of the United States for the Supreme Court

of Georgia to change the charges against-the Defendant

and convict him of crimes not charged in the indictment

returred by the grand jury, not contained in the notice of

aggravating circumstances served upon him by the District

Attorney and not ruled upon by the trial jury and judge?

Further, may the Supreme Court of Georgia change the in-

dictment in such a manner as to use one act to make

separate convictions of two aifferent crimes?

————

The important question posed here is whether 4

Supreme Court or Appellate Court may change the charges

against a Defendant and create convictions de novo. In

this case, this is what the Supreme Court of Georgia has

done and the Defendant contends that it is a violation of

his 5th, 6th and 14th Amendment rights to be informed of

the nature and cause of the charges against him before he

faces a jury of his peers. It is submitted that what has

momred in this case can best be seen graphically.

YY

- 44 -

CHARGES AND CONVICTIONS - SENTENCE

(a) IN ‘TEIAL COURT AS INDICTED (b) AS FOUND BY SUPREME COURT

BY A GRAND JURY AND TRIED BY OF GEORGIA

A JURY

Murder - Death Malice Murder - Death

Rape - Death Statutory Rape - Resentence

Kidnapping with

Bodily Injury,

being aggravated

Kidnapping with

Bodily Injury,

being forcible

sodomy * Death rape - Resentence

Simple Kid- Simple kid-

napping - 20 Years napping - 20 years

Therefore it is clear that the Defendant was indicted

by the grand jury for kidnapping with bodily injury, being

aggravated sodomy, tried before a jury and found guilty of

this charge. The facts of this case being that the only injury

to this victim was in the course of the one act of penetration -

rape, and there being no bodily injury from the aggravated

sodomg, the conviction for kidnapping with bodily injury,

being aggravated sodomy could not stand and this was so held

by the Supreme Court of Georgia in its opinion appealed from.

Therefore, the conviction of the Defendant for kidnapping

with bodily injury should have been reversed and the Defendant

should have been acquitted of this charge. This the Supreme

Court a& Georgia did not do.

Because cf the charge of the Trial Judge concerning

the questim of rape, the Defendant was convicted of statutory

rape rather than forcible rape, and the Supreme Court of

Georgia affirmed a conviction of statutory rape. The

Court went on to hold in its opinion:

“The only evidence of bodily injury, to

support the crime of kidnapping with

bodily injury of the older child, is the

bodily injury which resulted from the rape

of that child - - - -"

"As a consequence of the foregoing, there

is evidence of bodily injury, not a part

of the crime of statutory rape. to support

the crime of kidnapping with bodily injury."

Therefore, the Supreme Court of Georgia acting as

a court of first instance, indicted, tried and convicted

the Defendant of kidnapping with bodily injury, being

rape. This the Defendant was not charged with in the Trial

Court.

The fact that the only injury to the older child

was a tear to the vagina caused by the one act of penetration

which was statutory rape will be discussed below.

The first point of great importance generally is

whether a Supreme Court or highest State Appellate Court

may change an indictment returned by a grand jury, or con~

viet a Defendant for 4 crime with which he was not charged

or convicted in the Trial Court. Obviously, if the Defendant

« 46 -

had beem charged with rape and kidnapping with bodily

injury, being rape, he would have filed the legal

objections that will be discussed below. Clearly, he

could not have been convicted of forcible rape and kid-

napping with bodily injury, being rape as the Supreme

Court of Georgia conceded. But the Defendant was never

given the right to contest such charges as they did not

exist until the Supreme Court of Georgia ruled.

The grand jury of Cobb County found that the

kidnapping was with bodily injury because of the aggravated

sodomy, not because of the rape, but the Supreme Court of

Georgia changed this. It is respectfully submitted that

the Supreme Court of Georgia has absolutely no power to

do this and that it is a violation of a Defendant's con-

stitutional rights under the Sth, 6th and 14th Amendments

requiring due process of law and the right to be informed

of the charges against him.

In Ex parte Bain, Jr., 121 U. S. 1 the Court held:

“wnen this indictment is fi° ed with the Court,

no change can be made in the body of the in-

strument by order of the Court, or by the pro-

secuting attorney, without 4 resubmission of the

case to the grand jury. And the fact that the Court

may deem the change immaterial, as striking out

of surplus words, makes no difference. The

instrument as thus changed, is no longer the

indictment of the grand jury which presented it."

- 47 -

held:

In U. S. vs. Krepper, 159 G 2d 958, the Court

"The indictment must accurately and clearly

describe the offense and all ingredients of

which the offense is composed."

"Federal Courts are without power to alter

or amend indictments found by a grand jury

and it is primarly the duty of the Court

to throw a cloak of protection around the

defendant as provided by the 5th Amendment

requiring that infamous crimes_be pro-

secuted only on presentment by a grand jury."

“When an indictment is filed with the Ccurt, no

change can be made in the body of the instrument

by order of the Court, or by the prosecuting

attorney, without 4 resubmission of the case

to the grand jury."

In Stewart vs. U. S., 12 F 2d 524, the Court said:

"After the indictment was changed it was no

longer the indictment of the grand jury who

presented it. Any other doctrine would place

the rights of the citizen, which were in-

tended toc be protected by the constitutional

provision, at the mercy or control of the court

or prosecuting attorney; for, if it be once

held that the changes can be made by the ccnsent

- 48 -

6 SAE AEERE OE The COMES. FR NE weer SF charged with kidnapping with bodily injury being rape.

MARS on

the indictment as presented by the seane This is rot the law and violates the Defendant's rights

a :

jury, and the prisoner can be called upon as aizgied above.

- to answer to the indictment as thus changed, tn Hood vs’. U. S. 43 F 2a 353, the Court said:

the restriction which the Constitution places “It is true that by appropriate reference

a ee eo Court, in regard to the allegations may be carried from one count

prerequisite of an indictment, in reality no to another but the reference should be

sina iat eeneeeaname sufficiently full in effect to incorporate

Clearly therefore, the Supreme Court of Georgia the matter going before with that in the

; , . ae

has violated the Defendant's right to indictment by a grand Court in which it is aste.*

jury and notification of the charges against him. Not only "In determining the sufficiency of 'the

has the Supreme Court of Georgia denied the Defendant the indictment each count must be treated as

right to be indicted for kidnapping with bodily injury a whole, and not merely as a part enareot.*

being rape, it has also denied the Defendant the right to a «gach count is in form a distinct charge of a

trial by jury on this charge. This 1s definitely a serious separate offense.*

, : ‘ . : ; ba

violation of the Defendant's constitutional rights and it is Therefore, the charge on kidnapping with bodily

submi hat thi urt should is i i i i oe ma

ubmitted that this Court should issue its writ of certiorarl injury is a separate and distinct offense as if it were

to the Supreme Court of Georgia informing it that it may not, the only charge pending, and clearly the Supreme Court at

: ‘“ ” yore are eee

eee eee ee Sees Le 8 ee OE Georgia has acquitted this Defendant as charged and found

and as a grand jury and convict the Defendant of crimes for him guilty of a different crime with which he was not

which he was not indicted or tried in the Court below- charged. This cannot be done as it violates the Defendant's

the Suprema Court of George * aon Stem constitutional rights and the Supreme Court of Georgia should

Motion for Rehearing said in effect that because the be «firected to correct this serious error

Defendant was charged in another count of the indictment The 5th Amendment to the U. S. Constitution states

with forcible rape, the Defendant had notice that he was ‘

in part that:

"nor shall any person be subject for the same

- 49 -

- 50 -

offense to be twice put in jeopardy of

life and limb."

In the present case, this is what has happened

by the Supreme Court of Georgia finding the Defendant

guilty of kidnapping with bodily injury being forcible

rape. In the Trial Court the Defendant was charged with

the separate offense of rape, both statutory and forcible

rape. The jury verdict as affirmed by the Supreme Court is

one for statutory rape and is therefore an acquittal as to

forcible rape. However the Supreme Court of Georgia,

ignoring the jury determination of no force, seeks to use

that force as bodily injury to aggravate the kidnapping.

This cannot be done and is a violation of the Defendant's

constitutional rights. The Supreme Court of Georgia may

not retry a Defendant and convict him of an act for which

he has already been acquitted.

In Green vs. U. S., 355 u. S. 184, the Defendant

had been tried for lst degree murder and convicted for 2nd

degree murder and the conviction for 2nd degree murder was

reversed. It was held that he could not be retried for lst

degree murder.

“Under the constitutional prohib.tion against

double jeopardy a verdict of acquittal is final

and is a bar to @ subsequent prosecution for

the same offense." See u. S. vs. Wilkins, 348

2d 844.

o Si «

held:

In Johnson vs. Estelle, 506 F 2d 347 the Court

"Application of the rule that collateral

estoppel is part of the 5th Amendment double

jeopardy prohibition depends upon whether

some issue necessary for the prosecution's

case in the second trial has necessarily been

found for the defendant in the first trial."

There the Defendant was found not guilty of burglary

with intent to commit rape. In the second trial, he was

charged with assault with intent to rape. It was held that

double jeopardy attached because the first jury could have

found no intention to commit rape on the first trial. The

Court held:

beer two trials, the Supreme Court of Georgia has in effect

“When an issue of ultimate fact has once been

determined by a valid and final judgment, that

issue cannot again be litigated between the same

parties in any future lawsuit."

"Where a determination of innocence on one of

two issues was the cause of an acquittal and a

determination of guilt on both issues is

necessary for a subsequent conviction, the

State is estopped from bringing the action."

Although in the present situation there have not

A

«» $2 =

tried and convicted the Defendant of crimes with which he

was not tried in the Trial Court and for which double

jeopardy has attached. The Supreme Court here found that

the evidence of aggravated sodomy was not bodily injury and

that the conviction for rape was one for statutory rape. If

the case had been returned to the Trial Court for retrial,

it is clear that the Defendant could not have been retried

for kidnapping with bodily injury being forcible rape because

of the previous jury determinate of statutory rape. Double

jeopardy attached to any finding of forcible rape at the

time of the finding of statutory rape-

Therefore, it is clear that the Supreme Court of

Georgia has no power to change the Defendant's conviction

for kidnapping with bodily injury to one where the bodily

injury is forcible rape as double jeopardy had already

attached on the finding of statutory rape.

Therefore it is submitted that this honorable

Court should issue to the Supreme Court of Georgia ordering

it to correct its error of finding the Defendant guilty of

a crime, for part of which he had already been acquitted.

Further, under the constitution of the United States

the same act may not be used to make two separate crimes and

two separate convictions. In the present case there was but

one act of penetration and the only injury occasioned was a

tear to the vagina which occurred during that one act of

pemetration. Based on this one act causing the one injury,

- 53 -

the Defendant has been convicted and sentenced for statutory

rape and kidnapping with bodily injury being forcible rape.

thus the single act of penetration has caused the Defendant

to be convicted of two crimes. This is abhorrent to the

constitutional provisions of the 5th and 14th Amendments.

In Ex Parte Nelson, 131 U. S. 176, the Court held

that the Defendant could not be convicted of both bigamy

and adultery arising out of the same act as a defendant

may not be convicted of two crimes arising from one act.

In the Trial Court the State realized that because

of this principle the Defendant could not be convicted of

both aggravated sodomy and kidnapping with bodily injury

being aggravated sodomy and therefore dismissed the

aggravated sodomy count. If this case is returned to the

Trial Court, it is clear that the Defendant may not be pro-

secuted for both statutory rape and kidnapping with bodily

injury being forcible rape. Therefore, the Supreme Court

of Georgia has no power to alter the Defendant's charges

and convictions to find him guilty and punish him twice for

one act.

All that has been said in this Section 2 is also

applicable to the notice of aggravating circumstances which

the State furnished the Defendant prior to trial and which

stated the statutory aggravating circumstance that were

charged to the jury under Georgia Code Section 27-2534.1.

One of these ‘wis that the jury could impose the death

seattence if tshey found the offense of murder was

committed while the Defendant was engaged in the

commission cf another capital felony, kidnapping with

bodily injury being aggravated sodomy. The Supreme

Court of Geargia affirmed the sentence of death for

murder being aggravated by kidnapping with bodily injury

being rape. Because of the reasons set out above, this

sentence may not stand as it violates the Defendant's

constitutionally guaranteed rights.

It is submitted that this section concerns the

powers and rights of the Supreme Court of Georgia, as an

appellate court to change the charges against a Defendant

and has broad application. The Supreme Court of Georgia

has set a precedent in this case whereby it may in the

future find fact and alter and change the very crimes for

which a Defendant stood trial and find a Defendant guilty

of crimes for which he was not charged or tried. Also, is

may do this even though other rights of a Defendant including

double jeopardy and the right not to be convicted of two

crimes for one act, may be violated. It is very clear that

an Appellate Court of any State may not do this as it

violates the most fundamental constitutional rights of any

Defendant.

= 55 -

Therefore, it is submitted that this Honorable

Court shoald issue its writ of certiorari to the Supreme

Court of Georgia and require it to correct these very

serious errors.

3. Is_an appellate court bound by solemn

admissions in judicio?

It is submitted that an appellate court is bound

by solemn admissions in judicio and must render an opinion

which follows these admissions and not one which ignores

and goes contrary to these admissions.

In its brief to the Supreme Court of Georgia,

The State of Georgia stated.

"The State concedes Enumeration of Error No. 4

is meritorious and that the verdict of guilty and sentence

of death for kidnapping with bodily injury must be set

aside since - - - kidnapping with bodily injury of Andrea

Furlong, would be a lesser included offense of the felony

murder of Count One." Appendix B, Pages 77-78.

"Appellee has concluded earlier in this brief

that the Defendant could be convicted of felony

murder and not malice murder - - ~ (the) kid-

napping with bodily harm - is merged with the

count on felony murder." Appendix B, Page 79.

In conclusion, the State moved the Supreme Court

of Georgia:

"That the conviction of Felony Murder and the

death sentence in Count One should be

affirmed; - - - and that since Count Five

(kidnapping with bodily injury) has merged

in the felony murder conviction of Count One

that Count Five should be struck." See

Appendix B, Page 81.

Therefore clearly and unequivocally, the State

as prosecutor conceded, admitted and agreed that the

Defendant could not be convicted of malice murder or kid-

napping with bodily injury whatever the injury was, and it

abandoned and withdrew the charges against the Defendant.

The Supreme Court of Georgia ignored these solemn admissions

im judicio and convicted the Defendant of malice murder and

kidnapping with bodily injury anyway. It is submitted that

this action by the Supreme Court of Georgia violated the

Defendant's 5th and 14th Amendment rights of this Defendant.

The State having admitted that the Defendant should be

acquitted of malice murder and kidnapping with bodily injury

and that these charges should be dismissed, these charges

are then gone and dismissed forever. An appellate court

cannot revive or create these charges as it violates the

Defendant's rights to due process of law and his protection

against double jeopardy.

As said in 29 Am Jur 2a §615.

“Judicial admissions are evidence against the

party who made them including the prosecution

in a criminal case and may constitute the basis

of a verdict."

The Supreme Court of Georgia itself has recognized

‘kat admissions in judicio to the court in briefs and oral

argument are binding upon it.

- 57 -

In Jones vs. Tressell, 221 Ga. 271, the appellant

in ii¢s brief conceded that the judgment of the Trial Court

was good, but alleged that the reasons for it were wrong.

The Court held:

"The (Appellant's) acquiscence in the judgment

of the Trial Court constitutes a waiver cf the

right to review that judgment."

In Butler vs. Lashley, 197 Ga. 461, the Court

held:

“Counsel for the Plaintiffs in error, in their

oral argument before this Court on the call of

the case, having conceded that the attack made

upon the will for lack of testamentary capacity

was not supported by the evidence, that question

will not be considered."

Clearly therefore, the Supreme Court of Georgia was

bound by the admissions and concessions of the State. It is

respectfully submitted that the Supreme Court of Georgia has

set a dangerous precedent by refusing to follow the solemn

admissions of the State and that this Court should issue its

writ of certiorari to the Supreme Court of Georgia to correct

this serious error and render an opinion consistent with the

admissions of the State.

4. Isa promise by a detaining and arresting

afficer to tell the judge of a defendant's cooperation and to

- 58 -

give him a one man cell and psychiatric help, sufficient officer to tell the judge of a Defendant's cooperation did

hope af benefit to 2 defendant to render any statements | not hold ct a slight hope of benefit to a defendant and

and confessions produced thereby inadmissible, being | therefore, the Defendant's acts and statements thereafter

violative of a defendant's 5th and 14th Amendment rights. were admissible evidence. {t is submitted that this is

It is undisputed in this case that on stopping clearly contrary to the constitutional protections of a

the Defendant outside his residence, the Defendant defendant and to the decisions of this Court. It opens

initially would give the police officers no information. the door, in Georgia, for officers to make promises to

In an effort toobtain information, the police officer | defendants to induce confessions on hope of lighter punish-

promised the Defendant he would tell the judge of the | ment, and have them admitted into evidence against those

Defendant's cooperation. The police officer testified to defendants.

this at the suppression hearing and it is_ contained in the In U. S. ex rel Everett VS- Murphy, 329 F 2d 68,

“confession” of the Defendant. The police officer also the Court held:

told the Defendant he would see that he had a one man cell and "KN confession induced by police falsely promising

a psychiatric examination. The officer also told the Defendant assistance on a charge for less serious than the

that he had a girl who could positively identify the Defendant. police knew would actually be brought is not to be

Based on these promises and statements, the considered a voluntary confession."

Defendant led the officers to the scene and showed them where In Lego vs. Twomey, 404 U. S. 477, the Court said:

he had left the younger child and later gave the officers two "The use of coerced confessions, whether true

confessions, the second of which was suppressed by the Trial or false is forbidden because the method used

Court. It is clear from the record that the Defendant would to extract them offends consitutional principles."

not have done this except for these promises. At trial, the In Jackson vs. Denno, 378 U. S. 368, the Court held:

evidence of the Defendant leading the officers to the scene "A defendant in @ criminal case is deprived of

and what was found there, along with his first confession, due process of law if his conviction is founded

were admitted into evidence for the jury to consider. in whole or in part upon an involuntary con-

The Supreme Court of Georgia held, for the first fession without regard for the truth or falsity

time in Georgia, that a promise by a detaining and arresting af the confession and even though there is ample

?

- 59 -

ce 0 -

evidence aside from the confession to

support the conviction."

In Sorenson vs. U. S. 143 F 820, the police officer

told the Defendant that he had an absolutely good case and

that the Defendant should plead guilty and throw himself

on the mercy of the Court. The resulting confession was

held not to have been voluntarily made,

In the present case the Defendant was told that

there was a positive identification of the Defendant and

that the police officer would teli the judge of Defendant's

cooperation. Therefore, in the present case, the acts and

statements of the accused were not voluntary and should be

suppressed.

In Sorenson vs. U. S. (supra) the Court said;

"And as the human mind under the pressure of

calamity is easily seduced and liable, in the

alarm of danger, to acknowledge indiscriminantly

a falsehood or a truth, as different agitations

may prevail, a confession, whether made upon an

official examination or in discourse with

private persons, which is obtained from a

defendant, either by flattery of hope, or by

the impressions of fear, however slightly the

emotions may be implanted, is not admissible

evidence; for the Law will not suffer a

prisoner to be made the deluded instrument

of his own conviction.”

- 61 -

It is clear in the present case that the Defendant

has been the deluded instrument of his own conviction. The

following language can be seen in the written confession of

the Defendant that at the time of the initial stop:

"Det. Williams - You denied it for a

while before you decided to help us out,

right?

Defendant - Right, and the reason I

decided to help you out was because you

said you - - -

Det. Williams - Would tell the Judge

that you showed us where everything occurred.

Defendant - Right.

Det. Williams - And I will do that, okay."

Appendix B, Pages “th- 16

It is clear from this and the entire recorded

statement that the Defendant, at the time of the initial

stop would not have said anything at all except for the

promises of hope made to the Defendant and the promise to

tell the judge. A promise to inform the judge of the

cooperation of a defendant in any case, gives the Defendant

a hope and promise of lighter punishment and therefore such

a statement cannot be voluntarily made, and should be

suppressed.

Therefore, it is submitted that the Supreme Court

af Georgia has seriously erred in establishing in Georgia that

@ police officer may induce a contession by promising a

a £2 @

Defendant that he will tell the judge of the defendant's

cooperation and thereby induce the hope of lighter punish-

ment and that the resulting statements and confessions will

be admissible. It is submitted that this honorable court

should issue its writ of certiorari to the Supreme Court

of Georgia to correct this serious and far reaching error.

5. The death sentence in Georgia is violative

of the 5th, 8th and 14th Amendments to the United States

Constitution.

In the present case, the Defendant raised this

issue in the Trial Court. See Appendix B, Page 2

and throughout each state of the case and appeal and the

Supreme Court of Georgia has failed to rule on it although

they were specifically requested to do so on Motion for

Rehearing. See Appendix B, Page *>. The Defendant con-

tends that the death sentence is not equally applied and

that more serious criminal intentions receive lighter

punishment and lack of criminal intention may result in the

death sentence.

Although the Defendant is aware that in the recent

past, the death sentence as presently enacted in Georgia, has

been approved by this Court, this Court has ruled certain pro-

visions of the Georgia statute unconstitutional, stating that

the death sentence may not be imposed for rape or kidnapping

with bodily injury - Coker vs. Georgia, 433 U. S. (1977)

—:

and Eberhardt vs. Georgia, U. S.- No. 74-5174. These decisions

themselves show that the death sentence is in fact cruel and

unusual punishment and that defendants are not equally treated.

In Furman vs. Georgia, vu. S. (1973), the

Supreme Court held as one reason for reversing the death

penalty in existence at that time, that the death sentence

was not equally applied.

Under the present situation, -the death sentence

may be imposed for felony murder where there is no malice

and no premeditation. If the death occurs during the course

of any felony - even torgery or the sale of a controlled sub-

stance - the death penalty can be imposed, even if no harm was

intended. However, the most tortuous rape and kidnapping can

occur with maiming for life, and no death sentence can occur.

If, in McCorquodale vs. State, 233 Ga. 369, the Defendant had

accomplished all his many acts of torture and depravity, with

their psychologically and physically damaging permanence for

the life expectancy of a 17 year old, and he had not made the

final act of strangulation, which is a very possible circum-

stance under those facts - no possible death sentence could

have stood.

Clearly, this is not equal justice under the

law. One second of misthought can result in a death sentence

but days of planning and further days of torture and torment

of a victim can only result in a life sentence. Therefore ,

|

the death sentence 4s presently in existence in Georgia

does not reserve the death sentence for the most serious

crimes and most flagrant criminals, but Defendant of lesser

intent and act may be subject to the death sentence.

The death sentence as it presently exists in

Georgia is not constitutional, as there is not an equal

protection under the law for all citizens, and potential

defendants of this State, but is cruel and inhuman punish-

ment and unevenly imposed on the population.

Therefore, it is submitted that this Honorable

Court issue its writ of certiorari to the Supreme Court of

Georgia requiring it to declare the death sentence as it

presently exists in Georgia, unconstitutional.

SUMMARY

The Petitioner submits that there are serious

errors in this case of a constitutional nature and of great

magnitude which it is necessary to correct. While the facts

of this case are clear and without dispute, except on the

issue of murder, the legal proceedings in this case have be-

come highly complex and the attempt by the Supreme Court of

Georgia to straighten the matter out has caused more con-

fusim and far reaching illegal and unconstitutional rulings

by that body. The Defendant has attempted to remain as con-

cise as possible but under the intricacies of the legal steps

- 65 -

The Defendant's petition has become rather long. It is

submitted that a full explanatuon of the charges, con-

victions and ruling of the Supreme Court of Georgia was

necessary to clearly show the serious errors in this matter.

CONCLUSION

It is respectfully submitted that this Court

should grant petitioner's petition for writ of certiorari

and issue a writ of certiorari to the Supreme Court of

Georgia requiring it to rule: -

a) That a Trial Court may not order a psychiatric

examination of a defendant as to his sanity at the time of

the commission of the alleged offenses for which he is on

trial, and may not allow the State to use the resulting

opinions as evidence in its case in chief, and a new trial

in this case should therefore be required.

b) That the changing of the offenses charged

against an accused and convicting a defendant of crimes of

which he was not tried, by the Supreme Court of Georgia, is

error and that therefore, the conviction of this defendant

for kidnapping with bodily injury being aggravated sodomy

should be reversed and the death sentence for murder

aggravated by kidnapping with bodily injury being aggravated

sodomy should be set aside.

o 66.«

c) That the Supreme Court of Georgia is bound

by the admissions in judicio of the State, and that there-

fore the convictions of this Defendant for kidnapping with

bodily injury and malice murder should be set aside.

d) That the promise of a police officer to tell

the judge of the cooperation of a defendant is such hope of

benefit as to make resulting statements and confessions in-

voluntary and not admissible in evidence against a defendant,

and therefore,in this,case to order a new trial.

e) That the death penalty in Georgia is un-

constitutional as not being equally applied and therefore,

the death sentence in this case should be set aside.

Respectfully submitted,

GRUBBS & GRUBBS

BY: pee Oe ak

_ Attorney for, Petitione

P. O. Box 1149

271 Roswell Street

Marietta, Georgia, 30061

Phone: 422-3200 (404)

WILLIAM P. HOLLEY, JR.

pe st mY. ff

wi 7, Fee

Attorney for Petitioner

223 Washington Avenue, N. E.

Marietta, Georgia

Phone: 422-3131 (404)

«6? «