Petition — Green v. Georgia

IN THE

SUPREME COURT OF THE UNITED STATES

October Terms, 1978

no. BQ- 5944

ROOSEVELT GREEN, JR.,

Petitioner,

verses -

THE STATE OF GEORGIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

RICHARD MILAM

Garland & Milam, P.C.

300 West Third Street

Jackson, Georgia 30233

' a se

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iii ! TABLE OF CASES

Page k

Pe Oe ae ee ay mex : iat v. oe 57 L. Ed. 2d 1010 (1978)-----------

auay Vs Maryiend, 373 U.S. 83 (1963)--..........

| JURISDICTION-----=------------------------------------- l Porn : age | abi

QUESTIONS PRESENTED------------------------------------ 2 1083, 35 L. ae #67 cigray 2.2: ote

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED------- 2 Johnson v. State, 14 Ga. 55, 62 (1853) ---------.--

STATEMENT OF FACTS---------------------------------.--- . Little v.Stynchcombe, 227 Ga. 311, 180 S. E. 2d

I. The Trial of Guilt or Innocence--------------- 4 on oa: GS aetna

| II. The Penalty Phase-----------------............ 4 | engi ee # phew ee lies dial

BER 6: REPRE Hoses tee rasan asnniasataeninas anne eae 11 | 70° (1961) ----. een Stems Inc., 105 Ga. App.

HOW THE FEDERAL QUESTION WAS RAISED AND DECIDED BELOW-- 12 | |

REASONS FOR GRANTING THE WRIT OF CERTIORARI------------ 14 |

CONCLUSION----->-------------------2------2220-50---222- 19 |

APPENDIX A--Opinion of the Supreme Court of Georgia---- Attached ‘ | ;

APPENDIX B--§27-2534.1 (Ga. Laws of 1973, pp. 159, 163), |

§38-301, and §38-309 of the Georgia Code--- Attached

|

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j es

re |

on September 28, 1978.

A ee

IN THE

SUPREME COURT OF THE UNITED STATES

October Terms, 1978

No. 78-

ROOSEVELT GREEN, JR.,

Petitioner,

verses-

THE STATE OF GEORGIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

Petitioner prays that a writ of certiorari issue to review

the judgment of the Supreme Court of Georgia entered on Septem-

ber 7, 1978.

CITATION TO OPINION BELOW

The judgment of the Supreme Court of Georgia, which. has

Mot yet been officially reported, is set out in Appendix A

| hereto.

JURISDICTION

The judgment of the Supreme Court of Georgia was entered

on September 7, 1978. A timely motion for rehearing was denied

Jurisdiction of this Court is invoked

| under 26 U.3.¢. §1257(3), because petitioner has asserted below

and asserts here the deprivation of rights secured by the

Constitution of the United States.

QUESTIONS PRESENTED

1. Whether petitioner's sentence of death is constitution-

ally valid. Whether the Georgia death penalty statute, as

interpreted by the Georgia Supreme Court, places unconstitution-

al limitations upon the consideration of mitigating circum-

stances.

2. Whether the Trial Court erred in sustaining the

State's objection to the admission of the testimony of defen-

dant's witness, Thomas Pasby, as a mitigating circumstance.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. This case involves the Eighth and Fourteenth Amend-

ments to the Constitution of the United States.

2. This case also involves §27-2534.1 (Ga. Laws of 1973,

pp. 159, 163), 838-301, and 838-309 of the Georgia Code, set

forth as Appendix B hereto.

STATEMENT OF FACTS

Carzell Weeee ona Roosevelt Green, Jr., were jointly

indicted on February 15, 1977, in the Superior Court of

Monroe County, Georgia, for the rape and murder of Teresa

Carol Allen on December 12, 1976. Following a trial by

jury in which the jury found statutory aggravating circum-

stances, Carzell Moore was sentenced to death for both of-

fenses. Roosevelt Green, Jr., was tried separately for only

the offense of murder, was found guilty and sentenced to

death upon the finding of two aggravating circumstances.

At approximately 3:00 p.m. on September 12, 1976,

eighteen year old Teresa Allen arrived at her place of part-

time employment, the Majik Market in Cochran, Georgia.

Shortly before 7:00 p.m. the store was found to be empty.

The cash register and safe were open and empty and Miss

Allen's automobile was missing. It was determined that $466.00

(2)

Carzell Moore's room (T., pp. 732 and 733).

was missing from the store,

On December 14, 1976, Miss Allen's body was discovered

lying in a wooded, grassy area just off a dirt road near a

State Highway in Monroe County, Georgia. Footprints, two

30.06 cartridge hulls, a 30.06 metal jacket of a bullet,

parts of Miss Allen's flesh, teeth and bone, tire tracks and

a nylon stocking were found near the body. The cause of her

death was determined to be loss of blood from bullet wounds.

Examination of the body disclosed bruising on the inside of

one thigh, laceration of the vagina, and blood and mucus-

like matter in the vaginal canal. At the trial a pathologist

testified that the wounds in the abdomen, arms and face were

caused by a high powered missile, and that the location and

nature of the wounds were consistent with the theory that Miss

Allen had her arms crossed across her stomach and was shot with

a high powered bullet which passed through both arms wnt the

abdomen. Miss Allen was also shot by a high powered bullet

entering the left side of the neck, penetrating the lower face

and exiting the right side of the. head. In the early evening

of the day of the robbery, Carzell Moore and Roosevelt Green,

Jr., were at Carzell Moore's house, a few blocks from the

location of the Majik Market. Green was wearing high heel

shoes, over two inches high (T., pp. 432 and 438). A plaster

cast of a foot print found near Miss Allen's body was of simi-

lar size and impression as a flat Hush Puppy shoe taken from

Tire tracks found

near her body were similar in size and tread design to the tires

found on Miss Allen's car (T., pp. 718-723).

Roosevelt Green, Jr., arrived in Wampee, South Carolina,

the next day in possession of Miss Allen's car and a rifle

which was identified at the trial as the murder weapon.

(3)

Doretha Livingston, an estranged girl friend of Green, testi-

fied that Green told her, during his stay in Wampee, South

Carolina, that he had "shot a woman somewhere in Georgia"

(T., p. 538). No one else testified about the alleged state-

ment, and same was never connected in any way to the murder

of Miss Allen,

All of the evidence against the defendant at his trial

was circumstantial in nature. None of the evidence directly

tied Green to the murder. The State established that Green

and Moore had been together the day of the murder, various

facts implicating Moore in the murder, and the fact that

Green ended up with the victim's automobile and the murder

weapon. The evidence established that Moore lived about

one block from the Majik Market from which the victim was

abducted. Green was a migrant known by no one in the area

except for Moore.

I. THE TRIAL OF GUILT OR INNOCENCE

Because the State's evidence could not sustain a con-

viction of rape, the State choose to try defendant Green

only for the charge of murder. Though the evidence was pure-

ly circumstantial, the jury found Green guilty of murder.

Said conviction was appealed to the Supreme Court of Georgia,

the highest Court in said state, and affirmed on September 7,

1978. Motion for rehearing was made, and the Supreme Court

of Georgia denied same on September 28, 1978. Petitioner

Green appears before the Supreme Court of the United States

only to question the validity of his death penalty.

II. THE PENALTY PHASE

Under §27-2534.1 of the Georgia Code (see Appendix B),

the same jury that found the defendant guilty of the crime

of murder immediately proceeded to the question of punish-

ment of the defendant. The State introduced certified copies

(4)

of Green's prior convictions for second degree burglary

and assault with intent to rob in the State of Alabama

(T., pp. 1244-1249). The State presented the testimony of

two experts from the Georgia State Crime Lab in an un-

successful attempt to infer that the defendant had raped

the victim (T., pp. 1107-1116). At the close of the eviden-

tiary hearing of the penalty phase, defense counsel ob-

jected to the Court charging the jury as to rape as an

aggravating circumstance (T., p. 1213). In the Trial Court's

charge, the jury was not instructed that they might con-

sider rape as an aggravated circumstance (T., pp. 1237-1241).

The only other evidence relied upon by the State in the

penalty phase was the evidence submitted upon the trial of

the guilt or innocence of the defendant.

In mitigation the defendant offered the testimony of

Thomas Pasby (T., pp. 1117-1141). The testimony of Thomas

Pasby established the following:

(1) Pasby was a long-time close personal friend of Moore

CT. 5 De 2438):

(2) On January 1, 1977, Pasby had a personal conversation

with Moore concerning the rape, murder, kidnapping and armed

robbery of Teresa Carol Allen (T., p. 1121);

(3) Pasby's testimony concerning said conversation was used

by the State in the trial of the same indictment against

Green's co-defendant, Carzell Moore, which trial resulted in

a conviction of rape and murder and a sentence of death

(T., pp. 1122-1123);

(4) Moore's statement to Pasby on January 1, 1977, amounted

to a confession that Moore and Green had abducted the victin,

that Moore had sent Green to get gasoline for the automobile

at the time that Moore in fact shot and killed the victim,

and that Green either did not know or did not believe that

(5)

names

Moore was about to kill the victim when Green left Moore

Pasby's testimony concerning the confession of Moore

went into detail; Moore told Pasby that he shot the girl

' twice with a 30.06 rifle, shooting her the first time in the

|

| stomach and the second time in her face, the shot to the

face being specifically intended to make identification of

the body difficult (T., p. 1125). The Trial Court admitted

into the record, but not before the jury, the testimony that

Pasby had given at the trial of Carzell Moore (T., pp. 1135-

1137); the transcript appears on pages 1250-1321 of the

transcript of the trial of Roosevelt Green, Jr.

In sustaining the State's objection to the testimony

of Pasby on hearsay grounds, the Trial Court stated the

following rationale:

BY THE COURT: As I said, I can understand

the rationale of these decisions. Now, under the

Georgia death penalty statute, the State is per-

mitted to put in evidence, any evidence that can

be considered by a Jury as to what we in the legal

field refer to as statutory aggravating circum-

stances. The defendant is permitted under the

law to offer evidence of mitigating circumstances.

Now, the point has been raised in this case that

this witness, Mr. Pasby, was used by the State

in prosecuting this defendant's co-defendant,

Carzell Moore, for the offense of murder. This

witness's testimony involved a confession or an

alleged confession on the part of the defendant

Carzell Moore and the record of this Court and

the record from the Supreme Court of Georgia will

show what the evidence is and will show what the

Court charged the Jury, and the Court charged

the Jury trying Carzell Moore on the law of con-

fession and when that can be received and not

received and so forth. Now, the State used this

| man's evidence to convict Carzell Moore upon the

i theory: that Carzell Moore admitted shooting Miss

i Allen and the witness described the manner in

which she was shot, the type of weapon, where

| she was shot and the reason why she was shot in

the manner in which she was. Now, it seems to

me that in saying what I have said, I have

stated the case of the proposition of law as I

understand it, which raises the issue of admissi-

bility in this case. Now, so far as I am able

to determine, we have had no decisions by our

| (6)

and the victim at the scene of the crime (T., pp. 1123-i125).

appellate courts on this specific point as to

where the rules of evidence may be relaxed on

the sentencing phase where the death penalty

Way to appeal or review that ruling. On the

other hand, if the Court excludes the testimony

then the defendant would have the right to appeal

and have the ruling corrected. Now, there is no

concerned, ought to be allowed to use that evi-

dence, not for the purpose of proving his inno-

cence, but that's what your're dealing with there

but to show that in mitigation. Now, that's just.

a personal feeling or Opinion of this Court but

Mr. Milam has correctly raised the point. It's

purely and simply a legal point; it's not a fac-

tual point, as to the admissibility of his testi-

mony. There's a good Possibility that such testi-

mony, under the circumstances of this case now, not

this case, could be ruled admissible and if this

witness had not been used by the State in a com-

panion case, perhaps the defendant's position

would not be as Strong. On the other hand it might

alleged and the evidence as to mitigation can be

rather broad. It seems to me, and I'm not try-

ing to give direction to either Side as to what

you should do, but it seems to me that perhaps in

order that this issue might be litigated, if it

becomes necessary for that to be done, that a

portion of the transcript of this witness's testi-

mony that was offered in thé Moore case be made

a part of this transcript, so that it will show what

was testified to by this witness in the Moore trial

and when that is done, I am going to sustain the ;

State's objection to this line of testimony

because if [I am incorrect, it can be corrected.

(7)

'

|

|

|

Assistant District Attorney, and Trial Court, the State

In the trial of Carzell Moore upon the same indictment

which was participated in by the same Pistrict Attorney,

| offered the following testimony by Thomas Pasby:

|

Q Now, on the way to Hawkinsville when y'all

were riding in this automobile, did y'all talk

about anything?

A Yes.

Q Would you tell us what was said in this con-

versation and how it was brought up?

A He started asking me about how did I feel )

killing somebody when I was in Viet Nam.

Q And were you in Viet Nam?

A Yes, sir.

Q All right, just tell us what was said.

A And so, I told him, you know, the cause of

killing somebody, you know, the only thing that

I felt in Viet Nam was, you know, was why I was

doing it and that was the only thing that I felt,

and then he said, 'Well, I killed somebody, too.'

So, when you said that, well, then he started

telling me about he and Green went to the store |

and --

Q All right, now, would you tell us as best

you can remember the exact words that he told

you.

A He said that he and Green went to the Majik

Market store and he told Green to go in and take

the woman to the meat counter to attract her

attention, you know, to Green while he comes in

the front of the store with the rifle, and he

said that they robbed the store --

Q Did he say whether Green did that?

A Yes, he said Green went in and he asked the

girl something about some meat that was in the

meat counter and she came over to the counter

and then he came in and he said that he came in

and they robbed the place, took the girl and her

car and then they ieft. ;

Q_ Now, what, if anything, did he say happened

after they got the girl and her car and they left?

A _ He said that on the way, Green turned around

and looked at the girl and said, "Bitch, take off

your clothes.’

(8)

Q Did he say who was driving the car?

A He said that he was driving and said Ureen

just turned around and looked at her and told

her to take off her clothes.

Q And then what happened after Rooseveit Green

said this?

A The girl said -- well, the girl started say-

ing that she was a virgin and you know, not to

do that, he said Green went on and did it and

then --

Q I know sometimes it's hard to say, but I

want you to say just exactly what he -- the

same words that he told you. That's what I

want you to tell the Jury. What did he say

Green did?

A He said that Green got in the back and he

fucked her and then Carzell said that he fucked

her and he just scarred up hisself because she

was a virgin and then they went on and he said

then they got to another point, he didn't say

where, and he said that he told Green to stop.

At the time Green was driving then, he told

Green to stop and he told the girl to get out.

and he told Green to go and get some gas and

he said when Green pulled off, he shot her.

BY THE COURT:

Q Who is ‘'he,' Carzell Moore?

A Carzell, yes, sir.

BY MR. WALDREP:

Q While Green was gone to get some gas?

A Right.

Q What did he say happened -- what did he say

about the shooting?

A He said that when he shot her, she had her

hands over her stomach like this, or something,

and he shot her once in the stomach around here,

up here someplace, and then he said he shot her

again, he shot her -- he said he tried to shoot

her through the face --

Q Did he say why he shet her in the face?

A He said he wanted to make it hard, in case

somebody found her, that it would be hard for

them to identify, so he shot her in the face and

(9)

he said when Green came back, they picked her

up and when they picked her up, her hands fell,

like one of her hands was gonna fall off and

they threw her in the bushes. (T., pp. 1165-

1168).

After the State was successful in suppressing the

truth, the State took full advantage of the fact that the

jury did not know the truth in closing arguments. While

‘asking the jury to take the life of Roosevelt Green, Jr.,

the District Attorney made the following statement:

It took two people to do this act and it took

two people to kidnap her, it took two people

to rob the store, it took two people to navi-

gate the automobile with her in it all the way

to Monroe County, and I submit to you that this

is the other man who was involved in the case

and who actively participated in it and it's

impossible, of course, for the State or for

you Ladies and Gentlemen to know who pulied

that trigger out there because we were not

there. We couldn't possibly bring any evidence

other than the circumstantial evidence and the

direct evidence that we had pointing to who did

it, and I think it's especially significant for

you to remember what Dr. Dawson said in this

case. When the first shot, in his medical opin-

ion, he stated that Miss Allen had positive

blood pressure when both shots were fired but

I don't know whether Carzell Moore fired the

first shot and handed the gun to Roosevelt

Green and he fired the second shot or whether

it was vice versa or whether Roosevelt Green

had the gun and f red the shot or Carzell Moore

had the gun and fired the first shot or the

second, but I think it can be reasonably stated

that you Ladies and Gentlemen can believe that

each one of them fired the shots so that they

would be as equally involved and one did not

exceed the other's part in the commission of

this crime. Now, of course, Doretha Livingston

stated that he told her he shot her. So all

that, of course, is in aggravation of the con-

viction that you Ladies and Gentlemen can find.

(T., pp. 1222-1223).

It should be noted that the District Attorney told the jury

that the State "couldn't possibly bring any evidence other

than circumstantial evidence and the direct evidence that

we had pointing to who did it (T., p. 1222), meaning that

the State possessed no further evidence which would help

(10)

| the jury in determining who had fired the shots,

The jury fixed punishment at death and found, as ag-

| gravating circumstances, that the offense was committed

|

hoe the offender was engaged in kidnapping and armed rob-

| bery and further that the offense was outrageous and wantonly

ie

“mr, APPEAL

| The conviction and sentence were appealed to the Supreme

Court of the State of Georgia, the highest Court of said state,

| upon eighteen enumerations of error. The majority and dis-

| senting opinions appear in Appendix A. On September 7, 1978,

| the majority affirmed the conviction and approved the penalty.

|The majority recognized the fact that "Carzell Moore had

been tried and sentenced to death in an earlier trial and

Pee review had not been completed in his trial" (Appen-

dix A, p. 18). This fact is very important to explain the

| unavailability of Carzell Moore as a witness in the trial of

| Roosevelt Green, Jr. Because of his right to refuse to tes-

| tify, the only way to get Moore's statement before the jury

+ was through Pasby,

The majority opinion of the Georgia Supreme Court

| was as duplicitous as the actions of the State in the

| prosecution of the case. While finding that hearsay may

not be used in mitigation of punishment, therefore ruling

| Moore's confession inadmissible, the Georgia Supreme Court

| tried to support the majority opinion with the conclusion

h that the confession of Moore “would show that the appellant

actively and knowingly participated in the entire criminal

| enterprise” (Appendix A, p. 21). The majority went on to

| say, "The defendant's participation during the course of the

| criminal enterprise in leaving his kidnap victim with his

armed accomplice on a lonely road while he went for gas could

f (11)

ot On any reasonable basis be termed minor participation."

opendi A., p. 21). The majority ignored the fact that

| appellant's complaint was that the jury was not allowed to

[peas the testimony of Pasby. This is tantamount to a find-

ing that, if the Trial Court erred in not permitting the jury to

hear the evidence, same was harmless error because the

jury should have sentenced Green to die even if they had

ibeen allowed to know the truth. ;

| The Supreme Court of Georgia did not so state, but the

| majority opinion stands for the proposition that §27-2534.1(b)

has been interpreted so as to severely limit defendant's |

right to prove facts in mitigation of punishment. (See

Appendix B). The cited Code Section contains the following

| Language: ", . . the judge shall consider, or he shall include

lin his instructions to the jury for it to consider, any

mitigating circumstances of aggravating circumstances other-

wise authorized by law. . .." The majority opinion interprets

that phrase as a mitigation of punishment, specifically

| incorporating $38-301 and 838-309 of the Georgia Code (see

| Appendix B). These two Code Sections exclude all

‘hearsay and limit the declaration against interest exception

| to the hearsay rule to declarations by persons since deceased.

HOW _THE FEDERAL QUESTION WAS RAISED AND DECIDED BELOW

The issue of the admissibility of the testimony of

Thomas Pasby as to the confession of Carzell Moore as a

mitigating circumstance was raised in the Georgia Supreme

Court in Enumeration of Error No. 17. During the trial,

the admissibility of said testimony was urged upon the

Trial Court strictly on the basis of federal due process

and constitutional grounds (T., pp. 1129-1131). In support

of this enumeration of error, defendant argued by brief

(12)

, and oral argument that the present case was controlled by

, Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35

|

iL. Ed. 2d 297 (1973). In the motion for rehearing the issue

"was argued on the basis of Lockett v. Ohio, 57 L. Ed. 2d 973

'

' (1978) and Bell v. Ohio, 57 L. Ed. 24 1010 (1978). The dis-

. senting opinions of Justices Hall and Hill relied heaviiy

| upon these opinions and Brady v. Maryland, 373 US 83 (1963).

hi

| The issue was treated °s a constitutional question from the

i!

ij . .

| beginning.

| The question presented in this petition relating to the

H ; ° ; ,

|constitutionality of the Georgia death penalty statute

‘was not presented to the Georgia Supreme Court on direct *

| appeal, as same did not become an issue until the ruling of

| the Supreme Court of Georgia in this case. The majority

| opinion of the Georgia Supreme Court narrowly interpreted

the Georgia death penalty statute so as to incorporate

| the traditional rules of evidence relating to admissibility

| of hearsay. This was a gloss added upon the legislative

| enactment by court interpretation in the highest court of

| the State. It is petitioner's contention that by so doing

| the Georgia Court has rendered Georgia Code §27-2534.1 an

unconstitutional statute, in violation of the holdings

|

Bell v. Ohio. The holding of the Georgia Court in this case

| of the United States Supreme Court in Lockett v. Ohio, and

|

| demonstrates the unconstitutionality of said code section.

‘In order to pass the requirements of the Eighth and Four-

teenth Amendments, a death penalty statute must "require

that the sentencer, in all but the rarest kind of capital

case, not be precluded from considering as a mitigating

factor, any aspect of a defendant's character or record

and any of the circumstances of the offense that the defen-

dant proffers as a basis for a sentence less than death,"

(13)

(Lockett v. Ohio), 57 L. Ed. 2d 973, 990 (1978).

The majority opinion of the Georgia Supreme Court dis-

tinquished Chambers, ignored Lockétt and Bell, and

approved the sentence.

REASONS FOR GRANTING THE WRIT OF CERTIORARI

In this case the highest court of the State of Georgia

has decided a question of federal ‘constitutional law in

a way not in accord with applicable decisions of the United

States Supreme Court. While there are decisions of the

United States Supreme Court which seem to control the

issues presented by this petition, the exact factual

Situation has not heretofore been presented.

Petitioner is asking this Court to either allow the

testimony of Thomas Pasby as an exception to the hearsay

rule or declare that Georgia Code 827-2534.1, as interpreted

by the Georgia Supreme Court in this case, is unconstitu-

tional because it places unacceptable restrictions upon

the defendant's right to present evidence in mitigation

of punishment.

Georgia's general hearsay rule is stated in Georgia

Code 838-301 (see Appendix B); said statute allows hearsay

"only in specified cases from necessity." The testimony

of Pasby is the only testimony as to the facts contained

therein. The declarant, co-defendant Carzell Moore, was not

available at the time of trial because of his constitutional

privilege against self-incrimination. His case was on

appeal to the Supreme Court of Georgia, and he still enter-

tained a hope of obtaining a new trial. Moore would not

testify at the trial of Roosevelt Green, Jr., and could not

be forced to testify. Therefore in order for the jury to know

what Moore had said to Pasby, the introduction of

hearsay testimony was required. The fact situation in the

(14)

_ trial of Green is closest to the declaration against interest

exception to the hearsay rule, This exception to the hearsay

'Tule is based upon the premise that a person will not make a

_ Statement contrary to his own best interest, knowing that such

| Statement is contrary to his own best interest, unless such

Statement is the truth. Since the object of all legal inves-

tigation is to discover the truth, it is believed that

» allowing hearsay evidence which qualifies as a declaration

against interest, will assist the trier of fact in discover-

ing the truth. The Georgia statute defining the declara-

tion against interest exception, Georgia Code Section 38-309

(see Appendix B), is very narrowly drawn, limiting the ex-

ception to cases where the declarant is deceased. Petitioner

acknowledges the fact that Moore was not deceased, but Moore

was certainly unavailable as a witness. The Georgia Courts

have interpreted this code section to include only declara-

tions against the pecuniary or proprietary interest of the

declarant, Little v. Stynchcombe, 227 Ga. 311, 180 S. E. 2d

541 (1971). But common sense leads us to conclude that

Carzell Moore's declaration to Thomas Pasby was overwhelming

against his interest and that he knew that the declaration

was against his interest when he made it.

Under the Federal Rules of Evidence, Rule 804(a) and

(b) (3), the statement of an out-of-court declarant is ad-

missible when the declarant is unavailable ("on the ground

of privilege") and where the statement is contrary to his

penal interest. The Federal Rules were drawn in conformity

with the holding of this Court in Chambers v. Mississippi,

410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).

In Chambers v. Mississippi, Mr. Justice Powell spoke for

eight members of this Court in reversing a similar case. In

that case, as in the present case, the defendant offered

(15)

| hearsay testimony to the effect that another person, other

| than the defendant on trial, had confessed to the murder

| cea teed. In that case, as in this case, the State objected

yon hearsay grounds and the testimony was excluded. This

| court reversed, in spite of the fact that Mississippi recog-

‘nized no declaration against penal interest exception to the

hearsay rule, because the hearsay statements involved in that

| case were originally made and subsequently offered at trial

| under circumstances that provided considerable assurance of

I their reliability. First, this Court pointed out that the

|| statements were made spontaneously to a close friend shortly

|| after the murder, exactly as in this case. Secondly, the

| statements in Chambers were corroborated. In the trial of

| Roosevelt Green, Jr., Moare's involvement in the murder was

corroborated by practically every State's witness. Thirdly,

and exactly as in this case, this Court pointed out that

whatever the parameters of the penal interest rationale, each

confession was in a very real sense self-incriminating and

| unquestionably against interest. The holding of Chambers

| is that the hearsay rule may not be applied mechanistically

|

to defeat the ends of justice and that the exclusion of

| the Statements denied the defendant a trial in accord with

| traditional and fundamental standards of due process. In

pee the statements were offered for the purpose of

| proving the defendant's innocence; in the Green trial the

| ner was offered solely in mitigation of punishment.

j The Green case is even more compelling than the Chambers

| case.

The recent decisions in Lockett v. Yhio, 57 L. Ed. 2d

973 (1978) and Bell v. Ohio, 57 L. Ed. 2d 1010 (1978),

hold that, in capital cases, the Eighth and Fourteenth

Amendments require that the sentencer not be precluded

(16)

from considering, as a mitigating factor, any aspect

i

of the offense that the defendant proffers. Both cases

f dealt with defendants who had been found guilty of

murder but wanted to show the sentencer that they did

| not actually commit the act of killing. The Ohio statute

| was incompatible with the constitution because it severely

| limited the mitigating circumstances that could be con-

| sidered by th i

y e sentencer, and the Georgia statute, as inter-

peas by the highest court of Georgia, does likewise.

' The hearsay rule, as same was applied in the Green trial,

paee from consideration by the jury evidence which

| tended to show that Green was not the actual murderer and

| - °

that he did not intend to be involved in a murder. The jury

| that ton ten 4

sentenced Roosevelt Green, Jr., to die in the electric

} chair was not allowed to hear that the actual killer had

i

| . .

H made a complete confession in which he Stated that Green

was not present at the time of the actual killing and that

t the weapon was exclusively in the possession of Moore.

tt

'

In the trial of Green the State refused to allow the testi-

{!

mony of Pasby to be heard by the jury and tried the case

| on circumstantial evidence on the theory that Green shot

| nee

the victim (T., p. 1015). Such a duplicitous approach to the

|

| trial of criminal defendants jointly indicted makes a

} mockery of the principle of fundamental fairness guaranteed

i

as due process of law. Implicit in the concept of ordered

liberty and due process of law is the notion that the State

“ should seek to prove the truth and not Suppress the truth

| for the sake of obtaining a sentence of death.

The issue to be determined by the jury in the sentencing

hearing conducted in the trial of Green was the most serious

issue that could ever be considered by a jury. Because the

_ jury did not hear the statement of Carzell Moore, we cannot

(17)

know whether such evidence would have changed their decision.

But we do know that they did not hear the whole truth. We

do know that the State had presented the testimony of Pasby

to the jury in the trial of Moore and had asked for and

obtained a verdict of guilty and a sentence of death upon

| the strength of said testimony. The defendant in this case

| is pleading for his life; it is fundamentally unfair for the

, State of Georgia to take his life, after having stripped him

of the only meaningful defense that he had.

As illustrated by the cited Federal Rule, the trend of

the law is toward liberalization and expansion of the declar-

ation against interest exception to the hearsay rule. In the

case of Moore v. Atlanta Transit System, Inc., 105 Ga. App.

70 (1961), the Georgia Court of Appeals exhaustively dis-

cussed the Georgia cases dealing with exceptions to the

hearsay rule on the basis of "necessity." All of the hear-

say exceptions can be described as situations where the

hearsay evidence sought to be introduced is necessary

|

(usually the only method of proving the fact) and trust-

| worthy (the evidence itself tends to support its credibility).

| The evidence that Green tried to introduce at this trial

was absolutely necessary, because it was the only possible

way that he could prove that Moore had stated unequivocably

| to a close friend that he, and not Green, had pulled the

{

|

trigger which took the victim's life. The trustworthiness

| of the testimony is supported by the fact that the declara-

| tion was made shortly after the crime was committed, the

I fact that Moore made the statement to a close friend, and

| the fact that the statement had been relied upon by the

State in the prior trial of Moore. Joseph H. Lumpkin,

the first Chief Justice of the Supreme Court of Georgia,

! once wrote:

! (18)

"Truth, common sense, and enlightened reason,

alike demand the abolition of all those arti-

ficial rules which shut out any fact from the

jury, however remotely relevant, or from what-

ever source derived, which would assist them

in coming to a satisfactory verdict." Johnson

State, 14 Ga. 55, 62 (1853).

CONCLUSION

Petitioner prays that a writ of certiorari issue to

review the decision of the Georgia Supreme Court and to

pass upon the constitutionality of Georgia Code 827-2534.1.

Repsectfully submitted,

GARLAND §& MILAM, P.

BY:

RICHARD MILAM

ATTORNEY FOR PETITIONER

(19)

APPENDIX A

In the Supreme Court of Georgia

Carol Allen and sentenced to death.

of the death sentence.

affirmed in Moore v. State, 240 Ga. 807 ( SE2d

461

Decided: SEP 7 1978

33696. GREEN v. THE STATE.

UNDERCOFLER, Presiding Justice.

| Roosevelt Green, Jr., was convicted of the murder of Teresa

The apvellant is before this

court on direct appeal of his conviction and for mandatory review

Prior to this trial Carzell Moore was convicted of the

‘murder and rape of Teresa Carol Allen and sentenced to death for

‘both offenses. The convictions and death sentences of Moore were

) (1978).

' The evidence in Moore's trial adequately portrays the factual

{of some issue,

Situation and will be repeated only where necessary for resolution |

: I. Enumerations of Error

1. The first three enumerations ali relate to the general

'ground of appeal in that they allege (1) the verdict and sentence

are not supported by the evidence; (2) the verdict and sentence

'

=_—--eom «© ae

————m ess =a0-. sm oneee

/ are contrary to the law and the evidence; and (3) the trial court

; erred in overruling defendant's motion for a directed verdict of

;

| acquittal.

The only issue presented to this court by these enumera-

‘tions is whether there is any evidence to support the verdict.

| Campbe 11 v. State, 240 Ga. 352 (240 SE2d 828) (1977); Drake v.

' State, Ga. ( SE2d ) (Case # 33463, decided June 27,

1978); Bethay v. State, 235 Ga. 371 (219 SE2d 743) (1975); Ridley

v. State, 236 Ga. 147 (223 SE2d 131) (1976). In making this

,; determination we view the evidence in the light most favorable to

{

'

j

'the verdict rendered and resolve all conflict in the evidence in

‘favor of the verdict. fubanks v. State, 249 Ga. 544 (242 SE2d 41)

, (1978); Harris v. State, 236 Ga. 766 (225 SE2d 263) (1976); Myers

v. State, 236 Ga. 677 (225 SE2d 53) (1976); Harris v. State, 2734

Ga. 871 (218 SE2d 583) (1975).

From the evidence presented at the trial the jury was

‘authorized to find the following:

a. The appellant was in the area where Miss Allen was

, robbed and kidnapped shortly before the crime without any means of

{

!

. transportation or funds.

b. He was not seen in the area after the kidnapping and

robbery occurred.

c. The appellant appeared in South Carolina driving

Teresa Allen's automobile (which he asked a friend to burn for

him) approximately nine hours after the robbery and kidnapping.

dad. The convenience store in Cochran that Miss Allen

operated was robbed of bills and change. When he appeared in

South Carolina, the appellant had in his possession a large quan-

tity of money, both bills and change.:

e. The appellant had the murder weapon in his possession

; when he arrived in South Carolina.

f. A glove found at the scene of the murder had hairs on

it similar to those of both appellant and the victim.

g. Caucasian head hair identical to the hair of the

victim was located on a sweater located in the appellant's suit-

case.

h. Approximately twelve days after Teresa Allen had been

shot to death in Monroe County, Georgia, the appellant told his

' girl friend that he had shot or killed a girl in Georgia.

The jury had before it ample evidence to support the ver-

dict and the trial court did not err in overruling the appellant's

‘motion for a directed verdict of acquittal.

Enumerations 1, 2, and 3 are without merit.

2. In Enumeration 4, the appellant aliieges, "The Trial

'

'

‘Court erred in denying defendant's Motion for a Change of Venue.”

The appellant's motion was based on prejudicial pre-trial

‘publicity.

| When the appellant's motion for a change of venue was heard

jon January 6, 1978, the trial court withheld ruling until the voir

i

jdire examination of the jurors had been conducted.

:

In denying the motion of change of venue the trial court

jreflected that "it is the finding of the Court that the jurors that

were put upon the defendant in this case were impartial; that they

‘were not influenced, or would not or will not be influenced by what

i ‘

they may have read or heard about the case." The testimony of the

i

'

Prospective jurors Supports this finding.

The trial judge did not abuse his discretion in denying

!

!

_the appellant's motion for change of venue. Campbell v. State,

240 Ga. 352 (240 SE2a 822%) (1977); Young v. State, 239 Ga. 53 (236

i

SE2d 1) (1977)} Wilkes v. State, 238 Ga. 57 (239 SF2a R67) (1976);

;Coleman v. State, 237 Ga, 84 (226 SE2da 911) (1976); Krist v. Cald-

well, 230 Ga. 536 (198 SE2a 161) (1973).

3. In Enumeration 5, the appellant alleges, "The Trial

Court erred in denying defendant's Motion to Suppress Evidence

Illegally Seized."

oe ee ee ee

! The evidence sought to be suppressed by the avvellant was

/a suitcase identified as belonging to the appellant that was

; ae

; located in a building where the appellant had no authority to be

|

‘or to store his pronerty. The appellant was neither landlord or

, tenant. Both the sometime tenant and the owner testified that the

|| appellant had no authority to live there. ‘The owner of the

!

| building opened the suitcase and examined the contents and then

turned the suitcase with its contents over to the police.

‘

| 2

"Probable cause and a warrant are not reguired for a search

'

_and seizure which is conducted pursuant to consent," Schneckloth

'

!

jiv. Tustamonte, 412 U. S. 218 (93 SC 2041, 36 LE2d 854); McKendree

: Mv. State, 133 Ga. Apo. 295, 296 (211 SE2da 154) (1974); Hall v.

State, 239 Ga. 832 (238 SE2d 912) (1977). ""[W)hen the prosecu-

H)

tion seeks to justify a warrantless search by proof of voluntary .-

t

;

consent, it is not limited to proof that consent was given by the

_defendant, but may show that permission to search was obtained

from a third party who possessed common authority over or other

i sufficient relationship to the premises or effects sought to be

H .

|

|inspected.' United States v. Matlock, 415 U. §. 164, 171 (94 SC

988, 39 LE2d 242) (1974)." Peek v, State, 239 Ga. 422 (2) (238

'“SE2d 12) (1977); Hall v. State, 239 Ga. 832, supra. In addition

_ ———— ee

such that he has no standing to challenge the search.

_ United States, 4ll U. s. 223, 229-230 61973).

to the valid permission given to seize the suitcase and its con-

tents, the status of the appellant in relation to the building is

.

Brown v.

Enumeration 5’ is without merit.

4. In Enumeration 6, the appellant alleges, "The Trial

Court erred in limiting defendant's right to cross examine the

witness Charlie Livingston on the issue of his alleged identifica-

tion of the rifle, State's Exhibit No. 6."

The right to cross examination, thorough and sifting, shall

belong to every party as to the witnesses called against him.

Code Ann. § 38-1705. This right is, however, subject to limita-

tions to prevent abuse. In a case such as this one where the

question asked had already been answered and the counsel had begun

to be argumentative with the witness we cannot say the trial court

abused its discretion. Control of the cross examination of a

witness is to a great deqree within the discretion of the trial

court and will not be controlled unless abused. Eades v. State,

232 Ga. 735 (208 SE2d 791) (1974); McNabb v. State, 70 Ga. App.

798 (29 SE2d 643) (1944); Sweat v. State, 63 Ga. App. 299 (11 SE2d

40 (1940).

| Evid., § 4-19,

Enumeration 6 is without merit.

5. In Enumeration 7, the appellant alleges, "The Trial

Court erred in sending the Jury out of the Courtroom, allowing

, the District Attorney to prompt his witness, and then allowing the

\

| District Attorney to cross examine and impeach his own witness,

| charlie Livingston."

This enumeration is founded on the testimony of Charlie

Pees who could not remember at this trial the color of both

|

1

of the money bags he had seen in the victim's car which was in

| the possession of the appellant when he arrived in South Carolina

i

, or the lettering that had been on the bags. When his memory was

' refreshed concerning his testimony at Carzell Moore's trial, he

' eo -%

—_

was able to testify concerning the color of the bags and his

memory of the bags was restored. Later, all of these developments

were brought to the jury's attention by appellant's counsel so

that they were fully apprised of what had transpired. The witness

| later said he had misunderstood when the word "container" was used

in asking about any money bags.

A witness may use any source to refresh his memory, so

long as he testified from his memory thus refreshed, Agnor's Ga.

ee

As long as the witness is willing to swear from his memory

as refreshed, his memory may be refreshed by any kind of stimulus,

"a song, or a face, or a newspaper item." Jewett v. United States,

|

15 F2d 955 (9thCir., 1926).

It was error to refuse to permit a

-medical witness to refresh his memory from x-ray photographs which

_ had not personally taken. Smith v, Morning News, Inc., 99 Ga.

| APP. 547 (109 SE2d 639) (1959). A witness should be able to use

' almost any writing to refresh his memory. Hall v. State, 130 Ga.

'

, App. 233 (202 SE2a 674) (1973). See also Agnor's Ga. Evid.,

|

No issue of impeachment of the State's own witness appears

, to be presented here. Code Ann. § 38-1801.

|.

Enumeration 7 is without merit.

6. In Enumeration 8, "The Trial Court erred in denying

'

defendant's Motion for a Mistrial upon the basis that defendant

)

t

had been exhibited to the Jury in chains.”

The appellant had previously escaped from confinement

l

| twice and precautions taken for his security were to employ a

:

| travel belt which consisted of a belt around the waist and one

i

' handcuff on each side so designed that one hand cannot reach the

| .

| Other. He was thus secured when returning from lunch on the day

—

.

2-25 ee eee

in. question. The appellant makes only a bare allegation. The

evidence shows that a group of people was coming across the street

{ as the appellant was entering the building where the trial was

, held. There is no testimony that they were jurors or that they

; °

| were not jurors. There is no evidence that any of the people saw

: .

| the defendant. Appellant did not testify in support of the alle-

gation and defendant's attorney did not wish to have the jurors

: polled to determine if any of them had seen the defendant. AS a

or heard outside of the courtroom shoulda affect their verdict.

!

|

{

}

pores the trial court instructed the jury that nothing seen

‘

| The trial court did not err in overruling the appellant's

|

| Motion for a mistrial. Morris v. State, 228 Ga. 39 (184 SE2da 82)

' (1971); Brand v. Wofford, 230 Ga. 750 (199 SE2da 231) (1973).

| 7. %In Enumeration 9, the appellant alleges, "The Trial

‘Court erred in denying defendant's Motion for a Mistrial based

| upon the inflammatory remarks of the District Attorney made in the

|

|! presence of the Jury."

The remarks in question were made in the following context

"BY MR. MILAM: Your Honor, now I object to the District

These Jurors here

‘Attorney telling us what the testimony was.

‘have ears, they heard what the testimony was and they heard what

—

|

!

—— ————

‘body shot one off.

| ss BY MR. MILAM:

PS BY THE COURT:

BY MR. MILAM:

_ BY THE COURT:

anymore.

BY MR. SMITH:

BY THE COURT:

pletely and don't let

BY THE COURT:

BY MR. SMITH:

this man said. I also would ask that the Court instruct the Jury

‘that the Court's statement as to what might or might not have been

said, of course, is not evidence and it's not --

No, the Court does not intend that; I. am

just saying that the State is offering it for that purpose and for

that purpose only and I'm not telling the Jury what the evidence

is, but I am explaining to them why this particular evidence is

being admitted, for that limited purpose only.

Well, Your Honor, as far as that is con-

jcerned, I know the Jury has ears, and so did the victim until some-

Your Honor, I object to that and I move --

I will sustain the objection.

I move the Court for a mistrial, too, Your’

I think that statement was uncalled for and

I admonish the District Attorney not to make statements like that

I apologize to the Court.

And I instruct the Jury to disregard it com-

it have any bearing on whatever verdict you

reach. You make a verdict based on the evidence.

10

| BY MR. MILAM: You can come down." :

'

We note there was evidence in the case from which the jury |

‘could have found that someone shot the victim's ear off, but

assuming without deciding that the remarks of the District Attorney

‘were improper, the refusal to grant the mistrial was not error

, under ‘these circumstances. The corrective action taken by the

| trial court was the proper one for improper conduct by counsel.

|

|

Code Ann. § 81-1009. Whether to grant a mistrial after taking

'

|

precautionary measures is within the court's discretion. Code

|

| ann. § 81-1009. McCorquodale v. State, 233 Ga. 369 (211 SE2d 577)

!

| (1974); James v. State, 215 Ga. 213 (109 SE2d 735) (1959). We

,find no abuse of discretion in refusing to grant a mistrial and

‘the appellant declined to pursue the issue by renewal of his motion

|

;for a mistrial. Curtis v. State, 224 Ga. 870 (165 SE2d 150) (1968)

i

{

8. In Enumeration 10, the appellant alleges the trial

|

‘court erred in admitting into evidence State's Exhibits 6, 8, 26,

27, 28, 31, 37, 38, 39, 40, and 41 over objection by the defendant.

7 aaa

a. Exhibits 6 and 8 were a rifle and rifle strap. There

!

‘was evidence from which the jury could conclude that the rifle was

in the possession of the appellant when he arrived in South Caro-

| lina and the strap was on the rifle. It is not necessary to

I

'

ll

i

'

i

|

|

i

|

!

‘

{

|

‘

{

:

|

|

' 816,

!

i

j

'

—_—_—- ee ee.

b.

the victim.

Ce.

d.

establish a chain of custody where a distinct physical object,

_such as a rifle, is identified. The rifle was identified by. the

owner of the rifle as well as the strap. There was evidence that

‘the rifle fired the cartridge cases and lead jacket of the bullet

, found at the scene of the victim's body.

Exhibits 26, 27, and 28 being pieces of flesh, bone,

‘and teeth, because of their proximity to the lead jacket and car-

tridge cases fired from the rifle were relevant for the jury's

consideration of the causal connection between the rifle possessed

by the appellant; the cartridges fired therefrom and injuries to

Moore v. State, 240 Ga. 807, supra.

Exhibit 3] was identified as the bullet and two car-

tridge ¢ases “Bhat were found at the scene and were properly admis-

‘sible as indicated in & b above.

Exhibits 37, 38, 39, 40, and 41, Photographs of the

. deceased taken at the funeral home just prior to autopsy, were

|

Sattar admitted to illustrate the nature, the extent, and the

location of the wounds. Moore v. State, 240 Ga. 807, supra at p.

and cases cited therein.

Enumeration 10 is without merit.

3.

In Enumeration 1l, the appellant alleges, "The Trial

/Court erred in overruling the defendant's objections to the

12

_testimony of State's witness Clarence Sims based upon relevancy

‘

ae due process."

During direct testimony Sheriff Bittick testified that the

“appellant had told him ata he had stolen the change he had with

him when he arrived in South Carolina from one Clarence Sims in

|. Apopka, Florida. Later the court admitted, over objection, the

i

’ . " -%

testimony of Clarence Sims stating that he had not missed any

Possession of the change was circumstantial evidence.

‘ Circumstantial evidence is admissible. Code Ann. § 38-102. To

|

‘warrant a conviction on circumstantial evidence, the proved facts

, Shall not only be consistent with the hypothesis of guilt, but

shall exclude every other reasonable hypothesis save that of the

‘guilt of the accused. Code Ann. § 38-109. Accordingly, the

|

‘ prosecution had a duty to rebut any reasonable hypothesis that the

! appellant obtained the change other than from the victim who was

murdered. Negative evidence is admissible as well as positive

‘aeliieaen: Code Ann. § 38-111.

Enumeration 11 is without merit.

10. In Enumeration 12, the appellant alleges, "The Trial.

‘Court erred in admitting over objection the testimony of Sheriff

'

13

Lb. C. Sitiich veistine to a statement or statements allegedly

made by the defendant while being transported by said State's

witness. The witness could not recall sufficient facts for the

Court to determine whether the alleged statement or statements

were freely and voluntarily made. The burden of ueedien tain is

upon the State. The Court's’ admission of said testimony TN ok

sufficient showing was violative of the defendant's right to be

confronted by his accusers and his right to cross examine the

witness."

At a Jackson-Denno type hearing outside the presence of

, . a

| the jury, the sheriff testified that the appellant was allowed to

read his rights under the "Miranda decision” from a form

he was twenty years old and had a tenth grade education in public

school in Alabama.

The sheriff identified himself and the appel-

' lant read the form to

!

!

himself and siqned it. He was asked if he

, understood i i i itt; -

! it and he said he had. Sheriff Bittick testified the

appestent indicated he was willing to talk to them but did not

inaj

ndicate he wanted a lawyer. He further testified the statement

was freely and voluntarily made and no promise was made or threat

Or coercion used to get him to talk. The trial court found that

14

any statements he may have made was done of his own accord, without

He said

LL

- yation in accord with Code Ann. § 27-2503.

! coercion, voluntarily, without any hope of reward, without any

threat anda that it was a statement made on an inquiry of his own.

‘The statements were made in the car on the way to Atlanta from

South Carolina and consisted of asking the manner in which the

sheriff found or located the rifle (in earlier statements the

appellant had never mentioned a rifle being in the car) and

«

inquiring if Georgia had the death penalty.

ma

The State met the burden of satisfying the trial court of

the voluntariness of the statements and there is no reason to

disturb that finding. Any questions concerning the clarity of

the witness's memory are properly questions for the jury in deter-

mining the credibility of witnesses. Code Ann. § 38-1805.

Enumeration 12 is without merit.

11. In Enumerations 13 and 14, the appellant alleges the

trial court erred in admitting evidence of prior convictions of

defendant without proof that defendant was represented by counsel

at the time of such convictions and prior to allowing any showing

by the defendant that he was unrepresented at the time of the

prior convictions.

The appellant had been placed on notice that the State

would introduce evidence of the two prior convictions in aggra-

They were properly

15

authenticated and the documents indicate on their face "the

defendant in his own proper person and by his attorney" was

arraigned and entered pleas of guilty. The trial court admitted

ee ee ow

the convictions initially with permission for the appellant to put

| UP whatever evidence might be appropriate. The appellant subse-

quent ly testified that he had a lawyer with him but the lawyer did

nothing but “stand by him while he got his time."

! Under these circumstances we cannot say that the trial

| court acted without proper basis in admitting the evidence of prior

(83)

‘convictions. Potts v. State, 241 Ga. 67/(

SE2da ) (1978).

Enumerations 13 and 14 are without merit.

12. In Enumeration 15 the appellant alleges, "The Trial

Court erred in allowing the Jury to consider State Exhibits No.

26, 27, and 28 in the Sentencing Stage of the Trial, over objection

| upon the ground that same had no probative value and could only

i

|!

'

inflame the Jurors' minds."

!

. so-2 ,

These particular exhibits were admitted in evidence on the

|issue of guilt or innocence.

!

|

In a pre-sentence hearing the judge (or jury) shall hear

. -s

‘additional evidence in extenuation, mitigation,

\

'

?

and aggravation of

punishment.

Code Ann. § 27-2503. The pre-sentence hearing is for

~~ oo

|

|

|

i

|

|

|

'

t

;

‘

‘

'

{

‘additional evidence and in no way excludes from consideration on

'Eberheart v. State, 232 Ga. 247, 253 (206 SE2d 12)

‘because. armed robbery and kidnapping are no longer capital felo-

nies is without merit.

the sentence evidence heard on the issue of guilt or innocence.

(1974); Hooks

v. State, 233 Ga. 149 (2) (210 SE2d 668) (1974). (Both inter-

preting similar language in the former sustien on pre-sentence

hearings, Code Ann. § 27-2534.)

Additionally, these exhibits were relevant to a determina-

tion of one of the statutory aggravating circumstances found by the

jury that "The offense of murder was outrageously and wantonly

vile, horrible and inhuman in that it involved torture to the vic-

tim and depravity of mind on the part of the defendant.”

Enumeration 15 is without merit.

: 13. The appellant's contention in Fnumeration 16, that the

aggravating circumstance relating to the commission of murder

during the commission of other capital felonies was inapplicable

This issue has been addressed by this court and resolved

contrary to the appellant's position. » Peek v., State, 239 Ga. 422,

431-432 (238 SE2d 12) (1977).

ee ee ere

17

14. In Enumeration 17, the appellant alleges, "The Trial

\

!

— erred in refusing to admit the testimony of defendant's

‘witness Thomas Pasby as a mitigating circumstance."

|

_introduce the testimony of Thomas Pasby to the effect that the

t

}

\w the 4+ppellant, was the actual perpetrator of the murder. The

|} trial court sustained the State's objection to the testimony on

|

' sentenced to death in an earlier trial ana appellate review had

not yet been completed in his trial. Appellant was permitted to

|!

‘pean Thomas Pasby outside the hearing of the court to show what

he intended to introduce and thereafter introduced a copy of

, Pasby's testimony in the trial of Carzell Moore for consideration

i

on appeal of the propriety of the trial court's ruling.

In Little v. Stynchcombe, 227 Ga. 311 (2) (180 SE2da 541)

—

(1971) this court held: "Counsel for the appellant attempted to

i

|

|have a witness testify that another person had made statements

; SGnI ting the crimes for which the appellant was convicted. The

|

State objected to such evidence on the basis that it was hearsay.

"Code § 38-391 provides: ‘Hearsay evidence is that which

eames not derive its value solely from the credit of the witness,

18

.

———————————

During the pre-sentence hearing the appellant attempted to

| co-defendant, Carzell Moore, told him (Pasby) that he (Moore), and

!

'

_ the grounds that it was hearsay. Carzell Moore had been tried and

OE

admitted only in specified cases from necessitv.'" Furthermore,

| 496 (20 SE 211) (1894); Woolfolk v. State, 85 Ga. 69 (15) (11 SE

| Daniel v. State, 65 Ga. 399 (1) (1880); Lyons v. State, 22 Ga.

but resus mainly on the veracity and competency of other persons.

The very nature of the evidence shows its weakness, and it is

"Declarations by another person to the effect that he, and not the|

accused, was the actual perpetrator of the offense, are not admis-,

sible in favor of the accused upon his trial." Bryant v. State,

.

197 Ga. 641 (9) (30 SE2d 259) (1944); Beach v. State, 138 Ga. 265

(75 SE 139) (1912); Robinson v. State, 114 Ga. 445 (40 SE 253)

(1901). This has been the law in Georgia for over one hundred

years. Lowry v. State, 100 Ga. 574 (28 SE 419) (1897); Delk v.

State, 99 Ga. 667 (3) (26 SE 752) (1896); Briscoe v. State, 95 Ga.

814) (1890); Kelly v. State, 82 Ga. 441 (2) (9 SE 171) (1889);

399 (1) (1857)

The trial court did not err under the law of this State.

The appellant urges that the testimony of Thomas Pasby

was admissible as a mitigating circumstance and urges its admis-

sion here as a case of necessity as an exception to the hearsay

rule although recognizing that declarations against interest must

be against pecuniary interest and not penal interest, citing '

19

ee

; Moore v. Atlanta Transit System, Inc., 105 Ga. App. 70 ( LE offered it in mitigation of punishment. If the testimony of Pasby |

) (1961), and quoting from Jasper County v. Butts County,. 147 were put in evidence he would of necessity be required to relate

} Ga. 672 (95 SE 254) (1918): “The modern tendency is to relax rathe: | Carz21l Moore's statement to him rather than simply to state the

{

. conclusion that Carzell Moore said he had killed her. If so, his

| o

| than to restrict the rules for the admission of evidence, to the

‘end that the discovery of truth may be aided, rather than. _ testimony would show that the appellant actively and knowingly

| |

_obstructed." This court has not, however, recoqnized an exception. | participated in the entire criminal enterprise including the rob-

4

; to the hearsay rule in the circumstances urged by the appellant. j , bery, kidnapping, and rape of the victim and left her on a lonely

,

|

Appellant relies on the United States Suvreme Court case Y wend with Moore who was armed and had told the appellant how he

| {

. Of Chambers v. Mississippi, 410 U. S. 284 (93 sc 1038, 35 LE2d could kill, went for gas while Moore killed her, and helped throw

: ‘ |

' 297) (1973) in support ‘of his position that the court should have ' her body into the bushess He then took a portion of the robbery

, relaxed the long standing rule of evidence in this State. The © | proceeds and left the State with the victim's car and the murder

Supreme Court of the United States there mandated a relaxation of _ weapon.

5 ,

' the penal interest limitation on the declaration against interest ae Although this state has not! enumerated specific mitigating

exception to the hearsay rule in the particular posture of the | circumstances, some authorities do recognize as a mitigating cir-

facts in that case. The situation in the appellant's case is cumstance that “a defendant was an accomplice in a murder com-

| ‘

, clearly distinguishable. In Chambers the only offense with _™Mitted by another person and his participation in the homicidal

Chambers' alleged involvement was the killing of a policeman with : , act was relatively minor constitutes a mitigating circumstance."

; MO evidence of a conspiracy or of concerted criminal activity that _ | The defendant's participation during the course of the ‘criminal

|

! '

' . \ . . . . s ° . *

; would make Chambers guilty of the crime on a conspiracy or accom- ' enterprise in leaving his kidnap victim with his armed accomplice

‘ H

, Plice theory. , é (ona lonely road while he’ went for gas could not on any reasonable

; ~ “= yar yao.

In the instant case, the appellant did not offer the ' basis be termed minor participation.

! P |

testimony of Pasby on the issue of guilt or innocence, but instead!

20 21

2 eeces ees = <n

ee ee

! While we do not hold that there would never be a case in

which the declaration against interest exception to the hearsay

rule should be extended to declarations against penal interest,

the facts of the appellant's case do not justify such an extension.

Accordingly, enumeration 17 is without merit.

15. In Enumeration 18, the appellant alleges:

"The Trial ;

‘Court erred in instructing the Jury as follows:

s

The Court charges

|

|

ae that the Jury would not be authorized to consider imposing the

‘death penalty unless you find one or more of the alleged statutory

aggravating circumstances which the State contends existed at the

‘time of the alleged offense. Said charge failed to inform the

i

jJury that it was necessary that they find the statutory aggravating

‘circumstance beyond | a | reasonable doubt."

TI. SENTENCE REVIEW

The death penalty imposed in this case must conform to the

| standards set forth in Code Ann. § 27-2534.1 to authorize affir- |

mance. This court must determine whether the sentence of death

was imposed under the influence of passion, prejudice, or any.

other arbitrary factor; whether the evidence supports the jury's

| findings of statutory aggravating circumstances; and, whether the

a. “4

_ sentence of death is excessive or disproportionate to the penalty

imposed in similar cases, considering both the crime and the

i

defendant, as required by Code Ann. § 27-2537 (c) (1-3).

vie must examine the charge in its entirety in determining

‘

:

i

'

its sufficiency. Johnson v. State, 237 Ga. 495 (228 SE2da 879)

(1976). Four times during his charge on the sentence the trial

court instructed the jury that the Statutory aggravating circum-

(

istances must be found to be present beyond a reasonable doubt. We

‘believe the jury was adequately and clearly charged on this point.

Enumeration 18 is without merit.

o CERNE <mupeuEedec: ee =e —<rEmeee

22

ee

We have reviewed the trial transcript and record and have

made a comparison of the evidence and sentences in similar cases

, to the mandate of the statute. We have considered

enumerations of error 13, 14, 15, 16, 17, and 18, as requested by

the appellant. Using the standards prescribed for our review by

|

|

|

!

|

the statute, we conclude that the sentence of death imposed in this

| case was not imposed under the influence of passion, prejudice or

|

'

;any other arbitrary factor.

In recommending the death penalty the jury found the

following statutory aggravating circumstances:

Se Re Me

1. The offense of murder was committed while the offender

-‘s

was engaged in

the commission of additional capital felonies, to

wit: kidnapping and armed robbery of Teresa Carol Allen (Code

| Ann. § 27-2534.1 (b) (2); and .

! :

! 2. The offense of murder was outrageously and wantonly

vile, horrible and inhuman in that it involved torture of the

. victim and depravity of mind on the part of the defendant. (Code

' Ann. § 27-2534.1 (b) (7).

The evidence supports the jury's findings of statutory

aggravating circumstances and the verdict is factually substan- |

tiated. a

| In reviewing the death penalty in this case, we have con-

'

|

in which death or life sentences were imposed and find the similar,

Sidered the cases appealed to this court since January 1, 1970,

t

cases listed in the appendix support the affirmance of the death

penalty in this case. Roosevelt Green, Jr's, sentence to death is

not excessive or disproportionate to the penalty imposed in simi-

lar cases considering both the crime and the defendant.

.

Judgment affirmed. All the Justices concur, thet

Wy Cah Cat Kon, TS. ate ArassrA .

24

33696. GREEN v. THE STATE

APPENDTX

ee eee + ee

House v. State, 232 Ga. 140 (205 SF2d 217) (1974).

Gregg v. State, 233 Ga. 117 (210 SE2d 659) (1974).

Floyd v. State, 233 Ga. 280 (210 SE2a 810) (1975).

Moore v. State, 233 Ga. 861 (213 SF2d 829) (1975).

Mitchell v. State, 234 Ga. 160 (214 SE2a 900) (1975)

Jarrell v. State, 234 Ga. 410 (216 SE2da 258) (1975).

Berryhill v. State, 235 Ga, 549 (221 SF2da 195) (1975).

Goodwin v. State, 236 Ga. 339 (233 SE2d 703) (1976).

Dobbs v. State, 236 Ga. 427 (224 -SE2d 3) (1976).

.

Pulliam v. State, 236 Ga. 460 (236 SE2d 460) (1976).

cd

Gibson v. State, 236 Ga. 874 (226 SE2d 63) (1976).

Corn v. State, 240 Ga. 130 ( SE2d ) (1977).

Moore v. State, 210 Ga. 807 ( SE2da ) (1978).

Davis v. State, | Ga. ( SE2da )

(Case # 30635, decided June 16, 1978)

owe <2 -ee

. Should have been admitted.

: of the trial where the issue may be death or mercy.

_ more important than in noncapital cases.

33696 GREEN v THE STATE 461

HALL, Justice, dissenting to division 14 and the sentence.

In my opinion the trial court erred in refusing to admit

the testimony of defendant's witness Thomas Pasby as a mitigating

circumstance. Pasby had testified for the state in the trial of

!

Carzell Moore that Moore had told him that he (Moore), and not

the appellant, was the actual perpetrator of the murder. When

the same testimony was offered in this case by Green as a mitigat-

ing circumstance, the state objected on the ground of hearsay and

the trial court sustained the objection. Based upon the peculiar

circumstances of this case, it is my opinion that the evidence

The normal rules of evidence should not

be automatically applied to every aspect of the sentencing phase

"Given that

the imposition of ceath by public authority is so profoundly

different from all other penalties, we cannot avoid the conclusion

that an individualized decision is essential in capital cases.

The need for treating each defendant in a capital case with that

degree of respect due the uniqueness of the individual is far

ive -%4

A variety of flexible

techniques - probation, parole, work furloughs, to name a few -

.

and various post conviction remedies, may be available to modify

——$—$——

an intitial sentence of confinement in noncapital cases. The

nonavailability of corrective or modifying mechanisms with respect

to én executed capital sentence underscores the need for indivi-

dualized consideration as a constitutional requirement in imposing

the death sencence. There is no perfect procedure for deciding

in which cases governmental authority should be used to impose

death. But a statute that prevents the sentencer in all capital

cases from giving independent mitigating weight to aspects of the

defendant's character and record and to circumstances of the

offense proffered in mitigation creates the risk that the death

penalty will be imposed in spite of factors which may call for

a less severe penalty. When the choicd is between life and death,

that risk is unacceptable and incompatible with the commands of

the Eighth and Fourteenth Amendments."

eo. -%

= ‘

4981, 4986-4937. (1978).

Lockett v. Shio, 46 LW.

The Court pointed out that in upholding

the Georgia statute in Gregg v. Georgia, 428 US 153 (1976) it

"noted that the statute permitted the jury 'to consider ia

aggravating or mitigating cégrcumstances', see Gregg, supra, at

206, aia that the Georgia Supreme Court had approved ‘open and

far ranging argument’ in presentence hearings, id., at 203.

Lockett, supra at 4987. In footnote 14, it "noted that the

Georgia legislature had decided to permit ‘the jury to dispense

mercy on the basis of factors too intangible to write into a °

statute.' Grery. 423 US , at 222." Lockett. aunre ar 408).

'

SS SSCCC__—_—_—

ee a a. = ee

ee ee eee ee

_— ——— oo ee eee

~_—_—

—— ee.

This interpretation was restated in a recent decision of this

— where we held that the "conclusion is inescapable that the

legislature meant to empower the jury to consider as migigating

anything they found to be mitigating, without limitation ‘or

definition." Spivey v. State, 241 Ga. 477, 479 ¢ SE2d )

| (1978).

Pasby's testimony is an aggravating circumstance when

‘ -s

—_— .

considered in the sentencing phase of Moore's trial as well as

a mitigating circumstance when considered in the sentencing

phase of Green's trial. The state introduced the evidence in

Moore and objected to its admission in Green. I would not allow

‘the state to take such inconsistent positions where the choice

is between life and death.

e

33696. GREEN V. STATE. (461)

HILL, Justice, dissenting.

I join Justice Hall's dissent for the reasons he has ex-

| pressed and for the further reason that here the state's hearsay

aeidetaal has the legal effect of suppressing evidence favorable

to the defense on which the state relied in another case. This

x

violates the principle set forth in Brady v. Maryland, 373 U. S.

83 (83 SC 1194, 10 LE2d 215) (1963), just as much as if the state |

had concealed from this defendant the existence of Pasby's miti-

gating testimony. Brady serves only a very limited purpose if

the state can exclude from the trial material which Brady would

.

require the state to make known to the defendant, and on which the

'

‘ state relies in securing the conviction’ of a codefendant.

I

|

APPENDIX B

Ga. Laws of 1973, pp. 159, 163

| 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 con-

sider, any mitigating circumstances or aggravating circum-

Stances 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

or conviction for a capital felony, or the offense of

murder was committed by a person who has a substantial his-

tory of serious assaultive criminal ictions.

(2) The offense of murder, r » 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 oftense of murder

for himself or another, for the purpose of receiving money

_ or any other thing of monetary value.

(S) 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 involved torture, depravity of mind,

| Or an aggravated battery to the victim.

i (8) The offense of murder was committed against

| any peace officer, corrections employee or fireman while

I engaged in the performance of his official duties.

| person in, or who has escaped from, the lawful custody

|

| (9) The offense of murder was committed by a

lof a peace officer or place of lawful confinement.

: (10) The murder was committed fet 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 iu cases of

| treason Or aircraft hijacking, unless at least one of the

| statutory aggravating circumstances enumerated in section

SS ES ee ED <us-aeee <oanen ane - -

| 27-2534.1(b) is so found, the death penalty shall not be

imposed.

Georgia Code Section 38-3. Hearsay

| Section 38-301 Definition; when and why admitted

Hearsay evidence is that which does not derive its

_ value solely from the credit of the witness, but rests

\ mainly on the veracity and competency of other persons.

The very nature of the evidence shows its weakness, and

it is admitted only in specified cases from necessity.

, Section 38-309 Declarations and entries by deceased persons

The declarations and entries by a person, since deceased

against his interest, ‘«d not made with a view to pending

litigation, shall be admissible in evidence in any case.