Petition — Davis v. Georgia

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MICHAEL RODAK, JR., CLERK

_———

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

78-6891

No.

(A-924)

FREDDIE F. DAVIS, Petitioner,

Vv.

STATE OF GEORGIA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

Larry D. Woods

Woods, Bryan & Thomas

A Professional Association

121 Seventeenth Avenue South

Nashville, Tennessee 37203

Counsel for Petitioner

June 21, 1979

TABLE OF CONTENTS

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED------

REASONS FOR GRANTING THE WRIT-------------------------

I. THE STATE SHOULD NOT BE ALLOWED TO PUT

PETITIONER TWICE IN JEOPARDY BY ADDING

NEW ACCUSATIONS OF AGGRAVATING CIRCUM-

STANCES AT A NEW SENTENCING TRIAL AFTER

APPELLATE REVERSAL OF THE ORIGINAL

SENTENCE OF DEATH--------------------------

II. THE STATE'S NEW ACCUSATIONS OF “AGGRA-

VATING CIRCUMSTANCES" AT THE RE-

SENTENCING TRIAL WITHOUT AN AFFIRMATIVE

SHOWING OF REASONS FOR SAME OFFENDS DUE

PROCESS------------------------------------

III. THE USE IN EVIDENCE OF THREE STATEMENTS

BY PETITIONER WAS IMPROPER WHEN MIRANDA

WARNINGS WERE NOT GIVEN UNTIL AFTER THE

SECOND STATEMENT; WHEN THE WARNINGS WERE

INADEQUATE; AND WHEN THE STATE FAILED TO

SHOW COMPREHENSION BY PETITIONER AS WELL

AS RELINQUISHMENT--------------------------

IV. THE JURY INSTRUCTIONS APPROVED BY

GEORGIA'S SUPREME COURT ARE FLATLY IN-

CONSISTENT WITH THIS COURT'S RECENT

RULINGS AS TO WHEN A DEATH SENTENCE MAY

CONSTITUTIONALLY BE IMPOSED----=-----------

A. The Jury Was Not Told Its Decision

on Life or Death Must Include Focus

on the Particular Characteristics

of the Defendant. ----------------------

B. The Term “Mitigating” Was Not

Sufficiently Defined for the Jury

and Concrete Examples of Mitigating

Circumstances Were Not Provided. -------

C. The Jury Also Was Not Informed That

Tt Should Weigh “Mitigating” Cir-

cumstances Against Aqagravating

Circumstances. -------------------------

vi.

VII.

THE DEATH PENALTY INSTRUCTIONS ALSO RAISE

THE IMPORTANT AND RECURRING QUESTION AS TO

WHETHER, WHERE THE STATUTORY SCHEME PROVIDES

THAT THE JURY'S DECISON ON DEATH MUST BE

FOLLOWED BY THE TRIAL JUDGE, THE JURY MAY

NONETHELESS BE LED TO BELIEVE THAT ITS ROLE

IS ONLY TO “RECOMMEND” OR "ASK" FOR DEATH--------- 17

CONTRARY TO THIS COURT'S EXPECTATIONS AS

EXPRESSED IN GREGG, THE GEORGIA COURTS

HAVE NOT NARROWED THE VAGUE AND OVER-

BROAD STATUTORY AGGRAVATING CIRCUMSTANCE

USED AGAINST PETITIONER. THUS, HIS DEATH

SENTENCE WAS, FOR THAT ADDITIONAL REASON,

THE UNCONSTITUTIONAL RESULT OF UNFETTERED

pe RE ea 19

THE GEORGIA SUPREME COURT ALSO HAS ABANDONED

THE APPELLATE REVIEW PROCESS WHICH WAS

ASSUMED BY THIS COURT IN GREGG TO BE AN

IMPORTANT CONSTITUTIONAL SAFEGUARD---------------- 22

| ee Oa 23

CITATIONS

PAGE

Cases:

Andres v. Jnited States, 333 U.S. 740---------------------- 13

Ashe v. Swenson, 379 U.S. 436------------------------------ 8

Ball v. United States, 163 U.S. 662------------------------ 8

Banks v. State, 237 Ga. 325, 227 S$.E.2d 380 (1976)

cert. denied, 430 U.S. 975 (1977)----------------------- 20

Brewer v. Williams, 423 U.S. 103] ------------------------- 12

Calton v. Utah, 130 U.S. 83 ------------------------------ 13

Burks v. United States, 473 U.S. ------------------------- ‘8

Dobbert v. Florida, 432 U.S. 282--------------------------- 17

cx parece Lange, 16 Wall. 163 at 169 -<ccosesceeecessneeee-- 8

Furman v. Georgia, 408 U.S. 238--------------------------- 7, 13

Greene v. Massey, 437 U.S. 19 ----------------------------- 8

Gregg v. Georgia, 428 U.S. 153------------------------------ 7,13,14,15,21,22,23

Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976)

cert. denied 431] U.S. 933-------.-------------+--------- 20

Jurek v. Texas, 428 U.S. 262-------------------------------- 14,16

Lockett v. Ohio, 98 S.Ct. 2954 ----------------------------- 14,17

WcCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974)---19

McGautha v. California, 402 U.S. 183------------------------ 13

Mason v. State, 236 Ga. 46, 222 S.E.2d 339,

cert. denied 428 U.S. 910 ------------------------------ 17

Miranda v. Arizona, 384 U.S. 436 --------------------------- 3,7.,11,12

North Carolina v. Pearce, 395 U.S. 711---------------------- 8,10

Proffitt v. Florida, 428 U:S. 242--------------------------- 14,17

Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1976)-------- 16

Roberts v. Louisiana, 428 U.S. 325 ------------------------ 44

Spivey v. Georgia, 24] Ga. 477, 246 S.E.2d 288, 293

cert. denied U.S. no. 78-5544,

slip op. Ov. 27, 1978)-------------------------------- 7

Stoval v. State, 236 Ga. 840, 225 S.E.2d 292 (1976) -------- 16

Taylor vy. Kentucky, 436 U.S. 478 -------------------------- 13

Woodson v. North Carolina, 428 U.S. 280-------------------- 7,14

Statutes:

Ga. Code Ann. GB 27-2514 cavcnc nner cern cr rtm rere rrr ne nnn cese 7

Petes BAN Gh es ReUSe. 1. TRECs aA hes aer ese naesedtsasensces 16

Ga. Code Ann. S$ 27-2537(c) were rcn ner r err n rte eer renner nn n- 13

Ga. Code Ann. SG 27-2537 (c) (3) corse ccec nr nr rere rrtenrccee- 7,14

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1978

No. 78-

FREDDIE F. DAVIS,

Petitioner,

vs.

STATE OF GEORGIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

Petitioner Freddie F. Davis respectfully prays that a

Writ of Certiorari issue to review the judgment of the Supreme

Court of Georgia affirming his sentence of death for murder.

OPINION BELOW

The opinion of the Supreme Court of Georgia affirming

petitioner's conviction and sentence is reported at 240 Ga. 763,

243 S.E. 2d 12 (1978) and at Ga. 252 S$.€. 2€ 443. (2979).

JURISDICTION

This Court's jurisdiction is invoked under 28 U.S.C.

§ 1257 (3). The judgment of the Supreme Court of Georgia was

entered on June 28, 1978. This petition is timely fired since

on April 29, 1979, Mr. Justice Powell granted an extension of

time in which to file through and including June 23, 1979.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOKED

AMENDMENT V, UNITED STATES CONSTITUTION:

...nor shall any person be subject for the same

offense to be twice put in jeopardy of life or

limb...

AMENDMENT VIII, UNITED STATES CONSTITUTION:

Excessive bail shall not be required, nor excessive

fines imposed nor cruel and unusual punishments

inflicted.

AMENDMENT XIV, UNITED STATES CONSTITUTION:

...No State shall make or enforce any law which

shall abridge the privileges or immunities cf

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

GEORGIA CODE ANNOTATED SECTION 27-2534.1:

...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 other-

wise authorized by law and any of the following

statutory aggravating circumstances which may be

supported by the evidence:...The offense of murder,

rape, armed robbery, or kidnapping was committed

while the offender was engaged in the commission

of another capital felony...The offense ot murder,

rape, armed robbery, or kidnapping was outrageously

or wantonly vile, horrible or inhuman in that it

involved torture, depravity of mind, or an aggra-

vated battery to the victim...The statutory

instructions as determined by the trial judge to

be warranted by the evidence shall be given in

charge and in writing ot the jury for its deli-

beration. The jury, if its verdict be a recommen-

dation of death, shall designate in writing, signed

by the foreman of the jury, the aggravating cir-

cumstance or circumstances which it found beyond

a reasonable doubt....

QUESTIONS PRESENTED

1. Whether petitioner is twice put in jeopardy by the

state's alleging new “aggravating circumstances" at a new sen-

‘tencing trial after appellate reversal of the original sentence

of death.

2. Whether the state may seek a more severe sentence

upon petitioner by alleging new “aggravating circumstances”

for the first time at the second sentencing trial when no reasons

for doing so affirmatively appear.

3. Whether the use in evidence of three statements made

by petitioner was proper when the warnings required by Miranda v.

Arizona were not given until after the second statement; were

incomplete; and when the prosecution fails to show comprehension

as well as relinquishment.

4. Whether the death penalty may be constitutionally

imposed on the basis of jury instructions that: (a) fail to

instruct the jury to focus on the characteristics of the defendant

as well as the nature of the crime, (b) fail to explain the

term "mitigating", or to direct the jury's attention to specific

mitigating circumstances present in the case and (c) do not

guide the jury to weigh mitigating circumstances against aggra-

vating circumstances.

5, Whether, where the trial judge must follow a jury

death verdict, it is constitutional for the court to suggest to

the jury that its function is only to “recommend” death or life.

6. Whether the statutory “aggravating circumstance" upon

which the jury relied in deciding upon death is so overbroad

and vague that petitioner's sentence based upon this statutory

provision was unconstitutional.

7. Whether the Georgia Supreme Court has failed to follow

the appellate review process which this Court assumed in Gregg

to be necessary to the constitutionality of the Georgia statutory

scheme.

e 3 .

STATEMENT OF THE CASE

The charge for which pctitioner was arrested, tried,

and convicted and sentenced to death was that he acted in concert

with Eddie Spraggins to rape and murder Frances Coe. The

Supreme Court of Georgia affirmed the murder conviction and

rape conviction in 1978 but vacated and reversed the imposition

of the sentence of death as a result of inadequate jury

instructions. !

At petitioner's first sentencing trial, the state alleged

only the “aggravating circumstance" of “commission of an addi-

n2 and

tional capital felony, to wit, the rape of Frances Coe

on that basis, the jury recommended a death verdict. After

reversal of the death sentence on direct appeal, Davis v. State,

240 Ga. 763, 243 S.E. 2d 12 (1978), at the new sentencing

trial, the state added the allegation of “aggravating circum-

stances" that the offense was “outrageous, wantonly vile,

inhuman and involved torture and depravity of mind...and

aggravated battery... Adding this second allegation involved

no new evidence and in fact resulted in the use of the same

witnesses and same testimony as at the first trial.’ No reason

of any kind appears in the record for the addition of this new,

second allegation of “aggravating circumstances" at the re-

sentencing trial.

lpetitioner received a life sentence for the rape con-

viction.

2 page 283 of oat sa te of first trial in 1977. (here-

inafter referred to as "Tr."

3page 363 of transcript of re-sentencing trial in 1978

(hereinafter referred to as "2d Tr.")

4 Because the evidence which was presented at the trial

for re-sentencing is identical to that which this court pre-

viously considered in 240 Ga. 762 Appellee will not endeavor

to set forth that evidence on appeal." Brief on Behalf of

Appellee by the Attorney General. p. 2. .

The jury instructions on sentencing and the death penalty?

gave no examples of "mitigation"; did not attempt to define or

explain the “outrageous, wantonly vile..." instruction; asked

the jury only to "recommend"; and contained the other defects

discussed infra.

During presentation of the evidence, the investigating

police officer was allowed to testify concerning three statements

given by the petitioner. The first statement was given at home -

petitioner was not a suspect supposedly - and no warnings of

constitutional rights were given.° The second statement was

taken at the police station’ when obviously the police did not

believe the first statement. No warnings of constitutional

rights were given the defendant until after he made this second

statement.® In this statement, petitioner admits going to the

home of the deceased with the co-defendant Spraggins knowing

that a robbery was planned; admits an assault on the deceased

by Spraggins; admits knowledge of sexual assault; and gives

the police knowledge of physical evidence which is used at the

trial.? Constitutional warnings were given before the third

tkets werelaas WO decseniace tee killing the deceased but

All three of the statements by petitioner were used in

evidence against petitioner at the re-sentencing trial. !}

Sod Tr. pp. 353-362.

26 Tf. Pe. 147:

2d Tr. p. 148.

20° Tr. Pp. 349% THe,

2d Tr. pp. 149-150.

1004 Tr. p. 152.

tlod Tr: pp. 142, 147, 149-152.

Based on the above, the re-sentencing jury “recommended”

death and petitioner was sentenced to death, /*

The Supreme Court of Georgia affirmed the death sentence.

The Supreme Court of Georgia decided and rejected the double

jeopardy/due process arguments, the Miranda warnings argument

and the arguments concerning the death penalty and the jury

instructions. !?

Original counsel for petitioner then withdrew or declined

to continue his representation and present counsel for petitioner

was obtained at the request of petitioner through the assistance

of the NAACP Legal Defense and Educational Fund, Inc.

1204 Tr. pp. 363-364.

13952 S.E. 2d 443.

REASONS FOR GRANTING THE WRIT

In 1972, this Court held that death penaliy statutes, as

then administered, were unconstitutional. Furman v. Georgia. 408

U.S. 238. In 1976, this Court ruled that, while some new death

penalty statutes were unconstitutional, e.g., Woodson v. North

Carolina, 428 U.S. 280, others, including Georgia's, appeared

on their face to contain sufficient safeguards, so that they could

be applied constitutionally, e.g., Gregg v. Georgia, 428 U.S. 153.

Now the question arises as to how the Georgia scheme

is actually being administered - not at all th2 way this Court

assumed in Gregg. Thus, petitioner - at peril for his life - asks

this Court to carry forward what it began, to the necessary next

step - i.e., this Court should require that the safeguards which

it has held can make the death penalty constitutional be rigor-

ously observed and applied. It should hear the case to grant

this particular petitioner his constitutional rights before im-

position of the “unique and irretrievable"” penalty of death.

Woodson , 428 U.S. at 281 It should also resolve these issues now

because the Georgia Supreme Court - itself closely divided on the

constitutional questions raised herein - now faces a “tide” of death

penalty cases. 14

Finally, this case raises important questions of double

jeopardy/due process with respect to a new death sentencing

trial after reversal of the original death sentence and the use

of interrogation obtained statements at the hearing without

proof of compliance with Miranda v. Arizona.

M4cee the dissent in Spivey v. Georgia, 241 Ga. 477, 246

S.£.2d 286, 293, cert. denied, _ U.S. » No. 78-

5544, slip op. (Nov. 27, 1978).

THE STATE SHOULD NOT BE ALLOWED TO PUT PETITIONER TWICE IN

JEOPARDY BY ADDING NEW ACCUSATIONS OF “AGGRAVATING CIR-

CUMSTANCES" AT A NEW SENTENCING TRIAL AFTER APPELLATE

REVERSAL OF THE ORIGINAL SENTENCE OF DEATH.

By allowing the state to add the new allegation of "“out-

rageous, wantonly vile..." aS an aggravating circumstance at the

re-sentencing trial, the trial court allowed an attempt to appeal

to the passion and prejudice of the jury and allowed the state

to punish the petitioner for pursuing his original appeal.

The common law prohibited a second punishment for the

same offense as well as forbidding a second trial for the

same offense. Ex parte Lange, 18 Wall. 163, at 169. This

Court has long held that under certain circumstances a defendant

may be re-tried after a reversal of his conviction, Ball v.

United States, 163 U.S. 662.)° However, due process compels

that a trial court not allow vindictive deterrence of appeals

by permitting the state to deliberately seek enhancement at

sentencing:

Due process of law, then, requires that vindictiveness

against a defendant for having successfully attacked

his first conviction must play no part in the sen-

tence he receives after a new trial. And since the

fear of such vindictiveness may unconstitutionally

deter a defendant's exercise of the right to appeal

or collaterally attack his first conviction, due pro-

cess also requires that a defendant be freed o1

apprehension of such a retaliatory motivation...

North Carolina v. Pearce, 395 U.S. 711.

The same considerations as were applicable in Ashe v.

Swenson, 379 U.S. 436 also indicate here that the state's

addition of another “aggravating circumstance” should not be

allowed. An examination of the record of the first trial and a

comparison of the record at the second trial reveals the state

to have used the same evidence and same witnesses at both

5eut see Burks v. United States, 473 U.S. 1 and

Greene v. Massey, 437 U.S. 19.

proceedings - a fact admitted by respondent. ° They simply

added the "outrageous, wantonly vile..." allegation the second

time around for good measure in order to justify a reconsideration

of evidence that did not and could not relate to the commission

of another capital offense factor which was used the first time.

The state of Georgia should not be allowed to stack the deck

in this fashion in order to obtain a death verdict.

16,06 footnote number 4.

it.

THE STATE'S NEW ACCUSATIONSOF “AGGRAVATING CIRCUMSTANCES" AT

THE RE-SENTENCING TRIAL WITHOUT AN AFFIRMATIVE SHOWING OF

REASONS FOR SAME OFFENDS DUE PROCESS.

The burden of persuasion as to whether legitimate reasons

existed at the re-sentencing trial for adding the new accusation -

or whether it was simply a punitive measure to allow use and

introduction of evidence to appeal to the passion and prejudice

of the jurors - rests upon the state. Only the prosecutor was

in a position to know and reveal why the new accusation was

added after the successful appeal. Due process should command

that affirmative reasons appear in the record when petitioner's

life is at stake - just as is required when a judge chooses to

impose a different and harsher sentence upon re-trial. North

Carolina v. Pearce, 395 U.S. 711.

III.

THE USE IN EVIDENCE OF THREE STATEMENTS BY PETITIONER WAS

IMPROPER WHEN MIRANDA WARNINGS WERE NOT GIVEN UNTIL AFTER THE

SECOND STATEMENT AND THE WARNINGS WERE INADEQUATE.

Miranda v. Arizona, 384 U.S. 436 (1966) requires that

whenever an individual is taken into custody or otherwise

deprived of his freedom in any significant way and is

subjected to questioning, he must be advised of his privilege

against self-incrimination; his right to an attorney; and

related rights. The right to Miranda warnings specifically

includes statements which are meant to be exculpatory for

they can also be highly incriminating.

The first time petitioner was questioned he was at his

home. The second time, however, he had been taken to the

Manchester, Georgia Police Station. !/

It is difficult to

imagine that a young (19 year old) il] educated man being

questioned in rural Georgia about a rape - murder did not

feel and suffer under the coercive atmosphere criticized in

Miranda v. Arizona. The result of this second questioning

was for petitioner to make a statement which was highly

damaging and which was used against him at trial. Only after

these admissions by the petitioner did the police then

belatedly give Miranda warnings.

This second statement by petitioner was followed by a

thrid interrogation where Miranda warnings were given prior to

interrogation. However, neither the warnings given after the

second statement or before the third statement were complete.

Both times the police investigator gave the Miranda warnings

from memory and both times the investigator totally failed to

lJoag tr. p. 148.

1854 Tr. p. 144.

et oe

advise petitioner that he had the right to have the interrogation

cease at any time even after questioning began. Miranda v.

Arizona, 384 U.S. 436 at 444-45, 473-74.

The continuing, serial progression of these three state-

ments from the petitioner - each of which implicate the petitioner

more strongly - demonstrate the dramatic effect on petitioner

and the impact at his death sentencing trial of the prosecution's

failure to give timely or adequate Miranda warnings.

Finally, there is simply no evidence in this record to

support a finding that this 19 year old youth waived his

right to remain silent or his right to a lawyer. Proof of

waiver by the state of Georgia should have included (but did

not) proof of understanding of the rights and "comprehension"

as well as “relinquishment". Brewer v. Williams, 423 U.S.

1031.

og SQi

IV.

THE JURY INSTRUCTIONS APPROVED BY GEORGIA'S SUPREME COURT ARE

FLATLY INCONSISTENT WITH THIS COURT'S RECENT RULINGS AS TO WHEN

A DEATH SENTENCE MAY CONSTITUTIONALLY BE IMPOSED

It is “quite simply a hallmark of our legal system that

juries be carefully and adequately guided in their deliberations."

Gregg v. Georgia, 426 U.S. 153, 193 (1976). In death cases ,

moreover, as this Court recognized long before its wider rulings

in Furman, doubts about the clarity of instructions should be

“resolved in favor of the accused". Andres v. United States,

333 U.S. 740, 752 (1948). See also Calton v. Utah, 130 U.S. 83,

87 (1889) ("fundamental" in cases involving death that instructions

be clear and explicit)..

Although criminal defendants are entitled to instructions

clear to laypersons as well as legal scholars, Taylor v. Kentucky,

436 U.S. 478, 484 (1978), it is particularly trwin death cases that

instructions should be (as Mr. Justice Frankfurter pur «..* in clear

“simple colloquial English", and (as then Chief Judge Cardozo wrote)

18A

given “directly and not in a mystifying cloud of words".

The instructions below do not pass those general tests. More

specifically, they depart in four separate but reinforcing respects

from the very elements of the Georgia statutory scheme which this

Court in Gregg held saved that scheme from constitutional attack.

A. The Jury Was Not Told Its Decision on Life or Death

Must Include Focus on the Particular Characteristics of the

Defendant.

The instructions leading to the death verdict against

petitioner did not clearly express the need to weigh the peti-

tioner's particular characteristics, as well as the specific cir-

cumstances of the crime. Thus, they conflict with:

18A :

The first quote is in the Justice's concurring opinion

in Andres, 333 U.S. at 706; the second from Law and Literature

(1931) cited in McGautha v. California, 402 U.S. 183, 199 (1971).

a 22s

. ‘ (i) Gregg and the other 1976 decisions holding that

certain death penalty statutes can, if properly adminis-

tered to focus on the individual defendant, meet the re-

quirements of the Constitution; he

(ii) Woodson and the other 1976 decisions holding mad-

datory death penalty statutes unconstitutional because

they exclude consideration of mitigating factors and the

circumstances of the defendant f-and

(iii) Locket v. Ohio, which held that in death cases

the sentencing authority must be given a "full oppor-

tunity" to consider “mitigating circumstances", including

“any aspects of the defendant's character and record”.

98 S. Ct. 2954.

19. -€.@..%

25) In Gregg, this Court emphasized the constitutional

obligation to focus specifically on the defendant in at least six

places in the plurality opinion. 428 U.S. at 189-90, 190,192,

197, 199 and 206.

(ii) In Jurek v. Texas, 428 U.S. 262 (1976) this Court

upheld the statute because it "guides and focuses the jury's ob-

jective consideration of the particularized circumstances of the

individual offense and the individual offender before it can impose

a sentence of death". 428 U.S. at 274 (emphasis added).

(iii) In Proffitt v. Florida, 428 U.S: 242 (1976), the

statute was hled constitutional in part because the sentencing

authority must "focus" on the "circumstances of each individual

homicide and individual defendant". Id. at 258.

20. See:

(i) E.g., Woodson v. North Carolina, 428 U.S. 280

(1976), "A process that accords no significance to relevant facets

of the character and record of the individual offender" is

unconstitutional because it excludes from consideration the

possibility of “compassionate or mitigating factors stemming

from the diverse frailties of humankind." Id. at 304.

(ii) Roberts v. Louisiana, 428 U.S. 325 (1976) (“no

meaningful opportunity" for “consideration of mitigating factors"

presented by “the particular crime or by the attributes of the in-

dividual offender".) Id. at 333-34.

B. The Term "Mitigating" Was Not Sufficiently Defined for

the Jury and Concrete Examples of Mitigating Circumstances Were Not

Provided.

The only attempt at any explanation by the trial court to

guide and direct the jury on the meaning and definition of the term

“mitigating” was the following:

Mitigating circumstances are those circumstances

which do not constitute a justification or excuse

for the crime, but which may be considered as ex-

tenuating or reducing the morale, culpability or

blame.

This one sentence falls far short of the careful, adequate and

suitable guidance and direction that is constitutionally required,

especially in its oblique references to such things as “morale”

instead of "moral".

In addition, this Court's decisions - and a fair reading

of the Constitution - call for more than a definition of

"mitigating". Theyrequire that particular mitigating factors rele-

vant in light of the record such as age and others, be called to

the jury's specific attention as examples of what they could weigh

against the aggravating circumstances which the Court called to

the jury's attention.

In Gregg, this Court assumed that such factors would be

specifically called to the sentencing authority's attention. Under

a fair reading of the constitutional requirements in death cases

they clearly should be.

The Georgia statute states flatly that the trial judge

“shall include" in his instructions “any mitigating circumstances”.

Ga. Code Ann. % 27-2534.1. This Court in upholding the Georgia

scheme, repeatedly assumed that that would, and should be done. 428

U.S. at 164, 192, 193, 194 n.44, 197. Indeed, in one of the many

passages which state that the jury's attention must be "focused on

21. In the body of the opinion the court rebutted the con-

tention that standards to guide a jury's discretion could not be

formulated by referencing the Model Penal Code's listing of the

“main circumstances" of mitigation and aggravation which "should

be weighed and weighed against each other."

“©

“the characteristics of the person who committed the crime” (point

A above), this Court gave examples of what it expected the jury's

attention to be “focused” upon. Those included factors present in

this case - Vike "any special facts about this defendant that

mitigate against imposing capital punishment (e.g., his youth...)"

ta. , at 197. **

C. The Jury Also Was Not Informed That It Should Weigh

"Mitigating" Circumstances Against Agqgravating Circumstances.

Apart from not defining the legalism “mitigating” for the

jury or providing particularized examples, the jury instructions

are also constitutionally deficient in that the jury was not

specifically informed that it should weigh mitigating against

aggravating circumstances, 428 U.S. at 248 - 251, 258. Similarly,

‘in Jurek the question which a jury must answer before imposing

the death seutence necessarily requires such balancing. This

Court in Coker also assumed such an instruction was required ,433

U.S. at 89-91.

While a particular form of words may not constituionally

be required, surely it is not constitutional to have the jury

totally at sea as it was left here.

22. That focus upon mitigating circumstances can make

a life or death difference is evident from the following analysis of

the pool of cases available to the Supreme Court of Georgia for

comparison purposes at the end of 1977:

(i) 36 of the 48 offenders for whom either youth, or lack

of a prior criminal record was reported as a mitigating

factor by the trial judge (where the death penalty was im-

posed), or by the court's assistance (where it was not),

received life sentences.

(ii) The two offenders for whom both youth and no prior

record were reported received life sentences (despite the

fact that in both cases (Sanders v. State, 235 Ga. 425,219

S.E.2d 768 (1976) and Stoval v. State, Ga. 840, 225 S.E.2d

292 (1976) the offenders were found guilty of brutal murders.

-— i

THE DEATH PENALTY INSTRUCTIONS ALSO RAISE THE IMPORTANT AND

RECURRING QUESTION AS TO WHETHER, WHERE THE STATUTORY SCHEME

PROVIDES THAT THE JURY'S DECISION ON DEATH MUST BE FOLLOWED

BY THE TRIAL JUDGE, THE JURY MAY NONETHELESS BE LED TO BELIEVE

THAT ITS ROLE IS ONLY TO “RECOMMEND” OR "ASK" FOR DEATH.

If a Georgia jury votes in favor of death the trial

judge must order execution. **

Here, however, the trial judge's statement to the jury

as to its role was that it must decide whether to recommend

the death penalty.

The death penalty is unique and irreversable. The

“responsibility of decreeing death” is “truly awesome".

Lockett v. Ohio, 98 S. Ct. 2954, 2961. Those who have that

responsibility should know they o.*"

Both the Georgia Supreme Court and this Court have

recognized, in other contexts, that a death penalty jury may

decide differently depending on whether or not it believes its

work controls. Thus, in Georgia, death sentences have been

reversed where the prosecutor argued to the jury that its

decision would be reviewed on appeal. Similarly, in Dobbert v.

Florida, 432 U.S. 282 (1977), Mr. Justice Rehnquist's opinion

for the Court reasoned (in rejecting an argument based on change

in the Florida law) that

...The jury's recommendation may have been affected

by the fact that the members of the jury were not the

final arbiter of life and death. They may have chosen

leniency when they knew that that decision rested

ultimately on the shouldgers of the trial judge, but

might not have followed the same course if their vote

were final. 423 U.S. at 294, n, 7.

—_——

243. Code Ann. $ 27-2514; see Mason v. State, 236 Ga. 46, 222

24s is indicated by Profitt v. Florida it is not constitutionally

required that a jury make the death decision. But what is re-

quired is that whichever person or body in fact has that awe-

some responsibility should know that its decision will determine

the sentence.

a Re

Not only does the actual verdict ask the jury only to

“recommend"<> but the jury instructions consistently refer that

the jury shall “recommend"-° and the prosecutor consistently

talks of the power of the jury to “recommend” both in opening

and closing arguments.°’

A fortiori, where, as here, the jury was erroneously’

led to believe that the trial judge would be the "final

arbiter" it “may” have been more willing to “ask" for death.

The instinct to wash one's hands of life or death

decisions is as old as Pontius Pilate. No doubt the Members

of this Court have themselves felt the difference between the

discussion of death and the decision to put someone to death.

Perhaps the difference cannot be scientifically proven, but

the risk is nonetheless real. <Andin this country we do not

let the courts take risks with life.

2554 Tr. p. 364; Tr. p. 285.

2604 Tr. pp. 355, 356, 357, 358.

2704 Tr. pp. 87, 88, 97, 290, 291 (twice), 315.

ro 2

2 VI.

CONTRARY TO THIS COURTS EXPECTATIONS AS EXPRESSED IN GREGG,

THE GEORGIA COURTS HAVE NOT NARROWED THE VAGUE AND OVERBROAD

STATUTORY AGGRAVATING CIRCUMSTANCE USED AGAINST PETITIONER.

THUS, HIS DEATH SENTENCE WAS, FOR THAT ADDITIONAL REASON,

THE UNCONSTITUTIONAL RESULT OF UNFETTERED JURY DISCRETION.

Under the Georgia statutory scheme, the jury must find

at least one “aggravating” circumstance before a death sentence

can be imposed. The jury here found the seventhof the circum-

stances enumerated in the statute, and that circumstance is

unconstitutionally vague and overbroad.

The seventh aggravating circumstance provided for in

the Georgia statute, and found by the jury here, is that the

offense be

“outrageously or wantonly vile, horrible or in-

human in that it involved torture, depravity of

mind, or an aggravated battery to the victim."

Ga. Code Ann. § 27-2534. 1(b) (7).

This Court recognized in Gregg that this language could be

construed to cover any murder, a construction which would

clearly make the provision overbroad. 428 U.S. at 201.78

This court assumed, however, that the Georgia courts would narrow

the provision's facially overbroad language. That assumption

was supported, the plurality reasoned, by McCorquodale v. State,

233 Ga. 369, 211 S.E.2d 577 (1974), the only pre-Gregg decision

upholding a jury's death sentence based solely on the seventh

aggravating circumstance. That case was characterized by this

Court as a “horrifying, torture murder", 428 U.5. at 201.

Contrary to this Court's expectations, the seventh cir-

cumstance has not been narrowed. Rather, the Georgia Supreme

Court has, in its decisions since Gregg and in this case, left

the provision's application to the unguided discretion of juries.

Within two weeks of this Court's decision in Gregg,

the Georgia Supreme Court discussed the seventh circumstance in

28ucCorquodale involved the strangulation of a 17 year

old female victim after the defendant had, over a substantial

period, beat, whipped, burnt, bit and cut his bound victim,

put salt in her wounds, and sexually abused her.

eC ...CCi(NO:(##(#(O#tét(CU;titNC(t(NNN#é#é#wwO(#4. ee

Banks v. State, 237 Ga. 325, 227 S.E.2d 380 (1976), cert.

denied, 420 U.S. 975 (1977). Dividing 4-2 (with the seventh

justice voting to hold Georgia's death penalty generally

unconstitutional), the court held that the jury's finding of

the seventh circumstance was supportable where the two victims

were each successively shot, first in the back and then, after

time for reloading, again in the head. This time interval

involved was said to permit a finding of “torture to at

least one of the victims” as well as “depravity of the mind”

227 S.E. 2d at 382. In dissent, Justice Hill stated

In my view, the majority in this case has now

adopted an open-ended construction on ground 7

and has placed at least that ground of our

statute in peril of being held invalid as being

vague and overbroad and thus capable of capricious

and unconstitutional application. Id. at 384.

Thereafter, in Harris v. State, 237 Ga. 718, 230 S.E. 2d

1 (1976), cert. denied, 431 U.S. 933 (1977), the Court simply

noted that the terms used inthe seventh circumstance were

defined in “ordinary dictionaries, Black's Dictionary, or

Words and Phrases”. 230 S.E. 2d at 10. Although the court

stated that it had “no intention" of allowing the circumstance

to become a “catchall”, its reference to the dictionaries and

legal phrase books (a) indicates a lack of appreciation of

Gregg's expectation that narrowing would occur, and (b) would

hardly be of help to juries without explanatory instructions.

Here, the jury was given no guidance whatsoever on any

of the many broad terms.

Apart from the failure to explain or narrow the terms

"torture", “depravity of mind", “aggravated battery", “outrageously

or wantonly", “vile”, “horrible”, or “inhuman”, and the concomitant

risk that the jury in its unbridled discretion could apply the

words to “any murder", there lurks the suspicion that the use of

this aggravating factor was designed to inflame the jury so

as to assist the prosecution in arguing the first aggravating

circumstance of rape.

Because of Georgia's failure to place meaningful limits

on it, the seventh circumstance can now be classed as too vague

under the due process clause generally - an issue expressly not

reached in Gregg, 428 U.S. at 201 n. 51 - as well as too vague

under the Eighth Amendment as incorporated in the Fourteenth.

Here, as in Grayned v. City of Rockford, 408 U.S. 104 (1972),

vagueness means that “basic policy matters" are impermissibly

delegated to judges and juries for “resolutions on an ad hoc

and subjective basis” with the “attendant dangers of arbitrary

and discriminatory application". Id., at 108-109. Where, as

here, the “matter” is life or death and where it appears that the

Georgia courts have not carried out this Court's assumptions

about safeguarding against “arbitrary and discriminatory”

executions, further review by this court is called for.

Vit.

THE GEORGIA SUPREME COURT ALSO HAS ABANDONED THE APPELLATE

REVIEW PROCESS WHICH WAS ASSUMED BY THIS COURT IN GREGG TO BE

AN IMPORTANT CONSTITUTIONAL SAFEGUARD.

The Georgia mandatory appeal process was assumed in

Gregg to be a necessary part of avoiding arbitrary and capricious,

and thus unconstitutional, imposition of the death penalty.

428 U.S. at 198, 201 (plurality opinion), and at 222-23

(opinion of Mr. Justice White).

Particularly singled out, and relied upon, by this Court

was the requirement that the Georgia Supreme Court must determine:

...whether the sentence of death is excessive or

disproportionate to the penalty imposed in similar

cases, considering both the crime and the defendant.

Ga. Code Ann. § 27-2537 (c) (3).

To implement that requirement, the Geogia Supreme Court is

required to “include in its decision a reference to those similar

cases which it took into consideration." Ga. Code Ann. § 27-

2537 (c).

In this case (and generally since Gregg) the Georgia

Supreme Court has rendered meaningless that “important additional

safeguard against arbitrariness and caprice" 428 U.S. at 198,

which this Court had relied upon.

First, the expectation of this Court -and the practice

of the Georgia court prior to Gregg (see Mr. Justice White's

opinion at n. 5) - was that the sentence under attack would

be compared not only against other death sentences but also

against comparable cases in which death was not imposed. But

here, in every single one of the 16 cases listed in the appendix

to the Geogia court's decision, the death penalty was imposed.

Second, at the time of Gregg, as Mr. Justice White stated,

there was no support for Gregg's contention that the Georgia

court would consider only cases in which an appeal was taken.

428 U.S. at 223, n. 11. But now, in this case, that court has

conceded (p.14 of slip opinion) that it only compared cases in which

appeals were taken.

Third, it was assumed in Gregg that the Georgia court

would, as required by the statute, compare other cases not

only based upon the nature of the crime, but also based upon the

defendant. The plurality opinion assumed that the court “compares

each death sentence with the sentences imposed on similarly

situated defendants" 428 U.S. at 198. Nothing suggests that

was done. Indeed it is clear it was not.

Fourth, neither here - nor in any other death case since

Gregg - has the Georgia court given the slightest hint as to the

standards it is applying in comparing cases. Simple ipse dixits

do not serve as an “important additional safeguard" to prevent

arbitrariness and caprice.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the preme Court of Georgia.

fi)

N & THOMAS

essional Association

121 17th Avenue So.

Nashville, TN 37203

(615) 259-4366

June 21, 1979

«29%

Ge : 603

78-6891

In the Supreme Court of Georgia

Decided: JAN 24 1979

34193. DAVIS v. STATE

i BOWLES, Justice.

The appellant, Freddie Davis, was indicted by a Grand Jury

‘in Meriwether County for the January 31, 1977, rape and murder of

_Frances Coe. He was tried by a jury and found guilty of both

‘offenses. Appellant was sentenced to death for the murder and was

‘

‘given a life sentence for rape.

‘

In Davis v. State, 240 Ga. 763 (243 SE2d 12) (1978),

“appellant's convictionsand life sentence for rape were affirmed.

Because the court's sentencing instructions failed to make clear

to the jury that they could recommend a life sentence even if they

found the existence of a statutory aggravating circumstance

(Fleming v. State, 240 Ga. 142(7) (240 SE2d 37) (1977)); and failed

to inform the jury that they were authorized to consider mitiga-

ting circumstances in contravention of requirements laid down in

+ ome re wo me oe e+

Code Ann. §§ 27-2534.1(b) and 27-2534.1(c) (Haves v. State 240 Ga. —

327(9) (240 SE2d 833) (1977)), appellant's sentence of death for

. committed while the appellant was engaged in the commission of

another capital felony, to-wit: the rape of Frances Coe, Code Ann.

' § 27-2534.1(b) (2) and, that the murder was outrageously and

“and depravity of mind on the part of the appellant, or an aggra~-

vated battery to the victim. Code Ann. § 27-2534.1(b)(7). Based

upon these aggravating circumstances, a verdict was returned for |}

‘the death penalty and appellant was sentenced to death.

ee ee ee See ee

the offense of murder was reversed and a new trial ordered on the

oo--

issue of punishment.

Upon resentencing, the jury found that the murder was

‘wantonly vile, horrible and inhumane in that it involved torture |

This case is here on direct appeal and for mandatory review

of the death sentence imposed. Code Ann. § 27-2537. The facts

surrounding the murder and rape of Frances Coe are adequately set

forth in Davis v. State, supra, and the companion case of co-

indictee, Eddie Spraggins, (Spraggins v. State, 240 Ga. 759

(243 SE2d 20) (1978)), and will be repeated here only 32s necessary

in addressing appellant's enumerations of error.

ee er ere

1. In his first enumeration of error, the appellant contends

that the court reporter's failure to transcribe all hearings on

motions and all bench conferences held in the case renders the

‘subsequently imposed death sentence unconstitutional.

Prior to trial, appellant filed a "Motion for Complete

-Recordation of all Proceedings" which was granted by the trial

‘court. Although appellant argues he did not receive a complete

recordation of all proceedings as moved, the transcript reveals

that the jury voir dire, opening and closing statements of counsel

Saetsaeny of all witnesses in the case, and the court's charge to

“the jury were fully recorded and transcribed.

reveals that the only bench conference held was at the close of

evidence prior to defendant's presentation of extenuating and

mitigating circumstances.

(1978), this court held that a court reporter's failure to trans-

"eribe the closing arguments of counsel does not automatically

require the death penalty to be set aside unless the defendant

_ demonstrates harm or prejudice resulting from the court reporter's

failure to transcribe the closing arguments.

In the present case, although appellant argues that the

court reporter's failure to transcribe all hearings on motions

Further, the record ;

‘

Recently, in Stephens v. Hopper, 241 Ga. 596(2) (247 SE2d 92)

‘and all bench conferences held constitutes reversible error, no-

where in his brief does he point to anything harmful or prejudicial

which may have occurred at any of these unrecorded proceedings.

‘Therefore, we find appellant's first enumeration of error to be

‘without merit.

2. Appellant's second enumeration of error contends that

the trial court erred in its denial of appellant's motion to

remove the trial to a proper courtroom.

This same point was raised by appellant in his previous

‘appeal to this court and found to be without merit.

at division 2. There is no showing that the resentencing trial

was conducted in a manner not befitting a judicial body and,

therefore, for the reasons as set out in Davis, supra, we find no

, error.

3. In enumerations of error numbers three and four

; appellant contends that the trial court erred in permitting a

‘witness for the prosecution to remain in the courtroom after a

timely request for sequestration had been made, and, in refusing

to direct that he be called as the State's first witness in the

case.

she

Davis, supra,

The witness involved was the chief investigating officer.

“He was familiar with the case and the prosecutor stated in his

| place that he needed the witness’ assistance during the trial. In.

_response to appellant's motion to require the investigating

‘ebtioes to testify as the first witness in the case, the prosecutor

stated that the testimony would be out of order if this witness

‘was required to testify first.

i Although Code Ann. § 38-1703 provides for the sequestration

‘of witnesses upon motion by a party, a trial court is vested with

the discretion to make exceptions to this rule, and unless that

discretion has been abused, a trial court's decision will not be

| reversed by this court on appeal. Disby v. State, 238 Ga. 178(1)

| (231 SE2d 763) (1977); Jarrell v. State, 234 Ga. 410(6) (216 SE2d

; Pe

: 258) (1975); Fountain v. State, 228 Ga. 306(3) (185 SE2d 62)

t ~

(1971). In McNeal v. State, 228 Ga. 633(4) (187 SE2d 271) (1975,

}

‘we found no abuse of discretion in the trial judge allowing an

: investigating officer to remain in the courtroom and testify after

_ other witnesses in the case.

In the case sub judice, a proper foundation for an exception

i }

> to the sequestration rule was made and, therefore, we find no

abuse of discretion by the trial judge in allowing the investiga-

ting officer to remain in the courtroom and in refusing to direct

, that he be called as the State's first witness.

Appellant's enumerations of error numbers three and four

are without merit.

4. In his fifth enumeration of error appellant contends

that the trial judge erred in overruling his objection to the

}

_admission in evidence of photographs taken at the scene of the !

: crime depicting the victim's wounds.

These same photographs were held to be admissible in

{

| | |

' appellant's earlier appeal. Davis v. State, supra, at 766-767.

The photographs complained of were relevant and material to show

| {

the manner in which the victim had been killed and raped. Such

_ photographs are admissible. McCorquodale v. State, 233 Ga. 369(5) ,

‘(211 SE2d 577) (1974); Floyd v. State, 233 Ga. 280, 283 (210 SE2d

' 810) (1974); Moore v. State, 240 Ga. 807 (243 SE2d 1) (1978).

5. Appellant's sixth enumeration of error contends that the

trial court erred in overruling his objection to the admission of

e+ wee one

statements made by appellant regarding his participation in the

‘murder and rape of the victim.

The appellant made three statements to law enforcement

officers. Appellant was not in custody when the first two state-

ments were made. The third statement was made after appellant was |

‘arrested and placed in custody.

The first two statements made by the appellant were clearly

@ ‘

| admissible in evidence as statements made prior to any in-

j ‘

“custodial interrogation. Shy v. State, 234 Ga. 816 (218 SE2d 599);

(1975); Davis v. State, 135 Ga. App. 584(5) (218 SE2d 297) (1975).

‘In regard to the third statement, the trial court held a Jackson-

Denno hearing to determine its admissibility. At that hearing,

:G.B.1. agent Davis testified that prior to making his third state-

:ment, appellant was advised of his Miranda rights. G.B.1. agent

eee further stated that no threats, promises, coercion or other

" improper conduct which would void the statement were made.

Following his testimony, the trial court ruled that the statement

was freely and voluntarily made, and, therefore, admissible.

Unless factual and credibility findings of a trial court in

determining the voluntariness of a defendant's statement or con-

-- —— oe eee ee ee

fession are shown to be clearly erroneous, those findings must be

accepted by this court. Natson v. State, 242 Ga.

(1978); Hurt v. State, 239 Ga. 665(2) (238 SE2d 690) (1977);

Johnson v. State, 233 Ga. 58 (209 SE2d 629) (1974).

We have carefully reviewed the evidence submitted to the |

‘trial judge in this case and find that his determination was not

clearly erroneous. We will not disturb his ruling.

Notwithstanding, appellant argues that his third statement

vas inadmissible because appellant was not told why he was placed

‘under arrest at the time of his making that statement. The same

| contention was raised by appellant in his first appeal to this

} court and found to be without merit because appellant's second

a indicated that he "knew he was under investigation at

‘the time of his arrest and third statement." Davis, supra, at 766.

For this reason, we find appellant's argument again without merit.

Further, the appellant contends that all of the statements

made by him were immaterial and irrelevant as they had no bearing

on the sentencing phase of trial. This contention is without

merit because in the sentencing phase of trial the jury, in reaching

a determination of the sentence to be imposed, is authorized to |

consider all the facts and circumstances of the case including all

statements or confessions made by the appellant.

Appellant's sixth enumeration of error is, therefore, without explain why the investigating officer in the case arrested the

‘merit. : _appellant. Such testimony is admissible under Code Ann. § 38-302. |

i - > } |

: 6. In his seventh enumeration of error appellant contends Teal v. State, 234 Ga. 159 (214 SE2d 888) (1975); Watkins v. State,

that the trial court erred in overruling his motion for mistrial 231 Ga. 481 (202 SE2d 442) (1973). The trial court properly

| after G.B.I. agent Davis testified that he had arrested the |instructed the jury to consider the witness' testimony for the

‘ appellant as a result of a conversation with co-indictee Eddie limited purpose for which it was introduced.

Appellant's seventh enumeration is, therefore, without merit.

| Sraggine.

| 7. In his eighth enumeration of error appellant contends

At trial, the prosecutor asked G.B.I. agent Davis why the |

appellant was placed under arrest. The witness replied "As a that the trial court erred in allowing the State, over appellant's

objection, to reopen its case in order to present the testimony of

‘how Freddie had induced Eddie into killing Frances Coe." Follow-

| |

| result of the conversation with Eddie Spraggins where I learned |

co-indictee Eddie Spraggins.

_ ing appellant's motion for mistrial, the trial court instructed , After the defense rested, the prosecution moved to reopen

‘the jury that any reference made by G.B.I. agent Davis during his : Pre case stating "At the time I announced that I rested, I did |

‘ testimony concerning a confession, admission or statement by a co- not know at that time for sure whether or not Eddie Spraggins :

} {

| conspirator was to be considered in order to explain conduct or | eiiiet il be available to testify and would testify. He is willing “1

;motive and for the purpose of explaining why agent Davis arrested | testify about what happened that night and I would like to put him

,the appellant. on for that purpose." The trial court granted the prosecution's

‘

. . '

Although the out of court statement of co-defendant Sh escsisic motion allowing the State to present additional evidence on direct,

, implicating appellant constitutes hearsay, the statement was not not rebuttal, recognizing that "Any relevant evidence that could

:admitted to prove the truth of the matter asserted, but rather to _be presented to this jury so they can reach a valid and just

verdict should be heard..."

= 8@:

"Reopening evidence is in the sound discretion of the trial

court and will not be disturbed when no abuse of discretion is

shown. Mobley v. State, 221 Ga. 716 (146 SE2d 735) (1966) ;

| Britten v. State, 221 Ga. 97(4) (143 SE2d 176) (1965); Miller v.

| State, 226 Ga. 730 (177 Sk2d 253) (1970)." Hurt v. State,

| 239 Ga. 665(8) (238 SE2d 542) (1977).

No abuse of discretion has been shown in this instance, and,

therefore, we find appellant's enumeration of error to be without

merit. , |

8. Appellant's ninth enumeration of error contends that x

| trial court erred in overruling his motion to strike the ahaa

- of co-indictee Eddie Spraggins. Appellant argues that because |

, Spraggins admitted, on cross-examination, that he had not told iil

i truth at his trial held two days earlier concerning his partici- |

| pation and that of appellant in the murder of Frances Coe, a

showing, had been made that Spraggins failed to understand the

meaning of his oath and as such was incompetent to testify at

‘ appellant's trial.

The jury is the exclusive arbiter of the weight and credi-

_ bility to be given the testimony of a witness. Dean v. State,

eile

238 Ga. 537 (233 SE2d 789) (1977); Wilkerson v. State, 233 Ga. 798.

(213 SE2d 663) (1975). See also, Code Ann. § 38-1805.

——

The trial court properly charged the jury concerning

, impeachment, credibility and the weight to be given the testimony

| of all witnesses and, it was up to the jury to determine, in light

of the court's instructions, whether the testimony of Eddie

| Spraggins was to be believed.

9. In his final enumeration of error, appellant contends

eee the trial court erred in charging the jury concerning,

' parties to a crime. Code Ann. §§ 26-801 and 26-802. Appellant

| argues that the jury's only function was to determine sentence,

;not guilt or innocence, and, therefore, such a charge was pre-

judicial in that the jury could infer from the charge given that

oe- ~2-<-

, appellant's punishment should be the same as that which co-

! indictee Spraggins had received.

As we read the charge it was beneficial to appellant in that

, the jurors were made aware of the fact that more than one person

{

had participated in the crime. Such a charge permitted the jury

. to consider this as a mitigating circumstance should they have

found that appellant's participation was not as severe as that of

co-indictee Eddie Spraggins.

=12-

Further, during the sentencing phase of trial, the jurors

= entitled to know the exact role appellant played in the

' murder, and, therefore, were properly instructed that more than

\. one person may have been involved in the commission of the offense

ae which the appellant was charged. With this in mind, the jury

1 assess the degree of appellant's participation and could

‘determine, in view of co-indictee Spraggins’ testimony, whether

i the appellant should be accorded mercy.

i The charge on parties to a crime was a correct statement of

ae law, was called for under the facts and was relevant and

freterted to a determination by the jury of the sentence to be

: imposed.

Appellant's enumeration of error is, therefore, without

’ 10.

‘ sideration of the aggravating circumstances found by the jury and

| the evidence introduced in court concerning the crime and the

j :

‘defendant. After a thorough review of the record and transcript

of trial, we conclude that the sentence of death imposed on

' Freddie Davis was not imposed under the influence of passion,

«13

Sentence Review. Our sentence review has’ included con- :

prejudice or any other arbitrary factor. (Code Ann. § 27-2537(c)

~@)).

The jury found the following statutory aggravating circum-

' stances: (1) “The offense of murder was committed while the

offender was engaged in the commission of an additional capital

felony, to-wit: the rape of Frances Coe" (Code Ann. § 27-2534.1

ee ee ees oe

(b)(2)). (2) “The offense of murder was outrageously and wantonly

vile, horrible and inhuman in that it involved torture, depravity

‘of mind on the part of the defendant, or an aggravated battery to

, the victim." (Code Ann. § 27-2534.1(b)(2)). Both of these

statutory aggravating circumstances are supported by the evidence.

i Code Ann. § 27-2537(c)(2)). We find an jeopardy violation

' in submitting an additional aggravating circumstance to the jury

for its consideration at the resentencing trial. Redd v. State, |,

: Ga. __) (Case No. 34020, January 4, 1979).

| Further, we have reviewed the instructions of the trial court

during the sentencing phase of appellant's trial and find that the)

charge as given was not subject to the defects dealt with in our

decisions in Fleming v. State, supra, and Hawes v. State, supra

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

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

in which a death or life sentence was imvosed for murder, and we

«Bho

APPENDIX

| House v. State, 232 Ga. 140 (205 SE2d 217) (1974);

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

i ployd v. State, 233 Ga. 280 (210 SE2d 810) (1974);

koa v. State, 234 Ga. 216 (215 SE2d 223) (1975);

| Smith v. State, 236 Ga. 12 (222 SE2d 308) (1976);

j, Birt v. State, 236 Ga. 815 (225 SE2d 248) (1976);

Coleman v. State, 237 Ga. 84 (226 SE2d 911) (1976);

;

j Isaacs v. State, 237 Ga. 105 (226 SE2d 922) (1976);

i pungee v. State, 237 Ga. 218 (227 SE2d 746) (1976);

Banks v. State, 237 Ga. 325 (227 SE2d 380) (1976);

‘Young v. State, 239 Ga. 53 (236 SE2d 1) (1977);

i Gaddis v. State, 239 Ga. 238 (236 SE2d 594) (1977);

| Peek vy. State, 239 Ga. 422 (238 SE2d 12) (1977);

| Bowden v. State, 239 Ga. 821 (238 SE2d 905) (1977);

33523 decided September 5, 1978);

Finney v. State, Ga. ( SE2d ) (1978) (Case No.

decided October 16, 1978).

: Westbrook v. State, Ga t.. S828 ) (1978) (Case No.

33780

oaxmew cme caeee ow arose

find the similar cases listed in the appendix support affirmance

‘ of the death penalty.

| or disproportionate considering both the crime and the defendant.

| (Code Ann. § 27-2537(c)(3)). The verdict is factually supported,

~ . . ' '

Freddie Davis' sentence to death for murder is not excessive}

Judgment affirmed. All the Justices concur.

-15-

‘

jiof another capital felony.

34193. DAVIS v. STATE. (603)

HILL, Justice, concurring.

At defendant's first trial, only one aggravating circumstance

was submitted to the jury for its consideration, and the jury

' imposed the death penalty on that ground, namely that the murder

|;was committed while the defendant was engaged in the commission

‘aside due to insufficient jury instructions. Davis-v. State,

» 240 Ga. 763 (243 SE2d 12) (1978).

‘

i submitted to the jury and they found both, namely that the murder

i was committed while the defendant was engaged in the commission

‘

On appeal, that death penalty was set |

‘\ At the resentencing trial, two aggravating circumstances —

of another capital felony and that the murder was outrageously and

wantonly vile, horrible and inhuman in that it involved torture,

depravity of mind on the part of the defendant, or an aggravated

battery to the victim.

In reviewing the death penalty as provided by statute, Code

Ann. § 27-2537 (a) (b) (i), we must determine whether it is permis-

sible to add an aggravating circumstance at <he resentencing trial

as was done here and as was done in Redd v. State, No. 34020,

Ga. ( SE2da ) (1979) (see footnote 2} «

I conclude that it is permissible to add previously omitted

aggravating circumstances at a resentencing trial. We impliedly

approved such procedure, without discussion, in Arnold v. State,

236 Ga. 534 (224 SE2d 386) (i976), when we authorized a retrial

on the issue of punishment (236 Ga. at 542). A retrial as to

punishment in Arnold could only have been based upon a previously

omitted aggravating circumstance. It is because of cases like

Arnold that I find the use of previously omitted aggravating cir-

, constitutionally vague.

cumstances to be permissible.

In Arnold, the defendant was sentenced to death based upon

‘one aggravating circumstance which was found on appeal to be un-

Under those circumstances it would be

necessary to permit the use at retrial of previously omitted

aggravating circumstances, or else simply to impose a life sen-

tence. Under such circumstances the use of previously omitted

aggravating circumstances does not offend fundamental fairness

and the other alternative (cutomatic jife sentence) would be an

unwarranted reward which could have an adverse impact. See North

Carolina v. Pearce, 395 U. S. 711, fn. 18 (89 SC 2072, 23 LE2d

656) (1969).

I therefore find that previously omitted aggravating circum-

stances may be used at a resentencing trial and I concur in the

judgment affirming the imposition of the death penalty in this

case.

250

78-6891

In the Supreme Court of Georgia

Decided: FEE 711973

32619. DAVIS v. STATE

HILL, Justice. '

This is a death case. Defendant Freddie Davis was convicted

}

by jury in Meriwether County of murder and rape. He was sentenced

to death for the murder and was given a life sentence for rape. |

This case is a companion case to Spraggins v. State, #32605,

decided this date, and although the trials were’ separate, the

state's evidence was substantially identical as to material

particulars and hence the basic facts are reported in the

Spraggins opinion. Suffice it to say here that the victim's

semi-nude, mutilated body was found in her bedroom.

‘

At this trial, defendant Davis testified that he waited out-

side the victim's house for 20 or 30 minutes while Eddie i

Spraggins was inside, and that he (Davis) was afraid of niall

The defendant admitted furnishing his knife to Spraggins and ot

mitted throwing the knife away the next day. Evidence for the i

state had shown that when first interviewed by law enforcement

officers, Davis had said he and Spraggins were together on the

night of the murder, but at that interview we did not admit

having knowledge regarding the murder. His second statement to

officers was consistent with his trial testimony. In his third

statement he admitted participating in the murder. Blood of

Davis' type as well as of the victim's and Spraggins' was found

in the bedroom.

The defendant urges seven enumerations of error.

1. The defendant argues that the trial court erred in

allowing retained counsel only four days after arraignment to

file defensive motions, and erred in denying the defendant's

motion for continuance or postponement.

The defendant was arrested on February 3, 1977, and counsel

was appointed for him that day. Defendant informed appointed

counsel that he would retain counsel. Counsel was not retained,

however, until February 23. At arraignment on February 25,

counsel was allowed four days to file defensive motions. Trial

commenced March 3, 1977, after Spraggins' trial.

The defendant did not point out to the trial court any

defensive motion he would have made but was unable to make be-

cause of the four day time limit. He does not urge that on

ee ee

the fourth day he moved for more time to file defensive motions,

No abuse of discretion has been shown as to the requirement that

defensive motions be filed within four days after arraignment.

Insofar as the motion for continuance is concerned, defen-

dant seeks to urge on appeal that more time was needed for his

counsel to study the subject of blood testing and typing, to

study the autopsy report, to prepare to defend against the rape

charge, and to prepare requests for charge. None of these topics

was mentioned in defendant's motion for continuance. When the

motion was argued, however, after the Spraggins’ trial, several

of them were urged as grounds for continuance. However, no

showing was made on motion for new trial or on appeal as to

how additional time would have benefited defendant or how the

lack of time harmed him. Defendant does contend here that the

evidence as to rape was circumstantial. At trial defense counsel

—

told the jury that the state's evidence showed that there

———— 0 eee

probably was a rape. In sum, no abuse of discretion has been

demonstrated in the denial of the motion for continuance.

Smith v. State, 235 Ga. 620, 621 (221 SE2d 41) (1975); Pulliam ve

State, 236 Ga. 460, 462 (224 SE2d 8) (1976); Dobbs v. State,

236 Ga. 427 (224 SE2d 3) (1976).

2. The courthouse in Meriwether County was destroyed by

fire about a year before the defendant's trial, which was held

in a gymnasium, Defendant alleges that the trial court erred in

denying his motion to remove trial to a proper courtroom. He

urges that a death penalty case should not be conducted in un-

dignified surroundings, with the judge sitting beneath a basket-

ball net and spectators in the bleachers.

Code Ann. § 27-1101 provides as follows: "All criminal

cases shall be tried in the county where the crime was committed,

except cases in the superior courts where the judge is satisfied ’

‘

}

he becomes thus satisfied, he may change the venue for the trial.”

that an impartial jury cannot be obtained in such county. When

See also Code Ann. § 2-4306. Code Ann. § 24-3004 contemplates

that cases tried at places other than at a courthouse shall be

valid. See Cook v. State, 119 Ga. 108 (3) (116 SE 64) (1903).

Although the acoustics inside were poor and the road outside

was noisy, there is no showing that the trial itself was conducted

in a manner not befitting a judicial body. We find no error here.

3. The defendant alleges that the trial court erred in

overruling his objection to a leading question calling for a

conclusion asked by the state of one of its principal witnesses,

M,investigat tng Otfticer., The question asked wan: “Was there

evidence that this house had been broken into or did it just

appear whoever gained entry gained entry through the authoriza-

tion or consent of Mrs. Coe?" The question is not leading.

Insofar as it called for a conclusion or opinion, this was not i

the ultimate issue to be decided by the jury inasmuch as burglary

was not charged, and the officer was an experienced investigator, |

familiar with the facts. We find no error here.

4. The defendant asserts that the trial court erred in

allowing the state, over defendant's objection, to present addi-

tional evidence during a Jackson-Denno hearing after the state

announced it "rested." This, like many other matters relating

to the conduct of the trial, is a matter which addresses itself to

the discretion of the trial judge and we find no abuse of

discretion here. Hobbs v. State, 229 Ga. 556 (4) (192 SE2d 903)

(1972); see also Pierre v. State, 238 Ga. 126, 129 (231 SE2da 744)

(1977), where we directed the trial court to reopen a Jackson-

Denno hearing pending appeal.

5. The defendant made three statements to law enforcement

officers. He was released after the first two statements and

was not arrested until before the third statement. Shortly

before making the third statement the defendant showed the

officers where he had thrown the knife.

The defendant argues that his third statement was inadmis- ,

sible because he was not told why he was under arrest at the time

}

of making that statement. The defendant and the victim lived :

in the same neighborhood. His second statement and the investi-

gation as to the location of the knife show that he knew he was

under investigation for Miss Coe's murder at the time of his

arrest and third statement. We find no error here. Collins v.

Brierly, 492 F2d 735, 738-739 (3rd Cir. 1974), cert. den.

‘ is =~ Go

419 u. Ss. 877. Doe vlee Rasen vs ARO No Z477¥

Avedacdh Win dol -

6. The defendant urges that the trial court erred in over-

ruling his objections to photographs taken at the scene of the

crime depicting the victim's wounds. Such photographs are

admissible.McCorguodale v. State, 233 Ga. 369 (5) (211 SE2a

577) (1974); Ployd v. State, 233 Ga. 280, 283 (210 SE2d 810)

Se ~ ee Ce ee eee neces oun eee

(1974); Moore v. State, #32744, decided February 7, 1978.

7. Sentence review. The instructions to the jury during

the sentencing phase of the trial were virtually identical to the

jury instructions in Spraggins v. State, supra. For the reasons

stated there, namely that the charge failed to comply with

Fleming v. State, 240 Ga. 142 ( SE2d ) (1977), and Hawes v.

State, 240 Ga. ( SE2d ) (1977), we conclude that the

jury was not adequately instructed regarding the imposition of

the death sentence. Hence the penalty of death in this case

must be vacated and a new sentencing trial allowed.

Judgment affirmed as to convictions; reversed as to the

death sentence. All the Justices concur, oe ed

who dietrrts to He Abvercal 4, Ho hivhenec

———_— i a a ee Oe Ae rm “~--* wa.

-—<2 o-—-

L |

32619. DAVIS v. STATE (250)

Jordan, Justice, dissenting.

I dissent to the reversal of the death penalty for the

reasons set forth in my dissent in Redd v. The State, Case No.

32732, decided February 21, 1978.

ES SS oo eee eee = ee

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.