# Petition — Davis v. Georgia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0486%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 446 U.S. 961 ## Text 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 oe a CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED------ Ee ee 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 - 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. 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 ‘ i, “custodial interrogation. Shy v. State, 234 Ga. 816 (218 SE2d 599); : (1975); Davis v. State, 135 Ga. App. 584(5) (218 SE2d 297) (1975). r ‘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- i :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 | i 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 }' i ‘ ‘ . . ' 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 i :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). i 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 i | 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- . to consider this as a mitigating circumstance should they have i 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 i ' Freddie Davis was not imposed under the influence of passion, «13 Sentence Review. Our sentence review has’ included con- : | i 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 i ployd v. State, 233 Ga. 280 (210 SE2d 810) (1974); ! a w koa v. State, 234 Ga. 216 (215 SE2d 223) (1975); j il | Smith v. State, 236 Ga. 12 (222 SE2d 308) (1976); \: 4 j, Birt v. State, 236 Ga. 815 (225 SE2d 248) (1976); | Coleman v. State, 237 Ga. 84 (226 SE2d 911) (1976); i ; 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); 1 | 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- ‘ i! jiof another capital felony. i! 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). \! j \! ‘ y 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