Petition — Baker v. Georgia

IN THE sient

SUPREME COURT OF THE UNITED STATES

October Teim, 1979.

OFFICE OF THE CLERK

SUPREME COURT. y » 8 =

a et cecemveretiesei wen.

DANIEL JOSEPH BAKE”,

Petitioner,

v.

THE STATE OF GEORGIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE CF GEORGIA

LWTLLLAM H. ALLEN

JOHN J. DONOHUE

Covington & Burling

888 Sixteenth Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

October 1979

TABLE OF CONWENTS

TABLE OF AUTHORITIES

Page

CASES: —

Cee SRW ee Ne ale eee em ele 6 1

Caesar v. State, 127 Ga. 710, 57 S.E.

GURL OMLCT ION. « 6 0.0 ee % 1 EE: BROOK ana eo a ek eae eae ee 19

QUESTIONS PRESENTED . . .. +. «© «© © © « » 2 Coner Vv. Georesa, 433: 0.5. S68 €1979} 2. kK Re 19,20

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED. a Cole v. Arkansas,’ 333 U.S. 196 (1948) ....... 9,18

SCI ik ek a oe Ge ate 8 ele No ee * Se 3 Collins v. State, 239 Ga. 400, 236 S.E.2a

Sa POE Ee) eS RY a sks Ske UREUIGY "SL e eg harotvien ane 19,20

re oh ate ese aoe a ee tes ee eee), 0 4

Furman v. Georgia, 408 U.S. 238 (1972). ...... 7, 20,326,179

Before the Superior Court of Gwinnett County . 6

Garner v. Louisiana, 368 U.S. 157 (1961). ..... 15,21

Before the Georgia Supreme Court . . 7

Godfrey v. State 243 Ga. 302, 253 S.E.2da 710 saphiys

REASONS FOR GRANTING THE WRIT . . . « © «6 © © «© « 9 cert. granted, No. 78-6899, Oct. 9, 1979. .. 3,9,10,11

ia ydayee

I. The Georgia Supreme Court's Broad and Vague

Construction of the Catch-All Statutory Gregg v. Georgia, 428 U.S. 153 (1976) ....... 8,10,11,12

Aggravating Circumstance Violates the Due 13,16,18,

Process Clause and the Eighth Amendment. .. . 9 20,21

II. The Complete Absence of Evidence That The Harris v. State, 237 Ga. 718, 230 S.E.2a 1

Petitioner Tortured the Victim Renders the (1976), cert. denied, 431 U.S. 933 (1977) .... 8,12

Finding of the Catch-All Statutory Aggrava-

ting Circumstance a Violation of the “— Holton v. State, 243 Ga. 312 (1979) ........ 10

and Fourteenth Amendments ....... ans 14

Johnson vy. Florida, 392 U.S. 596 €2968)< . . 2s. 2 15,21

III. The Georgia Supreme Court Failed to Appraise

the Validity of the Petitioner's Death Mullaney v. Wilbur, 421 U.S. 684 (1975) ...... 20

Sentence as it was Determined in the Trial

Court in Violation of Petitioner's Rights Peek v. State, 239 Ga. 422, 238

Under Both the i open and Fourteenth Amend- Wie Se ROR? FOn se we ee ee kOe ee 9,21

WENCH. wes ant eae SURE. cel alkays 16

Sanders v. State, 235 Ga. 425, 219 S.E.2d 768

IV. The Georgia Supreme Court's Determination (1975), cert. denied, 425 U.S. 916 (1976) .... 12,13

That Petitioner Committed the Crime of Murder

While He "Was Engaged in the Commission of Thompson v. Louisville, 362 U.S. 199

Another Capital Felony" Violates Both the RUA aie gr, Steere Ra ik Mig gk se oak ier Goh ah nag gy ad a 15

Eighth and Fourteenth Amendments Because

Armed Robbery Is Not a "Capital Felony". ... 19 United States v. Evans, 333 U.S. 483 (1948) .... 21

EIEN ea) AM ees 8, er ee ee el me ele es 22 Vachon v. New Hampshire, 414 U.S. 478

Rae I a el a he ale oe me. CR ee ae: Sasa Me ere Ne aa £S

APPENDIX A -- Opinion . . . . . + + «6 © © © © « %e la

APPENDIX B -- Judgment a ‘ 5a

APPEL Ges BCACUTES* kw ek 6 ke ek tw ee ee 6a

er t ace

CONSTITUTION AND STATUTES:

U.S. Const. amend. VIII

U.S. Const. amend. XIV. . ..-... » : ef ates

Se Wubetea @ BRRTED) sb ew ew

Ga. Code Ann. § 26-1902

Oa.. Code. Ann. §- 26-9102 2.0.0.6 6 6 ce ew Xe

Ga. Code Ann. § 27-2534.1

Ga. Code Ann. § 27-2537

OTHER AUTHORITIES:

Black, Capital Punishment: The Inevitability

of Caprice and Mistake (1974) .....-.-.

- iii -

Page

passim

a

19

19, 6a

passim,

8a

12

6a

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. 79-

DANIEL JOSEPH BAKER,

Petitioner,

Vv.

THE STATE OF GEORGIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF GEORGIA

Petitioner prays that a writ of certiorari issue to

review the judgment of the Supreme Court of the State of

Georgia in this case.

OPINION BELOW

The opinion of the Supreme Court of Georgia is

reported at 257 S.E.2d 192 and is reproduced as Appendix A.

JURISDICTION

The judgment of the Supreme Court of Georgia was

entered on May 31, 1979. (Appendix B.) On August 7, 1979,

Mr. Justice Powell entered an order extending the time for

filing this Petition by 60 days or until October 28, 1979.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(3).

a Oe

QUESTIONS PRESENTED

One of Georgia's capital punishment statutes sets

forth aggravating circumstances that. a jury may consider in

determining whether to recommend the death penalty for a

capital offense and provides that a sentence of death may not

be imposed except on a finding of at least one such aggravat-

ing circumstance. One aggravating plcumerteson ad that the

offense of which the defendant was convicted “was committed

while the offender was engaged in the commission of another

capital felony . .. ." Ga. Code Ann. § 27-2534.1(b)(2).

Another is that the offense "was outrageously or wantonly

vile, horrible or inhuman in that it Yrhvolved torture, de-

pravity of mind, or aggravated battery to the wiektn:® Id.

§ 27-2534.1(b)(7). The questions presented are:

L. Whether, as applied to justify a sustain on appeal

the imposition of the death pénalty on petitioner, the catch-all

aggravating circumstance, Section 27-2534.1(b)(7), is so broad

and vague as to violate the Eighth and Fourteenth Amendments.

a. Whether the imposition of the death penalty violates

the Eighth and Fourteenth Amendments where it is based on a

finding under Section 27-2534.1(b)(7) that a murder was aggravat-

ed because it involved torture in a case in which the victim

was unconscious and therefore insensible to pain at least from

the time the first blow was struck.

3. Whether the imposition of the death penalty violates

the Eighth and Fourteenth Amendments where it is sustained on

appeal on the ground in part of a finding under Section

27-2534.1(b)(7) of “aggravated battery to the victim" that was

not in fact made by the jury.

4. Whether the imposition of the death penalty based on

a finding of the statutory aggravating circumstance that the

2

fed

defendant committed murder while engaged in the commission of

another capital felony violates the Eighth and Fourteenth :

Amendments where the additional felony is armed robbery, a

non-capital offense.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment to the Constitution of the

United States provides:

“ “Excessive bail shall not be required,

nor excessive fines imposed, nor cruel and

unusual punishments inflicted."

,

The Fourteenth Amendment provides, in relevant part:

"[NJor shall any State deocive aby person of

life, liberty, or property, without due

process ot law ae

Relevant provisions of the Georgia Code are set forth in

Appendix C hereto.

The jury's decision to sentence the petitioner to

death following his conviction of murder was predicated on the

finding of two statutory aggravating circumstances, one of

which, as specified in Section 27-2534.1(b)(7) of the Georgia

Code, was that the murder was “outrageously and wantonly vile,

horrible and inhuman in that it involved torture to the victim

or depravity of mind on the part of the defendant." (Tr. 309. )1/

On October 9, 1979, this Court granted the petition

for a writ of certiorari in Godfrey v. Georgia, No. 78-6899,

ae The statute (p. 7a, infra) speaks in the disjunctive of a

murder that is "vile, horrible or inhuman," but the issue was

put to the jury and it made its finding as quoted in the text,

in the conjunctive.

— a

and announced that it would review the case to decide whether

the Georgia Supreme Court had adopted in that case such a

broad and vague construction of Section 27-2534.1(b)(7) that

ipeni tion of a death sentence based on a finding of this

aggravating circumstance would violate both the Eighth and

Fourteenth Amendments. A comparable question as to the breadth

and vagueness of the statute is presented by its application

to the petitioner here. It is one of four substantial questions

presented, all of which relate to the statutory aggravating

circumstances.

The Facts

The petitioner, Daniel Joseph Baker, was indicted

along with Ricky Lee Massey for the murder and armed robbery

of Dennis Beatenbo. Petitioner, a youth of 19, and Massey,

16, were drinking and driving around town on the evening of

May 5, 1978, when they picked up Beatenbo, who was hitchhiking.

(Tr. 150.) Beatenbo, who had been drinking heavily, was

wearing a shirt bearing the letters NORML -- the acronym for

the National Organization for the Reform of Marijuana Laws.

(Tr. 316.) Whether Beatenbo had been using drugs other than

alcohol prior to meeting the defendants was not revealed by

the record.

The three drove to Beatenbo's parked car, from which

they obtained a bottle of liquor, and then drove around while

drinking until they finally ended up on Pirkle Road in Gwinnett

County, Georgia, near Norcross. Massey, the driver, began

“cutting doughnuts," or making deep tire tracks, with the

automobile, and Beatenbo became sick in the back seat of

the car. (Tr. 150.) He was vomiting and the car was stopped

to enable him to get out. (Tr. 151.) His illness was apparent-

ly attributable to his extreme level of intoxication. The

a

State stipulated that the ethyl alcohol content in the victim's

blood was .39 percent (Tr. 107) -- almost four times the blood

alcohol level of .10 percent which constitutes legal intoxica-

tion. ‘The State's witness, Officer Phillip Whitley, the

criminal investigator for the office of the District Attorney

(Tr. 109), provided the following evidence on this issue:

"Oo What generally is the reading that you

consider drunk?

rts: 20.

Q And@ if somebody had .39 alcohol would

that be considered very drunk?

A I think he would be unconscious.

Q He probably would be passed out would he

not?

A Yoe.*:. (8z..-i59.)

The petitioner got out of the car and struck Beatenbo

in the face with the liquor bottle. In the opinion of the

State's medical witness, Dr. Dove, Beatenbo was thereby ren-

dered unconscious. (Tr. 96, 103.) While Beatenbo lay uncon-

scious on the ground, the petitioner shot him three times in

the chest. Beatenbo died instantaneously, according to Dr.

Dove. (Tr. 97.) After he was dead, the petitioner fired a

fourth shot into his body between the legs. (Tr. 98, 100-01.)

The petitioner then took the victim's wallet containing $22

and his watch. (Tr. 151-52.)

~The petitioner testified during the sentencing phase

of the trial that he did not kill the victim for the purpose

of robbing him and did not have any intention of harming the

victim prior to his sudden violent outburst. (Tr. 249, 251.)

The petitioner stated that he had no explanation of why he

killed Beatenbo. The petitioner testified that he took the

wallet and watch after the victim was dead in order to make

- 6 -

the crime appear to be a robbery. (Tr. 257, 265.) The peti-

tioner stated that he knew what he did was wrong and that he

asked God to forgive him for it. (Tr. 253.)

Before The Superior Court of Gwinnett County

Petitioner was convicted of murder and armed robbery

after a brief trial. Following the Georgia procedure, the

same jury then sat to determine whether to recommend the death

penalty. During this phase of the trial the petitioner intro-

duced evidence that, in the words of the Georgia Supreme Court,

depicted “a rather harrowing history of child abuse." (P. 2a,

infra. )*/

The State asked for the death penalty ‘on the basis

of two aggravating circumstances specified in the Georgia

statute: (1) the murder was committed while the petitioner

was engaged in the commission of an additional capital felony,

the armed robbery of the victim, and (2) the murder was out-

rageously or wantonly vile, horrible and inhuman in that it

involved torture to the victim or depravity of mind on the

part of the petitioner. Petitioner moved to strike both of

these statutory sinlicweikiats circumstances. ‘ Counsel argued

that the first statutory aggravating circumstance must be

struck because armed robbery was not a capital felony and

that, accordingly, a jury recommendation of the death sentence

could not constitutionally be based upon a finding that the

murder was committed while the petitioner was engaged in

committing an armed robbery. (Tr. 204-05.)

Petitioner moved to strike the other, catch-all,

aggravating circumstance on two grounds. Petitioner argued in

2 Petitioner is illegitimate. (Tr. 207.) When he was 4 or

, his mother shot and wounded herself in his presence and said

she would have killed him if she had had another bullet. |

(Tr. 208.) In the years petitioner and his sister lived with

(footnote cont'd)

a

a written motion generally that the catch-all aggravating

circumstance in its broad and vague phrasing “is unconstitu-

tional and in violation of the Fourteenth Amendment of the ¥

United States Constitution." Counsel asserted also that there

was no evidence of torture within the meaning of the statute.

(Tr. 203-05.) He urged that, if the evidence adduced in the

guilt or innocence phase of the trial were sufficient to

support a finding of torture to the victim, then the death

penalty would be appropriate for any murder, in violation of

the teachings of Furman v. Georgia, 408 U.S. 238 (1972).

The trial court denied the motions to strike and

submitted both statutory aggravating circumstances to the

jury. The jury returned a recommendation of death and in-

dicated that it found that the aggravating circumstances

submitted to it were present.2/

Before The Georgiia Supreme Court

On appeal to the Georgia Supreme Court, it was

argued again that neither statutory aggravating circumstance

(footnote cont'd)

their mother, there were beatings, mistreatment and an utter

lack of affection. (Tr. 208, 237-38.) When later they lived

with their father, he tried to kill them. (Tr. 209.) Relatives

who briefly acted as step-parents were no better. Petitioner

was made to stay in a small, unlighted, windowless room for as

long as a week at a time, even after a wild animal invaded it

and had to be shot to save petitioner's life. (Tr. 210-14, 239-40.)

At age 8, petitioner was adopted, but his adoptive father was an

alcoholic who constantly beat and otherwise mistreated petitioner

and was heard by petitioner often to say that he had not wanted

him adopted. (Tr. 221-22, 242-43.) After leaving the Marine

Corps (which he joined as an alternative to being prosecuted on

the complaint of his adoptive father in a dispute over the owner-

ship of an automobile) petitioner met a girl, fell in love and

made plans to marry. (Tr. 245-48.) That affair ended tragically.

The girl was accidentally shot and killed. (Tr. 225, 248.)

Petitioner took to drink and was drinking heavily at the time

of the Beatenbo murder a few months later. (Tr. 225, 248-49.)

af So far as the aggravating circumstance involving armed

robbery is concerned, the jury actually returned a writing

that read: "The offense of murder was committed while the

offender to incident the armed robbery of Dennis Beatenbo."

(footnote cont'd)

een

could constitutionally support the imposition of the death

sentente. The Georgia Supreme Court sustained the petitioner's

sentence of death in the face of these arguments but without

seriously addressing them.

To what it characterized as an argument that the

catch-all statutory “aggravating circumstance could not support

imposition of the death penalty in this case, since there was

no evidence of torture or an aggravated battery to the victim,

and since the phrase ‘depravity of mind' is unconstitutionally

vague," the court responded by citing Gregg v. Georgia, 428

U.S. 153 (1976), and one of its own earlier decisions, Harris

v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431

U.S. 933 (1977), where, it said, the argument that Section

27-2534.1(b)(7) “is unconstitutionally vague was rejected ..

(P. 3a, infra.)

Under the sentence review heading of its opinion,

the court said that “the jury found that the offense of murder

was outrageously or wantonly vile, horrible or inhuman in that

it involved torture, depravity of mind, or an aggravated

( footnote cont'd)

The trial court inquired:

“THE COURT: - I will ask you Mr. Foreman, did

you intend to state in your writing the

offense of murder was committed while the

offender was engaged in the commission of an

additional felony, to-wit: the armed robbery?

MR. FOREMAN: Yes sir.

THE COURT: I believe I am going to let you

correct that so that it will include the

entire language of the -- I think you intended

to do so, but I believe you have omitted a

sentence in it, you may do it there in your

jury box if you see fit." (Tr. 309-10.)

Apparently, the jury foreman then changed the language of the

jury finding to conform to the instructions of the judge. The

jury was not polled to ensure that the entire panel accepted

this unusual modification.

battery to the victim," and it slated a conclusion “that the

evidence supports the jury's finding... “ (P. 3a, infra,)

In fact, the question whether there was an aggravated battery

of the victim was not submitted to the jury, which therefore

of course made no finding that there was such a battery. 2/

In response to the contention that it was unconsti-

tutional to use armed robbery as “another capital felony” for

purposes of the aggravating circumstance described in Section

27-2534.1(b)(2), the court said merely that it had already

been decided in Peek v. State, 239 Ga. 422, 238 S.E.2da 12

(1977), “that those crimes which were capital felonies in

Georgia" when the code section was enacted “continue to be

‘capital felonies' within the meaning” of the section. (P.

2a, infra.)

REASONS FOR GRANTING THE WRIT

I. The Georgia Supreme Court's Broad and Vague Con-

struction of the Catch-All Statutory Aggravating Circumstance

Violates the Due Process Clause and the Eighth Amendment.

In Godfrey v. Georgia, No. 78-6899, this Court has

undertaken to answer the question whether the Georgia Supreme

Court adopted such a broad and vague construction of Section

27-2534.1(b)(7) of the Georgia Code in sustaining the death

penalty in that case that the death penalty violates the

Eighth and Fourteenth Amendments. The application of Section

27-2534.1(b)(7) in this case presents an altogether comparable

question of unconstitutional breadth and vagueness.

In the Godfrey case the jury's finding under Section

27-2534.1(b)(7) was merely that "the offense of murder was

4/ The third question presented in this Petition relates to

this error of the Supreme Court. Since the error occurred in

that opinion, the question could not have been raised earlier.

See Cole v. Arkansas, 333 U.S. 196 (1948). The constitutional

claims indicated by the other three questions presented were

raised and preserved as related above.

= 16 =

outrageously or wantonly vile, horrible and inhuman." Godfrey

v. State, 243 Ga. 302, 310, 253 S.E.2d 710, 718 (1979). The

“in that" clause of Section 27-2534.1(b)(7) (p. 7a, infra)

was forgotten. The jury did not find that the offense involved

torture or depravity of mind or an aggravated battery upon the

victim, which the statute contemplates as the predicate for a

conclusion that the offense was vile, horrible or inhuman and

therefore deserving of the death penalty.

In this case there was no finding of an aggravated

battery upon the victim, contrary to the mistaken belief of

the court below. (Pp. 16-18, infra.) That possible basis of

aggravation was not submitted to the jury. The jury was asked

to decide whether the murder was vile, horrible and inhuman

because it involved torture or depravity of mind. There was

no evidence on which the jury could rationally have based a

finding that the victim was tortured, as we argue below.

(Pp. 14-16, infra.) But apart from that fact, the jury was allowed

to find aggravation and on that basis to impose the death

penalty if it found that the murder committed by petitioner

involved either torture or depravity of mind. It could there-

fore have based its conclusion that the murder was vile,

horrible and inhuman solely on a finding of depravity of mind.

And the Georgia Supreme Court itself has ruled that:

"It is unlikely that a statutory aggravating

circumstance which consisted solely that the

murder involved depravity of mind would

survive constitutional challenge based on

Furman v. Georgia, 408 U.S. 238 . .. (1972); i.e.

such an aggravating circumstance could be so

broad as to allow the death penalty to be

imposed at random in any murder case. See

Gregg v. Georgia, 428 U.S. 153 (1976) ...."

Holton v. State, 243 Ga. 312, 318 (1979).

Thus, in this case the jury was asked to determine

whether a murder merited the death penalty because it was

« 3} «

outrageously or wantonly vile, horrible and inhuman, terms

whose breadth and vagueness raise, in the expressed judgment

of this Court, a serious question whether they may constitu-

tionally serve as guides to the exercise of jury discretion in

death penalty cases ;>/ those broad and vague terms of the

question put to the jury, followed as they were by an "in

that" clause phrased in the disjunctive, were qualified as a

matter of logical necessity only by the further epithet

"depravity of mind," which the court below believes, and this

Court would surely agree, is itself so broad as to invite

unconstitutional random application of the death sentence.

Piling four unconstitutionally vague terns on top of one

another does not yield constitutional certainty .°/

In Gregg v. Georgia, 428 U.S. 153, 201 (1976), the

Justices in the plurality acknowledged the argument that the

aggravating circumstance stated in Section 27-2534.1(b)\(7) is

so broad and vague that it allows the death sentence to be

imposed in any case. They indicated that the Georgia Supreme

Court could overcome this potential constitutional infirmity

through a limiting construction of this section. No such con-

struction has been forthcoming. Quite to the contrary. The

5/ The Court composed the precise question it will hear in

Godfrey and limited the grant of certiorari to that question.

6/ We recognize that the jury found further aggravation in

the circumstance that the murder was committed while the

petitioner was engaged in the commission of armed robbery. We

urge elsewhere that the submission of this aggravating circum-

stance was unconstitutional because armed robbery is not the

capital felony that it was made out to the jury to be.

(Pp. 19-22, infra.) In any event, however, the jury recommenda-

tion of death or life is discretionary. When the discretion

is exercised in favor of death, the sentence cannot be sustained

on the speculation that the discretion would have been exercised

the same way had one of two essential props for the death

penalty been absent.

“« 12:6

"open-ended construction" that the plurality opinion assumed

would not be adopted may be on its way to adoption. In Godfrey,

the sweep of the section was widened . the court's approval

of the omission of any “in that" qualifiers. All the court

said on the point was that "the jury's phraseology was not

objectionable." 243 Ga. at 310, 253 S.E.2d at 718. And in

this case a serious challenge to the validity of the section

in its application to this petitioner was met, ironically,

with a citation of Gregg. (". 3a, infra.) The irony is

heightened by the fact that that citation was accompanied by a

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

cert. denied, 431 U.S. 933 (1977), where the court below

revealed its total insensitivity to the constitutional concerns

that should shape its construction of the seventh statutory

aggravating circumstance when it noted that the terms used in

this section were defined in “ordinary dictionaries, Black's

Law Dictionary, or Words and Phrases." 237 Ga. at 732, 230

_S.E.2d at 10. Such guides to meaning are no assistance to

juries. Where, as in this case, the trial court, in its

instructions to the jury, simply reads the bare language of

the seventh aggravating circumstance without definition, the

jury is left to grapple aimlessly with the broad and vague

language of the statute. What has happened in this case, in

Godfrey and in Harris bears out what Professor Charles Black

said five years ago.

"No jury need be hampered by such non-

standards. The practical position remains

unchanged; the Georgia jury, without real

restraint and without real standards, chooses

life or death." Black, Capital Punishment:

The Inevitability of Caprice and Mistake 67

(1974).

The capriciousness of jury verdicts under the post-

Furman Georgia statutes is demonstrable. One need only compare

this case with Sanders v. State, 235 Ga. 425, 219 S.E.2d 768

» 13 <-

(1975), cert. denied

’

425 U.S. 976 (1976). There the defendant,

aged 20, went to his employer's home in the early morning,

raped his employer's wife, who was home alone, bound her hands

and tied her feet to her neck and then killed her by shooting

her in the head. The prosecution asked for death, but the

jury chose life. No rule of law can explain that choice in

Sanders and the opposite choice here.

Three of the Justices concurring in Gregg laid heavy

emphasis on the availability under the new Georgia statutes of

a special kind of appellate review of death penalty cases by

+

the Georgia Supreme Court. 428 ..S. at 211-12, 222-25 (opinion

of White, J., joined by Burger, C.J:, and Rehnquist, J.); see

also id. at 195 (plurality opinion). They said among other

things that, "if the Georgia Supreme Court properly performs

the task assigned to it under the Georgia statutes, death

sentences imposed for discriminatory reasons or wantonly or

freakishly for any given category of crime will be set aside."

Id. at 224. Godfrey, with its cavalier observation that "the

jury's phraseology was not objectionable" when the jury had in

fact substantially rewritten Section 27-2534.1(b)(7), makes

one doubt the quality of the Georgia Supreme Court's performance

of its task. The doubt is enhanced by the lack of care manifested

in this case, where the court attributed to the jury a finding

as to aggravated battery on the victim that the jury was not

asked to make and did not make and made other mistakes.

(Pp. 16-18, infra.)

The truth is that the Georgia court does not engage

in any meaningful appellate review of these jury determinations

because, in the absence of a suggestion of even a source of a

limiting construction more edifying than Black's Law Dictionary

or Words and Phrases, meaningful appellate review is not

possible. The Georgia Supreme Court has given itself no basis

a t=

on which to judge when a jury finding of the seventh statutory

aggravating circumstance is erroneous, thereby eliminating any

opportunity for a defendant effectively to argue that his case

did not fall within the statute.

II. The Complete Absence of Evidence That The Petitioner

Tortured the Victim Renders the Finding of the ~ Catch-All

Statutory Aggravating Circumstance a Violation of the Kighth

and Fourteenth Amendments.

Torture, which implies the existence of extreme

physical pain, can occur only if the victim is both alive and

conscious when the offending conduct occurs. Before any

action had been taken by the petitioner against the victim,

Beatenbo, the latter was virtually unconscious as a result of

his ingestion of alcohol and possibly other drugs as well.

While legal intoxication occurs at a blood alcohol content

level of .10 percent, it was stipulated by the State me the

alcohol content in the blood of the victim was .39 percent.

(Tr. 107). At this level of intoxication, the victim was

virtually unconscious before he was ever struck by the

petitioner, as Officer Whitley testified. (Tr. 159.) The

body's decreased sensitivity to pain as a result of the ingestion

of quantities of alcohol far below that evidenced by the

victim in this case is well known, as illustrated by the

frequent description of an intoxicated person's state as that

of "feeling no pain."

The testimony of the State Medical Examiner indicated

that, when the petitioner struck the victim in the face with a

liquor bottle, the victim was instantly knocked unconscious.

(Tr. 103.) Of course, once the victim was unconscious any

further action by the petitioner could not possibly have

constituted torture because a necessary condition for the

existence of torture is the victim's ability to feel pain.

- 15 -

The petitioner then shot the unconscious victim in the chest,

killing him instantly. There is certainly not a shred of

evidence that would suggest that the victim suffered the

prolonged agony that is the sine qua non of torture. 2/

On any rational view of what is comprehended within

the term "torture," there was no evidence of torture and the

finding of aggravation of the murder based on torture falls

afoul of the rule of Thompson v. Louisville, 362 U.S. 199

(1960), and the cases that have followed it in condemning as a

deprivation of liberty (or, as in this case, life) without due

process of law the imposition of criminal sanctions without

the support of evidence. See Garner v. Louisiana, 368 U.S.

157 (1961); Johnson v. Florida, 391 U.S. 596 (1968); Vachon v.

New Hampshire, 414 U.S. 478 (1974).

The State may urge that, effectively if not explicitly,

its highest tribunal has construed "torture" to include the

conduct engaged in by the petitioner. Such a broad construction

of the word "torture," however, would carry its own fatal °

constitutional flaw. It would necessarily enable a jury to

return the death penalty in very nearly any murder case on the

ground that the killing involved torture. Such a construction

would therefore invest the jury with complete discretion over

the determination whether a human life should be taken or

V/ The prosecutor revealed his ignorance of the concept

"torture" in his closing argument when he alluded to petitioner's

shooting the victim "in the privates" and commented: “If that

ain't torture then I don't understand the word torture."

(Tr. 276.) While the prosecutor tried to inflame the passions

and prejudices of the jury by referring to the shot between

the legs of the already dead victim as being torturous, it is

clear that a dead body does not feel pain. Even the prosecutor

conceded this elementary proposition when, in speaking to the

jury of the shot between the victim's legs, he stated "Sure,

he didn't feel it." (Tr. 274.)

a ae

spared, thus posing an inordinately high cisk that wholly

arbitrary and capricious action would ensue, in violation of

the Eighth Amendment. Furman v. Georgia. 408 U.S. 238 (1972);

Gregg v. Georgia, 428 U.S. 153, 189 (1976).

We do not know what is in fact the view of the

Georgia Supreme Court because it substantially ignored peti-

tioner's argument that there was no evidence of torture adduced

at trial. It merely stated the bare, unhelpful conclusion

that the evidence supported the jury's finding that "the

offense of murder

involved torture, depravity of mind,

or an aggravated battery." (P. 3a, infra; emphasis supplied. )

One is left to guess which of the three the court thought was

supported by evidence -- including perhaps the underscored

circumstance, which was not the subject of the jury's finding.

le

Ill. The Georgia Supreme Court Failed to Appraise the

Validity of the Petitioner's Death Sentence as it was Deter-

mined in the Trial Court in Violation of Petitioner's Rights

Under Both the Eighth and Fourteenth Amendments.

We have already indicated the substance of the con-

siderations relevant to the third question presented in pre-

ceding sections of the Petition. The carelessness of the

Georgia Supreme Court in reviewing this death penalty case

underlines the seriousness of the questions whether an unconsti-

tutional standardless sentencing system has grown up in Georgia

and whether the court that bears such a heavy responsibility

for the operation of the sentencing system overlooks such

elementary constitutional requirements as the requirement that

there be evidence in support of a charge.

Independently, however, the most significant manifes-

tation of appellate carelessness in this case -- the attribution

on appeal to a death sentence jury of a finding in aggravation

that it never made and the affirmance of a death penalty on

= 1. -

the basis in part of that misattribution -- itselt poses a

substantial question that calls for review by this Court.

As we have said, the court below professed to inquire

into aha the jury's finding of two statutory aggravating

circumstances was supported by the evidence. In doing so, it

said:

"(T]he jury found that the offense of murder

was outrageously or wantonly vile, horrible

or inhuman in that it involved torture,

to the victim. Code Ann. § 27=2534.1(b)(7)."

(P. 3a, infra.) (emphasis supplied)

The court was mistaken. The jury found only that "the offense

of murder was outrageously and wantonly vile, horrible and

inhuman in that it involved mathe to the victim or depravity

of mind on the part of the defendant." (Tr. 309.) The jury

was not asked to find and did not find that "an aggravated

battery to the victim" occurred; in addition, its conclusion

that the murder was vile, horrible and inhuman on account of the

presence of torture or depravity of mind was in the conjunctive

and not, as the court had it, in the disjunctive. The court

seemingly read the statute but not the record. 2/

As the plurality Justices said in the first review

of Georgia's post-Furman death penalty statutes:

“Where the sentencing authority is required

to specify factors it relied upon in reaching

its decision, the further safeguard of meaningful

appellate review is available to ensure that

8/ The court made one further mistake that may have been

attributable to reading the statute and not the record findings

of aggravation, which did not precisely track the statute. The

court said that the jury found that the murder "was committed

while the defendant was engaged in the commission of another

capital felony, to wit, armed robbery." (P. 3a, infra.) In

fact, to the extent that the jury made any intelligible finding

at all on this point, its finding did not use the adjective

"capital" in describing the felony of armed robbery. (Note 3,

supra. )

eo 18 6

death sentences are not imposed capriciously

or in a freakish manner." Gregg v. Georgia,

428 U.S. 153, 195 (1976).

Clearly, the Georgia Supreme Court has denied petitioner the

meaningful appellate review spoken of in Gregg by disregarding

the articulated basis of the jury's decision. It thus calls

into question the consistency of its decision with the Eighth

Amendment proscription of cruel and unusual punishment.

Moreover, by a*firming the jury's finding of a

statutory aggravating circumstance on the basis of a statutory

provision that was neither presented to nor found by the jury,

the Georgia Supreme Court denied petitioner the due process of

law that he is guaranteed by the Fourteenth Amendment. The

simple lesson of Cole v. Arkansas, 333 U.S. 196 (1948), is

that due process is denied when a person is charged with,

tried for and convicted of crime A and on appeal the conviction

is affirmed on the ground that the evidence shows that he

committed crime B. The Court said:

"To conform to due process of law, petitioners

were entitled to have the validity of their

convictions appraised on consideration of the

case as it was tried and as the issues were

determined in the trial court.

“We are constrained to hold that the

petitioners have been denied safeguards guaran-

teed by due process of law --safeguards essential

to liberty in a government dedicated to justice

under law." 333 U.S. at 202.

In this case, petitioner's guilt of aggravated murder -- and

that is what the jury verdict in the sentencing phase amounts

to -- was affirmed on a ground other than that on which petitioner

was tried and convicted, in violation of the rule of Cole v.

Arkansas.

IV. The Georgia Supreme Cou t's belermination That

oe ee cw

Section 27-2534.1(b)(2) of the Georgia Code

establishes the following statutory aggravating circumstance:

"The offense of murder . . . was committed

while the offender was engaged in the commission

of another capital felony... ."

The Supreme Court of Georgia held that this statutory aggra-

vating circumstance applied in this case because the petitioner

committed a murder while engaged in the commission of an armed

robbery.

A capital felony by definition is a crime for which

one can receive a sentence of death. 2/ While the Georgia

legislature attempted to make armed robbery a capital felony

when it enacted its death penalty statutes, 19/ this attempt

proved unsuccessful when the courts declared that one could

not constitutionally receive a sentence of death for the

commission of a mere armed robbery. Coker v. Georgia, 433

U.S. 584 (1977); Collins v. State, 239 Ga. 400, 236 S.E.2d

9/ See Ga. Code Ann. § 26-3102, which defines a capital

offense as “an offense which may be punishable by death."

(P. 6a, infra.) The definition of a “capital felony" has

been settled in Georgia, if not everywhere, for decades:

"Felonies, in the Penal Code, are thus divided

into two classes -- capital felonies, and

felonies not capital. If under any circum-

stances the penalty of death can be inflicted,

. the offense is capital, whether it is actually

inflicted in a particular case or not. If

under no circumstances the death !penalty can

be inflicted, the offense is not capital."

Caesar v. State, 127 Ga. 710, 712-13, 57 S.E.

66, 67 (1907).

10/ Ga. Code Ann. § 26-1902.

» 20 =

759 (1977) 24/ Accordingly, armed iobbery is not a capital

felony in the State of Georgia.

As was said in the plurality opinion in Gregg v.

Georgia, 428 U.S. 153, 164-65 (1976):

"Before a convicted defendant may be sentenced

to death [under the Georgia death penalty

statute], the jury . . . must find beyond a

reasonable doubt one of the 10 aggravating

circumstances specified in the statute."

It is axiomatic that the jury must find every element of the

offense beyond a reasonable doubt before any criminal sanction

can be constitutionally imposed. In re Winship, 397 U.S. 358

(1970). It follows, a fortiori, that in Georgia a jury must

find every element of at least one aggravating circumstance

beyond a reasonable doubt before a defendant can be sentenced

to death. Mullaney v. Wilbur, 421 U.S. 684 (1975). Therefore,

the petitioner's death sentence cannot rest upon the additional

capital felony statutory aggravating circumstance. One element

of the offense could not be proved beyond a reasonable doubt

because even if an armed robbery were proved conclusively it

would not amount to the statutory offense of an "additional

capital felony."

The Georgia Supreme Court appeared to comprehend

this point in Collins v. State, 239 Ga. 400, 236 S.E.2d 759

(1977). The question there was whether, after Coker, the

court had direct appellate jurisdiction of convictions of

11/ Although the narrow holding of Coker v. Georgia, 433 U.S.

584 (1977), was that the Eighth Amendment prohibits the imposition

of the death penalty for rape of an adult woman where the

victim is not killed, the Supreme Court of Georgia has properly

recognized that "the rationale of Coker must be applied also

to armed robbery and kidnapping." Collins v. Georgia, 239 Ga.

400, 404, 236 S.E.2da 759, 761 (1977).

rape, kidnapping, and armed robbeiy under the Georgia constitu-

tional provision conferring jurisdiction on it “in all cases

of conviction of a capital felony." The court, after first

noting that the death penalty could not be imposed for those

crimes, said:

"It follows that there can be no conviction

of a capital felony for these crimes within

the meaning of the constitutional provision

establishing the jurisdiction of the Supreme

Court." 239 Ga. at 402, 236 S.E.2d at 761.

The court has nevertheless taken the view and reit-

erated it in this case that for purposes of the death penalty

statutes the term “capital felony" includes those felonies,

such as armed robbery, that the statutes as originally enacted

specified as being subject to punishment by death. Peek v.

State, 239 Ga. 422, 432, 238 S.E.2d 12, 20 (1977). The

Supreme Court of Georgia has reasoned that the simple fact.

that armed robbery is not a capital felony should not prevent

it from holding that armed robbery is a capital felony for

purposes of aggravation. This Lewis Carroll approach to the

construction of the state's criminal code exceeds the limits

that the due process clause places on the power of the states

to give artificial content to the commonplace words in which

criminal. codes are expressed. Compare Garner v. Louisiana,

368 U.S. 157 (1961); Johnson v. Florida, 391 U.S. 596 (1968) .+2/

The branding of armed robbery as something it is not

violates the petitioner's due process rights for an additional

|

12/ It is significant that the transgression of the due

process limits is laid to a court and not the legislature.

Particular deference is owed to a legislative "specification

of punishments," Gregg v. Georgia, 428 U.S. 153, 176 (1976),

but here it is a court, to which no such deference is owed,

that has distorted the meaning of the words chosen by the

legisiature to make them result in an aggravation of punishment

in a case that on their face they do not reach. In Georgia,

as in the federal system, “defining crimes and fixing penalties

are legislative, not judicial, functions." United States v.

Evans, 333 U.S. 483, 486 (1948).

reason. The jury may have been led to believe incorrectly

that, if petitioner had committed an armed robbery, he had

committed a crime for which he could be punished by death. 22’

A jury's belief that a defendant has committed two crimes for

which he could be sentenced to death -- two capital felonies --

enhances the possibility that such a defendant will receive

the death sentence for the single capital felony with which he

is charged. If a jury's sentencing deliberations are based on

.

the erroneous view that a defendant has committed two capital

felonies, the defendant is denied a fair sentencing trial.

CONCLUSION

The writ of certiorari should be granted to review the

judgment of the Georgia aussie Court. Upon grant of the

writ, this case should be set to be heard with Godfrey v.-

Georgia, No. 78-6899. Alternatively, the Court may wish to

hold this case on its calendar pending judgment in the Godfrey

case.

Respectfully submitted,

WILLIAM H. ALLEN

JOHN J. DONOHUE

Covington & Burling

888 Sixteenth Street, N.W.

Washington, D.C. 20006

‘Attorneys for Petitioner

October 1979

13/ The’ adjective “capital" was omitted from the formal

charge to the jury and therefore its finding, although the

Georgia Supreme Court was apparently unaware of that fact.

(Notes 3, 8, supra.) The jury was made aware by the arguments

of counsel that the statute spoke of another “capital felony"

and that it was to apply the statute in determining aggravation.

(fr. 269, 264.) In addition, it appears Chat the prosecutor's

notice of the aggravating circumstances he relied on, which

spoke of the armed robbery as “an additional capital felony,"

was with the jury during its deliberations. (Tr. 307.)

wa”

APPENDIX A

192 Ga oi

BANKER

‘.

The SPATE.

Srp an Court of Goorin

Ary 1 March 33, 1979.

Di« ided May 31, weezy.

iar forint wes ¢ Wi ted in the Gwin

ett Sup oner Court, Pittard, J. of murder

nd crmed ulbery. His ease erm 1 fore

the Supec me c n direct epy ) and for

mondatory revive of t! death t

iproced The Supe Court, Marchal, J

Vetd thats OW) hich were cap

tab fl in t! ‘ hen death Wy

¢ Sate enacted, inelsrlisgg ar d rot

lL. rv, ¢ etol ‘ pat ad fel sith

Sime ings of Vrat statute (2) ! ‘

¢ fabhsling that | tide vietim had been

hit with bett'e in the f Wat three bul-

lets were fired into his chost at point-blank

range and that fourth was fired hotween

his legs after he and di A supported jury's

finding of statutory ¢ epravating, circum

faucet, Le, that offense of mur ler was

ntonly vile, hes

’ ‘

+t t

outreceorly or % "le or

inhuman in that it inve orture, deprave

ity of mind or vravated ! ite

nad (3) the death sentence

sive or divpropyationate to the 4

y te victim,

s net execs

tity tin-

pesed upon de feadant’s aecomphee,

od in other «

or to

Uh j ably '

1. Crimdvat Law

Not! ) ec °30

Shose criniws which we

»W29S(6)

re «4 tal felo-

nies in the State when death praalty st it

ute was enacted, including, arn Preobbery,

within

continue to be “capital fe linies”

" uw! ing of that st vwfute. Cok 5 & oe 25n4 -

Wb)2).

Gee public ctr Words

for other joc

& finitions

COUPH EASTERN BEPORT

2. Coin’

Stat

a

santos

yo itty where

armed rebbery

or want

vated batter

gemly

man in that itn

mind or oy

uncer fitution

Why a)

3. Homicite

Bividet t ‘

vim } Ih

' > ! a) ',

Ir nt 0,’ nt '

| his bk

'

i’ :

dor w

ribete

i ty oft

vewiim Coat §

4. Heintcice

In virw of f

ctual poops teat

robbery, of fact

death ponalty tt

fact that cotef

offender Uhat +

tence tod ith 1

portionste to |

‘ ! r

compl t

{ cee v4

ity inn) don

Loth crass med «

oad UbKe, 7)

Wynn Yeon

lant

Bryont Huff,

ton, Atty. G

Aust Atty Gen,

MARSHAL

The i Nant

and arnued vel!

.

n,

BAWER s.

Cite es 287%

sentence for the paureder comvietion and a

sentence of life impr oun nt for Ue anime d

robbery conviction. His: ease is here on

direct appe! and for mandatory re view of

the death sentence impo ed.

IL Summary of the Evidence

The evittones antherized the jury in find-

ing, the fellow ings:

On the evening of. May 5, 1978, the vie-

tim, Ds nnis Beatenbo, was drinking, at a

Holiday Tha adjacent to Interstate &5 in

Norcross, Geory On this same evening,

the appellant and Ricky Marsey were drink-

ing and driving in the Norcross Doraville

aren. At approximately midnight, the vic:

tim left the Holiday Inn to ge to hia car,

which was parked nearby at his place of

employ ment The appellant and Massey

passed Beatenbe en route to his car, and

they stopped and offered him a ride. In

exchange for the ride, Reatenbe offered the

app flest and Mavcey seme liquor which he

had in his ear. In ae afescion later given

by the apy Nant to police, he stated that

when Reatenbo got out of the car to get the

liquor, Messey suggested that they “roll

hin.” The three men Heoyan riding “around

together and deinking, and they drove to an

jsolated spot near a lake. Beatenbo began

to get sick and Massey opencd the car door

so Beatenho could get out.”

In his confe ion to police, the appellant

stated that as Teste ho was Iying on the

bach seat with bis head hangings down, the

appellant hit him over the head with a

liquor frottle; thet Teste nbo fell out of the

car, and that the apy Nant then took his

watch and wallet. As stated by the appel-

lant, “1 reached in my belt with my right

hand ard path d out my pistol and the guy

wee still Veny iy [sie] on hist wk, I pointed

the gun at he man and T pulled the trip ger

LT don't know how many times TP shet him,

Dut Peentd hear him moaning, snd trying to

say Some thing.”

Medical testimony ¢ tablished the eause

of death aa a gunshot wound to the chest,

It was alsa ent iched that the vietim had

boca bit with the bottle in the face, rather

thin on the bach of hin head, and that the

victim reeeived a total of four prunshot

sapstce 3

STATE Ga 15

vot an?

wound Viire of the pub tot worlds

were fired inte the victim's cle tat port

blank range, and the fourth pyuinhot was

fire do between his leys after he had du d

The bullets recovered from the vietinw’s

body were shown te have been fired from

the apy, cllant’s jun

Jn mitigation, the appelant intro duecd

evidence depicting 3 rather harrowing, his

tory of child abuse

Hl. Enuni rations of Error

There are bvo enuimerations of crror in

this appeal

(1} 1. First, the appellant argues that

the death penalty ¢2a he longer be hiap }

under Code Ann § Zi 2 Wet?) (Gal

19738, pp. 159, 15) on the pprowad that the

murder Was committed while the offender

ton of at other

capital fe lony, to wit, arn Probl.

armed robbery is no Jonger a cepa 1 flony

Collins v. State, 23 Ga. 409, 2° Spt To.

(1977), Greew State, 283 Ga. 11%, 210

G P.2d 68 (YTS),

It has already been decided in Peek ¥.

State, 239 Ga. 422, 491, 482, ms SK 2d 12

(1977) that thoove erimes which were enpital

felonies in Georgia at the time Cede Ann

§ 27-2531 WbK2) wes enact 1, including

armed robbery, continue ty be “ec: oital feto

nies” within the a ining of the stetute.

This enumeration of error is thers fore with-

was engaged in the corm

ry, ainee

out merit

2. In the gecond emumerstion of error,

the appellant: arnnes that the Uiel court

erred in ove reulings his motion to trike the

statutory erygeaW ath chicumatance found

at Code Ann. § V7 OA MHKT), which au-

thorizes linposition of the death pen Wty

where “{t}he offen ¢ of murder, rape, wen

od robbery, or kidnapping was e ite eprom ly

or wantonly vile, hornble or inhaessa in

that it involved terture, a depravity of

mind, or an ay, avated battery to the vie-

tim.”

j2) The apie Naat ares Uhat this statue

nee Cl uld not

tory aggravating, eretn ts

appr Tn ition of the death 4 wily in

this crc, sinned there Wate BO evb ben’ of

184 Ga #57 SOUTH EASTERN

torture or an angravated battery: to he

victim, and since the phrase “dep vity of

mind” is uncencti

gument that Code Ann. § 27 24 VbXT)

uncon. {itutionslly vegue was rejected) by

the Supreme Court of the United States in

Gig w Goxgi, AR US. 18, a6 S.Ct

am, 49 Lata 80 (uT6) and by this

court in Uzuiris v. State, 287 Ga “8, 230

S.E21 1 (175) (cont. den, 4417 ULS. 933, 97

SCt 1312, £3 LD Ped 25) (iveé))

tutionally varie. The ar-

Whether the evidence supports imposition

of the death pountty undcr these two statue

tory spire tingg irene Lanecs, which

were found by the jury, will be addrers din

w, fra,

lil fe atenee BPoview,

1. Was the sonteace of death imposed

inthe inftecs }

under the iafldcnee of passion, pregunee, of

he sentence revi

any other arbitrary feetor? We conclude

{hat it wes not 1

(3) 9 Pow the exidonec supye rt the

jury's fh Ying of statutory apg! wating: cir

cure dences?

In this erse, the jury found that the of-

fense of murder was committed while the

defendant was eneged in the commission

of gnother capital felony, to wit, armed

robbery. Code Aun. § 27 2554.1(t))(2). Jn

addition, the jury fe snd that the offense of

mnurder was outrareously or Wi nionly vile,

horrible or inhuinen in that it involved tor-

ture, depravity of ma d, or an age ated

battery to the victin Code Ann. § 27

grt MbKT)

We conclide that the evidence supports

the jury's fieting of these statutory ayyra-

vating, chew iie te nces.

[4] 3. Is the sentence of death exces-

! prey itionete to the penalty im

posed in shailir eens, considering hath the

crime snd the defendant?

The agp tlant’s accor lice, Ricky Messey,

was nko tried for murder and armed rob

hory; and Massuy wes sentenced to life

sive oF ¢

Haprionmcnt Coe Shroey ve Shite, 243

Ga. 2B, 293 S.A 196 The inithd ques

tion pre tings i if is whether the appel-

Jant’s death sentence is ei prop rtionate to

REPORTER, 24 SEATES

the ptt Wty iy din Bfpaccy's cane We

find relevant distinetions b cece n Sfessey's

coe and Baker's case, which warrant im:

poring, the severer anction in this ease and

net in Massey's. First, it ts undisputed that

the appellant was the actual perpetrator of

the murder and armed robbery; “he reas,

the proof of MM: ey’s purvicly tion in the

murder and armed robbery is not se Un-

cquivecal. Sond, the state did not scek

the death ponalty in Ma ey's case. Third,

Massey is a more youthful offender than

the appellant, Massey was 1G years of age

at the time the crimnes were coin nitted.

In cam, we find that the app Nant's sen-

tence to death is net ox ive or disj ropor-

fionate to the px nalty Hnpe ed in the case

of his acces, ey. In deter-

mining whether the app nt’s déath sen

lice, Richy Mas

tenee is Execs ive OF ad prey tionate te the

CPS : ty

penalty inp din other similar co es, we

have considv red the « op poaled to this

court since January 1, 1270, in v hich a

death or life s cntence Wes Ny Y for mur-

der, and we find (hat the imilar « 2 act

forth in the appendix support affiricace of

the death penalty. Dar cl Boher’s scntence

to death for murder is not exce sive or

dis propartionate te the pornalty ing din

chailar cas. s com idering, oth the erime and

the defendant; the ve riet is factually sup

ported,

yasen

We have reviewed the inetra tier

by the trial judge duce the fonts vain

phase and find that they ore not subicet to

the defects dealt with in our devi Sans in

Plonsing ¥. Stite, 240 Ga, 142, 210.8 0497

(1977) and Hawes v. State, 240 Ga. 327(9),

210 SB Pad $233 (1007).

Judinent affirmed

AW the Justices concur.

APPENDIX

Cregg Vv. State, 238 Ga. 117, 210 S.B.%

G19 (874), Play v. State, 933 Ga. 20, 210

GEV SIO GM), Moores Strte, 293 Ga

sal, 213 Sd Se (1874); Mitchell y

State, 24 Ga 160, 2 SBA Cd OS),

Rory hills State, SH Cin, GER, seen S hd

sh (Nib); South vo State, 6 Ga. 12, 222

WATTER CF

APPENDIX: Continued

G.F2d 208 (1975), Dobbs v. Stte, oe Ga

407, 2U SNM OI), Palliat vs tate,

2 Ga, 4, 2 SB 2d eee yoncti

State, 256 Ga. 81, 25 S.¥ ” 21S-{i° 6);

outa v, State, 247 Ga. 852, 220 S ri os j

(1976); Douthit ¥ St.te, 29 Ga = -

Sb ad 193 (17): Corn v, State, se He

140, 210 S.A 694 (1977), Stanley v. State,

910 Ga. 341, 211 Sb 2d 173 (a7 Camp.

bell v. State, 210 Ga. 32, eigen 4

(1977), Themas State, 240 =. oe rt

S$.b 2d 1 (1977), Aldormin ¥. teres 3 od : ;

496, 246 SF 4 642 (NTS); inher v. Stite,

942 Ga, 876, 292 S.B.2d 383 (1979).

WON oo eons

o Copa Leegnati>

TT eeanainaed

NICHOLE ON

Cite est ST He TINS

he

ect ohh oa ide ¥

45 8H ‘ .

SUPREME COURT OF GEORGIA APPENDIX &

ATLANTA, May 31, 1979

The Honorable Supreme Court met pursuant to adjournment.

The following judgment was rendered:

DANIEL JOSEPH BAKER V. THE STATE

This case came before this court upon an appeal

from the Superior Court of GWINNETT

County; and, after argument

had, it is considered and adjudged that the judgment of the court below be affirmed.

All

the Justices concur.

BHbLE-GE..COBTS-63000

SUPREME COURT OF THE STATE OF GEORGIA

Crerx's Orrice, ATLANTA

I certify that the above is a true extract

from the minutes of the Supreme Court of Georgia, -emd-that

.

Witness my signature and the seal of said court hereto affixed

the day and year last above written.

ae ; :

Kitten, A. pfetleasne Clerk

-5a-

APPENDIX C

This case involves the itollowing provisions of the

Georgia Code:

"Capital offenses; jury verdict and

Where, upon a trial by jury, a person

is convicted of an offense which may be punish-

able by death, a sentence of death shall not

be imposed unless the jury verdict includes a

finding of at least one statutory aggravating

circumstance and a recommendation that such

sentence be imposed. Where a statutory ag-

gravating circumstance is found and a recom-

mendation of death is made, the court shall

sentence the defendant to death. Where a sen-

tence of death is not recommended by the jury,

the court shall sentence the defendant to im-

prisonment as provided by law. Unless the jury

trying the case makes a finding of at least

one statutory aggravating circumstance and

recommends the death sentence in its verdict,

the court shall not sentence the defendant to

death, provided that no such finding of statu-

tory aggravating circumstance shall be neces-

sary in offenses of treason or aircraft hijack-

ing. The provisions of this section shall

not affect a sentence when the case’ is tried

without a jury or when the judge accepts a plea

Ga. Code Ann. § 26-3102

sentence.

of guilty."

Ga. Code Ann. § 27=-2534.1

“Mitigating and aggravating circumstances;

death penalty.

(a) The death penalty may be imposed for

the offenses of aircraft hijacking or treason,

in any case.

(b) In all cases of other offenses for

which the death penalty may be authorized, the

judge shall consider, or he shall include in

his instructions to the jury for it to consider,

any mitigating circumstances or aggravating cir-

cumstances otherwise authorized by law and any

of the following statutory aggravating circum-

stances which may be supported by the evidence:

(1) The offense of murder, rape,

armed robbery, or kidnapping was committed

by a person with a prior record of convic-

tion for a capital felony, or the offense

of murder was committed by a person who

has a substantial history of serious

assaultive criminal convictions.

(2) The offense of murder, rape,

armed robbery, or kidnapping was committed

- 6a =

-

while the offender was engaged in the com-

mission of another capital telony, or ag-

gravated battery, or the offense of murder

was committed while the offender was en-

gaged 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 of-

fense of murder for himself or another,

for the purpose of receiving money or any

other thing of monetary value.

(5) The murder of a judicial of-

ficer, 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 comnit murder or committed murder

as an agent or employee of another person.

(7) The offense of murder, rape,

armed robbery, or kidnapping was outra-

geously or wantonly vile, horrible or

inhuman in that it involved torture, de-

pravity of mind, or an aggravated battery

to the victim,

(8) The offense of murder was com-~

mitted against any peace officer, corrections

employee or fireman while engaged in the

performance of his official duties.

(9) The offense of murder was com-

mitted by a person in, or who has escaped

from, the lawful custody of a peace officer

or place of lawful confinement.

‘

(10) The murder was committed for

the purpose of avoiding, interfering with,

or preventing a lawful arrest or custody

in a place of lawful confinement, of him-

self or another.

(c) The statutory instructions as deter-

mined by the trial judce to be warranted by

the evidence shall be given in change 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 cir-

cumstance or circumstances which it found beyond

- Ja-q=-

a reasonable doubt. In non-jury cases the

judge shall make such designation. Except in

cases of treason or aircraft hijacking,

unless at least one of the statutory ag-

gravating circumstances enumerated in Code

Section 27-2534.1(b) is so found, the death

penalty shall not be imposed."

Code Ann. § 27-2537 .

"Review of death sentences.

(a) Whenever the death penalty is imposed,

and upon the judgment becoming final in the

trial court, the sentence shall be reviewed

on the record by the Supreme Court of Georgia.

The clerk of the trial court, within 10 days

after receiving the transcript, shall transmit

the entire record and transcript to the

Supreme Court of Georgia together with a

notice prepared by the clerk and a report

prepared by the trial judge. The notice

shall set forth the title and docket number

of the case, the name of the defendant and

the name and address of his attorney, a

narrative statement of the judgment, the of-

fense, and the punishment prescribed. The

report shall be in the form of a standard

questionnaire prepared and supplied by the

Supreme Court of Georgia.

(b) The Supreme Court of Georgia shall

consider the punishment as well as any errors

enumerated by way of appeal.

(c) With regard to the sentence, the

court shall determine:

(1) Whether the sentence of death

was imposed under the influence of

passion, prejudice, or any other arbitrary

factor, and

(2) Whether, in cases other than

treason or aircraft hijacking, the evi-

dence supports the jury's or judge's

finding of a statutory aggravating

circumstance as enumerated in

section 27-2534.1(b), and

(3) Whether the sentence of death

is excessive or disproportionate to the

penalty imposed in similar cases, consider-

ing both the crime and the defendant.

(da) Both the defendant and the State

shall have the right to submit briefs within

the time provided by the court, and to present

oral argument to the court.

- Ba -

(e) The court shall include in its deci-

sion a reference to those similar cases which

it took into consideration. In addition to its

authority regarding correction of errors, the

court, with regard to review of death sentences,

shall be authorized to:

(1) Affirm <he sentence of death; or

(2) Set the sentence aside and re-

mand the case for resentencing by the

trial judge based on the record and argu-

ment of counsel. The records of those

Similar cases referred to by the Supreme

Court of Georgia in its decision, and the

extracts prepared as hereinafter provided

for, shall be provided to the resentencing

judge for his consideration.

(f) There shall be an Assistant to the

Supreme Court, who shall be an attorney ap-

pointed by the Chief Justice of Georgia and

who shall serve at the pleasure of the court.

The court shall accumulate the records of all

capital felony cases in which sentence was

imposed after January 1, 1970, or such earlier

date as the court may deem appropriate. The

Assistant shall provide the court with what-

ever extracted information it desires with

respect thereto, including but not limited

to a synopsis or brief of the facts in the

record concerning the crime and the defendant.

(g) The court shall be authorized to

employ an appropriate staff and such methods

to compile such data as are deemed by the

Chief Justice to be appropriate and relevant

to the statutory questions concerning the

validity of the sentence.

(h) The office of the Assistant shall

be attached to the office of the Clerk of the

Supreme Court of Georgia for administrative

purposes.

(i) The sentence review shall be in addi-

tion to direct appeal, if taken, and the review

and appeal shall be consolidated for considera-

tion. The Court shall render its decision on

legal errors enumerated, the factual substantia-

tion of the verdict, and the validity of the

sentence."