Petition — Kenneth H. Babb v. Georgia (No. 80-5010)

Supreme Court brief1980

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. $0 -5010

KENNETH HARDY,

RECEIVED

Petitioner,

JUL 7 - 1980

Vv.

OFFICE OF THE CLERK

THE STATE OF GEORGIA, SUPREME COURT, US. |

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF GEORGIA

MARGUERITE B. FILSON

Western Electric Company, Incorporated

222 Broadway

New York, New York 10038.

Attorney for Pétitioner

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TABLE OF CONTENTS

Page -

“a

Re MPIINESS cic Vs, SRERSUS Poa s book evel ee eA Se 1 E

JURISDICTION...........4. Wes cba de oe VERPT ERS OEMs 0 1 :

a FORE EONS PRESEN LEN. 6 04.506 60-6059 Us 0.0 6p Sub > i ves 0% 2 4

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.. 2 .

SERENE COOH « ctw wa Rw es ob ks 000s bcue ecveceesec eee 3 .

. A. Background Facts............... ses dedunaae 5 5

B.: The Clemiee Remmmenta. ss os on cdcscweesccess 8

C. The Court's Instructions on Sentencing.... a S

REASONS FOR GRANTING THE WRIT.......ececcccccccees 10

I. The trial court's failure to provide

guidance to the sentencing jury violates

the hy poergtegy ~ for capital sentencing

established by Godfrey v. Georgia........ 10

II. The trial court's instruction to the jury

that a death sentence was authorized upon

a finding of a non-statutory aggravating

circumstance was an error of constitutional

MOG TEUGS ons a ccc ee sd cdvoesseswes couse eee ee 14

III. The prosecutor improperly suggested to

the jury that the Supreme Court of Georgia

endorses the death penalty by —

from opinions of that court in his closing

QE QUMORER... cece Tesascrevestccccenésnscenes 16

GOGRORTONS: BL. cn. 0s ae cdaee cs gnnsicwesickeene ee

, APPENDIX A. Opinion of the Supreme Court

a of GEOTZIA. cere e cece cece cree eneneee la

APPENDIX B. Sentencing Instructions of the

Trial OUP Cse Cea de Cece se bebe Cheek 7a

APPENDIX C. Prosecutor's Closing

Argument (Sentencing)............e06- 12a

APPENDIX D. Prosecutor's Closing 3

Argument (Conviction).........ceeeees et

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TABLE OF AUTHORITIES - 3

CASES: : Page

Andres v. United States, 333 U.S. 740 (1948).... 15

Bruce v. Estelle, 483 F.2d 1031 (5th Cir.” ate.

1973) overruled in part on other grounds, 2

585 F. oS arevecceeccoen 16 |

Eberhart v. State, 47 Ga. 609 (1873).........005 oa, 195 2OK

ge F |

Furman v. Georgia, 408 U.S. 238 (1972).......... 12 :

Gardner v. Florida, 430 U.S. 349 (1977)......... 23, 26

Godfrey v. Georgia, 48 U.S. L.W. 4541 . ,

Seow Oy 505 6.5 6 bon 0h Ae oe OWN o hee Che TR Pa OE

cep. ees

Gregg v. Georgia, 428 U.S. 153 (1976).........-. 22333, (34

Hardy v. State, 245 Ga. 272, 264 S.E. 2d

20D RAPOOR Ls 0 dkms KOM pbk s Ca dcadehs ceceent sa passim.

Hawes v. State, 240 Ga. 327, 240 S.E. 2d |

Be CESS CPG 54 0's do oh Slew CoB eds nk ce keeccae 18, 20

Hawkins v. State, 25 Ga. 207 (1858).........005. 9, 17, 19, 20,

23 (a2 :

Houston v. Estelle, 569 F.2d 372 (5th Cir.)

rebearing and rehearing en banc denied,

SVE Pr SO STE TROP aces vac dsc bec Gecs cco. cbs 16

Lamb v. State, 241 Ga. 10, 243 S.E. 2d

OP COPED 6c arhow stb on #aURe hook oe a denscatak ° 20

Lockett v. Ohio, 438 U.S. 586 (1978)........005. 16

Potts v. State, 241 Ga. 67, 243 S.E.

: OE AEE. CROP oss covecvetdsdeveve biearsaa s66 20, 21

. Presnell v. State, 241 Ga. 49, 243 S.E. |

a~ 2d 496 (1978)... ere ee eee eeeees ree eee ee eene eee 20, 21

Taylor v. Kentucky, 436 U.S. 478 (1978)..... eave 16 de

Turner v. Louisiana, 379 U.S. 466 (1965)........

United States v. Estepa, 471 F.2d 1132

(2nd Cir. SET GIN wits oho 605 hee bbs 06 La eee

United States v. Hawkins, 480 F.2d 1151

(D.C. Cir. BUT OE wao's bo0 ts be dues ddbh des eee

| United States v. Whitmore, 480 F.2d 1154

¥ (D.C. Cir. LOIS). nnd eS e eRe ARE? 6 Che vate eee

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TABLE OF AUTHORITIES (CONT'D. )

CASES:

Zant v. Campbell, 245 Ga. 368 (1980)............

CONSTITUTION AND STATUTE:

ys CRE. 7 aM Ee) MIOMOMONE.. cob kno c's cweceeesene

U.S. Const., Eighth Amendment.............cece0%

U.S. Const., Fourteenth Amendment.............. °

Se aOr es GOCCEOREBOE COP suet ssc cot sccvsswetars

Georgia Code Ann. Section 27-2534.1.......c0c00.

Georgia Code Ann. Section 27-2534.1(b)(7) .....

o 4497"

IN THE

SUPREME COURT OF THE UNITED STATES es

October Term, 1979 ;

No. 79- 4

j SSesssssesssesesssessessesescesssesss ’

KENNETH HARDY, 4

Petitioner, 2

v. :

THE STATE OF GEORGIA, ;

Respondent. es

;

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF GEORGIA

Satesecsssccsssscsssssssssssssssssssssssssssssssssssseeesssssseeses

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 245 Ga. 272, 264 S.E.2d 209 and is reproduced and attached

hereto as Appendix A.

~ JURISDICTION :

The judgment of the Supreme Court of Georgia was entered

on February 20, 1980. No petition for rehearing was filed. On

May 9, 1980, Justice Powell granted petitioner's motion to extend ;

the time to file this petition until July 18, 1980. The :

jurisdiction of this Court is invoked under 28 U.S.C. § 1257(3).

QUESTIONS PRESENTED

1. Whether the failure of the trial court and the

Georgia Supreme Court to place a limiting construction on the

language of the Georgia statute permitting the jury to impose the

death sentence in certain vaguely defined circumstances violated

petitioner's Eighth and Fourteenth Amendment rights as set forth

in Godfrey v. Georgia. :

2. Whether the trial court's error in instructing the

jury that it could. impose the penalty of death upon the finding

of a non-statutory aggravating circumstance tainted the

sentencing deliberation in violation of petitioner's Eighth and

Fourteenth Amendment rights.

3. Whether the improper, inflammatory and prejudicial

closing arguments of the prosecutor which included quotations

read from Georgia Supreme Court cases denied petitioner the

fundamental fairness required by the due process clause and the

reliability in sentencing required by the Eighth Amendment.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

United States Constitution, Eighth Amendment:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.

United States Constitution, Fourteenth Amendment,

Section l:

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the State wherein they reside. No state

shall make or enforce any law which shall

abridge the privileges or immunities of 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 Ann. §27-2534.1:

~- 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 rye hh circumstances

otherwise authorized by law and any of the

following statutory aggravating

circumstances which may be supported by the

evidence: cs

(1) The offense of murder,

tape, armed robbery, or kidnapping

was committed by a person with a

prior record of conviction for a

captial 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,

tape, armed robbery, or kidnapping

was committed while the offender was

engaged in the commission of another

capital felony, or aggravated

battery, or the offense of murder was

committed while the offender was

engaged in the commission of burglary

or arson in the first degree.

(3) The offender by his act of

murder, armed robbery, or kidnapping

knowingly created a great risk of

death to more than one person in a

public place by means of a weapon or

device which would normally be

hazardous to the lives of more than

one person.

* (4) The offender committed the

offense of murder for himself or

another, for the purpose of receiving

oe or any other thing of monetary

value.

(5) The murder of a guesses

officer, former judicial officer,

district attorney or solicitor or

former district attorney or solicitor

during or because of the exercise of

his official duty.

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(6) The offender caused or

directed another to commit murder or

committed murder as an agent or =

employee of another person.

(7) The offense of murder, .

rape, armed robbery, or kidnapping

was outrageously or wantonly vile,

horrible or inhuman in that it

involved tczture, depravity of mind, :

Or an aggravated battery to the ’

victim.

~ (8). The offense of murder was

committed against any peace officer,

corrections employee or fireman while

engaged in the performance of his

official duties.

(9) The offense of murder was

committed by a person in, or who has

escaped from, the lawful custody of a

peace officer or place of lawful

confinement.

(10) The murder was committed

for the purpose of avoiding,

interfering with, or preventing a

lawful arrest or custody in a place

of lawful confinement, of himself or

another.

determined by the trial judge to be

warranted by the evidence shall be given in

charge and in writing to the jury for its

deliberation. The jury, if its verdict be

a recommendation of death, shall designate

in writing, signed by the foreman of the

jury, the aggravating circumstance or

circumstances which it found beyond a

reasonable doubt. In non-jury cases the

pudge shall make such designation. Except

n cases of treason or aircraft hijacking,

unless at least one of the statutory

aggtavating circumstances enumerated in

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

penalty shall not be imposed.

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STATEMENT

A. Background Facts

Kenneth Hardy was convicted and sentenced to death for

having murdered one Lewis J. Ingram on July 30, 1977. The cast

of characters in the events leading up to the crime is large.

sini until the specific instances of physical abuse which ended

in the shot-gun killing of Ingran, the events of that Saturday

night in Commerce, Georgia do not appear to be particularly out

of the ordinary given the social circumstances and milieu.

Lewis J. Ingram was a resident of North Carolina who had

previously lived in the Commerce area and who still had relatives

there. He spent Tuesday night, July 26, at his sister's home in

Commerce and then, after telling her he was going to visit

another sister who lived nearby (T.193)—/ he left. Instead of

visiting his sister, Ingram checked into a motel (T.198) and

began to frequent Charlie (Willie) Brown's Produce Stand on

Highway #441 just outside of Commerce. (T.195) Brown saw that

Ingram had several bills of large denomination on his person.

(T.208) Charlie Brown's appears to have been a fairly popular

place for local social gatherings and wag the site of a weekly

Saturday barbecue with many participants. (T.202)

Ingram visited Charlie Brown's on several occasions on

Thursday and Friday and was observed to be drinking or to have

been drinking rather steadily during that period. (T.197) This

activity culminated in the barbecue at Charlie Brown's at which

people began congregating during the afternoon of Saturday, July

30. Mr. Ingram continued his consumption of hard liquor and, as

the evening wore on, was seen to be drinking quite heavily.

(T. 227)

a References to the trial court transcript are indicated by

Cage "). .The supplemental transcript is indicated by

“Supp. T. ee 7 sais .

Socializing and drinking with Ingram during the barbecue

were, among others, Buster Minish, Billy Hardy (petitioner's

brother) and "Dub" Hardy Cesti tions: 's father). (T.202-203)

Petitioner was not present at the Charlie Brown barbecue that

“afternoon or “evening. AT, 209)

Late in the afternoon, ay tS mere _ oar with Buster

Minish in Ingram' s pick-up truck. (T. 206) They were going,

apparently, to play poker with Billy Hardy at Billy Hardy's

trailer which was adjacent to Dub Hardy's home not far from the

produce stand. (T.363). El

The crowd at the barbecue broke up later in the evening and

Dub Hardy arrived home with his wife, Mary Hardy, at about 9:P.M.

(T.282) When they arrived, they found Buster and Betty Minish

and Billy and Carolyn Hardy with Ingram in Billy's trailer.

(T. 283-284)

At some point, not made clear from the testimony, Billy and

Buster left the Hardy residence area and returned with Kenneth

Hardy. (T.245) It is here, at the culmination of an evening of

barbecue, heavy drinking and poker playing that there is no

precise picture of events. Testimony, often conflicting, was

offered by Mary Hardy and Betty Minish and by Dub Hardy, who was

convicted of aggravated assault upon Ingram. Billy Hardy, who

was indicted with petitioner and who was found guilty of the

murder in a separate trial, did not testify as to his version of

the events. Buster Minish, who was evidently an active

participant in the murder and the events leading up to it,

apparently committed suicide several days thereafter. (T.537)

By all accounts however, Lewis Ingram was sitting on a

couch in Billy Hardy's trailer at about 9:P.M. in a state of

somewhat advanced inebriation. (T.286) Dub Hardy testified to

having heard Buster Minish, Billy Hardy, Kenneth Hardy and L. J.

Ingram in loud vocal argument at that time. (T.287)

Mary Hardy testified that she saw her husband, Dub, enter

the trailer and push L. J. Ingram out so that he fell into the

yard. She stated that her husband hit Ingram several times.

(T. 331-332) (Dub testified that he didn't touch Ingram and that

it was the petitioner, his son, Kenneth, who did the beating.)

(T.291) Shortly afterwards, L. J. Ingram was placed in the back

of his pick-up truck and Kenneth and Billy Hardy and Buster

Minish drove off in two vehicles, the other car being Buster's

pick-up truck. (T.377) Sometime later that evening, Buster

Minish and the two Hardy brothers returned in Buster's truck to

Dub Hardy's residence. (T.334) ,

At approximately 1:30A.M. on July 31, 1977, the Banks

County Sheriff's office received a telephone call informing them

of a burning vehicle on the Jesse Shewbert Road in Banks County.

Upon their arrival at the scene, deputies discovered the victim's

body in the burning truck. (T.427) The cause of death was

determined to have been by shot gun blast and the autopsy

established that Ingram was dead prior to the fire. (T.496)

Subsequently, Billy, Kenneth and Dub Hardy were arrested

and brought to the Banks County jail. (T.532) A warrant was

issued for the arrest of Buster Minish who, before being

apprehended on August 4, 1977, apparently shot himself and was

pronounced dead on arrival at a nearby hospital. (T.537)

Petitioner's trial began with jury selection on Thursday,

Januaty 12, 1978 and concluded, after the jury found petitioner

guilty, with a sentence of death on the evening of Friday,

January 13, 1978.

Prior to sentencing, petitioner offered evidence in

mitigation which included the testimony of his employer that

Kenneth Hardy, who worked for him usa truck driver for three

years had been one of the best workers he had ever had -- that

petitioner could do the work of any two men and had missed only

one day of work in three years. (T.601-602) A Baptist minister

who knew petitioner and the Hardy family for over 20 years,

testified as to Kenneth Hardy's sincere attempts to join the

church and to overcome his rather unsavory boot legging,

liquor-hauling, family background. (T.606-609) Petitioner has no

record of previous convictions. (Supp. T.22)

Kenneth Hardy's older sister also testified as to the

attempts made by this particular brother to move himself away

from the family both physically and behaviorally. (T.614-618)

No evidence as to aggravation was offered by the

prosecution.

B. The Closing Arguments

At the close of evidence, the prosecutor urged the jury to

convict petitioner of murder quoting the frequently disapproved

language of an ancient Georgia case to bolster his argument, to

wit:

"We have, however, no sympathy with that sickly

sentimentality that springs into action whenever

a criminal is at length about to suffer from

crime. It may be a sign of a tender heart, but

it is also a sign of one not under proper

regulation. Society demands that crime shall be

pene and criminals warned, and the false

umanity that starts and shudders when the axe of

justice is ready to strike, is a dangerous

element for the peace of society. We have had

: too much of this mercy. It is not true mercy,

It only looks to the criminal, but we must insist

upon mercy to society, upon justice to the poor

woman whose blood cries out against her

murderers. That criminals go unpunished is a

disgrace to our civilization, and we have reaped

the fruits of it in the frequency in which bloody

deeds occur. A stern, unbending, unflinching

administration of the penal laws, without regard

to position or sex, as it is the highest mark of

civilization, is also the surest mode to prevent

the commission of crime." -

Eberhart v. State, 47 Ga. 609 (1873)

The use of this language has been specifically condemned by the

Supreme Court of Georgia as going beyond the propriety of

advocacy.

Shortly thereafter, during the sentencing phase, the

District Attorney further inflamed the passions and prejudices of

the jury by quoting similar prejudicial language from another and

even older Georgia Supreme Court case.

“Human life is sacrificed at this day, throughout

this land, with more indifference than the life

of a dog, especially if it is a good dog. Cain

was the first murder, but who is the last, is

known only to those who have read the morning

papers. If this crime goes unpunished, let our

skirts, at least, be free from the stain of

blood-guiltness."

Hawkins v. State, 25 Ga. 207, 211 (1858)

C. The Court's Instructions On Sentencing

The instructions of the trial court to the sentencing jury

contained flaws that cast serious doubt upon the validity of the

death penalty imposed on petitioner. First, the trial court

failed to define and delimit the aggravating circumstance it

charged the jury to consider under the Georgia statute (Ga. Code

Ann. §27-2534.1(b)(7)) as required by this Court in Godfrey v.

Georgia. Second, the trial court erroneously informed the jury

that it could impose the death penalty if it found a

non-statutory aggravating circumstance. Since the jury found

both aggravating circumstances, it is impossible to determine the

weight the jury gave to the erroneous charge.

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NN SI a at Be a i all Ee ct NR ee “Pr oe aie

’

REASONS FOR GRANTING THE WRIT

I, THE IRIAL COURT'S FAILURE TO PROVIDE

GUIDANCE TO THE SENTENCING JURY VIOLATES

THE REQUIREMENTS FOR CAPITAL SENTENCING

ESTABLISHED BY GODFREY V. GEORGIA

Petitioner's death sentence was imposed in violation of the

Eighth and Fourteenth Amendments to the U.S. Constitution. This

is so because his sentence rests upon a finding of the statutory

aggravating circumstance set forth in Georgia Code Ann.

§ 27-2534. 1(b) (7) —/ which, as construed and applied in

petitioner's case by the trial court and by the Georgia Supreme

Court, violates the constitutional requirements laid down in

Godfrey v. Georgia, 48 U.S.L.W. 4541 (U.S., May 19, 1980).

In scrutinizing Georgia sentencing under §(b){7), it has

been determined that there is a "constitutional responsibility to

tailor and apply [the] law in a manner that avoids the arbitrary

and capricious infliction of the death penalty." Godfrey, supra

at 4543. Thus, to pass constitutional muster, a limiting

construction must be placed on the vague catch-all language of

§(b) (7) by both the trial court's jury instructions and by the

Supreme Court of Georgia in its review of a §(b)(7) sentencing

procedure. It is evident that §(b)(7) as written, unless

modified by restrictive jury instructions and judicial

interpretation, utterly fails to "channel the sentencer's

*?—Ca. Code Ann $27-2534.1

(b) In all cases of other offenses for which the death

penalty may be authorized, the judge shall consider, or he shell

include in his instructions to the jury for it to consider, any

oat in circumstances or aggravating circumstances otherwise

authorized by law and any of the following statutory aggravating

circumstances which may be supported by the evidence:......

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

kidnapping was outrageously or wantonly vile, horrible or inhuman

in that it involved torture, depravity of mind, or an aggravated

battery to the victim.

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discretion by ‘clear and objective standards' that provide

‘specific and detailed guidance,’ and that ‘make rationally

reviewable the process for imposing a sentence of death.'" Id.

The unlimited language of §(b)(7) includes, as determinative,

phrase “outrageous ly or wantonly vile, horrible and inbuman,"

which was deemed to be insufficient to imply "any inherent —

the

restraint on the arbitrary and capricious infliction of the death

aolte —— ~~ el ee a es ne

sentence." Id. at 4544, =

The trial court's instruction to the jury in petitioner'

case~/ was totally devoid of any guiding or limiting

instruction as to the §(b)(7) aggravating circumstance.’ The

court charged the jury that it was authorized to impose the death

penalty if it found, beyond a reasonable doubt, that "[t]he

offense of murder was outrageously and wantonly vile, horrible or

inhuman in that it involved torture, depravity of mind or an

aggravated battery to the victim." Appendix B at 7a-8a. The

jury was given no further assistance regarding the §(b) (7)

language. None of its terms was defined or delimited and no

examples were given to guide the jury in its sentencing

deliberations.

—/ Sentencing instructions set forth in full in Appendix B.

**/ The court also instructed the jury to consider, a

non-statutory a grenes ite circumstance, i.e. "The offence of

murder was committed while the offender was engaged in the

commission of a robbery." Appendix B at 8a. Although the Georgia

Supreme Court found that the trial court erroneously told the

jury that the death penalty could be imposed on the finding of

the non-statutory aggravating circumstance, it held that since

Aaa se found both the non-statutory circumstance and the

of only one statutory aggravating circumstance is all that is

required to authorize the imposition of the death penalty."

Hardy v. State, supra 264 S.E.2d at 215 cApgendss A at 5a). The

prejudicial effect of the jury's mistaken belief that it was

authorized to impose the death penalty if it found the

non-statutory aggravating circumstance is discussed infra at

14-15. ; Mac

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7) aggravating circumstance there was no error. "A finding

Godfrey makes it clear that the limiting definition which

is demanded is one which would narrow §(b)(7) so as to require,

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at the very least, a finding that the person to be sentenced to

death possessed a "mental state that led [him]...to torture or : -—

commit an aggravated battery before killing his victim." Godfrey,

supra at 4544,

This definition was found by the Godfrey plurality to be |

the result of the Georgia Supreme Court's “consistent conclusions

respecting the §(b)(7) aggravating circumstance," Id. and the

making of any ad hoc departures from these conclusions would

"create a risk that the punishment [of death] will be inflicted

in an arbitrary and capricious manner." Id. at 4543.

The requisite limiting definition must have been charged to

the jury. Godfrey makes it plain that the purpose of the

sentencing standards demanded by this Court in Furman v. Georgia,

408 U.S. 238 (1972) and Gregg v. Georgia, 428 U.S. 153 (1976) is

to "channel the sentencer's discretion." Godfrey, supra at F

4543. The constitutional flaw found in Godfrey was that the

sentencer's discretion had not been channeled. "[T]he trial

judge's sentencing instructions...gave the jury no guidance

concerning the meaning of any of §(b)(7)'s terms. In fact, the

jury's interpretation of §(b)(7) can only be the subject of sheer

speculation.” Id. at 4544,

~ Thus, the dictates of Godfrey require that the jury must be |

instructed to find that severe and serious physical abuse was

intentionally inflicted on the victim by the person to be

sentenced to death for the murder. As can be seen from an

examination of the full sentencing instruction herein, these

constitutional requirements were not met. The death sentence

received by Kenneth Hardy is invalid since it is based upon a

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naked §(b)(7) finding without the constitutionally demanded —

narrowing construction.

In addition to the requirement that the sentencing jury be

guided by a limiting construction on a §(b)(7) charge, the

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Supreme Court of Georgia must also apply the required limiting

construction in its sentencing review on appeal. This is so

because the Georgia Supreme Court's review is a constitutionally

required safeguard "to assure that the death penalty will not be

imposed on a capriciously selected group of convicted 4

defendants," Gregg v. Georgia, supra at 204, and was relied on as

such a safeguard by this Court when, in that case, it sustained .

the constitutionality of the Georgia statutory procedures. See

also Gardner v. Florida, 430 U.S. 349, 361 (1977). Thus it was

that Godfrey emphasized that the Georgia Supreme Court had failed

to apply a constitutional construction to the §(b) (7) language.

Unless a proper construction is employed in the sentence review

conducted by the Georgia Supreme Court, a death sentence based on ;

§(b) (7) cannot stand. :

In petitioner's case the Georgia Supreme Court failed to

apply the required limiting construction. While it found that

the victim was severely and seriously physically abused, it did

not specifically find that petitioner himself inflicted the

injuries on the victim or that he intended to do so. Indeed, the

Georgia Supreme Court refers to "the perpetrators"—/ indicating

that the jury could have found, as part of the conspiracy, that

the aggravated battery and/or torture of the victim was inflicted

by one or more of the other persons who were involved in this

crime and not by petitioner.

*?Mardy v. State, supra 264 S.E.2d at 215 (Appendix A at 5a).

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It is just such an evil that Godfrey seeks to cure. The

offending §(b)(7) language, without the required limiting

construction, would permit a jury to impose the death sentence

based on the §(b)(7) aggravating circumstance even if the

“torture” or “aggravated physical battery" were committed by

another. Indeed it may well have done so in this case.

II. THE TRIAL COURT'S INSTRUCTION TO THE JURY

THAT A DEATH SENTENCE WAS AUTHORIZED UPON A

FINDING OF A NON-STATUTORY AGGRAVATING

CIRCUMSTANCE WAS AN ERROR OF CONSTITUTIONAL

MAGNITUDE

The sentencing procedure in petitioner's case was further

and fatally flawed by the erroneous charge to the jury that it

could consider “robbery” as an aggravating circumstance and

impose the death penalty upon that finding alone. The Supreme

Court of Georgia essentially ignored this error by stating that

since the jury found both aggravating circumstances and since

only one statutory aggravating circumstance was required to

authorize the imposition of the death penalty, the death penalty

was lawfully imposed.

Pursuant to the Georgia statutory procedure, the sentencing

jury makes its life-or-death decision after a deliberative

process in which its “attention is directed to the specific

circumstances of the crime [and]...the characteristics of the

person who committed the crime." Gregg v. Georgia, supra at 197.

The function of the statutory definitions of aggravating

circumstances is to direct the sentencing jury's attention to the

most relevant factors. Id. at 197-198. Although the trial judge

may enumerate other non-statutory aggravating circumstances

warranted by the evidence under §27-2534.1(b) and the jury may

consider them all, the death penalty may be imposed only upon the

finding of a statutory aggravating circumstance. .

shés

By erroneously instructing the jury that if they found that

ee Sie ee

the offense was committed while the offender was engaged in a sil

robbery the death penalty could be imposed—' the trial court

ae See

. 3a

committed harmful error. This is especially so because the jury

found the non- nS nba aggravating circumstance as well as the

statutory one and, having been instructed that the finding of

either permitted the imposition of the death penalty, recommended

the death penalty for petitioner upon the finding of both.

ceeet et a See ee

Under the Georgia scheme, a life sentence may be

recommended even if two, or three, or more statutory aggravating

circumstances are found. Although one statutory aggravating

circumstance is enough to permit a death sentence, no particular

number ever requires a death sentence. Thus, each and every

aggravating circumstance which the jury finds could tip the '

delicate balance. And, if a death sentence is returned (as it )

was in this case), the part played in it by any particular 7

aggravating circumstance which the jury found "can only be the

subject of sheer speculation." Godfrey, supra at 4544.

As this Court has made abundantly clear, when a defendait's

life hangs in the balance, "doubts [as to how defective jury

instructions may have affected jurors' sentencing

deliberations]...should be resolved in favor of the accused."

Andres v. United States, 333 U.S. 740, 752 (1948). Thus the

finding of the non-statutory aggravating circumstance erroneously

permitted by the trial court's instructions and made by the

sentencing jury may very well have spelled the difference between

petitioner's life and his death. This can only be the “subject

of sheer speculation" and such uncertainty is constitutionally

impermissible. Godfrey, supra at 4544.

*7~Appendix B at Ba.

Sa Se

; III..THE PROSECUTOR IMPROPERLY SUGGESTED TO THE JURY

4 _.........THAT THE SUPREME COURT OF GEORGIA ENDORSES THE

DEATH PENALTY BY QUOTING FROM OPINIONS OF THAT

4 ~ COURT _IN HIS CLOSING~ ARGUMENTS

Improper and inflammatory remarks made to a jury by a

;

. 3

prosecutor during a closing argument in a criminal trial can be

so prejudicial that they deprive a defendant of ‘bis Sixth and

a see is Amendment Tights to a ‘fair trial and due process. See

asin aula ome wae et

Hous ton - Vv. Estelle, 569 F. 2d 372 (5th cir. 25 (granting writ of

Ss . Hale. on 3 2 EST a Pm oe = SasS at wt

| habeas corpus), rehearing and abbas ike en bane denied, 572 F.2d

372 (5th Cir. 1978). To permit such inflammatory argument in any

- ate ne me ree - ene ~ —_- +

trial violates the Constitution because "(h)ighly prejudicial

remarks uttered by the prosecutor jeopardize the jury's

deliberative processes and hence infringe upon an accused's right

to a fair hearing...." Bruce v. Estelle, 483 F.2d 1031, 1040 (5th

Cir. 1973), overruled in part on other grounds, 585 F.2d 752 (5th

Cir. 1978) (granting writ of habeas corpus). Cf. Turner v.

Louisiana, 379 U.S. 466, 472 (1965) ("exercise of calm and

informed judgment by [the jury] is essential to proper

enforcement of law"). To countenance the use of such prejudicial

statements in a capital case, in which "[i]t is of vital

importance...that any decision to impose the death sentence be,

and appear to be, based on reason rather than Caprice or

emotion," (Gardner v. Florida, supra at 358) conflicts not only

with established due process standards but also with the Eighth

aX Amendment's demand for reliability in death penalty cases.

Lockett v. Ohio, 438 U.S. 586, 601 (1978).

In addition, as this Court recognized in Taylor v.

Kentucky, 436 U.S. 478 (1978), improper remarks made by a

prosecutor in his closing argument can increase the impact of

inadequate jury instructions, Comers ceeet lag the conger. of an

arbitrary and capricious Jury verdict. Id. at 486-88.

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Petitioner here seeks review of what appears to be a

standard practice of Georgia prosecutors - the making of certain

inflammatory, prejudicial statements during closing arguments

which have been repeatedly criticized, but continue repeatedly to

be condoned by the Supreme Court of Georgia. By criticizing this

practice, the Supreme Court of Georgia has established its

impropriety. By refusing to reverse sentences tainted by this

practice, however, the Supreme Court of Georgia has permitted the

practice to continue. In petitioner's case the effects upon the

jury of the prosecutor's improper statements made during the

sentencing phase closing argument were doubly compounded: first

by the prosecutor's use of similar improper and similarly

disapproved statements which were made shortly before to the jury

during his closing argument in the guilt phase of the trial, and,

additionally, by the failure of the trial court's instructions to

guide the jury adequately in its sentencing determination.

The conduct in question is the quoting to the jury from the

120-year-old opinion of the Supreme Court of Georgia in Hawkins

v. State, 25 Ga.207 (1858) .—/ After first suggesting that

failure to impose the death sentence has caused crime to increase

("We...see that for the past 10 years... [capital punishment] has

not been carried out and...how our crime has increased; in this

country it is rampant") ,——/ the prosecutor invoked both the

authority of the Georgia Supreme Court and "biblical" justice:

We can go back to 1858 to a case of Hawkins

versus the State. It's reported in the 25

Georgia Appeals, beginning 207 and Justice

Lumpkin wrote on page 211: "Human life is

sacrificed at this day, throughout this land,

with more indifference than the life of a dog,

especially if it is a good dog. Cain was the

*}—The prosecutor s closing argument the sentencing phase of

petitioner's case is set forth in Appendix C.

a Appendix C at 13a. .

-l7-

/- 7 hi wht 4c e sha pp eee te

first murderer, but who is the last, is known

only to those who have read the morning

papers. If this crime goes unpunished, let

our skirts, at least, be free from the stain

of blood-guiltness." .

Your Honor, as I said that opinion was

written in 1858 by Justice Lumpkin in our o

Supreme Court of the State of Georgia.

Not only was this language calculated to inflame the

passions and prejudices of the jury but it implied to the jury

that the Supreme Court of Georgia not only endorses the death :

penalty but, essentially, demands it in a murder case.

Furthermore, in its opinion in petitioner's case, the

Georgia Supreme Court, while disapproving of the earlier reading

by the prosecutor to the jury of similar inflammatory

statements */ from Eberhart v. State, 47 Ga. 609 (1873), stated

that the prejudicial impact of reciting from Eberhart was, in

effect, blunted by the fact that "the prosecutor did not identify

the judge who wrote them, [or] the court which decided the

case..." Hardy v. State, supra at 264 S.E.2d at 214,—/ The

prosecutor however did not similarly restrain himself during his

closing argument in the sentencing phase of petitioner's trial.

Thus the jury was encouraged to infer that respectable Georgia

tradition and judicial authority supported sentencing Kenneth

Hardy to death. In Hawes v. State, 240 Ga. 327, 336, 240 S.E.2d

833, 840 (1977), the Supreme Court of Georgia wrote,

We do believe, however, that the remarks

by the district attorney were im roper.

It would not have been improper for the

district attorney merely to have expressed

to the jury the sentiments embodied in the

quote from Eberhart, supra. Cf. Chenault,

supra. However, the strict attorney's

attribution of those sentiments to a

justice of this court with the object of

influencing the jury to impose the death

penalty was improper and is disapproved.

See Croom v. State, 90 Ga. 430(4). 17 S.E. a

1003 (1892). -

*?— The prosecutor s closing argument in the guilt phase is set

forth in Appendix D. <

**/ appendix A at 4a.

Petitioner contends that the prejudicial effect of the

Hawkins language was compounded by the previous misuse by the

prosecutor of the Eberhart language, just hours before i

during the closing argument in the preceding guilt phase of the

ort — = 7 we ; : rs

In Eberhart the Georgia Supreme Court affirmed the first

death sentence ever imposed:on «woman in Georgia. From the :

excerpts read by the prosecutor, the court can be heard to speak =a

of the need to avoid "sickly sentimentality" and to adopt "[a]

stern, unbending, unflinching administration of the criminal —

nX®/ ° °

law...."——" As the full opinion in Eberhart shows, the court

was there concerned primarily with problem of sentencing women to

death. However, the transcript of his two closing arguments

demonstrates that the prosecutor in petitioner's case used both

the Eberhart and Hawkins opinions to urge the jury to sentence

the petitioner to death. In petitioner's case the prosecutor's

excerpted quotations were particularly prejudicial because they

magnified the impact of the inadequate: jury instructions on

sentencing.

This use of Eberhart and Hawkins in closing arguments is a

common practice in Georgia capital cases. In recent years the

Supreme Court of Georgia has repeatedly criticized such conduct.

For example, in Zant v. Campbell, 245 Ga. 368, _S.E. 2d ae

a (1980), the Georgia Supreme Court reviewed the granting of a writ

of habeas corpus on the grounds that the death penalty had been

_/ The jury retired after closing arguments and instruttions

in the guilt phase at 4:55 p.m. on January 13, 1978 (Tr. p. 594)

and, after returning a guilty verdict, retired again immediately

after closing arguments and instructions in the sentencing phase

at 8:40 p.m. of the same day (Tr. p. 652).

**/ Appendix D at 18a-19a. a

unconstitutionally imposed and petitioner's i4th Amendment due

process rights violated because of the reading by the prosecutor

of both the Eberhart and Hawkins language. The Georgia Supreme

Court wrote:

"We have consistently noted that the

practice of influencing the jury to impose the

death penalty by implying that Justices of the

Georgia Supreme Court would approve such a

sentence was error under the due process

clause of the Fourteenth Amendment, and that

accordingly, a district attorney should not

read to the jury the cited passages from

Eberhart and Hawkins, so as to attribute, in

the minds of the jury, the sentiment of said

passages to the Justices of this Court. Potts

v. State, 241 Ga. 67, 85 (243 SE2D 510)

(1978); Presnell v. State, 241 Ga. 49, 62 (243

SE2D496) (I978); Lamb v. State, 241 Ga. 10, 15

(243 SE2D 59) (1978); Hawes v. State, 240 Ga.

327, 336, Supra. "

The Georgia Supreme Court noted that Campbell was tried

prior to its decision in Hawes, supra~/ and it reversed the

granting of the writ on the grounds that the use of the

disapproved language was harmless error since the habeas corpus

court found that the District Attorney had offered a life

sentence in return for a guilty plea following several hours of

jury deliberation.——/

In Hawes and Lamb, the Supreme Court of Georgia did not

address the question of whether an Eberhart argument by a

prosecutor constitutes reversible error, because other errors

warranted reversal of the death sentences in those cases. In

Potts and Presnell, however, that court held that such conduct,

though improper and disapproved, does not constitute reversible

*7 Petitioner herein was tried in January, 1978, subsequent to

the 1977 Hawes decision.

**/ The Court does not make it clear whether the mee knew of

this offer. In any event this rationale is cryptic.

Sony

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error. The court considered the issue in Potts and Presnell in

determining, pursuant to Ga. Code Ann. §27-2537(c)(1), whether

the death sentences in those cases were imposed improperly under

the influence of passion, prejudice, or any other arbitrary

factor. In Presnell the court concluded that "the facts of the

case now before us are such that we find that the written words

of a since deceased jurist could not have inflamed the jury more

than the facts of the case themselves." 241 Ga. at 62, 243

S.E.2d at 507. The court provided no basis for that speculation

about the impact of the Eberhart argument on the jurors’ minds.

In petitioner's case, too, the Supreme Court of Georgia

criticized the prosecutor's use of Eberhart and Hawkins but

refused to reverse the death sentence. The court stated,

"[w)hile this court has condemned such practice, we have held it

not to be error under the circumstances here (citations

omitted)." 264 E.E.2d at 214 (Appendix A at 4a).

In petitioner's case, as in Presnell, the Supreme Court of

Georgia, provided no basis for its speculation that the

disapproved language "could not have injected an improper element

of passion, prejudice or other arbitrary factor." (citation

omitted) 264 S.E.2d at 214 (Appendix A at 4a).

With all due respect, the Supreme Court of Georgia is doing

a poor job of discouraging prosecutors from making Eberhart and

Hawkins arguments. By criticizing such conduct, yet refusing to

reverse sentences which may be tainted by it, the Supreme Court

of Georgia tacitly encourages these inflammatory speeches. That

practice will be stopped only by imposing the sanction of

reversing death sentences.

In United States v. Estepa, 471 F.2d 1132 (2d Cir. 1971)

(Friendly, J.), the court dealt with the problem of ending a

common, improper practice of prosecutors during grand jury

proceedings. The court noted that it had given prosecutors clear

warnings against the conduct in question in that case and then

held,

We cannot, with proper respect for the

discharge of our duties, content ourselves

with yet another admonition; a reversal

with instructions to dismiss the

indictment may help translate the

assurances of the United States Attorneys

into consistent performance by their

assistants. 471 F.2d at 1137.

The D. C. Circuit has also held that the calculated

misconduct of prosecutors who refer to matter not in evidence

during closing argument and thereby improperly inflame the

passions and prejudices of the jury cannot and must not be

tolerated and demands reversal. U. S. v. Whitmore, 480 F.2d 1154

(D.C. Cir. 1973); U. S. v. Hawkins, 480 F.2d 1151 (D.C. Cir.

1973).

The Supreme Court of Georgia appears to be unwilling to

enforce its repeated criticism of Eberhart and Hawkins arguments

by the sanction of reversing sentences. Petitioner urges this

Court to adopt the view of the 2nd and D.C. Circuits on the need

to end repeated prosecutorial misconduct by reversing the death

sentence in this case.

But reversal for prosecutorial misconduct is not the sole

reason why this court should grant certiorari herein. Scrutiny

of the prosecutor's closing argumen*s can lead only to the

conclusion that petitioner was deprived of his right to the fair

prejudice-free determination of his sentence required by due

process and by the Eighth Amendment.

-22-

CONCLUSION

| 4

a For the reasons stated above, petitioner prays that this

. Court grant a writ of certiorari to review the judgment of the

Supreme Court of Georgia.

Respectfully submitted,

Western Electric Company, Incorporated

222 Broadway

New York, New York 10038

Attorney for Petitioner

July 2, 1980

APPENDIX A

HARDY v. STATE __

Ga. 2)1

Cite as, Ga, 7645.E.746268

HARDY

The STATE.

No. 35588.

Supreme Court of Georgia.

Argued Jan. 14, 1980.

Decided Feb. 20, 1980.

[Headnotes omitted ]

Summary of Facts

From the evidence presented at the trial,

the jury was authorized to find the follow-

ing facts. ‘

Driving his pickup truck, the 60-year-old

victim, Lewis J. Ingram, left his home in

Thomasville, North Carolina, on July 26,

“near Commerce.

the purpose of visiting relatives and friends.

Upon arriving in Commerce, he visited his __..

sister and spent one night in her home.

The following day, he moved into a motel

near Commerce and for the next four days

spent a great part of his time at Willie

Brown's Produce Stand on Highway 44]

the produce stand, the victim became ac-

quainted with those persons who were oper-

ating the business and had the opportunity

‘During the hours spent at _

of .talking with old acquaintances from~

Commerce, which was his boyhood home.

Upon leaving North Carolina, the victim

had in his” possession more than $1,000,

mostly in one hundred dollar bills.. His

possession of a number of bills in large

denomination became quickly known by

‘several people. On the first night he was in

Commerce, his sister saw the money he was

carrying. An employee of the motel where

he was staying also noticed a large amount

of bills on the nightstand in his motel room.

During his visits at Willie Brown's Produce

Stand, the victim made several purchases

from Dub Hardy, an employee at the stand,

but did not pay for the purchases at tbe

time because Mr. Hardy was unable to.

change the large bills being carried by Mr.

Ingram. Dub Hardy is the father of the

appellant in this case. Both he and his

wife, Mary, worked at the produce stand.

During most of the time Mr. Ingram

spent at the produce stand, he had exhibit-

ed indications of having consumed alcoholic

beverages. On Saturday, being the fourth

day of his visits at the stand, the victim met

a number of pecple at the stand, including

Dub and Mary Hardy, Billy Hardy, Carolyn

Hardy, Edwin and Patsy McGill and Buster

and Betty Minish. By the late afternvon,

the victim was showing the effects of hav-

ing consumed a considerable amount of al-

cohol. During Saturday evening, the vic-

tim, along with Buster Minish, left the pro-

duce stand to play poker at Billy Hardy's

trailer. Buster Minish drove the victim's

truck and his wife, Betty Minish, followed

in another vehicle. _Billy Hardy's trailer is

situated only a few yards from the home of

1977, en route to Commerce, Georgia, for Dub Hardy. _Billy Rerty and Roneeth Har-

uy, Shs 7 il é hy kek wee at eT S os Mey

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212 Ga.

dy, the appellant here, are sons of Dub and

Mary Hardy. Betty Minish is the wife of

Buster Minish and a cousin of Mary Hardy.

When Dub and Mary Hardy arrived at their

home, Lewis Ingram’s truck was located in

the yard next to Billy Hardy's trailer.

Mary Hardy became concerned that trouble

was about to develop and urged Dub Hardy

to get the victim out of the trailer. The

victim, Buster Minish and the appellant,

who had arrived upon the scene, had been

arguing. Dub Hardy went’ to his son’s

trailer and found the victim on a couch in a

very drunken state. He took the victim by

the arm and led him to the door where he

missed one of the steps and fell into the

yard. The appellant then attacked the vic-

264 SOUTH EASTERN REPORTER, 2d SERIES Swe 74

On the following day, Billy Hardy and

Minish, together with Minish’s wife planned - ma

the story to be told by each of the parties in

order to avoid implication in the murder.

During the early morning hours of Sunday

just following the murder, Buster Minish

told his wife that the pickup truck in which

the victim and Kenneth Hardy were riding

went across a little bridge and one shot

went off and as they went up the road

farther, there was another shot. At this

point, Billy Hardy jumped out of the truck ;

and dragged Kenneth Hardy out of the:

back and said “You ain't got no damn sense.

You didn’t have to do that.” Buster Minish f

also at this time told his wife that Kenneth :

Hardy fired the shot which killed the vic-

tim with a wrench wrapped in a rag and -

severely beat him about the head. Dub A few days later, Buster Minish commit- |

Hardy made an attempt to stop the fracas ted suicide. |

but was restrained by Buster Minish. At : |

this point, the appellant got a shotgun and Enumerations of Error |

he, together with Billy Hardy and Buster [1] 1. In his first enumeration of error, .

Minish took the victim into the woods the appellant complains of a failure on the by

where appellant attempted to force the vic-

tim to tell where his money was. This

attempt was not successful. Having failed

in this effort, appellant and his companions

brought the victim back to the yard and put

him in the back of his own truck where he

was joined by appellant. Billy Hardy drove

the victim's truck and Buster Minish fol-

lowed in another vehicle for a distance of

some ten miles to a secluded area. At some

point, gasoline was poured on the victim

and there is evidence that the .victim

begged, “Please don’t pour that gasoline on

me.”

Appellant shot and killed the victim and

then his body was burned, along with the

truck.

The shotgun was thrown into a lake from

which it was later recovered and ballistic

tests determined the shotgun to have been

the murder weapon. Upon returning to the

Billy Hardy home, Billy and Kenneth Har-

dy, as well as Buster Minish, were seen to

have blood on their clothing and a consider-

able amount of blood was on the ground in

the yard near the Billy Hardy home.

part of the trial court to exercise its discre-

tion as required by law. The investigating

officer was allowed to remain in the court-

room after the rule of sequestration had

been invoked but was not required to be the

first witness to testify. Appellant does not

argue that the trial court abused his discre-

tion in allowing this to occur. See McNeal

v. State, 228 Ga. 633, 187 S.E.2d 271 (1972).

Instead, it is argued that the trtal court did

not use its discretion at all but rather decid-

ed as a matter of policy that the officer

could be called to testify at such time as the

prosecutor pleased. Stuart v. State, 123

Ga.App. 311, 180 S.E.2d 581 (1971). In

Stuart, it was held that the ‘trial court

should exercise its discretion both as to

permitting exceptions to the sequestration

of witnesses and as to the sequence of call- >

ing unsequestered witnesses. The exercise

of the trial court's discretion should be

based upon a showing that the state has

some need not to call the unsequestered

witness as the first to testify.

In the instant case, the state requested

that GBI agent Pat Patterson be allowed to

remain in the courtroom for the purpose of

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—s

HARDY v..STATE—--——_--—__ Ga.

213

Cite as, Ga, 264 S.E 24 209

assisting the district attorney in the trial of ~

the case. The state went further and stat-

ed, “his testimony will all be from investi-

- gation and nothing in the chronological or-

der of the evidence we present.” Appel-

Jant’s attorney then objected to the witness

being allowed to stay in the courtroom un- ~

less he be required to testify first. °-The

court overruled the objection and in re-

sponse to further argument of defense

counsel oz, the point, the trial judge stated

S - because I'm not going to dictate

to the state in which manner the state

introduces its evidence.” The orderly pre-

sentation of evidence being a proper reason

for an exception to the rule of sequestra-

tion, and the trial judge having based his

ruling upon this exception, we find no error.

McNeal v. State, supra.

2 The state called Mary Hardy who tes-

tified as to statements made to her by Billy

Hardy which incriminated the appellant.

She testified that upon his return from the

murder scene, Billy Hardy told her that the

appellant had “cut the victim all to pieces.”

Furthermore, the state offered the testimo-

ny of Betty Minish consisting of statements

made to her by her now deceased husband

the day after the killing. In these state-

ments, Minish named appellant as the per-

son who shot the victim. Attorney for ap-

pellant objected to the testimony of both

witnesses on the grounds that the state-

ments were hearsay. Appellant argues in

his second and third enumerations of error

that the trial court committed reversible

error in overruling his objections and ad-

mitting the statements.

{2,3} “After the fact of conspiracy shall

be proved, the declarations by any one of

the conspirators during the pendency of the

criminal project shall be admissible against

all.” Code Ann. § 38-306. The conspiracy

is deemed in progress until its ultimate

purpose is accomplished. It may include

acts performed and declarations made after

the commission of the crime. Conspiratori-

al efforts to conceal the fact of the crime

and the identity of the perpetrators are a

continuation of the conspiracy so that the

parties to such a conspiracy would be con-

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sidered so much of a unit that the declara- —

tions of either are admissible against the -

other. Crowder v. State, 237 Ga. 141, 227

S.E.2d 230 (1976); Evans v. State, 222 Ga.

392, 150 S.E.2d 240 (1966); Chatterton v.

‘State, 221 Ga. 424, 144 S.E.2d 726 (1965).

[4] There was evidence sufficient to es-

tablish a prima facie case of conspiracy to

rob and kill the vic\m and thereafter

conceal the murder. The statements of Bil-

ly Hardy and Buster Minish were made

during the pendency of the conspiracy in

that the concealment phase of the conspir-

acy was plainly pending.

[5,6] Appellant argues however that

even though the conspiracy had not ended,

the statements lack the “indicia of reliabili-

ty that would afford the trier of fact a

satisfactory basis for evaluating the truth

of the prior statement” which is required

for admissibility. Dutton v. Evans, 400

U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970);

Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct.

2308, 33 L.Ed.2d 293 (1972); Mooney v.

State, 243 Ga. 373, 254 S.E.2d 337 (1979).

We do not agree. The indicia of reliability

required for admissibility are that the state-

ments be non-narrative; that the declarant

is shown by the evidence to know whereof

he speaks; that the witness is not apt to be

proceeding on faulty recollection; and that

the circumstances show that the declarant

had no apparent reason to lie to the wit-

ness. Mooney v. State, supra. It is not

required that all of the indicia be present

for the statement to be admissible. Mancu-

si v. Stubbs, supra; Mooney v. State, supra.

The final three indicia are present in the

instant, case. ,

It is undisputed that both the declarants

were present at the scene of the murder

and knew of the facts. It cannot be said

that either witness, the mother of appellant

or the wife of a co-conspirator was apt to be

proceeding on faulty recollection. While

Mary Hardy was a reluctant witness, she

had given a statement five days after the

crime which confirmed her testimony. The

testimony of Betty Minish was positive and

direct. The declarants had no apparent

reason to lie to the witnesses. Both state-

hea ae ae eer”

jam

‘>?

5 > Ae

; — A aa othe pee

~ 7 wert >. : em. .

, i eo <a te he

woe

re ‘

i |

9a en ee ee eee

in be

ai }

es 4S

Eee

~~ aa

wee

214 Gx

ments were inculpatory in that they placed

the declarants at the scene of the actual

murder. Furthermore, Billy Hardy's state-

ment was spontaneous and given immedi-

ately after the crime. Buster Minish’s

statement was made before coaching his

wife as to an alibi story to present to the

authorities in case they were questioned.”

The admission of the statements made by

Billy Hardy and Buster Minish was autho-

rized by Code Ann. § 88-306. Appellant's

enumerations of error 2 and 3 are without

merit. <A oss ee

(7,8) 3. Appellant in his fourth enu-

meration of error contends the trial court

erred in failing to charge the jury on the

law of voluntary manslaughter. Appellant

relies on the testimony of Dub Hardy that

he heard the victim, the appellant and Bust-

er Minish arguing. The record is not clear

as to who was arguing with whom; how-

ever, it is clear that nothing more than

words were passed and no threats were

heard. It should also be noted that the

arguments occurred prior to Dub Hardy

taking the victim out of the trailer. Ac-

cording to Dub Hardy, the victim was in a

drunken state and fell to the ground as he

left the trailer. See Hill v. State, 236 Ga.

703, 224 S.E.2d 907 (1976). In order to

warrant a charge of voluntary manslaugh-

tér, the evidence must not only show an act

of violent passion, but also some serious

provocation sufficient to excite such passion

in a reasonable person. Swett v. State, 242

Ga. 228, 248 S.E.2d 629 (1978); Smith v.

State, 49 Ga. 482 ( 1873). We conclude from

a study of the record that.the evidence did

not warrant a charge on voluntary man-

slaughter. Code Ann. § 26-1102; Lowe v.

State, 240 Ga. 767, 242 S.B.2d 582 (1978).

Furthermore, there was no written request

to charge voluntary manslaughter, Drig-

gers v. State, 244 Ga. 160, 259 S.E.2d 133

(1979); Morgan v. State, 240 Ga. 845, 242

S.E.2d 611 (1978); State v. Stonaker, 236

Ga. 1, 222 S.E.2d 354 (1976).

[9] 4. In his fifth enumeration of er-

“ror, appellant contends there was a denial

of due process of law as a result of the

prosecutor reading from Eberhart v. State,

. a

wei ="

Fe + 7% | ‘sp? .

eff WT Caterer SS de ae ~ 4 we aa .

. a 5

~~. fo ‘ - ' ;

- 4

™ . v & }

3 _ — Soy

. ~ %- f

: o .

- be - 4 o ¥ yer

‘ ~- a

, she ave ev

* 4 7

. > . eo

gy gh RS Sedna iy Beane cn

5 r it te <a 7 ‘

‘“ 6th SS RPS Dhaai

: ‘ 4 ~

y oe ¥ ' ont

oo ; a) 2 pte | oe

- ~ . ve Ce ee

be fle

264 SOUTH EASTERN REPORTER, 2d SERIES

47 Ga. 598, 609 (1873). Prior to his opening

argument, the prosecutor quoted to the

court Code Ann. § 26-1101 and read dicta

from Eberhart. Our review of that portion

of the record reveals that in reading these

passages, the prosecutor did not identify the

_judge who wrote them, the court which

decided the case nor did he make any com-

ments as to the outcome of the case. God-

frey v. State, 243 Ga. 302, 253 S.E2d 710

(1979); Hawes v. State, 240 Ga. 327, 240

S.E.2d 833 (1977). This court has previously

stated its disapproval of the reading of cer-

tain passages from Eberhart and this same

disapproval is reiterated here. However,

we have held it not to be error under the

circumstances of this case. Ruffin v. State,

243 Ga. 95, 252 S.E2d 472 (1979); Drake v.

State, 241 Ga. 583, 247 S.E2d 57 (1978);

Campbell v. State, 240 Ga. 352, 240 S.E.2d

828 (1978).

Sentence Review

The remaining enumerations of error ad-

dress themselves to the sentence and are

best covered by the sentence review man-

dated by Code Ann. § 27-2537(c 1-3).

(10) 5. Appellant assigns error by rea-

son of the fact that the prosecuting attor-

ney was allowed to read to the court dicta

from the case of Hawkins v. State, 25 Ga.

207 (1858) prior to his argument to the jury

on sentencing. It is contended that this

resulted in the imposition of the death pen-

alty under the influence of passion, preju-

dice and other arbitrary factors. Hawkins

v. State contains dicta similar to Eberhart

v. State, supra. While this court has con-

demned such practice, Hawes v. State, 240

Ga. 327, 240 S.E.2d 833 (1977), we have held

it not to be error under the circumstances

here. Drake v. State, supra; Ruffin v.

State, supra; Godfrey v. State, supra. Fur-

thermore, we find the evidence against the

defendant to be so overwhelming that the

reading to the court in the presence of the

jury of the dicta referred to could not have

injected an improper element of passion,

prejudice or other arbitrary factor. Bowen

v. State, 244 Ga. 495, 260 S.E.2d 855 (1979).

Aetn whe WBE A 4

Sh, ingle

ea?

HARDY v. STATE

olin ian enti btnn hearths MN Rls Cling SOO G.S.96 BBB aes 2

Appellant's seventh enumeration of error is

~~ ly and wantonly vile. The evidence sup-

ports the jury’s finding of this statutory -

without merit: 7 ne

” After reviewing the entire record and

transcript, we conclude that the sentence of

death imposed on Kenneth Hardy was not

imposed under the influence of passion, _

prejudice or any other arbitrary factor.

6. The trial court charged the jury in

“the sentencing phase that it could consider

two aggravating circumstances. One, that

the offense of murder was outrageously or

wantonly vile, horrible or inhuman, in that

it involved torture, depravity of mind or an

aggravated battery to the victim. Code

Ann. § 27-2534.1(bX7), and, two, that the

offense of murder was committed while the

offender was engaged in the commission of '

a robbery. .

[11,12] In his sixth enumeration of er-

ror, appellant contends it was error to

charge as an aggravating circumstance that

the offense was committed while the of-

fender was engaged in a robbery. We do

not agree.. The statute ailows the trial °

court to charge statutory and non-statutory

aggravating circumstances. Code Ann.

§ 27-2534.1(b). While the jury would ‘not

be authorized to impose the death penalty

based on a finding as to the non-statutory

aggravating circumstance, they were autho-

rized to consider it in arriving at their ver-

dict. The jury returned its verdict finding,

beyond a reasonable doubt, both the statu-

tory aggravating circumstance and the non-

Statutory aggravating circumstance. A

finding of only one Statutory aggravating

circumstance is all that is required to autho-

rize the imposition of the death penalty.

Code Ann. § 27-2534.1(c). The murder in

this case was conducted in methodical exe-

cution-type fashion. The perpetrators se-

verely beat and partially disrobed the vic-

tim seeking to find where the victim kept

his money. The victim was “cut all to

pieces” and gasoline was poured over him

before he was shot. When appellant _re-

turned from the killing, he had blood on his

clothing and there was blood in the yard

where the victim was beaten. This clearly

evidenced a depravity of mind on the part

of appellant and involved torture to the

—

4 ,

nha DY ake aes. oy

vating ‘circumstance... .

1 oe rR 44 ey Aa ae EN ;

Hpbi ny eet? w PD Laotke oae abe ee Sr fie Rye May ty Mets SP iy

APNE eS! POE ea ils wal gh oy 2 STOEL aa ime’ ibe Te

oi Say Ma yr PURE. Re ° Se

« ° Rd

igh at; io

victim. In both respects, it was outrageous-

aggravating circumstance as well as the

jury's finding of the non-statutory aggra-

Furthermore, the evidence supports a

finding of guilt beyond a reasonable doubt

by a rational trier of fact. Jackson v. Vir-

ginia, 443 U.S, 307, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979), and the verdict and sentence are

factually substantiated. We have reviewed

‘the charge of the trial court to the jury in

the sentencing phase of the trial and find it

is not subject to the defects dealt with in

Fleming v. State, 240 Ga. 142, 240 S.E.2d 37

(1978) and Hawes v. State, 240 Ga. 327, 240

S.E.2d 833 (1978).

In reviewing the death penalty in this

case, we have considered the cases appealed

to this court since January 1, 1970, in which

a death or life sentence has been imposed

for murder, and we find the similar cases

listed in the appendix support affirmance of

the death penalty.

Kenneth Hardy's sentence to death for

murder is not excessive or disproportionate

considering both the crime and the defend-

ant.

Judgment affirmed.

All the Justices concur.

APPENDIX

Lingo v. State, 226 Ga. 496, 175 S.E.2d

657 (1970); Johnson v. State, 226 Ga. 511,

175 S.E.2d 840 (1970); Hunter v. State, 231

Ga. 494, 202 S.E.2d 441 (1973); Gregg v.

State, 233 Ga. 117, 210 S.E.2d 659 (1974);

Floyd v. State, 233 Ga. 280, 210 S.E.2d 810

(1974); Tamplin v. State, 235 Ga. 20, 218

S.E.2d 779 (1975); Dobbs v. State, 236 Ga.

427, 224 S.E.2d 3 (1976); Goodwin v. State,

236 Ga. 339, 223 S.E.2d 703 (1976); Birt v.

State, 236 Ga 815, 225 S.E.2d 248 (1976);

Stanley v. State, 240 Ga. 341, 241 S.E.2d 173

(1977); Campbell v. State, 240 Ga. 352, 240

S.E.2d 828 (1977); Moore v. State, 240 Ga.

807, 243 S.E.2d 1 (1978); Westbrook v.

State, 242 Ga 151, 249 S.E.2d 524 (1978);

« om we ,

eetar as ’ .

Sete fy

> ayGPleiT ree»

<P othe amas tt 0. il + ot eee

216 Ga 264. SOUTH EASTERN REPORTER 24 SERIES _ is $ Sibel

mene wena, EB Rigs MBs RUE Sera pe REE rien Ge rept st migrate onthe eis Sn ‘aia “eis Soe pens

_APPENDIX—Continued is ieee ee py et ann hc pala nn Re Ee Ae ee eg nan Rips

“Ruffin v. ‘State, 243 Ga. 95, 252 S.E.24 473 MT eS on Te ee re

(1979); Amadeo v. State, 243 Ga. 627,255

S.E.2d 718 (1979); Tucker v. State, 244 Ca Seen

72), 261 S.E.2d 635 (1979). aoe ie tien ee ae

no ee)

ns as ;

a ae a

“hig agar ee

‘ :

ve APPENDIX B a

1 Peo ms count's CHRRGE TO. TRE JURY ee a ~

a ao QHORADLE JNWES Le proors

A eneue ie aa ae ten SS a

Asal Pec Mr. Foreman, ladies and gentleren of the juryiay

5 The cefendant in this case has been found guilty .

6 of the “of fense of murder and it is your duty at

7 this time to determine within the limits prescribed ©

8 by aa the penalty which shall be irposed for that :

: 9 offense.

| 10 Under the law of this State every person ;

JN conc guilty of murder shall be punished by death |

12 by electrocution or by life in prison. a

8 I charge you that in arriving at your deter- |

- mination you must first determine whether at the

» “tine this crime was committed any one or more of

se the following statutory aggravating circumstances :

W existed beyond a reasonable doubt. Now, the fol-

~ ss lowing aogravated circumstances, and only the

9 following aggravated circum ... aqgravatirg cir- :

, - cumstances can you consider. ae I said, you must

™ first find that these existed beyond a reasonable a

| - doubt before the death penalty a be imposed. a

“a ss The dled a ee. ss you nay

x y » ie ea Raotae ob. -% oo Rte we oy

a id Bas sie i ee i aa

RP ‘ “offense. of murder vas | outrageously =,

: ASE a ak

circumstances existed beyond a reasonable doubt.

and vtielg pbs 4 vile, horrible. or “{nhunan cs that it

involved ‘torture, depravity « of nind or an aggravate §

battery to the victin. Oraste ss

ane oe ws

<= ee + ogee

25 a of fense of murder was committed while

the offender was engaged in the cormission of rob-

bery. hs satiinehanin et nc RUIN Ac i stdin

Those are the only two aggravating circum-

stances which you are allowed to deaniees Ane

before the death penalty can be imposed, you must

find that either one or both of those aggravating

Now, if you find that there was one or nore

of these agqravating circumstances existing beyond

a reasonable doubt, then you would be authorized

to consider imposing the sentence of death. If

you do not find that one of these aggravating cir-

cumstances existed beyond a reasonable dovbt, then

you would not be authorized to consider the penalty

of death. In that event, the sentence would be

inprisonment for life.

The statutory instructions that you are auth-

orized to consider which were these that I just

read to you wild be submitted in writing to yous

i a 22. RS Lan pelt na Wa a2

for your deliberations after. _you go ae, to the ju:

ae |

Jeep \

ee gt ES, 5 a : re By ak a iat a: :

room. — These will be sent out to you.

5 ee ‘ Tet * ~ , ’ ,

wee

- i

aa H

aa ba ites y Pes an tie

Ones om om te ~ey et oee ~

a ° aeeeiclnstints = dhe eee wa ee

In- arriving at your determination as _to what z

so et ee ee a oe —— —~ - Oo eee ee ee oe -———

sentence dis ed SE rox. are authorized | to

meee centile tment: ae ont ane ipedmantateagg a be tee ~~

consider all of the evidence receivea here in

court; presented by the State and the hetehtant

throughout the trial Lefore you. You are authorizg

to include in your considerations the facts and *

sktkaketiokes if any, in mitigation and aggrava-

tion. Hitigating plreumabinues are those which do

not constitute a justification or excuse for the

offense in question but which in fairness and mercy

may be considered as an extenuating or reducing

the degree of moral culpability of punishment.

Aggravating circumstances are those which increase

the guilt or enormity of the offense or add to its

injurious consequences,

Now, I charge you this, that even if you find

that one or more of these aggravating circumstances

existed, you are not bound to impose ... you are

not bound to find or impose the death penalty. Yow

can impose the penalty of life imprisonment even

if you find that one or both of these aggravating

circumstances existed.

Now, ladies and gentlezen, eee form of your

ay ee peg tt ESS, an

—

verdict fixing punishment should reeds owe, thed

Mi Betthie:. ube Bop ewed edtbic cst ore: wit Se

jury, fina" er ae eu ond Jarre fix ‘the punishment

be Poca, Ne ie . ’ ee ge ae Phe an 3

; ‘ * vs ms ‘nak > : Ade : ‘ Se *

¥ ia

“S sear eam

sop aE! G8. : -— 9a

vy oe

‘

{

‘

ee ee oo ee —-- + — — - - -

r of the defendant at Seath". Or, Pied, the jury,

oss

-——_

—

fix punishnent for the defendant at Lite". inprifron- 3

“

9 ment™.: ee

Toe x ae r _

AERTS. WHEN you reach a verdict, it must be unani-

mous, that is, all 12 jurors must aoree before a

Aeesers oe oe me ee

verdict can be rendered. I've prepareé a verdict.

7 %. form. I have prepared a form. I have not rre-

| 8 pared a verdict. I have prepared a form for you

9 to use in fixing your verdict. You have found

10 the defendant guilty of murder. This form reads,

1 “We, the jury, find the defendant, Kenneth Hardy,

12 guilty and fix his punishment at"; you will write :

13 in right here (indicatinc) cither "death" on “life

14 imprisonment", in the ... over the line that has

15 been prepared here, In addition to that, now if

you find that his punishment should be life impri-

sonment, then your verdict would end there and you

~ 18 would simply date it and the foreman would sign.

19 Now if you find that the punishment is to Le death,

then you would come down here (indicating) ané

there is, you will note, "We, the jury, find the

following aggravating circumstances", You must

write in one and two or one or two. You can write

CO SRP EMA: * Ae: Say Pie es yh) a a eM Sn ie a a ae wa

in one .Saeraveliang circumstances or both _aggravat

ar AS BBR ine Sligo is

Hy.

<i te just eefteneee appear on this form verel

ee) . ven wat aa mt aX re ee eS a

a as Spall are Log WP des? ae * bi.

er 8

ee —

But aif you find the eath penalty to he inpoeed,

- wee -—-

Sa ee a =

a -~ _ -

_you rust go “further and say, "We, the jury, find

the following ‘aggravating circumstances" and write

— geen, S Sa tthe mee

a we ——— -

~in the “aggravating “circumstances which you find.

And those aggravating circumstances must be one or

oe clay Carte soe

e a ee ie

“both eof this one and two ‘on this form here (indi-

cating).

As I say, your decision as to what sentence

to be imposed must be a unanimous decision. In

arriving at the determination, you will apply the

wetes herein before given you in charge with re-

spect to determine the penalty to be imposed. A-

gin, your verdict should be in writing; should be

in ink; it should be siqned by your foreman and

dated and returned into open court.

Now the Court, ae I have indicated to you,

will send out with you to the jury room the aggra-

vating circurstances which you will be allowed to

consider in fixing your determination as to whethe#s

or not the death penalty is imposed. Also, the

Court will provide you with a form for your verdic

The two I've just mentioned to you.

You may now retire to the jury room after

xz}. Mons: eae SRL hee nowy ep te wa eee. : Sey Faege*

SS ttmereuren, at 8:40 p.n., “the ery retired to}

Be Sees oS ey ee ;

3 which time the forms can be sent out to you.) |

clk eatin: : fe . ss He Sia) pi

APPENDIX C

alana SLOE ING ARGUMENT

BY NR. BANCOCK:.

May it please the Court. For many years the

question ¢ of ‘capital punishment has been debated by

laymen, by lawyers and by the courts. In 1972 the

Supreme Court of the United States returned the

Furman ... of the Purman decision reversing Purman

and the State of Georgia as to the death penalty.

Since that time, the legislature ... our

Georgia Legislature passed a new sentencing bill,

27-2534.2. And this bill provided the necessary

safeguards to mest the Unitea States Supreme Court

decision in the Furman decision. This law and

this Court ... This law has been upheld during the

past ... last year in the Gregg case that went up

in Gwinnett County.

Now, this law provides that only the most

horrible crimes are included. That there are ...

were 10, now nine aggravating circunstances under

which the State could ask for the death penalty.

And that these must be served upon the ... one or

more of these must be served upon the defendant

te tok the State could ask for the death penalty.

; . — ee « . Ss gad ‘ ¥- sesitbtioad deal

rt Then after the jury decides s the gusset or. saeins.

Bi eRe, bis eb ee a tT eee ees, ay bi toy he aS ay ae toe

sel ianosencs ot the defendant, a. “separate hear ing was

Naar ae Tie be O etal

* ‘or : ¥ ” : ARR IT Ye eect g

: . wie, si a .

| oa : ep

% . . Meee . ©

Risaet thy cote pai ut af tes ae Tat shy, batons

" Seen Cy RA 438 i ent kak

a ia at ies ns a OR. a

er Oe 2 ie cA : ae hy

. + dP ’ oe, Oke ‘~

wee es <.

Rot ed 4 "GAIL B ATKINSON — Pes) ce

a , _ x Os ‘ v -., « PHEDMONT suOrcia, (ACT af Der Pgs ~~

aa * _ eanmow couny covamovas 4 nef a Re

ype SOME Ook oy A OS i an CASnRen BROCE a Pe iit rat. iP tc Re ile

se oe

——=. = ~~ ~ -_——

“hela” wee is aaaee held to ‘give an opportunity to

ete =

—— hoa = nm mmr

present to. ‘the jury. anything he desires in mitdoats

—s

a oem <6 See

tion of the crime and why the deuth= eenEbnes should

- wy

olen RD yee oo. ee gs eR R AO RTEI Rin 8, >on

that how our or ine has increased; -. oe

v9: SS atte ; i Oe oe R eae : :

we ere ~

Ee nme hw

* ear =.

—— ;

a ~~

-- , ake

not be imposed.

Then the jury must find one or more of thore

ee —— ~w%

aggravating circumstances exists ane write it in

their verdict and explain why a death sentence is

imposed if one is imposed.

Now, your Honor, all these safeguarde have

been provided in this the trial of this case.

And he has been ... This defendant has been afford-

ed all the due processes of law before you today.

Your Honor, some people, many people some

anyway are opposed to capital punishment and sub-

mit that it is not a deterrent si crime nor does

it do anything to rehabilitate the criminal. I

submit, your Honor, that capital punishment is a

deterrent to like crimes.

No one can determine what ... who has been

prevented from committing murder and other horribld

crimes by the use of capital pantebaesat in these

type cases. We do not know nal see that for the

past 10 ycars that it has not been carried out and|_

it is rampant.

sot td hy 9 goa

fr pt! i

oy Bee Bees Se cater’ on wie

- ‘has ”

ph JEM a & re eS a feo ne “renunen stones Geile

AS ee Py Seva Sige ONE .

PM ns Fg » Moe) Wi RR

—— ne oe ee ee eee ee eS Oe le.” ~— le oO. ee. oe 7 _—— i = — anne by

1 We can go back to 1858 to a care of vavkine “

2 versus the State. It's reported in the 25 Georgia

3 Appeals, Deginning 207 and Justice Lumpkin. wrote ;

4 on page 211: __ “Human “lite” i? saeri fieed at this

5 day, throughcct this land, with more indifference

6 than the life of a dog, especially if it is a good]

7 dog. Cain was the first murderer, but who is the

8 last, is known only to those who have read the

: 9 morning papers. If this crime goes unpunished,

10 let our skirts, at least, be free from the stain _

11 of blood-guiltness.*

12 Your okt eS I said that opinion was writtes

in 1858 by Justice Lumpkin in our Supreme Court of

14 the State of Ceorgia.

There are also those, your Honor, who believe

it is wrong for the State to execute a murderer as

17 it was ... just as wrong for the State to execute

~ 18 a murderer as it was for the murderer to kill. I

19 subrit, your Eonor, that imposine the death sen-

tence is different than the rurderer on trial.

A wurderer believes in capital punishment;

. x

4 2 and without a Judge, a jury or a public bearing 7

5 s where the friends and relatives of the victin. and

; owe gE SS OT IT ERIE os

Be = had public mrs attend. This defendant bei ieves.s

PF 3 7. at Pree en my nied » aa I va 2 @

. » as a for he similarity killed his. wictin

’ “is te c ut fou ges an athe a “4ty

RP $ ee 3 Beak ee

SS SRE? Chey

- *

# > |

3 :

J 1 eo The murderer executes an dnnoceat person. ~~

2 The State ekekekae a. gui lsy psteon, “tee sericea

3 pute his vigtiniees death in aTheat of passion, for =

4 : aan ce eaeee The ee ee puts oa Rurecraie

5 er to death calmly and in the interest of justice.

6 A muréeére®’ cives his victir no ‘opportunity to re- | -

7 pent or to prepare to meet his or her Goce. But the 3

8 State gives the condemned riurderer ample time to ;

9 prepare and meet his maker. A murderer puts his

10 victim to death in order to satisfy his own feclings

oe of anger and hatred. The State puts a murderer to] =

12 death only to satisfy the demands of justice. A

13 crime of murder is a crime against not only the

4 victim but against the whole of society.

16 Not long ago this afternoon, I told you that

" you and I both had a duty to perform which neither

" of us chose. We're Loth right back again the sare

a " place; you as 12 honest, upright jurors sceking to

9 find the truth and do justice. To ask 12 people

= to send, condemn a person to the electric chair is

a | just about as crucial a position, a job or respon-

a sibility as yours; and my responsibility is sone- |

aii ~ what aime she peanee net I an Matas you. tonight ;

wae “ ow asking ro to ao. z think it is sehen kat =

ers as fete carecah wrest “heh onoes =|

Pi CRB Eo Sh tea wra

a ' bony

tine boot aera Sea Tea “ ie tl asics ea

P os, Wg i eee. Ts Ste. - So

ae a . Rieret

. 3

ee 4 a

we ree RE ak: ie aks

- 4

Now, you've heard all Lo EE evicence and _

you've returned a verdict... You" ve performed part

of your oury.s After I sit down over there in a

ee me nee ne - + ee

minute, I iyi) have perforred all of ry euty to

the best of my knowledge and ability.

tt Kenny Wardy, why? Why do I say to you; is

that justice? Can you imagine; you have oe person

coming back laughing, joking from a gruesome mur-

Ger; leaving a scene such ne that right there (in-

dicating); a human being in that condition. And

uithee a few nineties cime, Kenny came out with two

shotgun shells in hie hand laughing and joking.

This person, L. J. Ingram, a human being, burned,

charred, shot, beat, cut, left lying on a side

road in Banks County at 12:00 o'clock On ... a>

round 12:00 o'clock on Saturday night, July 30th,

1977. And then to say that's justice. Tell that

woman sitting over there. Tell her that. I don't

believe the people of Banks County want that kind

of justice either.

Why was it that way? He's got $7 thousand

dollars. We're going to play poker. He's too

“we yl or eR

cut hin as Ne pieces, with the L plese, the. desper- |

Lae eae bey ee ro eee tre tee tS

ate pleas, ‘fron that nan right cee oo Banks soeey

Si hs j : yr . im Se, singh MPO SS

rr.

Nate oe eee n=

cere yaa *

- Hy - >

-—-

rent I can Sire! it quicker than that. Beat bin,

5 ee

pes

Ue ae ee ee Ngee gee Pew gee

eye oe ae |

aie wns I Please done pour that caroline on ne “ana? ‘then eo" -

2 a Fight esi ‘Pasa if that! & PRE Pg ete =

~25=8 it. If you can saweae that Be Sere ~— =

‘ F other pictures ané“Say" eneche “perey? that 's>"s ae We

kind of mercy. That's the kind of mercy he showed. 3

ad -?hen I ask ‘you to show | him the sare kind and I nek

. you to return a verdict of quilty by death.

. Thank you.

ay Ot nts

Pears. 8 saci esi

BEES D apa aes , ae et

< poe Neh a ag

Ripe cnet 1 Can aoe

ton

ae No

the | false Moers! that. starts and shudders when the

A ae ES . 18a

APPENDIX D

8A ee me os — ~o

sil CLOSING ARGUMENT

= by See: be SS ee es

NAT EA “COCK

May it please the Court. Mr. Benton. Your Honor,

this indictment was drawn under Section 26-1191 of the

‘Criminal Code of Georgia: “Murder. A person cormits

murder when he unlawfully and with malice are ae

either exzroess or implied, causes the death of another

human being. Express malice is that deliberate ainteation

unlawfully to take away the life of a fellow creature,

which is manifestod by external circumstances capable of

proof. tislice shall be implied where no consiéerable

provocstion appears, and where all the circumstances of

the killing show an abanloned and maligant heart. '

Your Honor, I'd also like to call the Court's

attention to the case in 219 Georgia Reports, 821

quoting from Ebernart join the State in 47 Georgia

page 598.

‘We have, however, no sympathy with that sickly

sentimentality that springs into action whenever a

criminal is at length about to suffer for crime. It

may be a sion of a tender heart, but it is alsc a cign

of one not andes yreees regulation. meteaptit denands

ce Wade eawne Res ier

that crine eer oe punished and criminals warned, and...

aes ER a ae aus +2 aah CGS EGA Sw aie, vt one

~ "se

es ‘ . *) r x we .

yp, vie a iy py ere sft f ~ AE ; Sei iit « ;

he pe ihe

> ,

. . sae > y :

— wi Seow tats va’ - C Sos

. > + the Caer 7 ey By a ae , ; ;

- ete Py ee ek ite ae : by Z ar ,

Y & 2 See.) al; wa wr ea Pur te : d . .

r GAIL B. ATKINSON — COURT REPORTER | :

r § $ , ee et x

vat ic BARROW COUNTY COURTHOUSE

te er

Peay: # bey

axe of justice is ready to strike, is a dangerous

clement for the peace of society. we have had too puch

ef this mercy. It is not true lar ey: It only louker

to the erintnal.. but we must insist upon mercy to

socicty, upon justice to the poor woman whose blood cries

out. acainst her murderers. That criminals go unpunished

is a disgrace to our civilization, and we have reaped the

fruits of it in the frequency in which bloody deeds

occur. h stern, unbending, ‘unflinching administration

of the penal laws, without regard to position or sex. as

ie ie the highest mark of civilization. is also the

surest mode to prevent the cormaission of crime.

Now, ladies and gentlomen, I'm not soins to be

too long up here before you. I'r tired, and I know you

are too. But we come to a tine in our life, yours and

mine, when we are called upon to perform some duty that

we would rather not do. You as 12 honest, upricht

citizens of Banks County who were called upon for jury

duty for this term of court and hrought into this court

room to represent the people of Banks County, and I as

your pistrict Attorney whose duty it is to prosecute

all accused of a crime and protect {hs insindent: you

and I have no clients except the people of Banks County

ah Saree i y wih. - EO, Sane ee PRE Spay MMiter.. a Pee: eben :

whom you represent. _ tou have come fron all sections

‘ee Saytinee, “aie Beige oe 4 eg Bee ae | Q nap ast ‘a : fe & sane = 7

got the county? some of you I ‘know, and many of you BS

. Fi v4.9

‘ wae

roti ah

es ees eh ae ee en |

&e'% eo tre pte a : A t

Ee aoe © ae

Nardy ana to hrs. “¢> ce Fagren’ you, as I represent

to the evidence presented before you. And, you're just

ate conscience. It has touaea else yet le

a4 ge ny an einige ci fom. a atts

i a a oe sig eke

don °C PRE Be OL tate Sate ow ik. - daphne

~ = ~~ . ened ome -_-

“You were not ‘wrought “Lato this courtroon ‘to do

an injustice to anyone, ‘but to. ao justice to Reanath:

—o —_ One +t ae —_

cre chein of lav enforcement.

““““We have the Sheriff, the Deputy Sheriff, the

G.B.I. ane at this noment, I would like to compliment

then on their investigation of this case, Henry bcaio’

and his deputy, Mr. Patterson and Mr. Thompson, all of

then. They did a wonderful job. But you are alse a

part of that ae along with the Grand Jury an? the

District Attorney whose job it is to prescnt to you

from that witness stand the evidence in a fair, just

and reasonable manner. That we have tricd to do to the

best of our knowledge and ability.

You in the jury box at the beginning of this

trial took an oath: I will a true verdict give according

as much a part of that chain as anyone else. tore so

because you are the last ones to speak. The Judge will

charge you the law in the case and then it goes in your

lap. It's thrown in your lap and there's nobody to

throw it on back to. It steps right there with you and.

ee ¢ . oe

. & % 4

aie! : ee! eee SR = re

ieee re sa dete het

es me

' beginning of the trial in my opening statement, anc I Rew

"to the crime of murder, and I named then, and I told

owe ws em

ee -

‘tole you at thet tine that there were five elemen

you that we expected’... the State expected to prove

to you all of those eiasants , wide is our obligation,

of that erie" that “ne unlawfully and with malice —-~

aforethought, either expressed or implied, caused the

death of another human bcing. I can honestly say to

you at this time that we have fulfilled our obligation

to you, |

My deduction from this evidence is that we have

proved beyond a reasonable doubt each and every one

of those clencnts of the crime of murder according

to the Code Section which you have heard and which the

Judge will charge you.

‘ow, there are two things that I want to begin

by saying to you. During my nine years experience

in prosecution, very few times have I gone before a

jury but what I didn't find two things that existed.

One of ‘em is that that lawyer's going to say... it

don't make no @ifference who it is if it's Eddie Benton

—

or whoever he is ... he's going to say, try somebody el

Don't try my client. It's coming. You can look for it.

ap on, Replay 5. ORT ELE agregadas! tng

Bvt

tase

ee 8 et.

‘fing ‘ther cite! tine you ‘get inl here

row:

this witness stand yesterday and today ,

tel.

Now ‘the suage is going to charge you | on snd eae

oo meee —

anne —

Pad

ape ae aren

doubt, and 1 want you to listen ‘to. hin. hat does it.

en ame ningun nity vas lamenting

OO ee taht eit: te el te ly ay near A CR BE Ep age

mean?. It ta t mean a ‘mathematical eortaiaty. Ix

means just this. It's you and your conscience. It's

that 13th juror in this box with each and everyone of

you. It means that if there's something you heard fron:

if there's

something in there that makes you say, whoa, whoa, wait

a minute, that creates a doubt... that created a doubt

in my mind or in my heart or in ny oshautakis as to the

guilt or innocence of Kenneth MNardy ... was it... Was it

there? That's what reasonable doubt is and that's what

it means morally, legally and every other way.

Now, I'm not going to try to stand here before

you in the first place ... I've often wondered about

closing arguments, how much good they did iin me to

give cne or try to attempt to. I certainly don't think,

and I'm not egotistical enough to think that I can get

up here and convince you of anything. I'm not going to

try to. ‘There's one ... there's several things in this

evidence, and I'm not going over all of it with you,

but there’ 8 several things in this evidence that I ‘eit

noma’ Ge go over with you. satay. rates

ae Neg aeet eae) Seah on rains i ea ee .

Now, I mentioned in the opening statenent ai

‘ale as BES Tne asa

wee

sy i> apek

ea ee names that ‘you woule hear es this ease. : mat Le Jeo ie

2|/ angran, e muman Foing, vith 26 much right to tive, |

3 oide Saas fond be nicer as you one x left Thonasvi lle; io

4 “Morth Caroling, ron ie eetie me ae J0th, “19 ST a 3

5 the afternoon, I believe ... 1977 and came to Comnerce, :

el tin Sao a RD ee - vias site

6 Georgia. 2

7 That he sent the night ... was in Commerce that

8 nisht, and that he was around Wednesday, Thursday :

9 and Priday at Charlie Willie Brown's Store. ;

10 It's undisputed that Dub and Mary Hardy were -

11 hatte up there that they were together. That Dub 4

12 knew him and talked to him that willie Brown knew a

13 him ... knew who he was. (

Thet he had some money in hundred dollar bill

15 denominations. There was evidence he had at the

motel down there $900.00 an@ something dollars when

he left and $500.00 or hundred dollar bills down there

~ at the motel.

19 There is undisputed evidence that he was up there on

20 Saturday afternoon and Buster Ninish was un there. Billy

a1 Hardy was up there. That thoy left there going over to

ad Billy Hardy's to play poker.

% That he was drinking, and een he was siting in ~

El, ee gta SN Spe SP agi Negi ‘ke DiS si te Rte Let conn dpe owen MEA cope a

j ts it there on odie and thet later on that Billy and 1

wae 25 i, ean eee al is na tes

Hardy and Buster Minish were n

pee ice wie Cate tape te ey hs abit EE Re ae

te at aa ni Oe Pag? ot sd ‘* i). Soe ;

Poe

= oni by e andl

£.

: ;

oo" ee |

Teer Ves eee |

top

qh fe

1 me hic out. It's ‘undis>uted evidence that he Seay" s

3 ana thot ke mes baat Zon with 2 a wrench ch wrepped up in :

4 a white towels Ssans acer | = Teg

5 It's undisputed that Kenny Hardy had thie shotgun

6 “out at Billy Hardy's trailer in his hand; that he pointed

7 it at hin and told him, Where is it?’ Where's what?

8 My deduction is that money he had. That he was beat

| 9 up; that he was bleeding, and that he either walked

10 or was led, pulled or Bsomewey or another he got up to

a his truck with the camper on it. That he someway or

is anothor got in the Lack of that camper and then Kenneth

es Rardy got in that camper with the shotgun. It's

” undisputed.

" That Suster Minish ... with Billy Uardy evidently

* driving. They left that night from Jackson County

gg and drove nine or ten miles up into Banks County on a

~ - dirt road with Kenny Nardy in the back of the truck

” with that shotgun ané Lb. G. ... with L. J. Ingram

” beat up, bleeding and lying in that carver or sitting

. in it.

om We don't know, but he was in there. We know that

| 9 Posen came back. Who came back? eee Hardy. Buster

“a rei go * SR Po soci: 8 ON ac Ig on eae cco os

He Ses ey “Minish, and pinly ‘Laughing. Kenneth had two shotgun -

Mae, : : i. Prin a ih vot pds tue ae Rese el een at pamaacony

ee at | Baga eete a Me S anaes

Re " pe nf RET, ‘

Be * , “ee ng ge Sts lata

faa:

te, ?

before you.

5e7s badlniesan thet L. J. Inoram ee atedies

is his picture, state's Exhibit No. 1(#). You'll have

{t out with you along with his wife and his. family.

And, that's what they left out there, State's

Exhibit No. 5. And, that's his truck he was in. Ona

les is all that is identifiable of L. g. Ingram that

remained.

From there to the autopsy and where it wes

cetermined that the cause cf the death ... and fron

that body right thore came these which wore identified

as shotgun pellets. That's whore they came fron.

They left him up there afire. My deduction is

there was something said about gasoline. We don't know.

It's undisputed, the gasoline. There was a shotgun

blast. We know that. We know he burned up beyond ...

to a charred remains, unidentifiable. we know that.

We know there was a fire, and ny deduction is

that it was caused by that shotgun blast --

MR. BENTOW: -- If Your HOnor --

MR. HANCOCK: -- when he was hit.

THE COURT: -- Just a minute, Mr. Hancock.

mR. BENTON: That's all right. Go ahead. T'n

sorry. mn withdraw it. $F Sane ee ange

aa a tt ee SaNgne 0 ergot n, (nde Ay SS si.

td Bere Soaring? fel a gain ene Nei somites

: “ vf . . ge i . ° te 7 %, 2

— . > . . r :

. 2 3 i:

ROAR ONS Si ae ee gta eg

Oy oy od bp Fl as a “oem

: ig ll a

* . x >

t gettsieglt ingee 0 + pace = gist is eee ts we, 8

THE COURT: Okay. Go ahead.

MR. RANCOCK: Huh?

THE COURT: Go ahead.

MR. BENTO: % ahead, yes

MR. HANCOCK: And he was dead from that shot-

gun wound. They left there, that house, that night

They went their various waye. Kenneth went up to

Cartersville to work like nothing happened. No-

body hurt; nobody had done anything; go back and

go to work. And then in the early hours of Wed-

nesday morning ... Sacurday night around 12 o'clock

was when it happened,

Now, you've heard all of this evidence coal

them ... Doctor Dawson, GBI Agent Ward, the poly-

graph ... lie detector testimony. The Judge is

going to charge you that that's an opinion in the

evidence and that's what he gave was his opinion,

And he told you why he did, ladies and gentlemen,

how he arrived at his opinion. And an expert wit-

ness has a right to. "pid you pour gas on Mr.

Ingram?" "No." The man said he was lying in his

opinion. "Did you shoot L. J. Ingram?" “No, I

didn't Go thes. That expert witness said he was

stg ay

mx.

lying in his opinions” Did he? Fe was in chat

truck, vhen it left the house eh _that Meet be ona

a os mas . BAREREAS ies ‘ a “

‘ Pet sak 8

_ GAIL B ATKINSON — COURT | PF PORTE

ee ae Shae aes ea cee

$F aa ae a a

=o “ - of

ere. ee

wey

€

ge T

af ee hee ee ee ~~ 40M Sh nce =

Se nh ee

- oe. ~- _—

and Led. Ingran \ was in it. The truck ang Lod.

Aon nenipeopene - SO ee ee OE enn

Ingram were left up there at Banks County 10 miles

ee | geet pert

from there burning. Did he do it? That's for you

PP te tee

SETI SE OT eee a ~ - - a 6 oe

“to “decide,

wows at's op to you and T know when I sit

ue oe b | think of a hundred other thincs that I

wish I had said. But it's in your lap and on you

and your conscience. There's two questions I want

to ask you before I leave. Did L. J. Ingram, a

human being, meet his death in Banks County on

July 30th, 1977 from natural causes or was there

some criminal element that caused his death?

There's undisputed evidence that he did. Then, is

that boy, Kenneth, responsible for those crininal

means?

This has been a long, hard case for all of use.

I appreciate your attention and I ask you that

under this evidence to return a verdict of guilty

as charged. I thank you.

THE COURT:

Now, I want that charge. I want

the charge.

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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.