# Petition — Kenneth H. Babb v. Georgia (No. 80-5010) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1730%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 ## Text 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 4 a ie ve | 4 a Lage eed 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 7 7 . ; : - he se ous re ° ? * ¥. wee ys one . s i Sak Gg Tee de 4, Y, ” Se . Sia ay - ize ee Pn eee 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 i 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. =3- nF be b 2 (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. (c) The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in charge and in writing to the jury for its deliberation. The jury, if its verdict be a recommendation of death, shall designate in writing, signed by the foreman of the jury, the aggravating circumstance or circumstances which it found beyond a reasonable doubt. In non-jury cases the 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. as -4- 4 * * * . Se * wy * *y es Las “ee ‘ ® y, oot rd 4 ‘ * Ye. i ee , , he ae C eo 6 a he % ’ Dd “ f - - : . » £ x . No o a i LB (7 ee s . at * Pt RK a wy i. 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 . pa 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. -9- NN SI a at Be a i all Ee ct NR ee “Pr oe aie - d ’ 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. -10- vom > te e-« p> saa aes a : , be . a S & +3 dee os Ley >. Boe . Ws } : J ‘ dig? oe r,~ she, : iy ‘ * oP ig Rea Tas at ct woh Ge oe 8 ae a . Seah £5 ae Ss "a eae Fen ee ay - mh RE RE ne Sia Sree, r wa Bibegee Pe ~ = fom apes, ~ a! “ os okt aco" tek t nt ~~ As ~ m4 » ” v 7. wu . Fa x oy Sr blon @ ye ’ SS * « © P “ a 4 ne *~ * as | sh ee me: Wei eee em Pa, 3 3 e ‘y » Gee ee > Ye oe 2 ae BS aki ty Saye get ae er Se ee ae RS I 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. = _ *. a “St 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 * . Chae : Wy; Re. *, : a4 a ny ; ~~ - yd * ° » i Pee 4 bari 1 r uit? ~ ie ee ee ee ee —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- / oso lhe te 5) anit . Pee, ee. Se RT a, De a ae [aT al RA Sat kept : PrN whe wipers: Sb thele eae ee Sie ce Sais, os ee ae ee a * tpt oe et WK. wwe baa3 2 eee Oe ee SS igs “ ys a - ‘9 oe Le y , 4 aaa bee: Ma The 9 Soha s See a a Be ys : Cb EEE RR 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 . eo gy gh RS Sedna iy Beane cn 5 r it te ayGPleiT ree» : Ade : ‘ Se * ¥ ia “S sear eam sop aE! G8. : -— 9a vy oe > j te 4 ‘ : : 7. { ‘ i ee ee oo ee —-- + — — - - - r of the defendant at Seath". Or, Pied, the jury, oss = pe -* -——_ — se — fix punishnent for the defendant at Lite". inprifron- 3 F : a “ 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. 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 a, SH 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- 20 tence is different than the rurderer on trial. A wurderer believes in capital punishment; p . 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 - * i # > | 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 10 1] a. . 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. : 10 n 12 13 14 15 16 17 18 Be 20 21 22 23 ay Ot nts Pears. 8 saci esi BEES D apa aes , ae et , . . 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 19 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. SoD Tyner ningin. © TSA La Th «ae aren pipe, uk isin resi de; 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 18 19 ee 8 et. ‘fing ‘ther cite! tine you ‘get inl here row: -_ a 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. ( 14 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 18 ~ 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 ee = oni by e andl £. : ; oo" ee | | 4, tw +) "i Teer Ves eee | top qh fe 1 me hic out. It's ‘undis>uted evidence that he Seay" s : pushed, fell me mica ioe right © there. on the peas g 3 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: n 23 24 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 “ +. 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 3. 2 ee wey ra € 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. : * oe > » «| oe a > as % nai er a . : - “ ~ £ t ‘ . + oo - _ e 7 ° *\e PTS sang Seepagtinile’ MMe ity one ae at vgs Sa - eee Pet le oY aren ea sl td tip. ony nti oa ea - ‘ et --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1730%3A1. Public record. Not legal advice.