Petition — DAVID PEEK V. SUPERIOR COURT OF BUTTS COUNTY (No. 80-5644)

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

no. 9) -5644

DAVID PEEK,

Petitioner,

~against-

SUPERIOR COURT OF

BUTTS COUNTY, GEORGIA,

Respondent.

MOTION TO PROCEED IN FORMA PAUPERIS

The Petitioner, DAVID PEEK, by his undersigned counsel,

asks leave to file the attached Petition for Writ of Certiorari

to the Superior Court of Butts County, Georgia, without prepay-

mentment of costs and to proceed in forma pauperis, pursuant to

Rule 46. Counsel's Affidavit in support of this motion is

annexed.

Sat wee

/

SCOTT McLARTY

118 East Maple Street

Decatur, Georgia 30030

(404) 377-0254

ATTORNEY FOR PETITIONER

STATE OF GEORGIA ;

COUNTY OF DEKALB

COUNSEL'S AFFIDAVIT

Before the undersigned, an officer duly authorized by

law to administer oaths, appeared SCOTT McLARTY, who, being duly

sworn, deposes and says as follows:

I am a member in good standing of the Bar of the State

of Georgia;

I am an attorney of record for Petitioner, DAVID PFEK;

I have agreed to represent Petitioner without fee or re-

muneration of any kind;

I have investigated Petitioner's financial circumstances

and have determined that he is without the funds necessary to

bring this action;

I have made this affidavit because there is insufficient

time in which to obtain Petitioner's Affidavit of Poverty;

Petitioner is currently: incarcerated under the custody of

the State of Georgia at the Georgia Diagnostic and Classifica-

tion Center in Jackson, Georgia; and,

Petitioner's Affidavit of Poverty will be sent to this

St 225Lg

SCOTT McCLARTY

Court as soon as practical.

ATTORNEY FOR PETITIONER

Sworn to and subscribed before me,

this the Jy & of October, 1980.

My Commission expires:

Bt hee, wo /9ZR

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a copy of the

within and foregoing "Petition for Writ of Certiorari and motion

to proceed in Forma Pauperis. Arthur Bolton, Attorney General,

State of Georgia, 132 State Judicial Building, Atlanta, Georgia

30334, by depositing a copy of same in the United States Mail,

first-class postage affixed thereto.

This the 30th day of October, 1980.

Swf 75

SCOTT McLARTY

ATTORNEY FOR PETITIONER

118 East Maple Street

Decatur, Georgia 30030

404-377-0254

INTHE

SUPREME COURT OF THE UNITED STATES R

ECEIVED

OCTOBER TERM, 1980 “i

NOV 3

wg 80 -564 4 aia.”

SUPREME COURT, US".

DAVID PEEK,

Petitioner

WALTER ZANT,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

COUNSEL FOR PETITIONER:

SCOTT McCLARTY

118 East Maple Street

Decatur, Georgia 30030

404-377-0254

NEIY. BRADLEY

American Civil Liberties

Union Foundation

52 Fairlie Street, N. W.

Atlanta, Georgia 30303

404-523-2721

IN THE

SUPREME COURT OF THE uNtTED STATES

OCTOBER TERM, 1980

NO.

DAVIE PEEK,

Petitioner

,

ta

Vv. 4

WALTER ZANT, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

Petitioner prays that writs of certiorari issue to review

the judgments of the Supreme Court of Georgia entered on September

6, 1977, July 16, 1980, and August 1, 1980.

CITIATIONS TO OPINIONS BELOW

The opinions of the Georgia Supreme Court are reported in

Peek v. State 239 Ga. 422, 238 S. C. 2d 12 (1977) and Peek v.

Zant, Denial of certificate of probable cause entered on July

16, 1980.

afin

JURISDICTION

Jurisdiction of this Court is invoked under 28 U. S. Cc.

§ 1257 (3), Petitioner having asserted below and asserts in this

Court deprivation of rights secured by the Constitution of the

United States.

QUESTIONS PRESENTED

Whether the State of Georgia provides a Constitutionali;y adequate

forum for the investigation and review of federal constitutional

claims by Death Row inmates in Georgia.

Whether the penalty of death can be applied against an

indigent defendant in the absence of a complete record and

transcript, where the defendant properly moved, and the trial

court ordered, a complete recordation of the proceedings, and

whether the State Supreme Court could have determined, on initial

review, whether the sentence of death was imposed arbitraily

or capriciously, in the absence of said record.

Whether the refusal of the Georgia Supreme Court to review

the habeas trial courts decision, (which utterly begs the Georgia

Supreme Court to review and reverse it) violates petitioners

right to a full and complete review of his federal constitutional

Claims in a state proceeding.

=j-

HOW THE ISSUES WERE RAISED BELOW

>

Petitioner filed a petition for writ of habeas corpus in

Butts County, Georgia, and in the habeas court's order, serious

and substantive constitutional claims were raised and discussed.

The Supreme Court of Georgia denied Petitioner's certificate of

probable cause to appeal despite the habeas court's clear,

unambiguous doubts that petitioners' conviction and sentence

were constitutionally Sound. Upon motion for rehearing, Petitioner

alleged that he would be denied an adequate review of his federal

constitutional claims unless the Georgia Supreme Court reviewed

the habeas court order. This motion was denied.

=2a

Petitioners challenge to the absence of a complete record

was first raised in his state habeas petition, and despite clear

and unambiguous doubts expressed by the habeas court in its

order regarding the Constitutionelity of petitioners conviction

and sentence, the Georgia Supreme Court denied a certificate

of probable cause and refused to review pettioners'’ claims.

-3-

The petitioners' claim that the State of Georgia denied

his right to a full and complete review of his federal consti-

tutional claims was first raised in his state habeas petition.

His motion for appointment and compensation of counsel to assist

him in the presentation of these claims was also raised for the

first time in his habeas petition.

Fourteenth Amendments to the Constitution of the United States,

CONSTITUTIONAL AND STATUTORY~ PROVISIONS INVOLVED

1. This case involves the Fifth, Sixth, Eighth and

and the privileges and immunities clause therein.

Ga.

2. This case also involves the following provisions of

Code of Georgia:

Code Ann. Section 26-3102

"Capital offenses; jury verdict and sentence.

Where, upon a trial by jury, a person is convicted

of an offense which may be punishable by death, a

sentence of death shall not be imposed unless the

jury verdict includes a finding of at least one

statutory aggravating circumstance and a recommenda-

tion that such sentence be imposed. Where a statu-

tory aggravating circumstance is found and a recomnend-

ation of death is made, the court shall sentence the

defendant to death. Where a sentence of death is not

recommended by the jury, the court shall sentence

the defendant to imprisonment as provided by law.

Unless the jury trying the case makes a finding of

at least one statutory aggravating circumstance end

recommends the death sentence in its verdict, the

court shall not sentence the defendant to death,

provided that no such finding of statutory aggravat-

ing circumstance shall be necessary in offenses of

treason or aircraft hijacking. The provisions of this

section shall not affect a sentence when the case is

tried without a jury or when the judge accepts a plea

of guilty."

Ga.

Code Ann. Section 27-2537

"Review of death sentences. (a) Whenever

the dea penalty is imposed, and upon the judgment

becoming final in the trial court, the sentence

shall be reviewed on the record by the Supreme Court

of Georgia. The clerk of the trial court, within

ten(10) days after receiving the transcript, shall

transmit the entire record and transcript to the

Supreme Court of Georgia together with a notice

prepared by the clerk and a report prepared by the

trial judge. The notice shall set forth the title

and docket number of the case, the name of the

defendant and the name and address of his attorney,

a narrative statement of the judgment, the offense,

and the punishment prescribed. The report shall be

in the form of a standard questionnaire prepared

and supplied by the Supreme Court of Georgia.

(b) The supreme Court of Georgia shall consider

the punishment as well as any errors enumerated by

way of appeal.

(c) With regard to the sentence, the court

shall determine:

(1) Whether the sentence of death was imposed

under the influence of passion, prejudice, or any

other arbitrary factor, and

(2) Whether, in cases other than treason or

aircraft hijacking, the evidence supports the jury's

or judge's finding of a statutory aggravating cir-

cumstance as enumerated in Code Section 27-2534. l(b),

and

(3) Whether the sentence of death is excessive

or disproportionate to the penalty imposed in similar

cases, considering both the crime and the defendant.

(ad) Both the defendant and the State shall have

the right to submit briefs within the time provided

by the court, and to present oral argument to the court.

(e) The court shall include in its decision a

reference to those similar cases which it took into

consideration. In addition to its authority regarding

correction of errors, the court, with regard to review

of death sentences, shali be authorized to:

(1) Affirm the sentence of death; or

(2) Set the sentence aside and remand the case

for resentencing by the trial judge based on the record

and argument of counsel. The records of those similar

cases referred to by the Supreme Court of Georgia in its

decision, and the extracts prepared as hereinafter pro-

vided to the resentencing judge for his consideration.

(f) There shall be an Assistant to the Supreme

Court, who shall be an attorney appointed by the Chief

Justice cf Georgia and who shall serve at the pleasure

of the court. The court shall accurulate the recorés

of all capital felony cases in which sentence was imposed

after January 1, 1970, or such earlier date as the court

may deem appropriate. The Assistant shall provide the

court with whatever extracted information it desires

with respect thereto, including but not limited to a

synopsis or brief of the facts in the record concerning

the crime and the defendant.

- 6.

'

(g) The court shall be authodrized to employ an

appropriate staff and such methods to compile such data as

are deemed by the Chief Justice to be appropriate and relevant

to the statutory questions concerning the validity of the

sentence.

(h) The office of the Assistant shall be attached

to the office of the Clerk of the Supreme Court of Georgia

for administrative purposes.

(i) The sentence review shall be in addition to

direct appeal, if taken, and the review and appeal shall be

consolidated for consideration. The court shall render its

decision on legal errors enumerated, the factual substantiation

of the verdict, and the validity of the sentence.

Ga. Code Ann. Section 50-127

Exclusive procedure for suing out a writ of habeas

corpus for persons whose liberty is being restrained by virtue

of a sentence imposed against them by a State court of record

Notwithstanding the other provisions of this Title,

the following is the exclusive procedure for suing out a writ

of habeas corpus for persons whose liberty is being restrained

by virtue of a sentence imposed against them by a State court

of record:

(1) Grounds for writ.--

Any person imprisoned by virtue of a sentence im-

posed by a State court of record who asserts that in the

proceedings which resulted in his conviction there was a

substantial denial of his rights under the Constitution of the

United States or of the State of Georgia or the laws of the

State of Georgia may institute a proceeding under this section.

Except for objections relating to the composition of a grand

or traverse jury, rights conferred or secured by the Consti-

tution of the United States shall not be deemed to have been

waived unless it is shown that there was an intentional re-

linguishment or abandonment was. participated in by the party

and was done voluntarily, knowingly, and intelligently. The

right to object to the composition of the grand or traverse

jury will be deemed waived under this Section, unless the per-

son challenging the sentence shows in the petition and satisfies

the court that cause exists for his being allowed to pursue

the objection after the conviction and sentence has otherwise

become final.

(2) Petition and verification.-

The petition shall identify the proceeding in which

the petitioner was convicted, give the date of rendition of the

final judgment complained of, and clearly set forth the respects

in which petitioner's rights were violated. The petition

shall have attached thereto affidavits, records, or other

evidence supporting its allegations or shall state why the

same are not attached. The petition shall identify any prev-

ious proceedings that petitioner may have -taken to secure

relief from conviction. Argument and citations of authorities

shall be omitted from the petition. The petition must be

verified by the oath of the applicant or some other person

in his behalf.

(3) Jurisdiction and venue.-

The petition must be filed in the superior court

of the county wherein the petitioner is being detained. The

superior courts of such counties have exclusive jurisdiction

of habeas corpus actions arising under this section.

(4) Service of the petition.-

Service of the petition shall be made upon the per-

son having custody of the petitioner. If the petitioner is

being detained under the custody of the Board of Corrections,

an additional copy of the petition shall be served on the

Attorney General; however, if the petitioner is being detained

under the custody of some other authority other than the Board

of Corrections, and additional copy of the petition shall be

served upon the solicitor general of the county wherein the

petition is filed. Service upon the Attorney General or the

fs oe eh fd | Uae -

solictor general may be had by mailing a copy of the petition

along with a proper certificate of service.

(5) Custody of pettioner.-

Custody and control of the petitioner shall be re-

tained by the Board of Corrections or other authority having

custody of the petitioner and it shall be the duty of such

board or authority to produce the petitioner at such times

and places as the court may direct.

(6) Proceedings on petition.- *

Within 20 days after filing and docketing of the

petition, or within such further time as the court may set,

the respondent shall answer or move to dismiss the petition.

The court shall set the case for a hearing on the issues

within a reasonable time after the filing of defensive plead-

ings.

(7) Disposition in the trial court.-

(a) The court may receive proof by depositions,

oral testimony, sworn affidavits, or other evidence.

(b) The taking of depositions or depositions

upon written questions, by either party, shall be governed

by the provisions of sections 82A-126 through 81A-132 and

and-81A-137: Provided, however, that the time allowed in

section 81-Al3l for service of cross-questions upon all other

parties shall be 10 days from the date the notice and written

questions are served.

(c) If sworn affidavits are intended by either

party to be introduced into evidence, the party intending to

introduce the affidavit shall cause it to be served upon the

opposing party at least five days in advance of the date

set for a hearing in the case. The affidavit so served shall

be accompanied by a notice of the party's intention to in-

troduce it into evidence. The superior court judge con-

sidering the petition for writ of habeas corpus may resolve

disputed issues of fact upon the basis of sworn affidavits

standing by themselves.

(a) If the court finds in favor of the peti-

tioner, it shall enter an appropriate order with respect to

the judgment or sentence challenged in the proceeding and

such supplementary orders as to rearraignment, retrial,

custody, or discharge as may be necessary and proper. In all

cases the court shall dispose of the matter as law and justice

require.

(8) Transcribing proceedings.-

All trials held under this section shall be trans-

cribed by a court reporter designated by the superior court

hearing the case.

(9) Judge's findings of fact and conclusions of law.-

After reviewing the pleadings and evidence offered

at the trial of the case, the judge of the superior court

hearing the case shall make written findings of fact and

conclusions of law upon which the judgment is based. Such

findings of fact and conclusions of law shall be recorded

as part ot the record of the case.

(10) Subsequent petitions-waiver of grounds not

claimed. - ;

All grounds for relief claimed by a petitioner for

a writ of habeas corpus shall be raised by a petitioner in his

original or amemded petition. Any grounds not so raised are

waived unless the Constitution of the United States or of the

State of Georgia otherwise requires, or any judge to whom the

petition is assigned, on considering a subsequent petition,

finds grounds for relief asserted therein which could not

reasonably have been raised in the original or amended petition.

(11) Practice as to appeals.-~-

(a) Appeals in habeas corpus — shell be

governed by the Appellate Procedure Act of 1965(8°~ et

seq.), except that as to final orders of the court which are

adverse to the petitioner, no appeal shall be allowed unless

a justice of the Supreme Court of Georgia shall issue a

certificate of probalbe cause for such appeal.

(b) Within 30 days from the entry of the order

denying relief to the petitioner, a written application for

a certificate of probable cause to appeal must be filed with

the clerk of the Supreme Court of Georgia, if the unsuccessful

petitioner desires to appeal. The petitioner shall also file,

within the same period, a notice of appeal with the clerk of

the concerned superior court. A justice of said appellate

court shall either grant or deny the application within a

resonable time after filing. So the justice may fully consider

the request for a certificate, the clerk of the concerned

superior court shall forward as in other case, the record and

transcript if designated, t the clerk of the Supreme Court

of Georgia when a notice of appeal is filed. The clerk of the

concerned superior court need not prepare and retain and the

court reporter need not file, a copy of the original record

and a copy of the original transcript of proceedings. The

clerk of the Supreme Court of Georgia shall return the original

record and transcript to the clerk of the concerned superior

court upon completion of the appeal if the certificate is granted.

If the Justice of the Supreme Court of Georgia denies the app-

lication for a certificate of probable cause, the clerk of the

Supreme Court of Georgia shall return the original record and

transcript and notify the clerk of the concerned superior court

and the parties to the proceedings below of the determination that

probable cause does not exist for appeal.

(c) If the trial court finds in favor of the

petitioner, no certificate of probable cause need be obtained by

the respondent as a condition precedent to appeal. A notice of

appeal filed by the respondent shall act as a supersedeas and

stay the judgment of the superior court until there is a final

adjudication by the appellate court: Provided, however, that

while such case is on appeal, the petitioner may be released on

bail as is now provided for in criminal cases, except where

the petitioner has been convicted of a crime over which the

Supreme Court of Georgia has jurisdiction to consider on direct

appeal. The right to bail and the amount of bond shall be within

the discretion of the judge of the superior court where the

sentence sucessfully challanged under this Chapter was origin-

ally ‘posed.

Ga. Code Ann. Section 59-910

Same; substitution of alternate for original juror

If at any time, whether before or after final sub-

mission of the case to the jury, a juror dies or becomes ill,

or upon other good cause shown to the court is found to be un-

able to perform his duty, or is discharged for other legal

cause, the first alternate juror shall take the place of the

first juror becoming incapacitated and further replacements

shall be made in similar numerical sequence: Provided, said

alternate jurors have not been discharged. Such jurors, so tak-

ing the place of any incapacitated juror, shall thereafter be

deemed to be a member of the jury of 12, and shall have full

power to take part in the deliberations of the jury, and the

finding of the verdict. Any verdict found by any such jury,

having thereon alternates, shall have the same force, effect

and validity as if found by the original jury of 12.

(Acts 1968, pp. 1225, 1227.)

STATEMENT OF THE CASE

Petitioner was found guilty on two counts of murder and one

count cf kidnapping on July 26, 1976 in the Superior Court of

Greene County, Georgia. He was sentenced to death on the wenn

victions of each count of murder and also received the death

sentence on the kidnapping charge. Petitioner was represented

by appointed counsel.

On September 6, 1977, the Supreme Court of Georgia affirm-

ed his convictions and Sentences of death for murder, and

affirmed his conviction for kidnapping, while reversing the

sentence of death imposed on this count, Peek v. State239 Ga.

422, 238 S. E. 24 12 (1977), cert.denied, me. Be

(1978).

On March 12, 1979 Petitioner initiated a petition for writ

of Habeas Corpus in the Superior Court of Butts County, Georgia.

On March 31, 1980, an order was entered in the Superior Court

of Butts County, Georgia, denying petitioner the relief which

he sought. A copy of this order is attatched to this petition

as Exhibit""A".

On July 16, 1980, Petitioners Application for Certificate

of Probable Cause was denied in the Supreme Court of Georgia,

and on August 1, 1980 Petitioners Motion for rehearing was

denied.

The facts underlying Petitioners conviction are not serious-

ly contested in this proceeding, however, the factual posture of

the case can be ascertained in Peek v. State, Supra.

This petition focuses upon the standard of review of federal

constitutional claims in death penalty cases in the State of

Georgia This case should be granted certiorari at this time,

prior to any federal habeas proceedings for petitoner because

the possibility of petitioner avaiiing himself of this remedy

is highly speculative, inasmuch as petitioner is an indigent,

poorly educated black man who was represented in his state habeas

by counsel who sought, and was denied, compensation for expenses

and investigation. To assume that Petitioner is aware of and

will avail himself of his federal habeas corpus remedies is

dangerously speculative; espacially so in light of the State

of Georgia's failure to adequately provide for

Death Row inmates beyond their direct appeal.

=-lbe

counsel for

I.

WHETHER THE STATE OF GEORGIA PROVIDES A CONSTITUTIONALLY

ADEQUATE FORUM FOR THE INVESTIGATION AND REVIEW OF FEDERAL

CONSTITUTIONAL CLAIMS BY DEATH ROW INMATES IN GEORGIA,

At the heart of this Courts' ruling in Gregg v. Georgia,

42 U. S. 153, 96 S. Ct. 2909 (1976) was the strict review pro-

visions of the death penalty statuatory scheme to insure that

the irrevocable sanction of death is not imposed in an arbitrary

or capricious manner, or under the influence of passion, pre-

judice, or any other arbitrary factor. in outlining this Courts’

(review of the statuatory scheme), the Court noted:

"A transcript and complete record of the trial, as

well as a separate report by the trial judge are transmitted to

the (Georgia Supreme) Court for its use in reviewing the sentence.”

Gregg at 165.

Petitioney Peek, through his appointed counsel, moved for

complete recordation, and an order of sorts granted his motion.

Nonetheless, no record of arguments or bench conferences was

transmitted to the Georgia Supreme Court. (Habeas Court Order

page 8.) The habeas trial court found serious federal consti-

tutional defects in Petitioners conviction and sentence because

of this incomplete record but was unable to reverse petitioners’

case because of the Georgia Supreme Courts’ "implicit decision”

when it affirmed the death sentences on appeal. (Habeas Trial

Court Order at page 9). The court then found substantial

Federal Constitutional infirmaties (Order at pages 9-10), and

concluded:

"This Court feels that Petitioner in this case should

get a new trial because of this. But a habeas court must follow

the law - not make law ~ and the present state of the law requires

this Court to deny relief to Petitioner. See Davis v. State,

supra.

This Court hopes the Supreme Court will adopt a rule similar

to the one set forth above and reverse this Order. Justice

would be well served if it would." (Habeas Trial Court Order

at page ll.)

-12-

Thus, although Petitioner had clearly substantive federal

constitutional claims, the Georgia Supreme Court refused to re-

view the Habeas Courts decision. Indeed, the Georgia Supreme

Court has adopted the position of consistently denying review

of state habeas corpus proceedings in the past year. (See

Exhibit"B', Appellate Review by the Georgia Supreme Court of the

Denial of State Habeases.)

Petitioner urges this Court to grant certiorari to determine

whether the State of Georgia provides an adequate forum for the

investigation sevien, and correction of Federal Constitutional

defects in a conviction.

That the State of Georgia is requireée to provide such a forum

is clear. This Court has so ruled in Moony v. Holohan, 294

U. 8. 103, 55 8S. Ct. 340 (1934) and implicitly in Case v.

Nebraska 381 U. S. 335,85 S. Ct. 1486 (1965).

Petitioner urges this Court to review the insufficiency of

review by the Georgia Supreme Court, and to determine whether

this insufficient review violates Petitioners rights to an ade-

quate state forum for review and correction of federal consti-

tutional issues, as secured by the Fourteenth Amendment to the

United States Constitution.

-13-

a

pete: ako ak gies he

2: Soieadee Saige ah

WHETHER THE PENALTY OF DEATH CAN BE APPLIED AGAINST AN INDIGENT

DEFENDANT IN THE ABSENCE OF A COMPLETK RECORD AND TRANSCRIPT,

WHERE THE DEFENDANT PROPERLY MOVED, AND THE TRIAL COURT ORDERED,

A COMPLETE RECORDATION OF THE- PROCEEDINGS, AND WHETHER THE

STATE SUPREME COURT COULD HAVE DETERMINED, ON INITIAL REVIEW,

WHETHER THE SENTENCE OF DEATH WAS IMPOSED ARBITRAILY OR CAPRIC-

OUSLY, IN THE ABSENCE OF SAID RECORD.

The case presents the question of the adequacy of review by

the Georgia Supreme Court, on direct appeal and upon appeal of

this habeas case, of Petitioners convictions and sentences of

death rendered in the Superior Court of Greene County, Georgia.

This Court, in declaring Georgias’ Death Penalty Statute to

be constitutional, Gregg v. Georgia 428 U. S. 153, 96 S. Ct.

2909 (1976)., noted that Furman v. Georgia 408 U. S. 238, 92

S. Ct. 2726 held that the death penalty could not be imposed

“under sentencing procedures that created a substantial risk

that it would be inflicted in an arbitrary and capricious manner.”

Gregg supra at 187. This Court voiced its approval of Georgias’

statuatory scheme, but did so, in part, based upon "an import-

ant additional safeguard against arbitrariness and cavrice,...

an automatic appeal... That Court is required by statute to

review each sentence of death and determine whether it was

imposed under the influence of passion or prejudice.” Gregg

supra at 200.

Petitioners' conviction was rendered in Greene County, Georgia,

an Ocmulgee Judicial Circuit Court. Ocmulgee Circuit has two

per cent of the States population and 12 percent of its condem-

med prisoners in the State. Prosecutor Joe Briley'’s reputation

as an aggressive prosecutor is exemplified by his injection

of irrelevant testimony the habeas hearing of December 14, 1979

(Second habeas transcript at pages 41-42). A perusal of Briley's

testimony at the state habeas hearing reflects his aggressive

nature.

There is always a possibility of inflammatory or prejudicial

remarks during chosing arguments in a case. This Court, in

accepting Georgias’' Statuatory scheme, no doubt found safeguards

because the Georgia Supreme Court, with a complete record and

transcript, must review death sentences to insure they are not

arbitrarily anda canriciouslv applied (emphasis mine) Greaa.

supra at 167.

The Georgia Supreme Court, when reviewing Petitioners' case on

direct appeal, did so without a complete record and transcript.

(Habeas Court Order at pages 8 and 9). The habeas court was u-

able to reverse Petitioners’ convictions and sentences because

the Georgia Supreme Court places the burden upon the defendant

to show harm by the failure of the court reporter to transcribe

arguments. Bowden v. Zant 244 Ga. 260, 262 (1979). Petitioner,

an indigent, moved for complete recordation and an order was

granted. To place the Bowden burden upon defendant is unrealistic,

and the habeas trial court so found (Habeas Order at page 9).

In the face of an order that clearly outlines constitutional

deficiencies and calls upon the Georgia Supreme Court to review and

reverse their earlier position, the Georgia Supreme Court denied

a certificate of probable cause. The seriousness with which

the Georgia Supreme Court takes its responsibilities to insure

against arbitrariness and capriciousness must be drawn into

question by Petitioners’ treattient in the Georgia Supreme Court.

For these reasons, this court should review the question of

whether the death penalty can be imposed against an indigent

defendant in the absence of a complete record and transcript

consistent with the Eight and Fourteenth Amendments to the

United States Constitution.

-1S$<

oe

‘ «Siu

og

WHETHER THE REFUSAL OF THE GEORGIA SUPREME COURT TO REVIEW

THE HABEAS TRIAL COURTS DECISION, (WHICH UTTERLY BEGS THE GEORGIA

SUPREME COURT TO REVIEW AND REVERSE IT) VIOLATES PETITIONERS

RIGHT TO A FULL AND COMPLETE REVIEW oF HIS FEDERAL CONSTITUTIONAL

CLAIMS IN A STATE PROCEEDING.

The United States Constitution obligates the state courts

through the Fourteenth Amendment, to guard and enforce every

right secured by the Federal Constitution. Mooney v. Holohan

294 U. S. 103 55 S. Ct. 340 (1935), Case v. Nebraska, 381 U. S.

336, 85 S. Ct. 1486 (1965).

Petitioners claims of violations of Federal Constitutional

rights are neither frivolous nor inconsequential. The habeas

court's decision (on pages 7-11) notes the overwhelming consti

tutional deficieneies in petitioners’ conviction and sentence,

but also expresses the trial courts responsibility to follow

the law, not make it. The Court goes on to "hope the Supreme

Court will adopt a rule simialr to the one set forth above and

reverse this Order. Justice weusé be well served if it would.”

(Habeas Court Order at page:.11.)

In the face of this finding, rather than accept responsibility

to review the case, the Georgia Supreme Court denied a certif-

icate of probable cause to appeal.

Counsel for Petitioner concedes that an appropriate posture

in most cases of this nature is to deny certiorari pending

a determination of federal claims in federal habeas proceedings.

Petitioner respectfully urges upon this Court that to further

litigate these Constitutional claims is unnecessarily duplicative

and wasteful inasmuch as the Fourteenth Amendment of the United

States requires the States to afford a method for reviewing and

correcting Federal Constitutional Claims. Mooney v. Holohan,supra.

Clearly, a state courts' rulings on federal claims should be

subject to federal review. A State, however, which takes its

obligations to apply the United States Constitution seriously,

should minimize the number of cases requiring federal court review.

Petitioner respectfully urges this Court to grant his Petition

for Writ of Certiorari to determine whether the Georgia Supreme

Court and the State of Georgia provide a sufficient forum to

litigate his federal constitutional claims.

-17=

CONCLUSION

Petitioner prays: that his petition for a writ of

certiorari be granted.

-18-

Respectfully submitted,

SCOTT MCLARTY

118 East Maple Street

Decatur, Georgia 30030

(404) 377-0254

NEIL BRADLEY

American Civil Libertieg Union

Foundation

52 Fairlie Street, N.W.

Atlanta, Georgia 30303

(404) 523-2721

> SUPREME COURT OF GEORGIA

ATLANTA, July 16, 1980

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

DAVID PEEK V. WALTER D. ZANT, WARDEN

Upon consideration of the application for a certificate

of probable cause to appeal filed in this case, it is ordered

that it be hereby denied .

SUPREME COURT OF THE STATE OF GEORGIA,

CLERK’S OFFICE, ATLANTA,

I certify that the above is a true extract from the minutes

of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto affixed

the day and year last above written.

o™, *

\eben or 5. yha tke ns , Clerk.

---— «a

80-5644

IN THE SUPERIOR COURT OF BUTTS COUNTY

STATE OF GEORGIA

DAVID PEEK, °

PETITIONER

. CIVIL ACTION

vs. FILE NO. 4218

WALTER ZANT, WARDEN,

GEORGIA DIAGNOSTIC AND

CLASSIFICATION CENTER, HABEAS CORPUS

oe 78 of 88 #2 48 of 88 88 88 Of

RESPONDENT

ORDER

Petitioner was convicted of two counts of

Murder and one count of Kidnapping in the Superior

Court of Greene County. He was sentenced to death

on all counts. His convictions were affirmed and

the imposition of the death penalty was affirmed

as to the Murder counts. Peek v. State, 239 Ga.

422 (1977). Certiorari was denied by the Supreme

Court of the United States. Peek v. Georgia, 439

U.S. 882, 58 L. Ed. 24 194 (1978). ‘This Petition

for Habeas Corpus attacks the legality of Petitioner's

convictions and the imposition of the death penalty

on the Murder convictions. The Petition contains

forty-one gashiictatin. and the Court will rule on

those paragraphs containing claims for relief by

paragraphs corresponding numerically to the paragraphs

in the Petition.

9., 10., ll. F

In these paragraphs, Petitioner claims that

// raat & ra (/ ra

his convictions and sentences imposed are uncon-

stitutional because an alternate juror was sub-

‘stituted for a juror without a showing of good

cause and in violation of his Sixth and Fourteenth

Amendment rights.

after the jury had been deliberating for

approximately three hours during the guilt/innocence

phase of the trial, the foreman of the jury emerged

from the jury room and told-the judge that one of |

the jurors was sick, (Trial Transcript, pp. 231-

232, Habeas’ Transcript, 4/5/79, pp. 18-29, 41,

43-45). This was not done on the record and

apparently when Court was not formally in session.

However, the prosecutor, defense counsel, and the

sheriff were present and heard the conversation

between the foreman and the judge. (Habeas Transcript,

4/5/79, pp- 92-94). “The judge then announced for

the record that a juror, who was misidentified as

Mr. Geesling (his name was actually Mr. Greeson) was

unable to continue. Both the district attorney and

defense counsel eaeeed to excuse this juror and

substitute the first alternate. (Trial Transcript,

pp. 231-232, Habeas Transcript, 4/5/79, p. 94). The

first alternate was sent to the jury room and a guilty

verdict was returned a few sili later. (Trial

Transcript, pp. 232-233). The law concerning

r -

The record indicates that three minutes elapsed from

the time the first alternate went into the jury room

until the jury returned a verdict. The judge, district

attorney, alternate, and foreman testified that

approximately fifteen to thirty minutes elapsed.

(Duke Deposition, p. 10, Habeas Transcript, 12/14/79, pp.

11-12, Habeas Transcript, 4/5/79, pp. 59, 69-71, 49).

=2<

substitution of a juror is as follows:

"If at any time...a

juror...becomes ill,

‘ or upon other good

cause shown to the

Court is found to be

unable to perform his

auty...the first

alternate juror shall

take the place of the

.-+.juror becoming

incapacitated..."

Ga. Code Ann. §59-910.

Petitioner waived any right to object to the

substitution when his counsel agreed to the same.

(Trial Transcript, p. 232). But even if this were

not the case, it was not error for the trial. court

to substitute tne first alternate where it had been

made to appear to the Court that a juror was ill and

unable to continue. Tanner v. State, 242 Ga. 437,

438 (1978) . Although there is disagreement concerning

the length of time the jury deliberated with the

substituted member, it is presumed that the alternate

was able to cast an intelligent vote in the absence of

some showing to the contrary. Although the ill juror

may have had a reasonable doubt concerning the guilt

of Petitioner (Habeas Transcript, 4/5/79, p. 28),

he was not asserting that doubt in the form of a

certain vote in the jury room but was, because of

his physical and emotional condition, not participating

in the deliberations at all. (Habeas Transcript, 4/5/79,

pp. 18-20, 31-32, 39-41, 51-52). Accordingly, the

replacement of juror Greeson with first alternate

Weinstein was done for good cause. The procedure

followed complied with applicable Georgia statutes

and did not violate any federal constitutional

rights of Petitioner.

On the matter of the amount of time the jury

with alternate Weinstein deliberated before the

guilty verdict was returned, the Court attaches no

legal significance to the issue. There is no

requirement that a jury take any particular amount

of time to deliberate, and alternate Weinstein

testified that he went over the evidence with the

other jurors. (Habeas Transcript, 4/5/79, pp. 60,

70-71).

Therefore, the Court finds the claim for

relief embodied in paragraphs 9, 10, and 11 to be

without merit.

12.

In paragraph 12, Petitioner claims his con-

stitutional rights were violated because Mr. Weinstein,

the alternate juror who ultimately sat on the jury

that convicted him and sentenced him to death, was

absent during part of the trial. While there is an

indicatio.. at one point in the trial (Trial Transcript,

p. 176) that Mr. Weinstein had left the courtroom,

evidence at the habeas hearing established that this

juror (at that time the first alternate) did not

miss any of the proceedings but rather that the Court

saw him leave (apparently to go to the bathroom) and

stopped the proceeding until he got back. (See

Deposition of Honorable Joseph B. Duke, p. 15).

Accordingly, the allegations of paragraph

12 are not botne out factually by the record and

are withoub merit. ¥

13.

Paragraph 13 contains the claim that first —

alternate Weinstein "...was permitted to be dispersed

during the trial..." in violation of Ga. Code’ Ann.

§59-718.1.

Mr. Weinstein, an orthodox Jew, was allowed

to go home for lunch because he could not eat the

food to be served the jury at a local restaurant.

(Habeas Transcript, 4/5/79, pp. 57-58). While

it is erus that a defendant in a capital case has

the right to have the jury kept together, it is not

error to allow dispersal of a juror where the same

is agreed to by defendant's counsel. Mason v.

State, 239 Ga. 538 (1977); Jones v. State, 243 Ga.

820, 823 (1979). Mr. Weinstein was given permission

by the Court to go home for meals (Trial Transcript,

p. 68) under instructions not to discuss the case

with anyone (Habeas Transcript, 4/5/79, p. 57).

Petitioner's counsel specifically consented to this

‘dabeas Transcript, 4/5/79, pp. 95-96). }

Accordingly, it was not error for the Court

to allow the first alternate juror to disperse for

meals. Further, no constitutional rights of Petitioner

were thereby violated. The claim for relief in

paragraph 13 is without merit.

14,

Paragraph 14 complains that the jury was”

permitted to be separated without appropriate

instructions. The jury was not separated except

for first alternate Weinstein, whose separation

was consentéd to by Petitioner as discussed in

paragraph 13 above. The Court did give instructions

to the jury at the inception of the trial (Trial

Transcript, pp. 25-26) concerning the fact that

they should not discuss the case with anyone, or

among themselves before the proper time for delib-

eration. While the grounds for relief in paragraph

14 are not entirely clear, the Court is satisfied

that Petitioner has show; no constitutional violation

concerning instructions to the jury. Accordingly,

the claim for relief in paragraph 14 is without merit.

15.

In paragraph 15, Petitioner alleges that

"..-juror Chester Geesling was not in fact excused

from the jury...", that the record is inaccurate,

and that his constitutional rights were violated

because of this inaccuracy. This claim is erroneous

factually. While the record does reflect that the

Court inadvertently referred to juror Chester

Greeson as "Geesling” (Trial Transcript, pp. 231-232),

the evidence at the habeas hearing established

clearly that it was juror Chester Greeson who became

_ ill and who'was excused and replaced by first

alternate Weinstein (Habeas Transcript, 4/5/79, pp.

82-83, 18-92). While it is not clear whether

this inaccurate reference to the juror's name is a

result of a misstatement by the judge or a mistake

of the court reporter, the inaccuracy in the transcript

is of no consequence as far as any substantial oon

stitutional rights of Petitioner are concerned.

Petitioner has neither alleged nor demonstrated how

he me been harmed by this inaccurate spelling of the

excused juror's name in the transcript.

The constitutional’ claim in paragraph 15 is

without merit.

16.

In paragraph 16, Petitioner correctly points

out that the opening statements and closing arguments

of counsel were not transcribed and made a part of

the record in this case.

This claim of Petitioner must be considered in

the context of a motion for complete recordation of

proceedings which was made by Petitioner and granted,

after a fashion, by the trial judge prior to the |

trial. (See Triai Record, pp. 30; 37). The record

and transcript of the trial and the evidence in

this habeas proceeding are all silent on the question

| of whether the opening statements and closing arguments

were taken down by the court reporter. There is

no doubt that they were not transcribed and made a

part of the record which was sent to. the Supreme

Court upon the direct appeal of this case. Petitioner

has produced no facts to show harm resulting from

.

this omission.

In the absence of a showing of harm, the law

does not appear to require transcription of closing

arguments, even in capital cases. Ga. Code Ann.

$27-2401; Stephens v. Hopper, 241 Ga. 596, 600

(1978). The burden is on Petitioner to show that he

was harmed and to produce a record to substantiate

the claim. Bowden v. Zant, 244 Ga. 260, 262 (1979).

Even where the Defendant in a capital case has made

a motion for complete recordation of proceedings, he

must be able to show that he has been harmed by the

failure of the court reporter to include a transcription

of arguments before relief will be granted because of

such failure. Davis v. State, 242 Ga. 901, 902, 903(1)

(1979). | |

The Court finds as a matter of fact that

Petitioner has failed to produce evidence showing

harm as a result of the absence of a transcription

of the closing arguments. Accordingly, under Stephens,

Bowden, and Davis, his claim for relief must be rejected.

However, there is another issue: Whether the

due process clause of the Fourteenth Amendment to the

United States Constitution requires more. Obviously,

the Supreme Court of Georgia was aware that the

closing arguments were not sent to it with the

record and transcript on direct appeal when it

conducted its sentence review and concluded that

the sentences of death were not handed down under

the influence of passion, prejudice, or any other

arbitrary factor. Consequently, this habeas corpus

court deems this issue as one having been implicitly

decided by ‘the Supreme Court of Georgia when it

affirmed the sentences of death in this case on

3 direct appeal. See Peek v- State, 239 Ga. 422,

430, 431, 432 (1977). |

For whatever it is worth, howeve:, this

Court observes that a capital sentencing system

cannot comport with the Sixth, Eighth, and Four-

teenth Amendments where the record and transcript

of the proceedings are so incomplete that a reviewing

court could not possibly determine that all of the

requirements laid down in Gregg Vv. Georgia, 428

U.S. 153, 49 L. Ed. 2d 859 (1976), and its progeny,

have been complied with. To place the burden on an

indigent defendant to produce a complete record

(see Bowden v. Zant, supra) and show that he was

harmed by the failure of the court reporter to

transcribe and send to the appellate courts a

complete recordation of all proceedings tiuplading

arguments) is unrealistic. The court reporter

works for the Court. Where defense ‘counsel makes

a motion for complete recordation of all proceedings

(as was done in this case) and it is not done,

the defendant (whether he is indigent or otherwise)

has done all‘he can do. It seems to this Court

that it is not asking too much to require a complete

transcript of everything that hn eatil (including

bench ‘aliiiieiieieeis be sent to the appellate courts

for review when a death penalty _— been imposed.

" ‘The burden should be on the Court to see that all

of this is anne properly. In the view of this

‘Court, due process and the spirit of Gregg v.

Georgia should require complete recordation, espe-

cially when a motion for same has been made. The

rule should be that the due process clause of the

Fourteenth Amendment requires that a death sentence

be set aside when a motion for complete recordation

is made and the transcript is incomplete, unless

the State comes forward and shows that no harm

resulted because of the omissions. To place the

burden on the defendant (as Stephens, Bowd: 2, and

Davis, do)is, in effect, to make the Motion for

Complete Recordation a meaningless gesture. If the

State of Georgia is to inflict the death penalty on

its citizens, it is not asking too much to require

that the system be sufficiently competent to furnish

a complete record of the proceedings, especially

where the defendant specifically asks for it.

2

The conference among the Judge, District Attorney,

and Defense Counsel which resulted in substitution

of the sick juror with the first alternate, was

likewise not taken down and transcribed by the

Court Reporter (see Par. 9, 10, 11). However, evidence

at the habeas hearing established sufficient facts in this

regard for the Court to conclude that Petitioner was

not harmed, in a legal sense, because of an incomplete

transcript -

1a

This Court. feels that Petitioner in this case

should get a new trial because of this. But a habeas

court must follow the law - not make law - and the

present state of the law requires this Court to deny

’

relief to Petitioner. See Davis v. State, supra.

This Court hopes the Supreme Court will adopt

a rule similar to the one set forth above and reverse

this Order. Justice would be well served if it would. -

; 17 >.

Paragraph 17 raises a Witherspoon question.

The transcript shows that two jurors were excused

because of their conscientious opposition to capital

punishment. (Trial Transcript, pp. 6-7; 15}. Both

of these prospective jurors were pr rly stricken

for a cause under Witherspoon. Any further

constitutional claim in this paragraph is without

merit.

18.

In paragraph 18, Petitioner claims his

constitutional rights were violated because the

circumstances surrounding the removal of juror

Greeson and the substitution of first alternate

Weinstein were not included in the transcription

of the case. Paragraph 18 further alleges that the

alternate was "“unsequestered”. This is factually

incorrect, as the alternate was sequestered at the

proper time. (Habeas Transcript, 12/14/79, p. 14).

-li-

This paragraph has been covered by preceding pare-

graphs and the ruling of the Court on them.

Accordingly, paragraph 18 is found to be without

merit. ;

"19.

In paragraph 19, Petitioner claims his |

constitutional rights have been violated by the

failure of ‘the prosecution to reduce “ statement

allegedly made by the defendant to writing

"..-until the day prior to trial..." and by

the prosecutor's refusal to grant access to the

murder weapon until the day prior to trial. The

Court is unaware of any provision of law which

would require the State to reduce a statement to

writing at any time or to grant access to the

murder weapon on the day prior to trial or on any

other day. Petitioner has produced nothing in

support of the allegations of paragraph 19, and

the Court finds such allegations to be without

merit. :

20.

Paragraph 20 claims that the charge of the

Court during the sentencing phase of the trial

violated his Eighth and Fourteenth Amendment rights.

Specifically, Petitioner claims that the Court

failed to tell the jury that they could recommend

a life sentence even though they had determined that

~12-

statutory aggravating circumstances had been

proven.

While certain aspects of the Court's charge

are somewhat unclear, the entire charge, including

the questionnaire sent to the jury room (Trial

Record, pp. 55-57) meets the test of Spivey v.

State, 241 Ga., 477, 481 (1978). Accordingly,

the claim for relief in Paragraph 20 is without

merit’.

Zi.

. See paragraph 16.

22. and 23.

Paragraphs 22 and 23 complain that the Court

did not instruct the jury to consider specific

mitigating factors during the sentencing phase

of the trial. The law does not require such

instructions. Thomas v. State, 240 Ga. 393 (1977);

Potts v. State, 241 Ga. 67 (1978); Spivey v. State,

supra.

24.

Paragraph 24 claims that Petitioner's con-

stitutional rights were denied him because the

3

"However, it is not essential to your decision that

you find extenuating or mitigating facts and circum-

stances on the one hand, or facts and circumstances

in aggravation on the other. Please do not confuse

this with the charge which I shall give you a little

bit later insofar as statutory aggravating circumstances

may be concerned." {Trial Transcript, p. 235).

jury did not have complete information concerning

his life and circumstances before it sentenced him.

The case of Lockett v. Ohio, 57 L. Ed. 2a 973 (1978),

cited by Petitioner, held that a capital sentencing

statute was unconstitutional if it restricted the

right of a defendant to introduce evidence in miti-

gation of punishment. Nothing in Lockett requires

that any particular information be furnished. There

is nothing in the record of Petitioner's case to

indicate that the Court restricted him in any effort

to place mitigating evidence before the jury.

Paragraph 24 is without merit.

‘ 5 .

__

Paragraph 25 complains that Petitioner's

due process rights were denied him because the

trial lasted one day and was concluded in the

early morning hours. The transcript of the trial

indicates that the trial judge fairly gave the

jury the option to retire for the evening and that

they voluntarily elected to proceed to a verdict

that night. (Trial Transcript, pp- 230-231) -

Counsel did not object to this action, and Petitioner

has not shown any resulting harm. Accordingly,

Petitioner has Shown nothing to substantiate his

claim that he was denied due process because of any

of these matters. Paragraph 25 is without merit.

-14-

26.

Paragraph 26 has already been decided adversely

to Petitioner upon the sentence review conducted by

the Supreme Court of Georgia in Peek v. State, 239

Ga. at 430-433. : E

‘27.

The claim raised in paragraph 27 has already

been decided adversely to Petitioner by the Supreme

Court of Georgia in the sentence néetue portion of

the opinion in Peek v. State, at 430-433.

28.

Paragraph 28 is a broad attack on the con-

stitutionality of the death penalty. The Georgia

death penalty statute has been declared constitutional.

Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2a 859 (1975).

29.

Petitioner has offered no evidence or argument

in support of paragraph 29, and it is deemed abandoned.

The Court is unable to read paragraph 29 and understand

the point urged sufficiently to make further comment.

30.

In paragraph 30, Petitioner claims that his

constitutional rights were denied him when the trial

court charged on aggravating circumstances when the

State had offered no evidence of aggravating circum-

=] So

as

‘

‘stances during the sentencing phase of the trial.

This claim for relief is without merit because the

Court properly instructed the jury that they could

consider evidénce submitted during both phases of

the trial in determining what sentence would be

imposed. (Trial Transcript, p- 235). It is not

required under Georgia's capital sentencing statute

that notice of anything other than prior convictions

be given the defendant sibate to trial, and the Court

is charged with the duty of charging the jury that

it may consider any aggravating circumstances that

are raised by the evidence. This was done by the

Court in Petitioner's case. See Bowden v. Zant,

244 Ga. 260, 263-264 (1979).

31.

In paragraph 31, Petitioner alleges that his

constitutional rights were denied him because the

trial judge made improper remarks to the jury

concerning the failure of the Petitioner to testify

or present evidence on his own behalf. Petitioner

cites “transcript, p. 245". That page of the

transcript is a part of the Court's sentencing of

Petitioner, and the Court cannot find in the

transcript what Petitioner alludes to in paragraph

31. Petitioner did testify in his own behal::

(Trial Transcript, pp. 184-210).

What Petitioner may be talking about is a

remark made by the trial judge during his charge

-16<

to the jury during the sentencing phase of the

trial:

“You are authorized to

consider the facts and

circumstances if any in

extenuation, mitigation,

or aggravation of punish-

ment which may have been Fs

submitted to you. And

of course, no evidence was

submitted, but you do have

the arguments of the district

attorney for the State and

Mr. Ashley as counsel of

record for the defendant.”

(Trial Transcript, p. 235).

This was not comment on Petitioner's failure

to testify but rather on: the fact that neither the

prosecution nor the defense presented any additional

evidence during the sentencing phase of the trial.

Paragraph 31 is without merit.

32.

This is the same claim made in paragraph 20.

It is without merit for the same reasons expressed

by the Court concerning paragraph 20.

32.[Second Paragraph 32)

This paragraph is another attack on the con-

stitutionality of Georgia capital sentencing system.

It is without merit for reasons previously indicated.

.-

See paragraph 30.

34.

Paragraph 34 is unclear to the Court, but it

appears to assess constitutional deprivation because

Petitioner was not placed on notice in advance of

trial what ‘the aggravating circumstances might be

so as to provide a basis for the imposition of the

death penalty. This claim is without merit. See

Bowden v. Zant, 244 Ga. 260, 263-264 (1979).

35.

See paragraph 17.

36.

Paragraph 36 claims constitutional deprivation

because the jury did not —_— a representative

cross-section of the community but was biased in

favor of the prosecution. Petitioner has produced

no evidence and made no argument in support of this

proposition, and it is found to be without merit.

See Spinkellink v. Wainwright, 378 F2d 582 (Sth

Cir. 1978).

37.

Paragraph 37 alleges that Petitioner was

sentenced to die by a jury which was selected by

unconstitutional procedures. He has produced no

evidence and made no argument in support of this

=19<

position, and it is found to be without merit.

38.

el

Petitioner's final allegation is that his

counsel at,trial failed to render effective assistance,

thereby depriving Petitioner of his rights as guaranteed

by the Sixth and Fourteenth Amendments. Petitioner

alleges numerous specific instances of ineffective

assistance. Although the trial judge, prosecutor,

and Petitioner's trial counsel have testified in the

habeas proceeding, only a small amount of evidence or

testimony specifically directed at this issue has been

submitted besides the trial record and transcript.

The standard for evaluating the effectiveness

of counsel in Georgia is "...not errorless counsel,

and not counsel judged ineffective by hindsight,

but counsel reasonably likely to render and rendering

reasonably effective assistance." MacKenna v. Ellis,

280 F. 2a 592 (Sth Cir. 1960), Pitts v. Glass, 231 Ga.

638 (1974). Disagreements about trial strategy and

tactics do not require a finding of ineffectiveness.

Reid v. State, 235 Ga. 378, 379 (1974), see Hawes v.

State, 240 Ga. 327, 329-330 (1977). Effectiveness,

in part, may be evaluated against the facts of the

case. Dobbs v. State, 235 Ga. 800, 804 (1976).

The Court finds that no evidence has been

introduced to substantiate the contents of the

following allegations:

-19-

(1) Pailure to cooperate with subsequent counsel.

(2) Failure to investigate the murder weapon.

(3) Failure to, investigate and interview

witnesses prior to trial.

(4) Failure to challenge array of-grand and

traverse juries.

(5) Pailure to invoke the rule of sequestration.

After examining the evidence submitted, the

Court finds the following allegations to be permissible.

trial tactics or strategy: |

(1) Conducted a most perfunctory voir dire

of prospective jurors. Counsel knew most of the

traverse jurors called. (Motions Hearings, p. 26).

(2) Failure to object to the exclusion of jcrors

with conscientious scrupies about the death penalty.

Counsel is presumed to know the Witherspoon requirements,

which the Court has examined in an earlier paragraph

of the petition.

(3) Failure to object to dispersal of the jury,

i.e. to object to Weinstein eating at home. (See

Habeas Transcript 4/5/79, at p. 96).

(4) Agreed to permit substitution of an alternate

when a juror became ill. (See Habeas Transcript 4/5/79,

at pp. 92-95). |

(5) FPailure to introduce evidence in mitigation.

Counsel did argue on behalf of Defendant. (Trial

Transcript, p. 234).

(6) Failure to raise the defense of insanity.

Defendant raised the defense of alibi, with some

=20<

indication of self-defense being raised.

(7) Failure to object to post-midnight

proceedings. The trial judge questioned the jury,

and it was the jury's decision to continue. (Trial

Transcript, pp. 230-231).

(8) Waiver of three days’ notice of arraignment.

Counsel announced ready for trial without the three

extra days. _(Motions Hearings, p. 23).

(9) Pailure to elaborate on “rumblings” by

traverse jury. Counsel apparently did not wane the

defense to appear dilatory in the perceptions of

proposed jurors. (See Motions Hearings, p. 23).

(10) Failure to move for a change of venue.

No suggestion has been made that a fair and impartial

jury could not have been obtained or was not obtained.

(11) Failure to poll the jury. Counsel told

of otrewin experiences in that circuit when juries

were polled. (Habeas Transcript, pp. 109-110).

(12) Failure to introduce evidence at pre-trial

motions hearings. Counsel did obtain substantial

results by the conduct of the proceedings on motions.

No showing has been made that evidence was available

or that Defendant could have further prevailed by

introducing evidence.

The following allegations are factually

incorrect, and are not indicia of ineffective

assistance.

-2l1-

(1) Failure to demand transcription of

opening and closing remarks by the prosecutor.

Counsel moved for complete recordation. He did all

he could do. (See par. 16 above).

(2) Failure to object to improper charges

and to the Court's comment on failure to produce

evidence. This Court has examined each of the

two enumerations and finds no improper conduct

on the-part of the trial court as Petitioner

alleges. |

Therefore, based upon the above, the Court

finds the allegations of ineffective assistance to

be without merit.

CONCLUSION

Having examined each paragraph of the Petition

and finding no constitutional infirmity concerning

Petitioner's convictions and sentences, the Petition

is denied.

a :

So Ordered, this 3) aay of March, 1980.

. ALEX CRUMBLEY, JUDGE SUPERIOR

COURTS, FLINT JUDICIAL CIRCUIT

coy eke SEP 25 1980

, OFFICE OF THE CLERK

Reem | my meting YD ~S6VY RECEIVED

SUPREME COURT OF GEORGIA SUPREME COURT, U.S.

Be

ATLANTA, August 1, 1980 ~

The Honorable Supreme Court met pursuance to adjournment. hy

~

The following order was passed: i)

DAVID PEEK V. WALTER D. ZANT, WARDEN ~

Upon consideration of the Motion for Reconsideration filed

in this case, it is ordered that it be hereby denied.

inf Z

SUPREME COURT OF THE STATE OF GEORGIA,

CLERK’S OFFICE, ATLANTA,

I certify that the above is a true extract from the minutes

of the Supreme Court of Georgia.

Witness my siynature and the seal of said court hereto affixed

the day and year last above written.

Yolagee & Hhtifore, Lipsy out

(| OT AS

at

CASE

McCorquodale

House

Mitchell

Smith, John

Ross

Dungee

Isaacs

‘Gregg

Stephens

Moore, William

2perryhill

Mason

Young, Charlie

Banks, 2nd Trial

3

Jarrell

‘Goodwin

Harris

Spencer

Ss otvey

Corn

Smith, Rebecca

TAlderman

Bowden

Stanley

Thomas

Bhenault

IGibson

Blake

Moore, Carzell

Drake

Dix

Dobbs

APPELLATE REVIEW BY THE GEORGIA SUPREME COURT

OF THE DENIAL OF STATE HABEASES

Chronology

CERT. PROB. CAUSE

GRANTED/DENIED

Granted

Granted

Granted

Granted

Granted

Granted

Granted

Denied

Granted

Denied

Granted

Denied

Granted

Granted

Granted

Granted

Granted

Granted

Denied

Granted

Denied

Denied

Granted

Denied

Denied

Granted

Granted

Denied

Denied

Denied

Denied

Denied

DENIAL OF HABEAS ©

AFF IRMED/REVERSED

Af firmed

Af firmed

Af firmed

Af firmed

Af firmed

Af firmed

Af firmed

Af firmed

Affirmed

Af firmed

Af firmed

Af firmed

Af firmed

Reversed

Af firmed

Affirmed

Af firmed

Af firmed

Affirmed

(EX, &"

DATE HAB. DEN.

AFF'D/P.C. DEN.

5-10-77

6-7-77

9-7-77

10-18-77

11-29-77

4-19-78

4-19-78

h- -78

7-22-78

8- -78

9-28-78

10-3-78

10-24-78

11-7-78

11-7-78

2-6-79

2-27-79

4-4-79

4-24-79

7-9-79

7-11-79

9-5-79

9-6-79

9-6-79

9-6-79

10-4-79

10-16-79

1o- -79

12-5-79

1-25-80

2- -80

2-20-80

» ,

-

*

Appellate Review by the Georgia Supreme Court of the Denial of State Habeases,

Page 2 —

CASE CERT. PROB. CAUSE DENIAL OF HABEAS DATE HAB.. DEN.

GRANTED/DENI ED AFF IRMED/REVERSED AFF'D/P.Cc. DEN.

Westbrook Denied 2- -80

0c ampbel! Granted Reversed 3-5-80

Presnell Denied 3-19-80

Finney Denied 5-8-80

Redd Denied 7-2-80

Peek Denied 7-16-80

Amadeo Denied 9-9-80

Annotations:

‘Gregg: Certificate of Probable Cause Denied for obvious reasons!

2eerr hill: Case subsequently reversed by Judge Harold Murphy, Northern District

of Georgia, Rome Division. Conviction and sentence reversed because of the

use, at trial, of an illegal confession. Miranda and right to have counsel

present at interrogation. 5-13-80. State has appealed to Fifth Circuit.

3Banks, 2nd Trial: Case subsequently reversed by Georgia Supreme Court, on Extraor-

dinary Motion for New Trial. Conviction and sentence reversed. Banks origi-

nally was sentenced to death on 1-31-75, conviction and sentence reversed by

Georgia Supreme Court on 9-12-75. A second trial was held; he was death sen-

tenced again on 11-18-75. It is this conviction and sentence that have again

been reversed. 6-9-80.

‘Goodwin: Case presently before Judge Wilbur Owens, Middle District of Georgia,

Macon Division. Magistrate's Proposed Findings of Fact and Conclusions of

Law recommend reversal of the death sentence on trial judge's failure to

charge on mitigating circumstances. 8-18-80.

Harris: Denial of state habeas reversed by Georgia Supreme Court from the bench,

on failure of trial judge to charge that life could be imposed, even if a sta-

tutory aggravating circumstance was found. Fleming-Hawes-Spivey grounds. Re-

sentencing trial ordered. Life sentence given by jury. 9-37-79

Ss pivey: Certificate of Probable Cause denied, no doubt, because of need to avoid

ruling on the validity of the Spivey charge. If Spivey charge falls, so do

about 50% of all the other charges which have passed muster so far. Spivey

is presently at the Fifth Circuit, no argument date has been set.

7 Alderman: Case subsequently reversed by Judge Avant Edenfield, Southern District

of Georgia, Savannah Division. Conviction and sentence reversed; sentence on

Witherspoon grounds, conviction on Hale-Doyle-Miranda grounds. 9-9-80. State

has aeeates to Fifth Circuit.

Schenault: Certificate of Probable Cause granted, no doubt, because of the Fifth

Circuit ruling in Chenault v. Stynchcombe, 581 F.2d 444 (Sth Cir. 1978).

Ruling did not address charge issue because of failure to exhaust state re-

medies. The Fifth Circuit hinted strongly, however, that the charge might

be deficient.

ee me meen,

Appel late Review by the Georgia Supreme Court of the Denial of State Habeases,

Page 3

9Gibson: Certificate of Probable Cause granted, no doubt, because of Fifth Cir-

~~ ruling inGibson v. Jackson, 443 F.Supp.239.(M.0. Ga., vacated, 578 F.2d 1045

(5th Cir. 1979). In Gibson, Judge Wilbur Owens held that a death-sentenced

indigent had a right to appointed counsel in state habeas proceedings. The

Fifth Circuit reversed and remanded, essentially on abstension grounds, in-

dicating that this issue had not been addressed by the state courts. Judge

Alex Crumbley, Flint Judicial Circuit, appointed counsel to represent. Gibson.

1 think that | am correct that the Georgia Supreme Court did not address this

issue in Gibson v. Zant, 244 Ga. 482. They did, however, address it adversely

in Davis v. Hopper (or Balkcom) , Ga. , #36074, decided July 16, 1980,

holding that a death-sentenced ind? gent was Ss not entitled to appointed counsel,

thus reversing Judge Jchn R. Harvey, Atlantic Judicial Circuit, who had granted

Davis' Motion to Appoint, in part granted on | equal protection grounds because

of Judge Crumb ley' s actions in Gibson.

10¢ ampbel : Application for Certificate of Probable Cause filed by State and Defen-

dant. Judge Alex Crumbley, Flint Judicial Circuit, had reversed the death sen-

tence, using logic to interpret the verbal -hand-slapping which the Georgia

Supreme Court has given to prosecutors who used Eberheart/Hawkins references

in their closing arguments in the penalty phase of the trial. Judge Crumbley

found the arguments to be prejudicial, and passion-arousing. The Georgia Su-

preme Court disagreed, and re-imposed the death sentence, while also affirming

the conviction.