Petition — Party Number 1 v. Party Number 2 (No. 80-5850)
Supreme Court brief1980
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. RECEIVED
80 - 5350 DEC 8 1990
. : OFFICE OF THE CLERK
IN THE SUPREME COURT, U.S.
SUPREME COURT OF THE UNITED STATES
October Term, 1980
WILLIAM ANTHONY BROOKS,
Petitioner,
v.
STATE OF GEORGIA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF GEORGIA
STEPHEN B. BRIGHT
District of Columbia
Law Students in
Court Program
635 F Street, N.W.
Suite 500
Washington, D.C. 20004
(202) 638-4798
ATTORNEY OF RECORD
GEORGE H. KENDALL
CANAN, BURNS & O'TOOLE
51l E Street, N.W.
Washington, D.C. 20001
(202) 347-5212
ATTORNEYS FOR PETITIONER
——
se
QUESTIONS PRESENTED
I. Where the sentence of death was originally imposed
by a jury whose discretion was not properly channeled and
directed, did the failure of the Supreme Court of Georgia to
remand the case for a new sentencing hearing violate petitioner's
rights under the Eighth and Fourteenth Amendments?
II. Where the imposition of the death penalty rests upon
the combination of multiple aggravating circumstances, one of
which was found by the jury without proper guidance, is peti-
tioner entitled to a new sentencing hearing under the Eighth
and Fourteenth Amendments?
III. Whether the Supreme Court of Georgia's failure to pro- |
vide for briefs or argument upon remand from this Court violated
petitioner's Sixth, Eighth and Fourteenth Amendment rights?
IV. Whether the Supreme Court of Georgia construed or
applied Ga. Code Ann. §27-2534.1(b)(7) in an unconstitutionally
vague or overbroad fashion in petitioner's case?
ee see se peo + ee ee oe
TABLE OF CONTENTS
PAGE
Questions Presented. Bnd ROS Cotudle wget. pce, oA Un wate i
| Table of Authorities... 2... 6 21 eee ee eee iii
} ek nye eae ee a eee Mk ay
Constitutional and Statutory |
Provisions Involved. : 2
oe I eae eee gee et 3 |
How the Federal Questions Were
MRASOG ONS Decided Besew . vie ws ere te et ew 9
ene Soe Gienkees the Writ. «5 8 bn cis oda ee ae
I This Court should grant certiorari to determine
whether petitioner is entitled to a new sentenc-
ing hearing at which consideration of the sentence
of death is properly guided by clear and objective
RE a 0 6 8 a ear te ce bee ay che ae
II. This Court should grant certiorari to decide
whether the existence of multiple aggravating
circumstances will support a sentence of death
even though a defective aggravating circumstance
was a factor in the sentencing decision. .... 14
III. This Court should grant certiorari to consider
whether the Georgia Supreme Court's failure to |
provide petitioner a right to be heard on remand
violated his Sixth, Eighth \jand Fourteenth Amend-
a ee ee ees eee aa
| IV. This Court should grant certiorari to consider
whether the Supreme Court of Georgia construed
or applied Ga. Code Ann. § 27-2534.1 (b) (7) in
an unconstitutionally vague or overbroad manner in {
POURS OC GROU 'o) on 86. en Oe Shee wae nee
PS a ae a a ee ee ee
SN Go Cow ie ee om allel ee ce) pile esis nag hn pe
Opinion of the Supreme Court of Georgia on Remand
from this Court . a ae i oe ae ee a
Initial Opinion of the Supreme Court of Georgia . 4a
Trial Court's Jury Instructions ......... 13a |
ee te ee en ey he |
| Verdict and Death Sentence. ........... 17a :
| Mabiigen vy. State (ellp op.). ... cis ew vw ee fe |
| Dampier v. State (slip AL a eae ee |
| Red es CURED ODD oes ao he ee
ii
TABLE OF AUTHORITIES
CASES
Baker v. 3 ia , 100
/ re x 8% - ea. rf See AaOehs yt a es ke
Beck v. Alabama, , 6 8. Ces 2388.
65 L.Ed.2d 392 (1980). SO te aA ROM oe Ae
Brooks v. Georgia, > aoe 8. CE.
2937, 604 7 Ed ae (19807 : :
Brooks v. State, 244 Ga. 574, 261 S.E.2d 379
REIS Bi ei ee et ak ak tect ee NL
Brooks v. State, MN SE.2d
(September 8, 1580)" bes ee ee CORTE an ‘
Brown v. Allen, 344 U.S. 433 (1953).
Brown v. State, 381 So.2d 690 (Fla. 1980).
Bufford v. State, 382 So.2d 1162 (Ala. Cr. App. 1980).
Chiarella v. United States, U.S. » 100 S. Ce.
1108, 63 L.Ed.2d 348 (1 ey abit see
Clark v. State, 379 So.2d 97 (Fla. 1980) .
Cole v. Arkansas, 333 U.S. 196 (1948).
Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974)
Collins v. Georgia, U.S. » 100 S. Ct. 2936,
om he, ROG DMs marci Ganedlechdtantet a ads
Dampier v. State, Ga. ‘ S.E.2d ‘
is Me) 5 dass wb on oR a) ww ee eee
Davis v. CestR i : ,», 100 S. Ct. 2934,
64 L 819 1580}. hie eee Soe ie Ore ees
Douglas v. California, 372 U.S. 353 (1963) .
Elledge v. State, 346 So.2d 998 (Fla. 1977). .....
iii
PAGES
20
20
3,10
8,9,4a
8,22,la
16
17
18
13
17
13
ll
20
20, 19a
21
17
Fair v. State, Ga. ‘
S.E.2d ‘
(June 24, 1980) . tes 6 E Ris
Furman v. Georgia, 408 U.S. 238 (1972) .
Gardner v. Florida, 430 U.S. 349 (1977)
Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979) .
Gibson v. State, 351 So.2d 948 (Fla. 1977) .
Godfrey v. Georgia, 446 U.S.
eh L.Ed. 8 (1980) .
\
Gregg v. Georgia, 428 U.S. 153 (1976)
___,. 100 S.Ct. 1759,
Hamilton v. Georgia, U.S. », 100 S.Ct. 2936,
ies «ye ES SE ela’ oo a SP Ey ay sgt ae el a
Hance v. State, Ga. , 268 S.E.2d 339 (1980) .
Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976)
Holton v. State, 243 Ga. 312, 253 S.E.2d 736 (1979)
House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974)
Jackson v. State, 359 So.2d 1190 (Fla. 1978) .
Johnson v. State, 242 Ga. 649, 250 S.E.2d 394 (1978) .
Lewis v. State, 377 So.2d 640 (Fla. 1979)
Lockett v. Ohio, 438 U.S. 386 (1977) .....%.
, 89 U.8.t.¥.
Martin v. Louisiana, U.S.
370 pt hagas. qr trae
Maryland v. Baltimore Radio Show, 338 U.S. 912 (1950).
- Passim
- Ll, 12,
18, 19,
23
- 20
- 8, 21
23, 24
McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577(1974) 23
iv
es
Mempha v. Rhay, 389 U.S. 128 (1967) .
Mulligan v. State, ie gs Ge
flake GS ok OWT arta A
Presnell v. Georgia, 439 U.S. 14 (1978) ...
Proffitt v. Florida, 428 U.S. 242 (1976)
Riley v. State, 366 So.2d 19 (Fla. 1979)
Shuttlesworth v. Birmingham, 382 U.S. 87 (1965)
Spraggins v. Georgia, » LOO S.Ct.
BSas, 6 4 L. ee 2d 820 19807” ae ae
State v. Williams, 383 So.2d 369 (La. 1980)
Townsend v. Burke, 334 U.S. 736 (1948)
United States v. Carver, 260 U.S. 482 (1923)
United States v. Kras, 409 U.S. 434 (1973)
Westbrook v. patkcom, _.., Usae _ 5 49 U.8.L..
(1980) og A alls ene? a ee Ree ean
Woodson v. North Carolina, 428 U.S. 280 (1976)
STATUTES AND OTHER AUTHORITIES
United States Constitution
Sixth Amendment
Eighth Amendment .
Fourteenth Amendment .
28 U.S.C. §1257(3) (1976)
Ga. Code Ann. §27-2503 (1978)
Ga. Code Ann. §27-2534.1 (1978)
Ga. Code Ann. §27-2537 (1978)
- 15, 16
- ll, 20
e 20, 18a
es ee ee eee ee
No. 80-
|
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1980
WILLIAM ANTHONY BROOKS,
Petitioner,
Vv.
STATE OF GEORGIA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF GEORGIA
Petitioner William Anthony Brooks prays that a writ of
certiorari issue to review the judgment of the Supreme Court
| Of Georgia entered September 8, 1980.
CITATION TO OPINIONS BELOW
The opinion of the Supreme Court of Georgia on remand
from this Court, which is not yet officially reported, is
appended at la to this petition. The opinion of the Supreme
Court of Georgia on petitioner's initial appeal, which is
reported at 244 Ga. 574, 2€1 S.E.2d 379 (1979), is appended
hereto at 4a.
The judgment of the Supreme Court of Georgia on remand
was entered on September 8, 1980. No motion for rehearing was
|
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JURISDICTION
|
|
|
ere a ale al ee i ee ll ee, ae ON EE ST a PP HOTT)
filed. On October 29, 1980, Mr. Justice Powell issued an
order granting petitioner to and including December 8, 1980, to
file this petition. Jurisdiction of this Court is invoked
under 28-U.S.C. §1257(3), petitioner having asserted helow and
asserting aoa deprivation of rights secured by the Constitution
of the United States.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
This case involves the Sixth Amendment to the Constitution
of the United States, which provides in relevant part:
‘In all criminal prosecutions, the accused
shall enjoy the right ... to have the
Assistance of Counsel for his defense;
the Eighth Amendment. to the Constitution of the United States,
which provides in relevant part:
+ +» « nor cruel and unusual punishments
inflicted;
and the Fourteenth Amendment to the Constitution of the United
States, which provides in relevant part:
No State shall . . . deprive any person
of life, liberty, or property, without
due process of law.
This case also involves Ga. Code Ann. §27-2534.1(b), which
provides in part: ;
In all cases of other offenses for which
the death penalty may be authorized, the
judge shall consider, or he shall include
in his instructions to the jury for it to
consider, any mitigating circumstances or
aggravating circumstances otherwise authorized
by law and any of the following statutory
aggravating circumstances which may supported
by the evidence:
* * ”
(2) The offense of murder ... was committed
while the offender was engaged in the commis-
sion of another capital felony... .
* * *
(7) The offense of murder . . . was outrageously
or wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind, or an aggra-
vated battery to the victim.
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STATEMENT OF THE CASE
Petitioner seeks a writ of certiorari from this Court
to the Supreme Court of Georgia to review a decision of
that court reinstating the death sentence. The original
judgment of the Georgia Supreme Court upholding the death
sentence was vacated by this Court and this case was remanded
“for further consideration in light of Godfrey v. Georgia,
466 U.S. -" Brooks v. Georgia, U.S. , 64
L.Ed.2d 821 (1980). On remand, without the benefit of
briefs or arguments, the Supreme Court of Georgia reinstated
the death sentence on September 8, 1980.
Petitioner is a 25 year old black male convicted by
a jury on November 18, 1977, of the murder, kidnapping, rape
and armed robbery of a 23-year old white woman in Muscogee
County, Georgia.2/ On the same day the jury recommended the
death penalty for the crime of murder and the trial court
so sentenced the petitioner.
The offense occurred on the morning of July 15, 1977,
when the victim was abducted from her home and taken to a
wooded area approximately one mile away where her body was
found the following day. The petitioner was arrested in Atlanta
on August 11, 1977, and returned to Columbus for trial.
The case received extensive pretrial publicity and
a hearing on petitioner's motion for a change of venue
1/ Although 25 to 50 percent of the population of the
county in which petitioner was tried were of the same
race as petitioner, no members of his race were on
the jury. Report of the Trial Judge to the Supreme
Court of Georgia at 6, §E.
i
—_—___- _-_
i al 7 we -
was heard prior to trial on September 30, 1977.2/ Although
agreeing that "this is one that should not be tried in
Muscogee County, "2/ the trial court denied the motion. 4/
Trial began on November 15 and was televised locally.
The state presented evidence that the victim was approached
at her home and taken to the wooded area in her own car, which
was later found near the site where the body was four’. Tr.
483-85, 494, 499-512, 514-15.2/
Dr. Joe Webber testified that he performed an autopsy
and found the death was caused by internal bleeding due
to a laceration of the lung resulting from a single bullet
would to the neck. Tr. 591-92. He also testified that
his examination found evidence of trauma to the vaginal
area consistent with forced sexual intercourse. Tr. 596-97.
There was no other evidence of physical abuse to the decedent
beyond those injuries. Spermatozoa was identified in the fluid
recovered from the vaginal canal. Tr. 596.
The petitioner was identified by the decedent's mother
as the person seen leaving the home with her daughter. Tr. 487.
He was also linked to the offense by fingerprint evidence,
Tr. 673, statements he made to the police and others, and
2/ At the hearing, 26 newspaper articles regarding the
case were introduced into evidence. At least 15
appeared on the front page of the local papers and seven
appeared on the front page of the second section. The
coverage included pictures of the petitioner and the
district attorney and quotations from petitioner's state-
ments to police. Transcript of Sept. 30, 1977, at 8, 15.
3/ Transcript of Sept. 30, 1977, at 34.
4/ Ia.
5S/ All references to "Tr." are to the transcript of trial
On November 15-18, 1977.
the testimony of Morris Comer that he was approached by
petitioner near the location where the car was found and
|asked for a ride. Tr. 548-54.9/ Comer said he provided
| the person with a ride._/
| Two other persons testified that they had conversations
— Seem -+ :
|, with the petitioner in which he admitted some involvement in
the offense when reading or hearing about it. Tr. at 638-640,
656. However, one of those witnesses stated on cross examination
that the police had told him what to say and that his direct
testimony was not true. Tr. 644-46.
Two statements made by petitioner to police were
introduced. In the second statement, petitioner admitted
his involvement in the offense. He stated that after the vic-
jj tim was forced to submit to sexual intercourse and had dressed, P
she began to scream and that he pulled the hammer back on the
pistol and pointed it at her “so she would know that I was
serious." He told the police that the pistol “went off and hit
her,” and that he fled the scene. Tr. 759.
The jury returned verdicts of guilty as to all four
offenses on November 18, 1977. Tr. 836. Following the
|
| Verdict, a sentencing hearing was conducted. The state
produced only one witness, a probation officer who testified
6/ Two other persons who were approached by a black male
and similarly asked for rides could not identify peti-
tioner as the individual who approached them. Tr. 539, 546.
7/ Comer was tentatively identified as the person seen driving
away in the victim's car with her by both the decedent's
mother and her boyfriend at a lineup prior to trial. Tr.
490, 512. However, the mother identified petitioner at
trial as the person in the car with her daughter, Tr. 487,
and the boyfriend did not make an identification at trial.
Tr. 505.
— ee ee er
a ge eae aun ~ Pic
- .
‘
:
’
that the petitioner's reputation was bad. Tr. 838-840.
The defense produced petitioner's mother and two sisters
who testified about his premature birth and the abuse
that he received as a child from his stepfather. Tr. 841-58.
The jury was instructed orally and in writing that
a
it could impose the death penalty if it found any one of
three statutory aggravating circumstances set out in Ga.
Code Ann. 27-2534.1 (1978). Under subsection (b) (2) of
that statute, the jury was instructed that it could impose
death if it determined that the offense of murder was
So ee ee gee eae —s
committed while petitioner was engaged in the commission
of either or both of two other capital felonies, rape and
armed robbery. Tr. at 885-886. App. at l4a-l5a. With regard
| to subsection (b)(7), the jury was instructed that it could
impose death if "[t]he offense of murder was outrageously
or wantonly vile, horrible or inhuman in that it involved
an aggravated battery to the victim." Tr. at 886, App. at
15a. [Emphasis added.] There was no mention of the
other two components of (b) (7): depravity of mind or torture. 2/
Nor was there any definition of any of the terms of (b) (7)
in the trial court's instructions to the jury.
The prosecutor in his closing argument, other than
referring to the crime as “horrible, "2/ made no suggestion
of the applicability of (b)(7) to the facts of petitioner's
8/ Ga. Code Ann. §27-2534.1(b)(7) defines the aggravating
circumstance as follows: “The offense of murder ... was
outrageously or wantonly vile, horrible or inhuman in
that it involved torture, depravity of mind, or an
aggravated battery to the victim."
9/ After arguing that “you wouldn't do that... toa stray
animal that you wanted to get rid of” the prosecutor
asked: “If you sat down and tried to think up a horrible
crime, could you think of anything more horrible than
what you've heard here this week, what this defendant
committed on this young lady? Could you think of any-
think more horrible?” Tr. 863.
| ae
—
case. Instead, he suggested some reasons for imposing the
death penalty contained in neither the statute nor the trial
court's instructions: his belief that the petitioner would
kill again, the possibility that he would kill prison guards
as sentenced to life imprisonment, the possibility that he would
kill a fellow prisoner, the possibility that he would escape
I and commit the same crime against someone else's girl friend
or daughter, and the savings to the jurors as taxpayers of
the cost of housing, feeding and clothing the petitioner if
he were sentenced to death instead of life imprisonment. Tr.
868-69. 20/
The jury was provided with a verdict form permitting
it to base a recommendation of death upon a single aggravating
circumstance, a combination of aggravating circumstances or
| multiple aggravaving circumstances independent of one another.
App. at l6éa. After deliberating less than an hour, the jury
| returned a recommer..ation of death and stated in writing its
finding of the following statutory aggravating circumstances:
“armed robbery, and rape, and the offense of murder was outra-
geously or wantonly vile, horrible or inhuman in that it in-
volved depravity of mind to the victim." Tr. at 890; App. at
17a [Emphasis added]. There was no finding of aggravated
battery or torture by the jury.
In its initial review of the case the Georgia Supreme
Court affirmed and upheld the “depravity of mind” pert of
10/ The prosecutor's only mention of the statutory aggravating
circumstances came at the end of the argument when he
told the jury that it could impose death if it found
that the murder was committed while petitioner was en-
gaged in kidnapping or armed robbery. Tr. 872. (With
regard to the (b)(?) circumstances, the trial court
instructed as to commission of the murder during rape
or armed robbery, but not kidnapping.) The prosecutor
never referred to the instruction based upon (b)(7) or
asserted that the dececent was tortured prior to death.
ere —_— = - eee —__ oe Fore al ——
the sentence without elaboration other than citing
1l/
Johnson v. State, 242 Ga. 649, 250 S.E.2d 394 (1978)
| Brooks v. State, 244 Ga. 574, 261 S.E.2d 379, 387 (1979).
The court expressed its view that the case involved "an
| absolutely unprovoked murder." Id.
Following this Court's remand on May 27, 1980, the
Supreme Court of Ceorgia upheld the finding of “depravity
| of mind" on the theory that "'the fact that the victim
|| was tortured will . . . support a finding of depravity of
mind. ...'" Brooks v. State, opinion on remand at 2,
339, 346 (1980). The Georgia Supreme Court found:
{T]he victim died, not instantaneously,
but a full two hours after being shot in
| App. at 2a, citing Hance v. State, Ga. , 268 S.E.2da
|
}
| the neck and abandoned by the appellant,
| death resulting from a slow but steady loss
| of blood.
Also, it is beyond question that the
(| appellant seriously and sexually abused
1 {the victim]. See Hance v. State, supra,
H (physical abuse includes sexual abuse for
HI purposes of proving torture under Code Ann.
i §27-2534.1(b)(7)).
| Finally, following his rape of [the
} victim), the appellant taunted his victim
' with her lost virginity and made her the
! target of his gun, said acts combining to
i} cause her to scream uncontrollably. See
i Hance v. State, supra (physical abuse
includes psychological abuse resulting
il in mental anguish to the victim in anti-
I cipation of physical harm.)
| Opinion on remand at 2, App. at 2a. The court also based
1}
/ its reimposition of the death penalty upon the jury findings
| pursuant to subsection (b) (2):
11/ In Johnson, the court upheld a death sentence based
upon §(b)(7) where the victim was murdered "in a
methodical, execution-style fashion” after being
i, raped. 250 S.E.2d at 400.
"Where two or more statutory aggravating
circumstances are found by the jury, the
failure of one circumstance does not so
taint the proceedings as to invalidate the
other aggravating circumstance found and
the sentence of death based thereon." Gates
v. State, 244 Ga. 587, 598 (261 S.E.2da 349) ‘
Opinion on remand at 1, App. at la.
HOW THE FEDERAL QUESTIONS WERE RAISED
AND DECIDED BELOW
The questions raised by this brief were not expressly
raised in petitioner's trial or his brief on direct appeal
to the Supreme Court of Georgia. Nevertheless, they were
sufficiently raised and considered in the Supreme Court
of Georgia to sustain this Court's jurisdiction. Under
Ga. Code Ann. §27-2537(c) (2), the Supreme Court of Georgia
is expressly required to ascertain whether “the evidence
supports the jury's... finding of a statutory aggravating
circumstance."
In its original opinion, the Georgia Supreme Court up-
held the finding of depravity of mind upon the basis of its
decision upholding such a finding in another rape murder case,
Johnson v. State, supra. Brooks v. State, supra, 261 S.E.2d
at 387. In its opinion upon remand, the court held:
[T)his court reaffirms the appellant's
sentence of death on the ground that, unlike
the jury's finding of Code Ann. §27-2534.1(b)
(7) in Godfrey v. State, the jury's finding
of said statutory aggravating circumstances
in the present case was supported by legally
sufficient evidence.
Opinion on remand at 2, App. at 2a. The Georgia Supreme
Court did not provide for briefs or arguments prior to
its decision on remand.
.
REASONS FOR GRANTING THE WRIT
Upon receiving this case upon remand from this Court
"for further consideration in light of Godfrey v. Georgia,
446 U.S. ,n22/ the Supreme Court of Georgia, without
the benefit of briefs, arguments or other procedures, issued
a two-page opinion reimposing the death penalty. App. at la.
The Georgia Supreme Court's reimposition of the death
penalty originally imposed by a basically uninstructed jury
in a standardless and uncontrolled exercise of discretion
raises important constitutional issues which this Court
should consider. Each of those issues will be set out in
this section of this petition.
Te THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE
WHETHER PETITIONER IS ENTITLED TO A NEW SENTENCING
HEARING AT WHICH CONSIDERATION OF THE SENTENCE OF
DEATH IS PROPERLY GUIDED BY CLEAR AND OBJECTIVE
STANDARDS.
The jury at the sentencing hearing below was instructed
that it could impose the death penalty pursuant to Ga. Code
Ann. §27-2534.1(b)(7) if it found that "[t]he offense of
murder was outrageously or wantonly vile, horrible or in-
human in that it involved an aggravated battery to the victim, *23/
|
|
i
i
In returning its sentence of death, the jury expressed in writing ©
its finding of "depravity of mind to the victim.” It had
not been instructed that it could make such a finding. +4/
12/ Brooks v. Georgia, U.S. , 64 L.Ed.2d 821 (1980).
~
3/ The jury was also instructed with regard to aggravating
circumstances pursuant to Ga. Code Ann. §27-2534.1(b) (2).
The instructions, jury findings and Georgia Supreme Court
review are described herein at 6-9. The jury instructions
appear in the appendix to this petition at l3a - l5a, the
jury verdict is at 17a, and the decision of the Georgia
Supreme Court on remand appears at la.
The jury finding was apparently based upon the verdict
form submitted to it with the court's instructions. The
form contained the words "depravity of mind to the victim."
The form is appended at léa.
«- 30 <
|
|
The Georgia Supreme Court upheld the finding of the jury on
remand from this Court on the basis of its conclusion that the
victim was tortured, an assertion which was not made at the
sentencing hearing or found by the jury.
Thus, the process of imposing the death sentence upon
petitioner fell woefully short of the constitutional commands
that in considering death, the sentencer's discretion must
be channeled by "clear and objective standards" +3/ that
provide "specific and detailed guidance"26/ and that make
"rationally reviewable the process for imposing a sentence
wl7/
of dea... Godfrey v. Georgia, 446 U.S. ’ , 100 S.Ct.
1759, 1764-65, 64 L.Ed.2d 398, 406 (1980) (Plurality opinion).
The jury in petitioner's case below was provided with no
definition of “aggravated battery" or of any other terms of
(b)(7) in the trial court's instructions. Thus, as in Godfrey,
the trial judge's sentencing instructions "gave the jury no
guidance concerning the meaning of any of §(b)(7)'s terms.
In fact, the jury's interpretation of §(b)(7) can only be the
subject of sheer speculation." Godfrey v. Georgia, supra, 100
S.Ct. at 1765 (Plurality opinion).
Therefore, because petitioner's sentencing hearing before
the Georgia trial court was constitutionally defective, it
must be determined whether he is entitled under the Constitution
15/ Gregg v. Georgia, 428 U.S. 153, 198 (1976) (Opinion of
Stewart, Powell and Stevens, JJ.), quoting Coley v. State,
231 Ga. 829, 834, 204 S.E.2d 612, 615 (1974).
16/ Proffitt v. Florida, 428 U.S. 242, 253 (1976) (Opinion of
Stewart, Powell and Stevens, JJ.).
17/ Woodson v. North Carolina, 428 U.S. 280, 302 (1976) (Op-
inion of Stewart, Powell and Stevens, JJ.).
a >
to a new sentencing hearing at which the sentencer's discre-
tion will be properly directed and channeled in accordance
with Furman v. Georgia, 408 U.S. 238 (1972), Gregg v. Georgia,
428 U.S. 153 (1976), and Godfrey v. Georgia, supra. This
significant |\constitutional issue was not addressed by the
Georgia Supreme Court in its opinion.
Where, as in Georgia, the sentencing authority is the
jury ,28/ Mr. Justice Marshall's concurrence in Godfrey answers
that only a properly instructed jury may impose the sentence
of death:
The jury must be instructed on the proper,
narrow construction of the statute. The Court's
cases make clear that it is the sentencer's
discretion that must be channeled and guided by
clear, objective, and specific standards. ...
To give the jury an instruction in the form
of the bare words of the statute -- words
that are hopelessly ambiguous and could be
understood to apply to any murder .. -
would effectively grant it unbridled discretion
to impose the death penalty.
100 S.Ct. at 1769 (Marshall, J., concurring). The exercise
of such unbridled discretion cannot be salvaged by appellate
review. Here, as in Godfrey, "the standardless and unchanneled
imposition of the death sentences in the uncontrolled discretion
of a basically uninstructed jury . . . was in no way cured by
the affirmance of those sentences by the Georgia Supreme Court.”
100 S.Ct. at 1765 (Plurality opinion). As Mr. Justice Marshall
stated:
Such a defect could not be cured by the
post hoc narrowing construction of an appellate
court. The reviewing court can determine only
whether a rational jury might have imposed the
death penalty if it had been properly instructed;
18/ Ga. Code Ann. §27-2503(b).
= 12 «
es
|
|
it is impossible for it to say whether a particular
jury would have so exercised its discretion if it had
known the law.
100 S.Ct. at 1769 (Marshall, J., concurring). Here, there
was not even a "post hoc narrowing construction” by the Georgia
Supreme Court. Instead, in upholding the (b)(7) finding of the
_jury upon remand from this Court, the Georgia Court substituted
a new basis for the finding of that circumstance, one not put
forward by either the state at trial or by the jury in its
findings .22/ It is well established that "[t]o conform to
due process of law, petitioner[ ] [was] entitled to have the
validity of [his] conviction appraised on consideration of the
case as it was tried and as the issues were determined in the |
trial court." Cole v. Arkansas, 333 U.S. 196, 202 (1948); accord,
Chiarella v. United States, U.S. , 63 L.Ed.2d 348, 362
(1980); Shuttlesworth v. Birmingham, 382 U.S. 87, 91-92 (1965). f
This "fundamental principle[ ] of procedural fairness applil[es] }
with no less force at the peralty phase of a trial in a capital
case than. . . in the guilt-determining phase of any criminal
trial. cf. Gardner v. Florida, 430 U.S. 349 (1977)." Presnell
v. Georgia, 439 U.S. 14, 16 (1978). The Georgia Supreme Court's
reassessment of petitioner's sentencing issues and its substi-
tution of an alternate basis for sustaining the (b)(7) finding
other than the one upon which the jury was instructed, relying
only upon a cold record, and in the absence of statutory
authority ,22/ plainly denied petitioner due process of law.
19/ As will be demonstrated infra at 21-24, the Georgia
Supreme Court's definition of "torture" as applied to
petitioner on remand is so broad as to apply to virtually
any murder.
20/ The Supreme Court of Georgia is charged under Ga. Code
Ann. §27-2537 with appellate review of sentences imposed
by the trial court. No statutory provision gives that
court power to act as a sentencing authority de novo in
a capital case.
- 13-
II. THIS COURT SHOULD GRANT CERTIORARI TO DECIDE
WHETHER THE EXISTENCE OF MULTIPLE AGGRAVATING
CIRCUMSTANCES WILL SUPPORT A SENTENCE OF DEATH
EVEN THOUGH A DEFECTIVE AGGRAVATING CIRCUMSTANCE
WAS A FACTOR IN THE SENTENCING DECISION.
Closely related to the issue discussed in the foregoing
section of this petition is the question of whether the need
for a new sentencing hearing is obviated where the sentence
of death rests in part upon other aggravating circumstances
beyond the one impermissibly considered. One basis for |
the Georgia Supreme Court's reaffirmance of petitioner's
death sentence was the existence of statutory aggravating
circumstances under Ga. Code Ann. §27-2534.1(b)(2) as well
as the (b)(7) finding. Relying on its earlier decision in
Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979), the court
held that where two or more statutory aggravating circumstances
are found by the jury, the failure of one does not so taint
the proceedings as to invalidate the other aggravating cir-
cumstances. Opinion on remand at 1, App. at la; Gates v. State,
supra at 598. i
The question of whether petitioner may be denied a new
sentencing hearing because of the existence of other statu-
tory aggravating circumstances is an important constitutional
question worthy of plenary consideration by this Court. At
least three Justices of this Court have addressed the issue
recently, and the question has divided state courts of last
resort.
In dissenting from thedenial of certiorari in Martin v.
Louisiana, U.S. , 49 U.S.L.W. 3370 (1980), Mr. Justice
= 16 «
-—
Stewart stated the issue posed by the ambiguity of the jury
| findings and verdict of death in this case as well as the
Louisiana case before the Court:
Under the state death penalty statute...
while the jury was permitted to impose capital
punishment where it found only a single aggravating
circumstance, it was not required to do so. ...
The Lousiana court's reasoning, therefore, ignores
the possibility that some of the jurors may have
voted for the death sentence because of the existence
of the second aggravating circumstance alone, or
that others may have voted for the death penalty
only because of the existence of the two aggravating
circumstances.
The jury's verdict thus makes it impossible to
determine whether some or all of the jurors may
have relied on the existence of the second
aggravating circumstance in reaching their decision
to impose the sentence of death ....
49 U.S.L.W. at 3370-71. Mr. Justice Stewart found the same
rationale applicable under the Georgia capital punishment
scheme:
[U]nder Georgia's capital punishment scheme,
only the trial judge or jury can know and deter-
mine what to do when upon appellate review it has
been concluded that a particular aggravating cir-
cumstance should not have been considered in sen-
tencing the defendant to death.
Westbrook v. Balkcom, supra, 49 U.S.L.W. 3371 (Stewart, J.,
dissenting). Mr. Justice White and Mr. Justice Stevens also
expressed their views in dissenting and concurring, respectively,
with regard to the Court's action in the Westbrook cases.
Although dissenting because he would allow the Georgia
Supreme Court to determine whether the death penalty should
be sustained on aggravating circumstances other than the (b) (7)
grounds, Mr. Justice White also expressed the view that the |
Georgia Supreme Court would not be constitutionally required
to vacate the death sentences even if it failed to sustain
the (b)(7) finding because the "cases now before us involve
o. 18 «
only sentencing, not guilt or innocence, and there is no
constitutional right to jury sentencing.” 49 U.S.L.W. at
3371 (White, J., dissenting). However, in petitioner's case
below, the Georgia Supreme Court did not purport to resentence
petitioner, but to affirm a death sentence imposed by a jury
based upon a combination of aggravating circumstances. 21/
Mr. Justice Stevens, citing the holding of the Georgia
Supreme Court in petitioner's case below, expressed the
view that the Georgia court's holding on multiple aggravating
circumstances is consistent with this Court's decision in
Godfrey. 49 U.S.L.W. at 3371 (Stevens, J., concurring in
the denial of certiorari) .22/
Although normally denials of certiorari constitute
no expression of an opinion on the merits, Brown v. Allen,
344 U.S. 433 (1953); Mary land v. Baltimore Radio Show, 338 U.S.
912, 919 (1950) (Frankfurter, J.); United States v. Carver, 260 U.S
482, 490 (1923), this Court has acknowledged that in some
instances "pointed dissents" and other actions by Justices
with regard to denials of certiorari “surely are not without
some significance as to [the Justices'] and the Court's atti-
tude. . . ." United Stated v. Kras, 409 U.S. 434, 443 (1973).
The conflicting views expressed in Martin and Westbrook contri-
bute to the uncertainty as to whether the Constitution requires
a new sentencing hearing upon a finding that a defective aggra-
21/ Although the Georgia Supreme Court must review the im-
position of every death penalty in Georgia, Ga. Code Ann.
§27-2537 (1978), it holds no sentencing authority o% its
own. The Georgia statute provides that the trial court
is the sentencing authority. Ga. Code Ann. §§ 27-2503(b),
27-2534.1(b).
22/ Godfrey v. Georgia, supra, however, involved only a finding
under §(b)(?7). There were no other aggravating circum-
stances in that case.
- 16 <-
vating circumstance ine a factor in the sentencer's decision.
| Because of the importance of this issue in the review of death
! penalty cases by state appellate courts, a decision on this
| question after briefing and arguments is needed.
There is a conflict among state courts of last resort
on this kien: The Florida Supreme Court held in Elledge
: v. State, 346 So.2d 998 (Fla. 1977) that a new sentencing
hearing may be constitutionally required where a defective
aggravating circumstance was taken into consideration in
sentencing along with other properly considered circumstances.
It expressed its reasoning as follows: ;
[Rlegardless of the existence of other authorized
aggravating factors we must be on guard against
any unauthorized aggravating factor going into
the equation which might tip the scales of the
weighing process in favor of death. ...
Would the result of the weighing process by both
the jury and the judge have been different had the
impermissible aggravating factor not been present?
We cannot know. Since we cannot know and a man's
life is at stake, we are compelled to return this
case to the trial court for a new sentencing trial
at which the [defective aggravating circumstance]
shall not be considered. . .. This result is dictated
because, in order to satisfy Furman v. Georgia...
the sentencing authority's discretion must be "guided
and channeled by requiring examination of specific
factors that argue in favor of or against imposition
of the death penalty, thus eliminating total arbitrari-
ness and capriciousness in its imposition. ...”
346 So.2d at 1003 [emphasis in the Original; citations omitted].
See also Riley v. State, 366 So.2d 19 (Pla. 1979); Lewis v. State,.
377 So.2d 640, 646-47 (Fla. 1979) .23/
23/ The Florida Supreme Court has also held that where
the written order of the trial judge, who is the sen-
tencing authority in Florida, expressly states the
extent to which various facters went into the decision
to impose death, a new hearing is unnecessary. Brown
v. State, 381 So.2d 690, 696 (Fla. 1980). It has also
e t where no mitigating circumstances are present,
a new hearing may be unnecessary. See, e.g., Clark v.
State, 379 So.2d 97, 104 (Fla. 1980); Seuke son Vv. State,
-24 1190 (Fla. 1978); Gibson v. State, 351 So.2d
948, 953 (Fla. 1977). , \
- 17 <-
|
os
|
The Louisiana Supreme Court has taken a different
| view. In State v. Williams, 383 So.2d 369 (La. 1980), the
court refused to order a new sentencing hearing despite
| finding that two of the three aggravating circumstances
/were invalid. ‘The dissent found such a position to stand
at odds with the special appellate role contemplated in
Gregg v. Georgia:
Because of the qualitative difference between the
death penalty and all others under the criminal
law, a corresponding greater need for reliability
exists in the determination that a defendant must
die for his crimes. Lockett v. Ohio, 438 U.S. 586
(1978); Gardner v. Florida, 430 U.S. 349 (1977).
Any error of the jury's finding of aggravating cir-
cumstances must be scrutinized according to whether
such error introduced an element of arbitrariness
and capriciousness into the jury recommendation of
death, which renders the death sentence constitution-
ally impermissible.
383 So.2d at 376 (Dennis, J., dissenting) .24/
The Georgia Supreme Court's conclusion on remand that
petitioner's sentence rests upon independent grounds can only
be based upon speculation. The jury found that because of the
“armed robbery and rape and because the murder was wantonly
vile... in that it involved depravity of mind to the victim,”
a sentence of death was appropriate.22/
It is impossible
to read this conjunctive verdict to mean that the jury would
have still recommended the death penalty had it not found all
the circumsta.ces listed in the verdict. Had the jury utilized
the word "or" rather than "and" in its finding of aggravating
24/ It appears that Alabama requires a new hearing when
One or more circumstances was improperly found while
at the same time more than one of the circumstances
was properly found. See Bufford v. State, 382 So.2d
1162 (Ala. Cr. App. 1580)-
25/ Verdict, App. at 17a.
= 318 «
ey
circumstances ,2°/ a conclusion that the verdict rests upon
severable and independent grounds would be more tenable. Be-
cause only the jury knows why it sentenced petitioner to death,
the question of how it would sentence the petitioner if properly
instructed can only be answered by a new sentencing hearing.
Petitioner respectfully submits that because of the pre-
cision required by this Court's decision in Furman v. Georgia,
Supra, and Gregg v. Georgia, supra, in determining whether to
impose the sentence of death, such speculation is not con-
stitutionally permissible. Accordingly, this Court should
grant certiorari to decide this issue after full briefing and
arguments.
III. THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER
WHETHER THE GEORGIA SUPREME COURT'S FAILURE TO
PROVIDE PETITIONER A RIGHT TO BE HEARD ON REMAND
VIOLATED HIS SIXTH, EIGHTH AND FOURTEENTH AMEND-
MENT RIGHTS.
The issues presented by this petition were not briefed
or argued to the Supreme Court of Georgia because that court
unilaterally reimposed the death penalty without briefs or
arguments. This practice was followed by the Georgia court
in all of those cases remanded to it at the same time as
petitioner's case for review in light of Godfrey
26/ Both the trial court's instructions and the verdict form
separated the aggravating factors with "and/or." Trial
court's instructions, App. at l4a-l5a; Verdict Form, App.
at l6a. Thus, the jury was specifically advised that it
could indicate that its death sentence rested on indepen-
dent grounds by use of the disjunctive.
» 19 «
> eee-enes
Vv. Georgia,2/ as well as those cases decided prior to Godfrey
but before transmittal of the remittitur to the trial court. 28/
This Court should grant certiorari to determine whether such
procedures are constitutionally sufficient.
This Court has cautioned that the "qualitative difference"
under the Eighth Amendment between death and any other punish-
ment requires a “corresponding difference in the need for
reliability in the determination that death is the appropriate
punishment in a specific area." Woodson v. North Carolina, 428
U.S. 280, 305 (1976). See also: Lockett v. Ohio, 438 U.S. 586,
601 (1978); Beck v. Alabama, U.S. , 65 L.Ed.2da 392, 403
(1980). The cavalier summary disposition of petitioner's case
on remand, without recognition or treatment of the important
questions remaining after this Court's decision in Godfrey
v. Georgia, supra, is inconsistent with this constitutional
responsibility of the Georgia court.
Moreover, petitioner is entitled under the Sixth and
Fourteenth Amendments to the effective assistance of counsel
both in sentencing proceedings, Mempha v. Rhay, 389 U.S. 128
(1967); Townsend v. Burke, 334 U.S. 736 (1948), as well as on
27/ This Court remanded five other Georgia capital cases to
the Supreme Court in light of Godfrey in addition to peti-
tioner's on May 27, 1980. Hamilton v. Georgia, U.S.
, 64 L.Ed.2d 821 (1980); Baker v. Georgia, U.S.
, 64 L.Ed.2d 820 (1980); Collins v. Seer ia, U.S.
, 64 L.Ed.2d 820 (1980); Davis v. Georgia, U.S.
, 64 L.Ed.2d 819 (1980); Spraggins v. Georgia, U.S.
» 64 L.Ed.2d 820 (1980). In each case the upreme
Court of Georgia reimposed a sentence of death without
briefs or arguments. Petitioner is informed that each
of these defendants has or intends to file a timely
petition for a writ of certiorari raising issues similar
to those presented by this petition.
28/ See, e.g., Mulligan v. State, Ga. ? S.E.2da
(Tune st: 1980), App. at lOa, Dampier v. State, Ga. °
S.E.2d (June 24, 1980), App. at 19a; Pair v. State,
Ga. ’ S.E.2d (June 24, 1980). App. at 22a.
In each case the Georgia Supreme Court issued a brief "ad-
dendum” to its original opinion in which it distinguished
the case under review from the facts of Godfrey and re-
affirmed the death penalty.
- 20 -
——
appeal, Douglas v. California, 372 U.S. 353 (1963). To be
meaningful, this right must include the right to brief and argue
the important issues presented here to the Georgia Supreme
Court before it reinstates the sentence of death.
In Gardner v. Florida, 430 U.S. 349, 358 (1977), this
Court observed that it "is of vital importance to the defen-
dant and the community that any decision to impose the death
sentence be, and appear to be, based on a reason rather than
caprice or emotion." The Georgia Supreme Court, no less than
any other judicial component in the awesome process of deter-
mining life and death, is held to a higher standard under the
Constitution than it met in petitioner's case below.
IV. THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER
WHETHER THE SUPREME COURT OF GEORGIA CONSTRUED
OR APPLIED GA. CCDE ANN. §27-2534.1(b) (7) IN AN
UNCONSTITUTIONALLY VAGUE OR OVERBROAD MANNER
IN PETITIONER'S CASE.
Assuming that the jury could properly find “depravity
of mind to the victim” as an aggravating circumstance even
though it was not instructed on such a circumstance, 22/ that
phrase as well as the term “torture,” which the Georgia Supreme
29/ The jury was instructed with regard to only one of the
subparts of section (b)(7), i.e., that the murder in-
volved aggravated battery to the victim. In Godfrey
v. Georgia, this Court pointed out that the term
auton battery” is defined in Ga. Code Ann. §26-1305:
"A person commits aggravated battery when he maliciously
causes bodily harm to another by depriving him of a member
of his body, or by rendering a member of his body useless,
or by seriously disfiguring his body or a member thereof.”
Godfrey v. Georgia, supra, 100 S.Ct. at 1766 nm. 13. The
Georgia Supreme Court so defined aggravated battery in
Hance v. State, supra, 268 S.E.2d at 345. In order to
constitute aggravated battery, the bodily harm must
occur before death. Id. There was no evidence presented
to the jury in petitioner's case below that the victim
was in any way deprived of a member of her body or
seriously disfigured by petitioner prior to her death.
e MM «
' Court found in its analysis of the case upon remand, were applied
in a vague and overbroad fashion in this case.
In Holton v. State, 243 Ga. 312, 253 S.E.2d 736, 740 (1979),
the Georgia Supreme Court observed:
It is unlikely that a statutory aggravating
circumstance which consisted solely that the
murder involved depravity of the mind would
Ii survive constitutional! challenge based on Furman
iI v. Georgia . . . [because] such an aggravating
circumstance could be so broad as to allow the
death penalty to be imposed at random in any
murder case.
| Here, however, the Georgia court concluded that the “depravity |
}
| of mind” finding was based on "torture" of the victim even
| though the jury verdict in no way suggests such a finding.
i
| Nor was there any argument by the prosecutor that the victim
| was tortured prior to her death. As Mr. Justice Marshall
' pointed out in his concurrence in Godfrey:
The Georgia court has given an
| extraordinarily broad meaning to the
word “torture.” Under that court's
view, “torture” may be present whenever
the victim suffered pain or anticipated
the prospect of death. ... That inter-
| pretation would of course enable a jury
to find a §(b)(7) aggravating circumstance
in most murder cases.
!
Godfrey v. Georgia, supra, 100 S.Ct. at 1772 n. 12 (Marshall, J.,
, concurring). The Georgia court's explanation of its conclusion
| in this case is certainly an example of its broad construction
| of the word “torture.” In finding torture, the Georgia Supreme |
| Court stated that “the victim died, not instantaneously, but a
| full two hours after being shot in the neck and abandoned by
the appellant, death resulting from a slow but steady loss
' of blood.” Brooks v. State, opinion on remand at 2, App. at
| 2a. Aside from the shooting itself, no evidence was presented
| at trial which would indicate that petitioner purposefully shot
/ - 22 -
the victim in the neck so as to cause unnecessary suffering
prior to death. To the contrary, petitioner's statement
to police introduced at trial that "the pistol went off and
hit her," Tr. 759, is the only evidence of what transpired
in the killing of the victim and suggests that the gun may
have fired accidently .22/
The court also based its finding of torture on the fact
that appellant “seriously and sexually abused” the victim and
"taunted his victim with her lost virginity and made her the
target of his gun." Opinion on remand at 2, App. at 2a. But
there was no evidence of physical abuse beyond the forced
sexual intercourse which formed the basis of the rape con-
viction, 21/ and the court's finding of “taunting” is apparently
based upon petitioner's statement, "I asked her if that was
30/ Thus, the finding of this case appears inconsistent with
the Georgia court's statement that (b) (7) findings will |
be upheld only in cases that lie “at the core and not
the periphery" of that aggravating circumstance. Harris
v. State, 237 Ga. 718, 733, 230 S.E.2d 1, 1l (1976). The
nding of "torture" by the court in this case contrasts
sharply with the “horrifying torture-murder" in McCo uodale
v. State, 233 Ga. 369, 211 S.E.2d 577 (1974), cited S this
Court in Gregg, su ra, 428 U.S. at 201, and Godfrey, supra,
100 S.Ct. at £46 - There the victim suffered prolonged
torture in which she was beaten, burned, bitten, cut with
a razor and scissors, sodomized, raped, and subjected to
salt being placed in her wounds and hot wax dripped over
her body before she was strangled and killed.
31/ Thus, this case did not involve the type of sexual abuse
found in House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974),
which was relied upon in Hance v. State, supra, for the
proposition that serious sexual abuse may constitute serious
physical abuse for the purpose of establishing torture
under §27-2534.1(b)(7). Hance v. State, supra, 268 S.E.2d4
at 345. House involved the strangulation murder of two
seven-year Old boys following acts of anal sodomy committed
upon them by the defendant.
« 23 «
the first time she had had sex, and she told me that it was,
n
and I told her that I did not believe it. 32/
While this episode is »ndeniably a revolting one, as
is any rape and murder, it can only be characterized as "torture"
under a construction of that term which is so broad and vague
thet it would apply to virtually any murder. Thus,
"[t]here is no principled way to distinguish this case, in
which the death penalty was imposed, from the many cases in
which it was not." Godfrey v. Georgia, supra, 100 S.Ct. at
1767. Therefore, this Court should grant certiorari to consider
whether the provisions of Ga. Code Ann. §27-2534(b)(7) were
applied to petitioner in violation of his rights under the
Eighth and Fourteenth Amendments.
32/ Tr. at 759. Here the Supreme Court employs a strained
characterization of the facts in its effort to analogize
this case to Hance v. State, supra. In Hance, however,
the victim was struck on the head with a karate chop
and fell over bleeding. She was then pulled from the
car with such force that her elbow was dislocated. Still
alive, the victim was beaten with a tire iron so severely
that her face was missing and parts of her skull were
shattered at the time the body was discovered.
= 24 <-
—
CONCLUSION
For the foregoing reasons, petitioner prays that a writ
of certiorari issue to review the decision of the Supreme
Court of Georgia.
@ 28 «
Respectfully submitted,
7, $0 te
STEPHEN B. BRIGHT
District of Columbia
Law Students In Court
Program
635 F Street, N.W., Suite 500
Washington, D.C. 20004
(202) 638-4798
, & S & O'TOOLE
511 Street, N.W.
Washington, D.C. 20001
(202) 347-5212
ATTORNEYS FOR PETITIONER
RECEIVED
DEC 81980
No. 80- OFFICE OF THE CLERK
SUPREME COURT, U.S.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1980
WILLIAM ANTHONY BROOKS,
Petitioner,
STATE OF GEORGIA ,
Respondent.
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Petition for
A Writ of Certiorari and a copy of the Appendix to said Petition
has been mailed, postage prepaid, to Mr. William Smith, Esq.,
District Attorney, Government Building, Columbus, Georgia, 31901,
and to Mr. Arthur Bolton, Attorney General, Judicial Building,
State of Georgia, Atlanta, Georgia, 30334, this ee of
| December, 1980. Cad (Z (i, Ig
Stephen B. Bright
= ee
a
ee PR ORT TS . -
743 +
In the Supreme Court of Georgia
Decided: SEP § 1980 2
34813. BROOKS v. THE STATE.
JORDAN, Presiding Justice.
The United States Supreme Court vacated the death
sentence affirmed by this court in Brooks. v. State, 244 Ga. 374°
(261 SE2d 379). (1979), and remanded said case to this court for
reconsideration in light of the discussion of Code Ann. :.
§ 27-2534.1(b)(7) in Godfrey v. Georgia, 48 U.S. Lw 4541 (May 19,
1980). - Brooks v. State, U.S. ‘ (May 27, 1980).
| Having reconsidered the facts of-the present case as
directed, this court now reaffirms on two, independent grounds, -
the appellant's sentence of death for the murder of Carol
Jeannine Galloway.
First, in the present case, the jury's verdict for the
death sentence was predicated, not only on Code Ann.
§ 27-2534.1(8) (7), but also on Code Ann. § 27-2534.1(b) (2) (The:
jury found, beyond a reasonable doubt, that the murder was
comnitted during the appellant's‘ commission of a rape and an
armed robbery). |
"Where two or more statutory @ggtavating circumstances
are found by the jury, the failure of one circumstance does not
SO taint the Proceedings as to invalidate the other aggravating
circumstance found and the sentence of death based thereon."
Gates v. State, 244 Ga. 587, 598 (261 sE2a 349) (1979).
Therefore, we reaffirm the appellant's sentence of death
on the ground that the jury's finding of Code Ann.
§ 27-2534.1(b)(2) was Supported by legally sufficient evidence.
Moreover, in the present case, the jury found that the
appellant's murder ef Ms. Galloway reflected, beyond a reasonable
doubt, “depravity of mind" under Code en § 27-2534.1(b) (7)
(la) ~ "
+) ie .
Bg 2 peal gO I bie weet
MinaaaaeRe Eee Saad pohcaned, Ai) Sais i , ay o
.- . .
and "when only facts occurring prior ‘to death are relied
upon..., the fact that the victim was tortured will...support
a finding of depravity of mind...." Hance v. State, Case. No.
36102, decided June 24, 1939. ?
Torture occurs when the victim is subjected to serious .
physical abuse before death. Godfrey v. Georgia, Slip
Opinion, p. 10; Hance v. State, Case No. 36192, decided June
24, 1980. |
In the praesent case, the victim died, not instantaneously,
but a full 2 hours after being shot in the neck and
abandoned by the appellant, death resulting from a slow but
Steady loss of blood.
Also, it is beyond question that the appellant seriously
and sexually abused Ms. Galloway. See Hance v. State, supra,
(physical abuse includes sexual abuse for purposes of proving
torture under Code Ann. § 27-2534.1(b)(7)).
Finally, following his rape of Ms.Galloway, the appellant
taunted his victim with her lost virginity and made her the
target of his gun, said acts combining to cause her to scream
uncontrollably. See Hance v. State, supra (physical abuse
includes Psychological abuse resulting in mental anguish to
the victim in anticipation of physical harm.).
Accordingly, this court reaffirms the appellant's sentence
of death on the ground that, unlike the jury's finding of
Code Ann. § 27-2534.1(b)(7) in Godfrey v. State, the jury's
finding of said statutory aggravating circumstance in the
present Case was supported by legally sufficient evidence.
Judgment of affirmance of the death penalty adhered to.
"All the Justices concur, except Kil g. ae Sites
34813. BROOKS v. THE STATE. =, (743)
HILL, Justice, concurring specially.
I concur specially for thé reasons stated in Gates v. State,
244 Ga. 587 (7) (8) (261 SE2d 349) (1979).
(3a)
. & -
. 244Ga.574
BROOKS
v.
The STATE.
No. 4813.
Supreme Court of Georgia.
Argued May 15, 1979.
Decided Oct. 30, 1979.
Defendant was convicted before the
‘Muscogee Superior Court, Land, J., of mur-
der, kidnapping, rape and armed robbery
and was sentenced to death for the murder,
and he appealed. The Supreme Court, Jor-
dan, J., held that: (1) evidence was suffi-
cient to sustain conviction; (2) totality of
circumstances surrounding trial were not
inherently prejudicial to defendant's right
to impartial jury; , (3) trial judge did not
abuse his discretion in admitting photo-
graph of teeth marks on victim's breast into
evidence; (4) sustaining of district attor-
ney's objections to questions asked of de-
fendant's mother and sisters during sen-
tencing phase of case was not error; (5)
finding that there were aggravating cir-
cumstances, which consisted of murder
while defendant was engaged in commission
of rape and armed robbery, and murder
outrageously or wantonly vile, horrible or
inhuman in that it involved depravity of
mind was supported by sufficient evidence;
and (6) deuth sentence was neither exces-
sive nor disproportionate to penalty im-
(4a)
380 Ga.
posed for similar crimes, considering the
crime and the defendant.
* Judgment affirmed. '
* Hill, J., concurred in judgment only.
1. Homicide e250
Kidnapping 5
Rape e=5i(1)
Robbery @24.1(1)
Evidence, including defendant's confes-
sions, was sufficient to sustain his convic-
tions of murder, kidnapping, rape, and arm-
ed robbery.
2. Criminal Law @=1134(1)
Appellate courts must independently
review relevant trial court record in each
case to insure compliance with constitution-
al dictates assuring that accused be afford-
ed a public and speedy trial by impartial
jury. U.S.C.A.Const. Amend. 6; Const art.
1, § 1, par. 11.
3. Jury o=97(1) .
To establish denial of an accused's right
to impartial jury under Sixth Amendment,
he must show either actual juror partiality
or circumstances inherently prejudicial to
that right. U.S.C.A.Const: Amend. 6.
4. Jury @97(1)
Circumstances inherently prejudicial to
accused's right to impartial jury cap
impeach a jury's declaration of impartiality.
U.S.C.A.Const. Amend. 6; Const. art. 1, § 1,
par. 11.
5. Jury e991)
Potential for prejudice, arising from a
juror’s extrajudicia]) knowledge regarding
accused’s crime, can be discounted under
Sixth Amendment if review of pretrial pub-
_ licity and total voir dire fails to demon-
strate that the “totality of the circumstanc-
es” were inherently prejudicial. U.S.C.A.
Const. Amend. 6.
6. Jury #=99%3)
Totality of circumstances surrounding
trial in which defencunt was convicted of
murder, kidnapping, rape and armed rob-
bery and was sentenced to death were not
‘
(Sa)
-
261 SOUTH EASTERN REPORTER, 2d SERIES
inherently prejudicial to defendant's right
to impartial jury where, though seven jur-
ors had extrajudicial knowledge of the
crime, five jurors knew that defendant had-
confessed and iwo jurors were acquainted
with victim's family, there had been two
and one-half-month delay between the pre-
trial publicity and trial, voir dire indicated a.
low level of community bias and the confess
‘ sions were admitted into evidence. U.S.C
A.Const. Amend. 6; Const. art. 1, §.1, par.
4 Be
7. Jury o99(1)
In order to invoke Sixth Amendment's. -
presumption of juror partiality on ground ©
of inherently prejudicial pretrial publicity,
accused must show a trial atmosphere ut-
terly corrupted by press coverage. USC
A.Const. Amend. 6.
8. Criminal Law @=633(1) | :
Mere fact of a televised criminab trial
does not constitute evi that pretrial
publicity, which is insufficient to sustain a
finding that accused been denied his
right to an impartial trial, has been joined
by media theatrics sufficient to cdnvert to
tality of the courtroom circumstances into a
“circus,” and thereby deprive accused of his
right to courtroom calm. U.S.CA.Const
Amend. 6; Const art 1, § 1, par. 1L
9. Criminal Law @=531(1)
When an accused objects to admissica
of evidence of his confession, state must
prove, by a preponderance of the evidence,
that confession was voluntary and, if con-
fession is product of a custodial interrogs-
tion by government officers, that the con
fession was preceded by appellant's know-
ing and voluntary waiver of his Miranda
rights.
10. Criminal Law @=260.11(3)
On appellate review, factual and cred
bility determinations by trial court must be
accepted unless such determinations are
clearly erroneous.
11. Criminal Law @=1158(4)
Supreme Court must independently re
view evidence to determine whether state
bas carried its burden of proving admissibil-
ie?
st _—*. ~.
+.
BROOKS v. STATE
Ga. 38)
Cite as, Ga, 26) S.£.2¢ 379
ity of aceused’s confession by a preponder-
ance of the evidence.
12. Criminal Law o531(3)
In proceeding in which defendant was
convicted of murder, kidnapping, rape and
armed robbery, evidence sufficiently estab-
lished admissibility of defendant's confes-
sion.
13. Criminal Law o=438(1), 1153(1)
Photograph, which is relevant to a ma-
terial fact, is admissible in evidence if au-
thenticated and if possessed of a probative
value not substantially outweighed by pro-
bative danger; such determinations are as-
signed to sound discretion of trial judge and
will not be disturbed on appeal except for
abuse of that discretion.
14. Criminal Law o=438(5)
In proceeding in which defendant was
convicted of murder, kidnapping, rape and
armed robbery, trial judge did not abuse his
discretion in ruling that photograph depict-
ing presence of teeth marks on victim's
breast rendered the material fact of force
more probable than it would have been
without the photograph and did not abuse
his discretion in admitting photograph into
evidence.
15. Criminal Law @=338(1) .
“Relevancy” is the tendency to estab-
lish any material fact.
See publication Words and Phrases
for other judicial constructions and
definitions.
16. Homicide e354
In proceeding in which defendant was
convicted of murder, kidnapping, rape and
armed robbery and was sentenced to death
for the murder, sustaining of district attor-
ney's objections to certain questions asked
of defendant's mother and his sisters during
sentencing phase of trial was not error, in
light of fact that such witnesses, despite the
sustained objections, were sble to convey to
jury the circumstances concerning defend-
ant's premature birth, fact that he was
raised in broken home and was severely
beaten and mistreated by stepfather, his
early offenses as a juvenile and other mat-
(6a)
ters which could be considered as mitigat-
ing circumstances.
17. Criminal Law o=986.2(1)
Evidence as to mitigation should not
necessarily be confined to strict rules of
evidence in criminal proceeding; trial court
should exercise a broad discretion in allow-
ing any evidence reasonably tending toward
mitigation but court is authorized to hold
witnesses within reasonable bounds.
18. Homicide o=354
In proceeding in which defendant was
convicted of murder, kidnapping, rape and
armed robbery and was sentenced to death
for the murder, jury's finding that there
were aggravating circumstances, which con-
sisted of murder while offender was en-
gaged in commission of rape and armed
robbery and murder outrageously or wan- |
tonly vile, horrible or inhuman in that it
involved depravity of mind, was supported
by sufficient evidence. Code, § 27-
2537(¢X 1-3).
19. Criminal Law @=1206(2)
Homicide e354
Death sentence for unprovoked murder
committed by defendant during commission
of armed robbery, kidnapping and rape was
neither excessive nor disproportionate to
penalty imposed for similar crimes, con-
sidering the crime and defendant Code,
§ 27-2537(¢\1-3).
William S. Cain, Jr., Columbus, for appel-
lant.
William J. Smith, Dist. Atty., Arthur K.
Bolton, Atty. Gen., Daryl A. Robinson, Asst.
Atty. Gen., for appellee.
JORDAN, Justice.
Appellant-defendant, William Anthony
Brooks, was indicted on August 16, 1977, by
the Muscogee County grand jury for the
crimes of murder, kidnapping, rape, and
armed robbery. On Nov. 18, 1977, the jury
found appellant guilty on all four counts,
and after specifically finding the existence
of statutory aggravating circumstances,
recommended the death penalty for the
ee Ba
- crime of murder.
382 Ga.
Accordingly, the trial
‘ court, on Nov. 18, 1977, sentenced the appel-
lant to death for the crime of murder, to
life for kidnapping and rape, and to twenty
years for armed robbery. The case is here
on appeal and mandatory review of the
death penalty.
I. The Evidence.
A summary of the evidence is as follows:
On the morning of July 15, 1977, the appel-
lant, while walking along Saint Mary's
Road in Muscogee County, Georgia, noticed
Carol Jeannine Galloway, age 23, in the
frontyard of her parents’ residence. The
appellant accosted Miss Galloway at gun-
point with instructions that she get into her
car, valued at $3,508, and drive the two of
them to the Dawson Elementary School,
one mile from the Galloway home. Upon
arriving at the school, the appellant ordered
Miss Galloway’ to park the car and walk into
the nearby woods where he first robbed
Miss Galloway of at least $20 and then
raped her. Following appellant's comple-
tion of the sex act, Miss Galloway reiterat-
ed her continuing plea that appellant per-
mit her to leave. Appellant's sole response
was to ask Miss Galloway if she had ever
experienced sex before, and when told by
Miss Galloway that she had not; to taunt
her with his disbelief. At this point, Miss
Galloway began to scream. When she did
not heed his warning to stop, the appellant,
to impress upon Miss Galloway the serious-
ness of his warning, aimed his gun at her
face and pulled the hammer back into a
cocked position. When Miss Galloway con-
tinued to scream, the appellant fired one
shot, his bullet piercing Miss Galloway's
lower neck and causing a slow but steady
loss of blood which resulted (but only after
the passage of a full two hours) in her
death. Immediately after firing the shot,
the appellant returned to Miss Galloway's
car. As he was driving out of the school
yard he encountered Bobby Murray, Miss
Galloway's bayfriend, driving in search of
Miss Galloway. In his successful effort to
elude Mr. Murray the appellant abandoned
his victim's car and caught a ride to the
East Wynnton section of Columbus where
(Ja) *
261 SOUTH EASTERN REPORTER, 2d SERIES
he spent the night with friends. On July
21, 1977, having spent the interim at his
father's home in Columbus, the defendant
fled to Atlanta, Georgia, there to be arrest-
ed on August 11, 1977. He made confes-
sions to the crimes which were introduced
into evidence.
{1] This court holds the evidence in sup-
port of the verdicts legally sufficient since
under’ such evidence any rational trier of
fact could have found that the appellant
was guilty beyond a reasonable‘ doubt of
each and every crime charged. Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct 2781, 61
L.Ed.2d 560 (1979).
II. Enumerations of Error.
On appeal, appellant enumerates five er-
rors: his motion for change of venue was
overruled, his right to an impartial jury was
denied, his two confessions and stite’s Ex-
hibit # 17 (a photograph of teethmarks on
the victim's left breast) were erroneously
admitted into evidence, and the'award of
the death penalty was motivated hv prejv-
dice and passion.
1. For purpose of argument, appellant
combines enumerations of error one and
two into a single contention: the trial court
erred in overruling his motion for change of
venue based upon prejudicial pretrial pub-
licity since the consequence of such denial
was to deprive appellant of his right to trial
by an impartial jury. Appellant’s motion
was supported by the introduction into evi-
dence of 26 articles published by Columbus’
two local newspapers between July 15, 1977,
the date of commission of the crime, and
August 23, 1977, twelve days after appel-
lant had been arrested. The record con-
tains no article published during the two
and two-thirds months immediately preced-
ing appellant's trial on Nov. 15, 1977; how.
ever, the transcript reflects that one article
was published on Nov. 14, 1977, the very
eve of the trial, wherein it was restated
that appellant had confessed to the indicted
crimes (the original statement, published
Augusi 14, 1977, also quoted from the text
of the confession). Additional facts will be
noted as necessary to the discussion.
a5
a ws: |.
BROOKS v. STATE Ga. 383
Cite as, Ga. 261 S.£.24 379
The Sixth Amendment to the U.S. Consti-
tution U.S.Const. Amend. V1) combines
with Code Ann. § 2-111] (Ga.Const. Art. 1,
Sec. 1, Par. XI) to assure that every person
charged with. offending the laws of this
state shall have a public and speedy trial by
an impartial jury.
[2] Appellate courts must independently
review the relevant trial court record in
cach case to insure compliance with these
constitutional dictates. Sheppard v. Max-
well, 384 U.S. 333, 362, 86 S.CL 1507, 16
L.Ed.2d 600 (1965); United States v.
McNally, 485 F.2d 398, 403 (8th Cir. 1973),
cert. den., 415 U.S. 978, 94 S.Ct. 1566, 39
L.Ed.2d 874 (1974); United States v. Yeag-
er, 472 F.2d 229, 239 (3rd Cir. 1973). ;
[3] We note that, “under the Sixth
Amendment, in order for an appellant to
establish the denial of his right to an impar-
tial jury, he must show either (a) actua/
juror partiality or (b) circumstances inher-
ently prejudicial to that right. Murphy v.
Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 44
L.Ed.2d 589 (1974); Street v. State, 237 Ga.
307, 311, 227 S.E.2d 750 (1976), vacated on
other grounds, 429 U.S. 995, 97 S.Ct. 520, 50
L.Ed.2d 606 (1976).
(a) The United States Supreme Court has
defined actual juror partiality as foifSws:
“It is not required, however, that jurors
be totally ignorant of the facts and issues
involved. In these days of swift, wide-
spread, and diverse methods of communica-
tion, an important case can be expected to
arouse the interest of the public in the
vicinity, and scarcely any of those best qual-
ified to serve as jurors will not have formed
some impression or opinion as to the merits
of the case. This is particularly true in
criminal cases. To hold that there mere
existence of any preconceived notion as to
the guilt or innocence of an accused, with-
out more, is sufficient to rebut the pre-
sumption of a prospective juror’s impartiali-
ty would be to establish an impossible stan-
dard. It is sufficient if the juror can lay
aside his impression or opinion and render a
verdict based on the evidence presented in
court.” Irvin v. Dowd, 366 US. 717, 722, 81
S.Ct 1639, 1642-1643, 6 L.Ed.2d 751 (1960).
Accord, Coleman v. State, 237 Ga &4, 87,
226 S.E.2d 911 (1976), cert. den., 431 U.S.
909, 97 S.Ct. 1707, 52 LEd2d 394 (1977).
In this present case, all twelve selected
jurors testified on voir dire that they were
without a fixed opinion as to appellant's
guilt or innocence. The appellant protests,
however, that this formal declaration of
impartiality was impeached, in the case of
one juror, by her admission that she held an
“undecided” opinion as to the appellant's
guilt based upon newspaper accounts of the
columbus police department's certainty that
the appellant was Miss Galloway's assailant.
This same juror, however, testified in expla-
nation of the above that she understood the
police made mistakes ahd that her “unde-
cided” opinion would not preclude her from
deciding appellant's guilt or innocence sole-
ly on the evidence presented at trial.
[4) (bd) Circumstances inherently preju-
dicial to the appellant's right to an impar-
tial jury can impeach a juror’s declaration
of impartiality. As evidence of the pres-
ence of such circumstances in the present
case, the appellant notes that 7 of the 12
selected jurors had knowledge of the crime,
and that 5 of the 12 knew appellant had
confessed (though only 1 of these 5 ac-
knowledged even the possibility of recalling
the details of the confession.) The appel-
lant also notes that 2 of the twelve selected
jurors were acquainted with the victim's
family—one by reputation, the other by a
Single introduction several years prior to
trial.
{5} We are aware that a juror’s extraju-
dicial knowledge regarding an appellant's
present crime represents a serious potential
for prejudice to that appellant's right to an
impartial jury. However, such potential
can be discounted under the Sixth Amend-
ment if review of the pretrial publicity and
total voir dire fails to demonstrate that the
“totality of the circumstances” were inher-
ently prejudicial. Murphy v. Florida, supra.
We have heki that a juror’s extrajudicial
knowledge of the Victim, even when mani- °
fested by attendance at the victim's funer-
(8a)
384 Ga.
al, did not impeach per se that juror’s decla-
* ration of impartiality. Coleman v. State,
Supra. Accordingly, we hold that, while a
juror’s extrajudicial knowledge regarding
an appellant's crime, confession, and victim
does indeed represcnt a serious potential! for
prejudice to that appellant's right to an
impartial jury, such potential can be dis-
counted under the Sixth Amendment if re-
view of the pretrial publicity and total voir
dire fail to demonstrate that “the totality
of the circumstances” were inherently prej-
udicial.
{6) In review of the pretrial publicity
attending his case the appellant stresses, in
addition to the sheer number of newspaper
publications (26), the publication of parts of
his confession, after the confession had been
read into the public record at the appel-
lant’s preliminary hearing. The appellant
further notes the emotionalism of the cov-
erage, citing,’ in particular, one headline
which read “Congregation Weeps For Its
Slain Young Organist”, one editorial whic!
commented that the murder of Miss Gallo-
way had struck an especially responsive
cord in the community, and, one photograph
of the appellant captioned by the statement
of the District Attorney that he intended to
seek the death penalty at trial.
In Stroble v. California, 343 U.S. 181, 72
S.Ct. 599, 96 L.Ed. 872 (1951), the United
States Supreme Court considered a pattern
of pretrial publicity strikingly similar to the
one in the present case. In upholding Stro-
ble’s conviction, the court stated: “He (the
- defendant) asks the Court simply to read
those stories and then to declare, over the
contrary finding of two state courts, that
they necessarily deprived him of due proc-
ess. That we cannot do, at least where, as
here, the inflammatory newspaper accounts
appeared approximately six wks. before the
beginning of petitioner's trial, and there is
no affirmative showing that any communi-
ty prejudice ever existed or in any way
affected the deliberation of the jury. It is
also significant that in this case the confes-
sion which was one of the most prominent
features of the newspaper accounts was
made voluntarily and was introduced in evi-
(9a)
261 SOUTH EASTERN REPORTER, 2d SERIES
dence at the trial itself” (Emphasis add-
ed). Thus, after observing the absence of
an, evidence of actual juror prejudice, the
United States Supreme Court noted the re-
moteness in Lime between publicity and tr-
al and the eventual admission of the preju-
dicial information into evidence as support
for its refusal to hold that the appellant's
right to an impartial jury had been pre
sumptively violated. See Nebraska Pres
Assn. v. Stuart, 427 U.S. 539, 554, 96 SC.
2791, 49 L.Ed_2d 683 (1975); United States
v. Mancusi, 445 F.2d 613, 618 (2nd Cir.
1971). The same set of circumstances exists
in the present case. There is an absence of
any evidence of actual juror partiality.
(See Part II, Division Ma) of this opinien}
Further, ali but one of the 26 artich.. were
published 2% months before the appellant's
trial and at trial the appellant's
were found to be voluntary and
into evidence. Accordingly, this court com
cludes that the pretrial publicity
ing the appellant's trial did net a
circumstance inherently prejudicial to. the
appellant's Sixth Amendment right to af
impartial jury.
(7] This court is not unaware of Ridese
v. Louisiana, 373 U.S. 723, $3 S.Ct 1417,
LEd.2d 663 (1963), wherein the United
States Supreme Court found that the cr
cumstance of a confession, televised 3 times
approximately 2 months prior to the trial
and pever admitted into evidence, did dem-
onstrate inherent prejudice to the appel-
lant’s right to an impartial jury. That
same court, however, in Nebraska Prem
Assn. v. Stuart, supra, made clear the con
tinued vitality of Stroble, and the limited
holding of Rideau. In order to invoke the
Sixth Amendment's presumption of juror
partiality on the ground of inherently pre}-
pretrial
pra, 421 U.S. at 798, 95 S.Ct at 2035. (Em
phasis supplied.) Given the facts before
this court, the present appellant has ‘sited
his burden.
Regarding review of the total wuir dire,
the United States Supreme Court suggested
ae
BROOKS v. STATE
Ga. 385
Cite as, Ga, 26) S.£.2¢ 379
in Murphy that corroboration for a court's
belief the pretrial publicity had not been
inherently prejudicial could be found in the
percentage of- prospective jurors excused
for partiality regarding the appcllant’s
guilt. In the present case, only 4% (3 out of
75) of the prospective jurors were excused
for partiality regarding the defendant's
guilt. This very low perecntage firmly re-
inforces our earlier conclusion that the pre-
trial publicity surrounding the appellant's
case did not create a community bias inher-
ently prejudicial to the appellant's right to
an impartial jury. Sec Coleman, supra
(49% dismissal rate—3° out of 77—held to
corroborate absence of inherently prejudi-.
cial community bias); Butler v. State, 231
Ga. 276, 277, 201 S.E.2d- 448 (1973) (36%
dismissal rate—28 out of 77—held to cor-
roborate absence of inherently prejudicial
community bias);. Cf. Murphy, supra, at
803, 95 S.Ct. 2031 (62% dismissal rute—268
out of 430—held to corroborate the pres-
ence of actual juror partiality).
We note, in regard to the credibility of
the above low percentage, that the trial
court in this case conducted the individual
voir dire of each prospective juror out of
the presence of the others, and thereby
eliminated the danger that sincere fyrors
might be influenced to misstate their true
feelings if asked, in the presence of their
peers, to acknowledge their bias.
[8] In conclusion, we hold that the 2'A
month period between the publicity and the
trial, the low level of community bias as
reflected in the total voir dire, and the
admission into evidence of the defendant's
confessions permit this court to discount the
potential for prejudice admittedly present
in the extrajudicial knowledge of the sclect-
ed jurors in this case, and to find that the
“totality of circumstances” surrounding the
appellant's trial were not inherently preju-
1. Appetiant, in his brief to this cour, mentions
the presence of television in the counroom
We note here that the mere fact of a tclevised
trial does not constitute evidence that the pre-
trial pubbcity surrounding the defendant's trial.
which we have above held insulficient to sus-
tam a finding that the appellant was denied his
tight to an empartial jury, was joined by media
thearnes sulfvent to convert the totality of
dicia) to the appellant's right to an impar-
tial jury. These two enumerations are
without merit.'
{9} 2. When an appellant objects to the
admission into evidence of his confession,
the state must prove, by a preponderance of
the evidence, Lego v. Twomey, 404.U.S. 477,
489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972);
United States v. Watson, 469 F.2d 362, 364
(5th Cir. 1972); High v. State, 233 Ga. 153,
154, 210 S.E.2d 673 (1974), that the confes-
sion was voluntary, and, if the confession is
the product of a custodial interrogation by
officers of the government, that the confes-
sion was preceded by the appellant's know-
ing and voluntary waiver of his Miranda
rights. Miranda v. Arizona, 384 U.S. 436,
444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966);
Goodwin v. State, 236 Ga. 339, 342, 223
S.E.2d 703 (1976).
_ (10) On appellate review, factual and
credibility determinations by the trial court
must be accepted unless such determina-
tions are clearly erroneous. United States
v. Watson, supra; Johnson v. State, 233 Ga.
58, 209 S.E.2d 629 (1974).
(11,12) It is the duty of this court to
independently review the evidence to deter-
mine whether the state has carried its bur-
den of proving the admissibility of appel-
lant's coafession by a preponderance of the
evidence. United States v. Watson, supra.
Having done so, we firmly conclude that
the state has carried its burden. See Hurt
v. State, 239 Ga. 565, 669, 238 SE2d 542
(1977); Stevens v. State, Ga. 603, 151
S.E.2d 127 (1966). See generally West v. U.
S., 399 F.2d 467, 469 (Sth Cir. 1968), cert.
den., 393 U.S. 1102, 89 S.Ct. 903, 21 L.Ed.2d
795 (1969); Riley v. State, 237 Ga. 124, 128,
226,S.E.2¢ 922 (1976).
courtroom circumstances into a “circus”, and
thereby deprive the appellant of his nght to
courtroom calm as enunciated by the United
States Supreme Court in Sheppard v. Maxwell,
364 US. 333, 86 S.Ct. 1507, 16 L.Ed2d 600
(1966) and Ewes v Texas, 38! US 532, 85.
SCt 1628, 14 LEd 2d S43 (1964) We also
note that appellant comsented to the television
coverage of hes trial
(10a)
— OS 8 =
EO OEE Se OT —
— es — _ — ; el ™ = . anes ‘a —
386 Ga. 261 SOUTH EASTERN REPORTER, 2d SERIES
3. Dr. Joe Martin Webber testified at
trial that he had observed a series of teeth-
marks on Miss Gulloway’s left breast during
performance of the autopsy on July 16,
1977. He wus shown the statc’s original
Exhibit # 17 and asked if he could recog-
nize from it the teethmarks he had ob-
served during the autopsy. After respond-
ing negatively, Dr. Webber produced a pho-
tograph which hestestified was a true and
correct representation of Miss Galloway's
breast area at the time he had taken the
photograph. Following substitution of the .
doctor's photograph as the new state's Ex-
hibit # 17, said exhibit was admitted into
evidence over the following objcctions by
the defendant: first, that the photograph
was irrelevant by virtue of Dr. Webber's
failure tw testify when the marks had been
made, whether they were inflicted violent-
ly, or whether they were inflicted by man,
woman, or child, much less this particular
defendant; and, second, that given the pho
tograph’s cumulative evidentiary value (Dr.
Webber having already testificd to -vhat
the photograph showed), its probative
worth was so outweighed by its probative
danger that its exclusion from the jury was
demanded.
(13) Georgia law provides that a photo-
graph, relevant to a material fact, is admis-
sible in evidence if authenticated and if
possessed of a probative value not substan-
tially outweighed by probative danger.
Floyd v. State, 233 Ga. 280, 283, 210 S.E.2d
810 (1974); see Shaw v. State, 241 Ga. 308,
311, 245 S.E.2d 262 (1978). Further, the
above determinations are assigned to the
sound discretion of the trial judge and will
not be disturbed on appcal except for abuse
of that discretion. Thornton v. Thornton,
232 Ga. 666, 667,208 S.E.2d 557 (1974); J.
D. Jewell, Inc. v. Hancock, 226 Ga. 480, 487,
175 S.E.2d 847 (1970).
(14) In this case, appellant was indicted
for the crime of rape, which Georgia law
defines as carnal knowledge of a female,
forcibly and agains! her will, Thus, a ma-
terial fact in issue before the jury was
whether the defendant had achieved carnal
knowledge of Miss Galloway by force We
(lla)
hold the trial judge did not abuse his discre-
tion in ruling that state’s Exhibit # 17,
depicting the presence of tcethmarks on
.Miss Galloway's left breast, rendered the
material fact of force more probable than it
would have been without the evidence.
{15} In objecting to the photograph be-
cause Dr. Webber did not testify when the
teethmarks had been made or whether they
had been inflicted by a man, woman, or
child, appellant seems to demand, as a con-
dition to admissibility, that the photograph
be relevant to who raped Miss Galloway.
Relevancy is the tendency to establish any —
material fact. In objecting that Dr. Web
ber did not state whether the teethmarks
were inflicted violently, defendant raises a
point that would be more persuasive if his
objection were to either the pcg bg
the photograph, a question of law [6
court, or the weight of the ph, a
question of persuasion for the jury. freen,
Georgia Law of Evidence, 194-196 § 8&8 -
(1957). It is not persuasive in an objestion
to the photograph's relevancy.
The trial judge in the case before us did
not abuse his discretion in admitting the
photograph. Lamb v. State, 241 Ga. 10, 12,
243 S.E.2d 59 (1978); Reddish v. State, 238
Ga. 136, 139, 231 S.E2d 737 (1977).
III. Sentence Review.
4. In reviewing the charge of the court
in the sentencing phase of the trial relating
to circumstances in mitigation and aggrava-
tion, we conclude that this portion of the
charge clearly meets the criteria laid down
in Fleming v. State, 240 Ga 1427), 240
S.E.2d 37 (1977); Hawes v. State, 240 Ga
327(9), 240 S.E.2d 833 (1978); and Spivey v.
State, 21 Ga. 477(2), 246 S.E.2d 288 (1978),
‘cert. den. 439 U.S. 1039, 99 S.Cu 642, 58
L.Ed.2d 699 (1978).
{16} 5S. A review of the evidence dur
ing the sentencing phase of the trial shows
that the defendant called his mother aud
two sisters as witnesses in an attempt te
show mitigating ¢-cuwimstances in his be
half. During.the :cstimony of these wit-
nesses, the district.atlorney made numerous
BROOKS v. STATE
Cite as, Ga, 26) S.£.26 379
objections based on hearsay, irrclevancy,
conclusion of the witness, etc., most of
‘ which were sustained by the court. In re-
sponse to defense counsel's statement that
“I thought.the rules were much morc liber-
al on the sentencing phase,” the court re-
plied “. - its got to be admissible
evidence.” The court overruled one objec-
tion und told counsel to “keep her within .
,
reasonable bounds.” .
We find no error iader the facts of this
case since the witnesses, despite the objec-
tions which were sustained, were able to
convey to the jury the circumstances con-
cerning the defendant's premature birth,
being raised in a broken home, severely
beaten and mistreated by a stepfather, his
early offenses as a juvenile, and other mat-
ters which the jury might consider as miti-
gating circumstances. |
{17} This court is of the opinion that’
' evidence as to mitigation should not neces-
‘sarily be confined to the strict rules of
evidence. The trial court should exercise a
broad discretion in allowing any evidence
reasonably tending toward mitigation. Of
course the court is authorized to hold wit-
nesses “within reasonable bounds,” as was
done in this case. See Collier v. State, 244
Ga. 553, 261 S.E.2d 364 (1979).
6. Appellant's final enumeration of er-
ror raises the same issue as the fifst third
of this court's mandatory death sentence
review az outlined in Code Ann. § 27-
2537(¢X 1-3) (Ga.L. 1973, p. 159); according-
ly, it shall be incorporated into this section's
fulfillment of the cited statutory duty.
'_ First, we conclude that the sentence of
death imposed in this case for the crime of
murder was not imposed under the influ-
ence of passion, prejudice, or any other ar-
bitrary factor.
(18) Secondly, we conclude that the
statutory aggravating circumstances found
by the jury (murder while the offender was
engaged in the commission of rape and
armed robbery; and murder outrageously
or wantonly vile, horrible or inhuman in
that it invelved depravity of mind to the
victim (sic)) were supported by sufficient
(12a)
Ga. 387
evidence. (Regarding rape and armed rob-
bery, see Purt I of this opinion; regarding
depravity of mind). See Johnson v. State,
242 Ga. 649, 656, 250 S.E.2d 394 (1978).
(19) Thirdly, in reviewing the death:
penalty in this case, we have considered the.
cases appealed to this court since January 1,
1970, in which a death or life sentence was
imposed and we find that the cases listed in
the appendix support affirmance of the
death penalty. This case involves an abso-
lutely unprovoked murder while the appel-
lant was in the commission of armed rob-
bery, kidnapping, and rape. William An-
thony Brooks’ sentence to death is neither
excessive nor disproportionate Lo the penal-
ty imposed in similar crimes considering the
crime and the appellant.
Judgment affirmed.
All the Justices concur, except as to Divi-
sion 6, HILL, J., concurs in the judgment
only.
APPENDIX
House v. State, 232 Ga. 140, 205 S.E.2d
217 (1974); Gregg v. State, 233 Ga. 117, 210
S.E.2d 659 (1974); Moore v. State, 233 Ga.
861, 213 S.E.2d 829 (1975); Floyd v. State,
233 Ga. 280, 210 S.E.2d 810 (1975); Mitchell
v. State, 234 Ga. 160, 214 S.E.2d 900 (1975);
Jarrell v. State, 234 Ga. 410, 216 SE.2d 258
(1975); Berryhill v. State, 235 Ga. 549, 221
S.E.2g 185 (1975); Gibson v. State, 236 Ga.
874, 226 S.E.2d 63 (1976); Dobbs v. State,
236 Ga. 427, 224 S.E.2d 3 (1976); Goodwin
v. State, 236 Ga. 339, 223 S.E.2d 703 (1976);
Pulliam v. State, 236 Ga. 460, 224 S E.2d 8
(1976); Morgan v. State, 241 Ga 485, 246
S.E.2d 198 (1978); Drake v. State, 241 Ga.
$83, 247 S.E.2d 57 (1978).
wad
Georgia, Muscogee County:
In Re: State of Georgia vs William Anthony Brooks’
———
Charge of Murder
| Ladies and Gentlemen, the defendant in this case has been
found gyilty of the offense of Murder, and it is now your duty
to make certain decisions that will affect the sentence which
, the Court will impose as punishment for that offense. :
Under the law of this state every person found guilty of :
Murder shall be punished by death or imprisonment for life.
I charge vou that although, under the law of Georgia, the
Judge will fix the sentence, the determinations you will.
now make will affect the sentence which will be prescribed.
Your responsibility at this stage of the trial is to
determine first whether any mitigating or aggravating circumstances
existed at the time the Murder was committed, which would
i — << <<< =<. ss
authorize you to recommend the death penalty for the defendant.
ee -? + eee
Before vou would be authorized to recommend the death
penalty, you must first determine whether, at the time the crime
i was committed, the following statutory aggravating circumstances
existed beyond a reasonable doubt:
I.
"The offense of Murder was committed while
the offender was engaged in the commission
of another capital felony, to-wit: Rape
and/or
4
"The offense of Murder was committed while
the offender was engaged in the commission
of another capital felony, to-wit: Armed Robberv
- re Oe fee eee oom
i. (13a)
,
_
orm © Beene Scmceees samme a
—-- os
ery
a
cease
——_—_-s-
Loe ee
-r
re one 222
-—-.- -
and/or
Itt.
"The offense of murder was outrageously or
wantonly vile, horrible or inhuman in that
it involved an aggravated battery to the
victim."
If you find that either of these aggravating circumstances
existed beyond a reasonable doubt and if you recommend the death
penalty, then the Court is required by law to sentence the
defendant to death. 7
On the other hand, you can see fit, whether aggravating
circumstances existed or not to recommend mercy for the defendan
if this should be your finding, then the Court is required by la:
to sentence the defendant to life imprisonment,
In arriving at your determinations, you are authorized to
consider all the evidence received throughout this trial 4
presented by the State and the defendant. vou are authorized
to include in your consideration the facts and circumstances, if
any, in mitigation ana aggravation,
Mitigating circumstances are those which do not constitute a
justification or excuse for the offense in question, but which,
in fairness and mercy, may be considered as extenuating or reduci
the degree of moral culpability or blame.
Aggravating circumstances are those which increase the guilt
or enormity of the offense or add to its injurious consequences.
Now, Ladies and Gentlemen, the form of your verdict fixing
punishment would be one of the following and should read:
I.
"The offense of Murder was committed while
the offender was ungogsé in the commission
of another capital felony, to-wit: Rape,
and we recommend the death penalty.”
and/or
(14a)
_——_———_
nee
2 Ses eee
wes BV wee
PS
“The offense of Murder was committed while
the offender was engaged in the commission
of another capital felony, to-wit: Armed Robbery,
and we recommend the death penalty."
and/or
IiIt.
"The offense of Murder was outrageously or
wantonly vile, horrible or inhuman in that
it involved an aggravated battery to the
victim, and we recommend the death penalty."
Now, Ladies and Gentlemen, eventhough you find statutory
aggravating circumstances to exist you may refuse to recommend
the death penalty in which event the Defendant would receive a
sentence of Life Imprisonment.
Should you fail to find aggravating circumstances then the
form of your verdict would be "We, the Jury, recommend merev."
Should this be your verdict, it world mean that the Court
would sentence the defendant to Life Imprisonment.
Your decision must he unanimous, must be in writing on the
indictment, datea and signed by the Foreman.
You may now retire and consider your verdict.
(15a)
2 ee ome eee eee ome
- Oa
y | IN THE SUPERIOR COURT OF MUSCOGEE COUNTY
STATE OF GEORGIA
| STATE OF GEORGIA INDICTMENT NO. 38888
VS MURDER
WILLIAM ANTHONY BROOKS
AGGRAVATING CIRCUMSTANCES TO BE
CONSIDERED BY THE JURY:
‘ a. . - |
—_——<—-— =:
The offense, of Murder was committed while the offender was
engaged in the commission of another capital felony,
to-wit: Armed Robbery.
} and/or
II.
- *
The offense of Murder was committed while the offender was
a
_— =
engaged in the commission of another capital felony,
to-wit: Rape. ‘ ;
and/or
Abbe
wees mew eee Leora
The offense of Murder was outrageously or wantonly vile,
horrible or inhuman in that it involved depravity of mind to the
victim.
VERDICT ‘
We, the Jury find the following aggravating circumstances:
1 And we do not recommend the Death Penalty.
: ¥%
i; This / f- day of November, 1977.
ii (16a).
..
oe
IN TIMID Surimmronw COUNT or MUSCOCGHI: Courrry
STATE OF GEORGIA
STATE OF GEORGIA INDICTMENT NO. 38888
Vs MURDER
WILLIAM ANTHONY BROOKS
.
AGGRAVATING CIRCUMSTANCES TO BE CONSIDERED
BY THE JURY:
“. i
The offense of Murder was committed while the offender was
engaged in the commission of another capital felony,
to-wit: Armed Robbery.
and/or
II.
The offense of Murder was committed while the offender was
engaged in the commission of another capital felony,
to-wit: Rape.
and/or
kL
- The offense of Murder was outrageously or wantonly vile,
horrible or inhuman in that it involved depravity of mind to the
victim.
| VERDICT
We, the Jury find the following aggravating circumstances:
P PIO RPobhcr2s > of fa “t eee the ‘Shtere tn “>
ee aaa ataneneeeneeantiaeietiaedtiiammeneneeeinaine eos
;
.
ae —— eee
re ee ee ee eee eee A
Sa
’ 4 f 44 ees
Fie. abies (ct. Ce See he eclarto Le, ate . huukth
t
*.
-——
’
oS a. ; rm R
Rw oe at or Tre — . oe 2 & 4 Po A <>, L7r* | a avant, é?.
, “4 4 T 7
? Vv? roe 5 A He. 7 -< fi ~~ ;
And we recommend the Death Penalty.
ae %
' This /¥ ~_day of November, 1977.
BR ga BO
FOREMAN ue
“(7a)
— — —
In The Supreme Court of Georgia
Decided: slit 2-4 1339
35314. MULLIGAN v. THE STATE. a
ADDENDUM
We ‘reexamine, in light of Godfrey v. State, 48 LY 4541
(May 19, 1980), our holding in the present case that the
evidence supports a reasonable trier of fact's finding, beyond
2 reasonable doubt, that the appellant's murder of Ms. Miller
was "outrageously or wantonly ‘vile, horrible or inhuman in that
3S involved torture and depravity of mind."
The appellant's murder of Ms. Miller was a cold-blooded,
execution- ~style killing, perpetrated for no other reason. than
to eliminate a witness to the murder of Captain Doe.
As noted in part one of the opinion, "the autopsy of Ms.
Miller revealed that she had been shot four times: in the left
forearm, the left shoulder, the right upper arn, and the mid-
portion of the back of the skull, with the exit wound of the
last listed shot being the right eye. The cause of death. ..was
laceration and hemorrhage of the brain and cerebral trauma."
We note the following testimony of the appellant's
accomplice, Timothy Helms, "I heard her [Ms. Miller] say, she
said, ‘Help me, I'm hurt, please help me," and he [the appellant)
put the gun in her back and shot her again and said, ‘Shut -up,-
* woman,"
This testimony clearly demonstrates that the fatal shot
to the skull was not the first shot fired and that Ms. Miller
suffered serious physical] abuse prior to death.
Accordingly, we hold that the present jury was authorized
to find, consistently with the United States Supreme Court's
holding in Godfrey, and, beyond a reasonable doubt, that the
sappellant's murder of Ms. Miller was “outrageously or wantonly
vile, horrible or inhuman in that it involved torture and -
depravity of mind." See Hance v. State, Case No. 36012, decided
June 24, 1980, ‘after the main opinion in this case.
Judgment affirming the death sentence is adhered to. All
the Justices concur.
(18a)
197 to 5
In the Supreme Court of Georgia
Decided: ui 24 1980
35378. DAMPIER .,. THE STATE. :
ADDENDUM
se
Subsequent to our decision in this case, but prior to
_ transmittal of the remittitur to the trial court, the Supreme
Court of the United States has decided Godfrey v. Georgia, 48 LW
~ meee
. 4541 (May 19, 1980). In that the appellant's sentence of death
i/ !
rests partially upon Ga. Code § 27-2534.1(b) (7), his sentence t
must be reviewed in light of Godfrey.
Code Ann. § 27-2534.1(b) (7) provides in pertinent :
part: "The offense of murder . . . was outrageously vile, horrible
Or inhuman in that it involved torture, depravity of mind, or an
aggravated battery to the visthn, * In Godfrey, the cout, Seuné
that § (b)(7) was unconstitutionally applied in that case. We
find material differences between aniies and the case under re-
view, which distinguish this murder from the murder in Godfrey
and from other “ordinary” murders for which the death penalty is
not appropriate.
1/ The jury returned a finding of two statutory aggravating
circumstances, Code Ann. §§ 27-2534.1(b)(2) and 27-2534.1(b) (7).
In Godfrey, the court was concerned with a sentence of death rest-
ing exclusively on § 27-2534.1(b)(7). Godfrey v. Georgia, 48 LW
4541, nm. 15. The other statutory aggravating circumstances are
more “specific and measurable.” Godfrey v. Georgia, 48 LW 4541,4542,
n. 2. Therefore, under our decisions, the death penalty, infra,
may be upheld upon § 27-2534.1(b)(2). Gates v: State, 244 Ga. 587
(261 SE2d 349) (1979); Burger v. State, 245 Ca. 458 ( SE2¢a )
(1980). (19a) -
as
In our opinion in this case, we held that the jury's
finding beyond a xensunehis doubt that the "murder was outrageously
or wantonly vile, horrible or inhuman in that it involved torture,
depravity of mind or aggravated battery to the victim,” was
supported nan evidence. The evidence in this case Clearly
ip tanithdinas that the appellant plahned to kill his victim in advenil
as part of an armed robbery, the sole purpose of ste was to cheat
funds to buy drugs. The victim was forced at gunpoint to'drive
his own vehicle to the chosen execution site. Once at the area,
+ wwe ee
.
the victim dropped to his knees, wrapping his hands around his
head; he begged for his life for a full five minutes; during
this time, he was listening to the co-defendant encourage the :
nor
appellant to kill him. The victim was also facing a large-bore a
shotgun pointed at his “face.
While the death of a victim who dies instantaneously
with little or no forewarning does not involve torture or
aggravated battery, evidence of psychological abuse by the
defendant to the victim prior to death, where it is shown to
have resulted in severe mental anguish to the victim in anticipa-
tion of physical harm, may amount to serious physical abuse (i.e.,
; >
torture of the victim), and will support a finding of depravity
s . "
of mind of the defendant. Furthermore, while the death itself
was relatively instantaneous, the victim was not a member of the
2 ' %
(20a)
appellant's family, nor was the victim threatening or causing
any emotional trauma to the appellant. The murder was a cold-
blooded, execution-style killing, perpetrated for no other
reason than to eliminate a witness to an armed robbery. The
appellant did nét acknowledge his responsibility for his crimes,
but fled the state and had to be captured at gunpoint. Cf.,
Godfrey v. Georgia, supra.
Under the facts of this case, we find that the
murder was a type universally condemned by civilized society as
wantonly vile, horrible or inhuman, as_it involved depravity
of mind of the defendant “ torture to the victim, as set
forth above. See generally, Hance v. State, Ga. (Case
No. 36012, decided June , 1980.)
Judgment of affirmance of the death penalty adhered
to. All the Justices concur.
times -*
~~ 4s «|! a d : |
' 54
'In the Supreme Court of Georgia
| JUN 24 1980
:35701. FAIR v. STATE
: ADDENDUM
U
‘
(a) Subsequent to our decision inthis case, but prior to --
transmittal of the remittitur to the trial court, the Supreme
Court of the United States has decided Godfrey v. Georgia, 48 LW
14541 (May 19, 1980). In that the appellant's sentence of death
: 1/ -
prests partially upon Ga. Code § 27-2534.1(b)(7), his sentence
must be reviewed in light of Godfrey.
‘ Code Ann. § 27-2534.1(b)(7). provides in pertinent part:
: :
‘“The offense of murder. . . was outrageously vile, horrible or
i
i
| inhusan in that it involved torture, depravity of mind, or an
1
'
aggravated battery to the victim.” ‘In Godfrey, the court found
that § (b) (7) was unconstitutionally applied in that case. We
find material differences between Godfrey and the case under re-
view, which distinguish this murder from the murder in Godfrey and
.
->—_——-" =
‘from other "ordinary" murders for which the death penalty is not
i “y : ”
' appropriate.
: [J/The judge found the existence of two statutory ageravatin
‘Circumstances, Code Ann. §§ 27-2534.1(b)(2) and 27°3534 1(b (7).
“In Godfrey, the court was concerned with a sentence of death rest-
‘ing exclusively on § 27-2534.1(b)(7). Godfrey v. Georgia, 48 LW
4541, n.15. The other statutory aggravating circumstances are
“more “specific and measurable." Godfrey v. Georgia, 48 LW 4541,
4542, n.2. Therefore, under our decisions, the death penalty,
‘infra, may be upheld upon §-27-2534.2(b)(2). Gates v. State, 244
Ga. 587 (261 SE2d 349) (1979); Burger v. State, ba.
1 ¢ SE2d ) (1980).
: a. ;
i
\
77 8 Ore fore tees. “oe + ae
(22a)
In our opinion in this case, we held that the trial court's
: Finding beyond a reasonable doubt that the murder was outrageously
i '
E and wantonly vile, horrible and inhuman in that it involved
amt of mind on the part of the defendant, was supported by
| .
‘Soe evidence. That evidence showed that appellant had had no
e-
-
-*
wae
quarrel with his victim. Rather the victim was killed simply |
because he had witnessed appellant's previous murder and appellant
was afraid he would testify against him. While pretending they .
were still friends, appellant lured the victim into a yulnerable
ee
.
position and then shot him in the head.’ Aside from laughing
:. during the killing itself, appellant showed no remorse thereafter
ibut instead bragged about the killing and said he would kill the
other witnesses when he got out of jail. Appellant's accomplice
cut the victim's throat and appellant then burned the body. A
—— or ee
t
I
! defendant who mutilates or seriously disfigures a victim's body
_after death (cf. Code Ann. § 26-1305), may be found to have a
-*
|, depraved mind and such acts would be sufficient to show depravity
of mind of the defendant within the meaning of the statute. (See
he
“Hance v. State, Case No. 36012, Decided June 24, 1930, after the
, main opinion in this case.) Anpellant’s actions in this case take
=o
this murder out of the category of “ordinary murders.
(23a)
bt ee eed ee
ry ~~ sk a aia aco aot oe eon To
(b) The trial. judge also found the existence of statutory
aggravating circumstance Code Ann. § 27-2534.1(b)(2) in that the
‘Hall County murder was committed in the course of another capital
' offense, the Habersham County murder. ae
Subsequent to our decision in this case, but prior to trans- mh
: ee ai ,
* -
‘mitcal of the remittitur to the triel court, the Supreme Court of }-
a United States decided Standefer v. United States, 48 Li 4636
: :
ata 9, 1980). The following language from that case is relevant
y our discussion in the main opinion of the effect of APS
subsequent acquittal of the first murder in Habersham County:
\ “This case does no movi: ties manifest
f:
the simple, if discomforting, reatity that
‘different juries [may] reach different
results under any criminal statute. That
is one of the consequences of our jury
system." Roth v. United States, 354 U. S.
476, 492 (1957). While symmetry of results
may be intellectually satisfying, it is = gal
not required." 48 LW at 4638. f ¥y
Judgments of affirmance of the death penalty adhered to.
. All the Justices concur except Hill, J. who concurs in the judg-
'
; ment and in part (a) of the Addendun. .
-3-
(24a)
80-5850 | oec sw
wee Tae SUPREME COURT, US.
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1980
WILLIAM ANTHONY BROOKS,
Petitioner
against
STATE OF GEORGIA,
Respondent
MOTION FOR LEAVE TO PROCEED IN
THIS COURT IN FORMA PAUPERIS
proceed with this action in forma pauperis.
Petitioner, by and through counsel, moves this Honorable
Court, pursuant to Rule 46 of this Court, to permit him to
of petitioner's poverty and in accordance with Rule 46,
petitioner has submitted a notarized Affidavit of Poverty.
Petitioner prays that this Count grant this motion.
Respectfully submitted,
Ae 7S <.
As evidence
Stephen B. Bright
Counsel for petitioner
ETE Eo
bl an
DEC 8 iw
No. 80- OFFICE OF THE CLERK
SUPREME COURT, U.S.
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1980
WILLIAM ANTHONY BROOKS,
Petitioner,
-against-
STATE OF GEORGIA,
Respondent.
AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED
ON APPEAL IN FORMA PAUPERIS
I, WILLIAM ANTHONY BROOKS _ being first duly
sworn, depose and say that I am the Petitioner in the above-
entitled case; that in support of my motion to proceed on
appeal without being required to prepay fees, costs, or give
security therefor, I state that because of my poverty I am
unable to pay the costs of said proceeding or to give security
therefor; and that I believe I am entitled to redress.
I further swear that the responses which I have made
to the questions #nd instructions below relating to my ability
to pay the cost of prosecutirg the appeal are true.
1. Are you preser*ly employed?
a. If the answer is yes, state the amount of your salary
or wages per month and give the name and address of
your employer. Yes No 4
b. If the answer is no, state the date of your last
employment and the amount of the salary and wages per
month which you received.
ee > ee ee
i
'
!
|
|
|
2. Have you received within the past twelve months any
income from . business, profession or other form of self-
employment, or in the form of rent payments, interest,
dividends, or other source? Yes No_¢7
a. If the answer is yes, describe each source of income,
and state the amount received from each during the
past twelve months.
3. Do you own any cash or checking or savings account? -
Yes No (”
a. If the answer is yes, state the total value of the
items owned.
4. Do you own any real estate, stocks, bonds, notes, auto-
mobiles, or other valuable property (excluding ordinary
household furnishings and clothing)? Yes No Z—
a. If the answer is yes, describe the property and state
its approxamate value.
S. Liste the persons who ere Gependent zpon you for support
and state your relationship to those persons. None L—
I understand that a false statement or answer to any
questions in this affidavit will subject me to penalties for
perjury.
. Le) bin (64 Q ope
WILLIAM ANTHONY BROOKS
STATE OF GEORGIA
COUNTY OF MUSCOGEE
SUBSCRIBED AND SWORN TO
before me this the > day of October » 1980.
KLbo—
My Commission expires:
A eit aaa es SOE —
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.