Petition — Dick v. Georgia

Supreme Court brief1981

Ask Donna

What actually matters in this document.

Text

80-623,

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80-

DENNIS DICK,

Petitioner,

-v.-

THE STATE OF GEORGIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

EDWARD BRODSKY

THOMAS H. SEAR

DAVID W. BARGMAN b

SUSAN ALLISON

SPENGLER CARLSON GUBAR & BRODSKY

280 Park Avenue

New York, New York 10017

(212) 682-4444

ATTORNEYS FOR PETITIONER

QUESTIONS PRESENTED

1. Whether the trial court erred in finding that Peti-

tioner's confession was admissible after a Jackson v. Denno hear-

ing at which there was evidence of coercion, involuntariness and

that the confession was taken without scrupulously honoring Peti-

tioner's Fifth and Fourteenth Amendment rights to counsel and to

remain silent.

2. Whether the trial court's failure to instruct the

jury as to the lesser included offenses of voluntary manslaughter

and felony murder violated Petitioner's Sixth, Eighth and Four-

teenth Amendment rights by substantially increasing the risk of —

error in the factfinding process.

3. Whether the exclusion of prospective jurors for

cause on the ground of opposition to the death penalty violated

Petitioner's Sixth and Fourteenth Amendment rights where such

opposition was expressed ambivalently or was accompanied by a

clear expression of willingness to abide by the law and the

juror's oath.

TABLE OF CONTENTS

Questions Presented .ocesecsesecesecesessessesessesees

Table Of CONteNtS .cccecccccecesecsscesesesesesess see

Table Of CaseS 2.00 cosccccccsccsscssesesesssesesesese

Citation to Opinion Below .csceccscccesesscseseseseese

TULTiSdiIctiOn wecccccccecccescesesesesesesesesesesesese

Constitutional and Statutory Provisions Involved .....

Statement Of Fact coceeecceccesesessessessesssssesess

How the Federal Questions

Were Raised and Decided Below .ecccccvesccssvcsssses

Reasons for Granting the Writ ..ceccccccesesesesvceses

I. THE COURT SHOULD GRANT CERTIORARI

TO CONSIDER WHETYER THE INTRODUCTION

INTO EVIDENCE OL *ETITIONER'S STATEMENT

OBTAINED DURING i.» ALCOHOLIC WITHDRAWAL

AND AFTER HE HAD ASKED TO HAVE AN ATTORNEY

PRESENT VIOLATED HIS FIFTH AND FOURTEENTH

AMENDMENT RIGHTS e@eeeeeeoeeeeaeeeeeeveeeeeeeeeeeeee

A. The Involuntary Character

of the Confession e@eeeeeeeoeeeeeeeeeeeeeeeeenee

B. The Miranda Violations ..ccccccsesescssesess

C. Conclusion @eeeeeeeenee ee ee eee eeeeeeeeeeeeeee

II. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER THE TRIAL COURT'S FAILURE TO INSTRUCT

THE JURY AS TO LESSER INCLUDED OFFENSES

VIOLATED PETITIONER'S SIXTH, EIGHTH AND

FOURTEENTH AMENDMENT RIGHTS eeeeeoevoeevneeeeeeeeeeee

A. The Trial Court's Failure to

INStCLCuct coccccccccccsccseeenesessscecsesees

B. Evidence in the Record Warranting

the Giving of Lesser Included

Offense Instructions .esccccccesesessesesess

Cc. Conclusion ‘bck ebshsddlbeiwe dees ienekes

-ii-

| TABLE OF CONTENTS (CONT'D)

III. THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE DISQUALIFICATION

FOR CAUSE OF FOUR JURORS WITH CON-

SCIENTIOUS OR RELIGIOUS SCRUPLES AGAINST

THE DEATH PENALTY VIOLATED THE COURT'S

HOLDING IN ADAMS V. TEXAS, U.S. ’

S531 (1980) 22. ce —=

100 Ss. ct. @eeeeeeeeeneeereeeeeeeeeeee

Conclusion @eeeeeaeeeeeeeeeeeeeeeeeeeeeeneeeeeeeeeeeee ee

Appendix A - Dick v. State, Ga. ’

273 S8.E.2d 124 (1980) eeeeeeeneeeeeegpeeeeeeeeeeeeeee

~iii-

Page

Sie =

“2

TABLE OF CASES

Adams v. Texas, U.S. » 100 S.Ct. 2521

(1880) eeeeveeeveeeeeeeeeeeeeaveeeeeeeeeee ee eee

Beck v. Alabama, ___ U.S. __, 100 §.Ct.

2382 (1980) wocccccceceeeseeseseseeseessseees

Blackburn v. Alabama, 361 U.S. 199 (1960) ..sseeee

Boulden v. Holman, 394 U.S. 478 (1969) wecccceeses

Cicenia v. La Gay, 357 U.S. 504 (1957) wecsesesees

Culombe v. Connecticut, 367 U.S. 568 (1961) wee.

Davis v. Georgia, 429 U.S. 122 (1976) csecceseeees

Davis v. North Carolina, 384 U.S. 737 (1966) ..«..

Dick v. State, Ga. y Bee

S.E.2a 124 (7980) eeeeeeeeoeeeeeeeeeeeeeeeeeee

Irvin Ve Dowd, 366 U.S. 717, (1961) eeeeeeeeeeeeee

Jackson Ve Denho, 378 U.S. 368 (1964) eeeeeeeeeeee

Jackson v. State, 239 Ga. 40, 235 S.E.2d

477 (1977) eeeeeeeee eee eeeeee ee eee eee eeeeeee

Keeble v. United States, 412 U.S. 205 (1973) «wee

Lamb v. State, 245 Ga. 104, 263 S.E.24d

143 (1980) eeeeeeoeoee ee eee eeeeeeeeeeeeeeeeeeee

Lockett Ve Ohio, 438 U.S. 586 (1978) eeeeeeeeeeeee

Loury v. State, 147 Ga. App. 152, 248

S.E.2d 291 (1978) eeeeeeeaeeeer eee ea eeeeeeeeeee

Malloy v. Hogan, 378 U.S. 1 (1964) sesceceesseeces

Mathis v. New Jersey, 403 U.S. 946 (1971) weseeees

Maxwell v. Bishop, 398 U.S. 262 (1970) .sssseeeees

Michigan v. Moseley, 423 U.S. 96 (1975) seecseoees

Mincey v. Arizona, 437 U.S. 385 (1978) wecceseeees

Miranda v. Arizona, 384 U.S. 436 (1966) w.seceseee

Page

23, 24, 25,

26, 27

10, 18, 19,

11, 23

11, 12

23, 27

9, 12, 27

20, 21

11, 17

9, 11, 15, 16

TABLE OF CASES (CONT'D)

Murphy v. Florida, 421 U.S. 794 (1975) weseccecees

Norris v. Alabama, 294 U.S. 587 (1935) ceccccccces

Rhode Island v. Innis, _U.S.__, 100 S. Ct.

1682 (1986) eeeeveeeeeeeeeeeeeeeeeeeeeeeeeeeee

Spano v. New York, 360 U.S. 315 (1959) wsecesesees

Townsend v. Sain, 372 U.S. 293 (1963) wseseneeeeess

State v. Stonaker, 236 Ga. 1, 222

S.E.2d 354 (1976) eeeeeee ee eee eeeeeeeeeeeeeee

Witherspoon v. Illin.ss, 391 U.S. 510

(1968) e@eeeeeaeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

Page

10, 23, 24,

26, 27

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80-

DEPNIS DICK,

Petitioner,

oy i=

THE STATE OF GEORGIA,

\ Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

Petitioner, Dennis Dick, respectfully prays that a writ

of certiorari issue to review the judgment of the Supreme Court

of Georgia affirming petitioner's murder conviction and death

sentence in this case.

CITATION TO OPINION BELOW

The opinion of the Supreme Court of Georgia is reported

at Ga. + 273 S.E.2d 124 (Ga. 1980) and is attached hereto

as Appendix A.

JURISDICTION

The judgment of the Supreme Court of Georgia was entered

on November 5, 1980. A timely petition for rehearing was denied

on November 25, 1980. On January 22, 1981, Justice Powell granted

petitioner's motion to extend the time to file this petition to

and including February 23, 1981. This Court's jurisdiction is

adhe) I

invoked pursuant to 28 U.S.C. §1257(3), petitioner having asserted

below and asserting herein deprivation of rights secured by the

United States Constitution.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Fifth Amendment to the Constitu-

tion of the United States, which provides in relevant part:

"No person . . . shall be compelled

in any criminal case to be a witness

against himself ... ."

the Sixth Amendment, which provides in relevant part:

"In all criminal prosecutions, the

accused shall enjoy the right to a...

trial, by an impartial jury of the

State and district wherein the crime

shall have been committed... ."”

the Eighth Amendment, which provides in relevant part:

". »« « « nor cruel and unusual punish-

ments inflicted,"

and the Fourteenth Amendment, 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 Andi $26-1101 which

provides:

"(a) A person commits murder when he un-

lawfully and with malice aforethought

either express or implied, causes the

death of another human being. Express

malice is that deliberate intention un-

lawfully to take away the life of a

fellow creature, which is manifested by

external circumstances capable of proof.

Malice shall be implied when no consider-

able provocation appears, and where all

the circumstances of the killing show an

abandoned and malignant heart.

(b) A person also commits the crime of

murder when in the commission of a felony

he causes the death of another human being,

irrespective of malice."

This case also involves Ga. Code Ann., §26-1102, which

provides in relevant part:

"A person commits voluntary man-

slaughter when he causes the death of

another human being, under circum-

stances which would otherwise be

murder, if he acts solely as the result

of a sudden, violent, and irrestible

passion resulting from serious provo-

cation sufficient to excite such

passion in a reasonable person. . ."

STATEMENT OF FACTS

On the evening of June 2, 1979, 0.C. “Red” Rider was

shot and killed during an armed robbery in Dawson coumins Georgia.

Rider, who was 55 years old at his death, had lived in Dawson

County all of his life, and was well-known among its 5,000 citi-

zens as a bootlegger and owner of an after-hours bar. The robbery

and killing took place at the trailer in which Rider conducted his

business. Dawson\County Sheriff John Davis arrested petitioner

Dennis Dick ("Petitioner") at approximately 8:00 A.M. the next

morning at the trailer home of co-defendant Christopher Hoerner

based on a license plate which fell from Hoerner's car at the

scene of the crime. Hoerner and a third co-defendant, Billy

Webster, were later arrested and, along with Petitioner, charged

with armed robbery and the murder of "Red" Rider. At separate

trials, Petitioner was convicted of murder and armed robbery and

sentenced to life imprisonment and death, Hoerner was convicted of

both crimes and sentenced to life and Webster was acquitted.

Arrest and Detention

Upon his arrest, Petitioner was taken to the Dawson

County jail by Sheriff Davis and Sheriff's Detective Russell

Matthews. The Sheriff had informed Petitioner of his constitu-

tional rights at the time of his arrest and at 9:15 A.M.

Petitioner signed a waiver of rights form at the Dawson County

jail (Defendant's Exhibit 1, T. 1316).* Petitioner refused to

make a statement or answer any questions without fingt talking to

a lawyer, despite repeated requests throughout the day by Davis

and Matthews that he do so (T. 988-989, 1043). At the time of his

arrest, Petitioner was an alcoholic (T. 1356, 1389-91). It was

undisputed that he was intoxicated when he shot and robbed "Red"

Rider.

At approximately 6:00 P.M. on the evening of Peti-

tioner's arrest, his twin brother, Donald Dick, arrived at

Dawson County jail and asked to see Petitioner**. He was

allowed to see him, but was first told by Detective Matthews

that evidence had already been seized in the investigation (T.

985-987), including a blood-stained rug (T. 986, 990-91) and a

metal box; Donald Dick testified that Matthews told him the box

was the cash box taken from the Rider trailer the previous night.

(T. 1019) Detective Matthews admitted at the Jackson v. Denno

e Each reference to the transcript of Petitioner's trial in

the Superior Court of Dawson County will be indicated by

the letter "T." followed by the page or pages at which

the reference may be found.

** Donald Dick was told of his brother's arrest by Peti-

tioner's wife (T. 1017), who was at the Hoerner trailer

babysitting at the time of Petitioner's arrest (T. 1013,

1312-13). Detective Matthews testified that Petitioner

‘ asked to use the phone, (T. 984) but that he never saw or

heard Petitioner on the telephone on the day of the arrest.

(T. 987, 990) Sheriff Davis testified that he heard Peti-

tioner on the tele + but did not know to whom Petitioner

was speaking (T. 13, 17-18). Petitioner testified that he

repeatedly asked to make a phone call in order to contact

a lawyer before he make a statement, but that each time he

asked he was refused. (T. 1043-1045)

hearing at they had not yet found Rider's cash box at the time

Donald Dick came to see Petitioner. (T. 986-87)

At the Jackson v. Denno hearing, Donald Dick testified

that, prior to seeing Petitioner, Detective Matthews told him

"they had the gun that he shot the man with.

[Matthews] said they had a sawed-off shotgun

that one of them had. He said they had the cash

box that the money came out of. He said they had

the tag off the car. He also said they had the

blood off of [Petitioner's] boots * * *

"And he told me that somebody had to talk

to Dennis, because if somebody didn't talk to him

and get him to confess, that he would go to the

chair, because those people up here was Mr. Rider's

friends and they would be sitting on the jury, and

that if he did not confess he would get the chair."

(T. 1019)

After Donald Dick and Detective Matthews spoke “for a

long time” (T. 1020), Sheriff Davis came in and Detectite Matthews

told Sheriff Davis that Donald wanted to speak to Petitioner.

Sheriff Davis at first refused, but Matthews “winked at him and

then he said all right." (T. 1021) Petitioner was then brought

in to talk with his brother, who testified that his only purpose

in talking to Petitioner was to “get him to confess, so he

| wouldn't go to the electric chair." (T. 1021)

The entire conversation between Petitioner and his

brother took place in private (T. 12/8). Petitioner was wearing

nothing but a pair of pants (T. 1023), and Donald Dick testified:

“He was nasty. He was shaking. Tears were in his eyes. He

looked like he was about to fall to pieces." (T. 1023) After be-

ing told by his brother what Detective Matthews had said, Peti-

tioner, who had not eaten at least since his arrest ten hours

earlier (T. 1296), and was suffering from alcoholic withdrawal,

“started shaking and tears came to his eyes." (T. 1924 He

agreed to make a statement in the belief that it was his only

——————_—___—__—_

chance to avoid electrocution.* This belief was based solely

upon what Petitioner had been told@ by his brother who in turn had

been convinced that this was the case by Detective Matthews.

(T. 1027, 1050)

Petitioner's confession was tape recorded and later

transcribed. The recorded confession was admitted into evidence

(State's Exhibit 16) over defense objection (T. 1249-50), and

played for the jury. (T. 1253-62) In his confession, Petitioner

stated that he, Hoerner and Webster only came up with the idea of

robbing Rider on the way to get some beer and that once in Rider's

trailer, when Petitioner pulled out a gun and told Rider to give

him the money, Rider refused. According to Petitioner, “he just

he he [sic] started towards me and I got scared and I pulled I

pulled [sic] the trigger. I didn't mean to shoot him." (T. 1255)

The Jury Selection

On voir dire, the prospective jurors generally displayed

extensive knowledge of the circumstances surrounding the crime,

and familiarity with Rider and his family**. Juror Pay Turner

Grant (T. 186) was the mother of prosecution witness Teresa Grant

who testified that she was threatened at gunpoint by Petitioner.

° Q: [by defense counsel]: Did you think that by confessing

you would stay out of the electric chair?

A: [by Petitioner]: Yes, sir, I did. That's the only rea-

son that * confessed. (T. 1049).

** =€§6For example, when venireman John Law Evans was asked,

“Have you formed an opinion about this case?" he

answered, “About like everybody else in Dawson County,

I guess." (T. 249) The court commented during voir

dire that "I don't know of one person in the county

That hasn't heard something t the case." (T. 438)

(T. 1153-65) Of the other jurors selected, two other selected

jurors admitted prejudice against Petitioner*. Eight of the

selected jurors either knew the victim or his family**, or were

familiar with the circumstances of the crime*** or both+. The

twelfth juror, Janice Tatum Whitmire, (T. 803-6) was qualified

without any inquiry into her knowledge of the crime or familiarity

with the Rider family.

Seventeen prospective jurors were disqualified for cause

on the ground of their opposition to the death penalty. Included

among these were two who testified that their opposition would not

prevent them from being impartial as to guilt and would not lead

them automatically to vote against the death penalty (T. 166, 877)

and two who were unsure what effect their opposition would have.

(T. 243, 602)

During voir dire, the decedent's son and daughter

sat at the prvisecution table notwithstanding defense counsel's

objection that this inevitably created an impression on prospec-

e Phillip J. Moore said that he could not completely forget

his pre-conceived opinion as to what had taken place, and

had read in the paper that Petitioner was involved in the

crime. (T. 436); Barbara Eller ym mee ee admitted that she

believed, based on rumors, that defe t was guilty (T.

499) and stated three times that she did not know whether

she could be impartial. (T. 495-501, 501-502)

** Violet Cooper Byrd (T. 326), Mary Slayter re (T.

334), Rita Beck Kittle (T. 355), and Marvin les Owen

(T. 456-59) knew the victim or his family. Owen had known

the family for thirty-five years, and also knew Teresa

Grant, a prosecution witness and daughter of juror Pay

Turner Grant.

*** Melvin Jackson Loggins had “read all about it* (Tf. 265);

Eugene E. Kent (T. 453) and Pannie Hardin Reagan (fT. 639)

were also familiar with the circumstances of the crise.

+ Larry L. Lowman (T. 503) had read about the crime and

also knew “Red” Rider.

}

;

jtive jurors that decedent's family, and not the State of Georgia,

|sougnt the death penalty. (T. 159-166). Tommy Rider, the

idecedent's son, testified at trial for the prosecution (T. 1191

let pes? to establish that money had been taken from the trailer

lon the night of the robbery. Tommy Rider was also shown a photo-

lgraph of his father's body (State's Exhibit 2, T. 1201), osten-

sibly to corroborate prior testimony as to the position in which

the body had been found, (T. 1205) although the defense offered

to stipulate to that fact. (T. 1180-81)

Following the presentation of all witnesses and evidence,

the jury was instructed as to the elements the crime of malice |

murder (T. 1463-1466) and as to the separate charge of armed

robbery. (T. 1466-1467). No instructions were given by the Court

on either of the lesser included offenses of voluntary manslaughter

or felony murder.

Since his conviction, Petitioner has remained in the

Dawson County jail. Detective Matthews testified at trial that

Petitioner was “one of the best [prisoners] that I have probably

had." (T. 1293-94) Most prisoners awaiting the death sentence

in Georgia are transferred to ‘the Georgia Diacwestic & Classifica-

tion Center at Jackson, a maximum security facility.

HOW THE FEDERAL QUESTIONS WERE RAISED

AND DECIDED BELOW

1. The illegality of the confession was raised at trial

by Petitioner's Motion to suppress the confession and the evidence

uncovered as a direct result of it. A Jackson v. Denno hearing

was held on voluntariness and the trial court determined that

there was sufficient legal basis to admit the confession into

evidence at trial. (T. 973-1068) A motion for mistrial or for a

directed verdict of acquittal was made after the tape recording

of the confession was played for the jury. That motion was denied.

(T. 1251) On appeal, the Supreme Court of Georgia upheld the

voluntariness of the confession, finding that any coercion was

solely the product of Petitioner's brother's urging, a:.4 not

threats or unlawful interrogation by the Sheriff and Detective.

The Supreme Court of Georgia also relied on the fact Petitioner

reiterated his guilt at trial to support its holding that there

was no error in admitting the confession. Dick v. State,

Ga. ¢ 273 &S.E.2d 124, 129-30 (1980).

The confession was not expressly challenged below on

the ground that it was obtained in violation of Petitioner's

rights under Miranda v. Arizona, 384 U.S. 436 (1966). However,

the ground of attack was that the confession was “illegally ob-

tained” and there was extensive evidence regarding the giving of

Miranda warnings, especially before Petitioner confessed, at both

the Jackson v. Denno hearing and at trial. The trial court ex-

pressly found that the Miranda warnings were given on the morning

of Petitioner's arrest, but made no finding as to whether they wer

given again before the confession, despite testimony in that re-

gard. (T. 1065) The Supreme Court of Georgia, however, found that

Petitioner had been advised of his rights for a second time before

he confessed and relied on this finding for it holding of volun-

tariness. 273 S.E.2d at 129. The factual issues underlying the

violation of Petitioner's Fifth and fourteenth Amendment rights

under Miranda are, therefore, properly before the Court. The

Miranda violation was encompassed in trial counsel's objection

on the ground that the confession was illegally obtained.

2. Petitioner raised the failure to give instructions

on lesser included offenses as his eleventh enumeration of error

on appeal. The Supreme Court of Georgia rejected this argument

on the ground that no written request was made at trial. 273

S.E.2d 132. However, Georgia law allows the trial court to in-

struct the jury on lesser included offenses at its discretion,

and this Court's opinion in Beck v. Alabama, U.S. » 100

S.Ct. 2382 (1980) makes failure to give such instructions where

justified in a capital case constitutional error.

3. In his first enumeration of error on appeal, Peti-

tioner alleged that prospective jurors had been disqualified in

violation of Witherspoon v. Illinois, 391 U.S. 510 (1968). This

contention, also raised on voir dire by Petitioner, was summarily

rejected by the Supreme Court of Georgia, 273 8.E.2d at 129.

-10-

SSS

REASONS FOR GRANTING THE WRIT

THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE INTRODUCTION INTO

EVIDENCE OF PETITIONER'S STATEMENT

_ OBTAINED DURING HIS ALCOHOLIC WITHDRAWAL

AND AFTER HE HAD ASKED TO HAVE AN ATTOR-

NEY PRESENT VIOLATED HIS FIFTH AND FOUR-

TEENTH AMENDMENT RIGHTS

This case presents a serious question as to constitu-

tionality of the confession. Petitioner made the statement, which

was tape recorded, on the day of his arrest and the prosecution

introduced it into evidence at trial over proper objection. (T.

1253) Petitioner submits that the confession was obtained in

violation of his Fourteenth Amendment right to due process in

that it was not voluntary, and of his Fifth and Fourteenth

Amendment rights against self-incrimination. Miranda v. Arizona,

384 U.S. 346 (1966); see, Malloy v. Hogan, 378 U.S. 1 (1964).

A. The Involuntary Character of the Confession

A conviction based in part on an involuntary confession

must be reversed without regard to truthfulness of the confession

or the other evidence of guilt adduced at trial. Jackson v.

Denno, 378 U.S. 368, 376 (1964); Mincey v. Arizona, 437 U.S.

385, 398 (1978). It has long been established by the Court that

"the question of whether a confession was voluntarily made

necessarily turns on the totality of the circumstances in any

particular case .. .." Boulden v. Holman, 394 U.S. 478, 480

(1969); Culombe v. Connecticut, 367 U.S. 568, 606 (1961). In

this case, Petitioner submits that the totality of circumstances

surrounding his confession rendered it involuntary and therefore,

inadmissible under the Due Process Clause of the Fourteenth

Amendment to the Constitution. The trial court erred in ruling

that the confession was freely and voluntarily made and in per-

mitting it to be introduced into evidence at trial (T. 1064-5);

the Supreme Court of the State of Georgia erred in holding that

admission of the confession did not violate Petitioner's Federal

constitutional rights. Dick v. State, supra, 373 S.E.2d at

129-30. |

Petitioner, aged twenty-eight at the time of his arrest,

had been an alcoholic since his early teens. In the months pre-

ceding the crime, his drinking habit spanned almost the entire

time he was awake, starting at breakfast and continuing through

the work day into the evening. (T. 1390-1391) He and hi8 co-

defendants went to Rider's trailer on the night of June 2, 1979

to buy beer having already consumed one-half case of beer that

evening. (T. 1558-9)

At the time of his arrest, Petitioner was wet and tired,

having been out in the rain the night before. (T. 982-83) He was

without food from at least the time of his arrest at approximately

8:00 a.m., until he confessed almost twelve hours later. Detec-

tive Matthews testified that breakfast is served at 6:00 a.m. in

the County jail, and lunch is not served at all (T. 992); cf.

Culombe v. Connecticut, supra, 367 U.S. at 608.

It is undisputed that after executing a waiver of rights

form, Petitioner refused to make any statement and immediately :

requested an opportunity to talk to a lawyer. (T. 1043) Detec-

tive Matthews testified that he “didn't recall [Petitioner] asking

for a lawyer." (T. 1001) Donald Dick testified at the voluntari-

ness hearing that Petitioner “told me that he needed to see a

-12-

lawyer, that they wouldn't let him call no lawyer or nothing, and

he needed to see a lawyer." (T. 1637)

The following exchange took place between the prosecutor

and Donald Dick at the hearing with respect to Petitioner's re-

quest for counsel:

BY MR. WAYNE [Prosecutor]:

Q. Did Mr. Dick ask you, when you talked to hin,

to get him an attorney?

A. He told me that he needed to talk to a lawyer,

that he hadn't got to see one, and that he

needed to see one. That was his first words.

Q. Did you call him an attorney, at that time?

A. Not after what -- Detective Matthews told me

that it wasn't no sense in getting him a lawyer,

because it would do nothing but just cost a

bunch of money for nothing, because he was

guilty and there was no way-to get out of it.

(T. 1034-40)

In addition to being told that a lawyer would be use-

less to Petitioner because of the overwhelming evidence which

the investigation had supposedly yielded already, Donald Dick

testified on cross-examination that Detective Matthews told him

that Petitioner “would get the chair if he didn't confess...

[Matthews] said he wasn't making any promises that he wouldn't

get the chair, but he said he would definitely get the chair if

he did not confess." (T. 1029)

Petitioner's own testimony at the hearing revealed that

he had asked for a lawyer, had been subjected to repeated requests

to make a statement, finally signed the waiver of rights form,

and then reiterated his request for a lawyer before he would

make a statement. (T. 1043) When he asked to use the telephone,

Detective Matthews told him, “We'll get to it later." (T. 1044)

Repeated requests by Petitioner to use the telephone were denied

“tee

during the twelve hours between his arrest and his statement.

"It was month and a half after I was in jail . . . before I got

to use the phone." (T. 1045) Detective Matthews testified at

the Jackson v. Denno hearing that retitioner had asked to use

the phone (T. 984, 989), but testified at trial that he had not

asked to do so. (T. 1292)

Petitioner also corroborated Donald Dick's testimony

that the first thing he asked Donald about was getting a lawyer.

(T. 1047) “"[D)Jefendant's lack of counsel [during questioning

is) one pertinent element in determining from all the circum-

stances whether a conviction was attended by fundamental unfair-

ness." Cicenia v. La Gay, 357 U.S. 504, 509 (1958).

Petitioner also described his private conversation with

Donald and the state of mind in which it placed him. He stated

that his sole reason for confessing was his belief that not

confessing would result in a certain death sentence because of

the evidence against him and the local prejudice he would face

at trial in decedent's home county. (T. 1048-49) "I wouldn't

have never said anything without a lawyer,” he testified (T.

1049) and his statement was made after repeated requests for an

attorney, or access to a telephone to obtain an attorney, were

denied. There was no testimony at the hearing that Petitioner

was ever allowed to use the telephone*.

e Sheriff Davis sat in the courtroom throughout the trial

and all pre-trial proceedings. He was also charged with

supervising the jurors. (T. 1307-45; see T. 1490-91) He

testified that Petitioner made a telephone call, but he did

not know to whom. He testified that the telephone call was

made on the morning of the arrest, and that he assumed

Petitioner called his brother because “it wasn't too much

(Footnote continued)

=14¢=

“4

B. The Miranda Violations

In concluding that the confession was voluntary and

therefore admissible, the trial court specifically found that

Petitioner had been given his rights on the morning of the

arrest. (T. 1065) There was no finding that he was admonished

as to his rights prior to making his statement that evening.

This finding is corroborated by the waiver of rights form

(Defendant's Exhibit 1), which Petitioner signed but once, at

9:15 A.M. on June 3, 1979. Only Donald Dick and Sheriff Davis

signed it prior to taping the statement at "19:35". There was no

finding that the warnings required by Miranda v. Arizona, 384 U.S.

436 (1966), were given at the time the statement was taken.

The testimony of Detective Matthews as to when Peti-

tioner was warned of his rights and what rights were given is a

mass of internal contradictions. At first, he testified that he

advised Petitioner of his rights before he confessed (T. 978, 981);

then he testified that Sheriff Davis gave him his rights that

evening. (T. 1003) At trial, he again testified that he had read

the rights (T. 1230), then stated he did not know if the rights

had been read at that time. ("I assume the sheriff did," T. 1295)

Pinally, Matthews testified that not he, but Sheriff Davis, had

given them (T. 1235), and his testimony as to what, if any, rights

were given Petitioner on the evening of his arrest reveals that

(Pootnote continued)

longer after that till his brother arrived." (T. 1317)

Three questions further into direct examination, Sheriff

Davis testified that “it was later in the day when he talked

to his brother. I'm not sure who he talked to... .” (T.

1318) Aside from the internal inconsistency of this testi-

wears it was not before the trial judge at the voluntariness

earing.

-15-

Matthews omitted to instruct him that anything he said could and

would be used against him at trial. (T. 979, 1230) This is a

per se violation of the rule in Miranda v. Arizona and renders

———~—

iy confession inadmissible. Miranda v. Arizona, supra 384 U.S.

at 444; Michigan v. Mosely, 423 U.S. 96, 100-01 (1975).

Thus, aside from the coercive circumstances of Peti-

tioner's physical condition and the threats communicated to him

by his brother from Detective Matthews, Petitioner's expressed

wish not to answer questions or make any statement without first

consulting an attorney was not “scrupulously honored" as required

by this Court. Michigan v. Mosely, supra, 423 U.S. at 104 (1975)

quoting Miranda v. Arizona, supra 384 U.S. at 479.

It is undisputed that Petitioner refused to answer ques-

tions or make any statement for ten hours following execution of

the waiver. Detective Matthews requested several times that

Petitioner make a statement despite such refusals. (T. 988-89,

1296) Furthermore, Matthews showed Petitioner the blood-stained

rug taken from Rider's trailer.* (T. 986, 990-91) As recently

defined in Rhode Island v. Innis, . U.S. __, 100 &.Ct. 1682

(1980), “interrogation” for Fifth Amendment purposes includes

any “practice that the police should know is reasonably likely

to evoke an incriminating response from a suspect... ."

U.S. » 100 S.Ct. at 1689; as such, showing Petitioner the rug

clearly constituted interrogation.

e Matthews testified at the Jackson v. Denno hearing that he

could not recall why he showed Petitioner the rug “unless

it had something to do, maybe, with shoes." Petitioner's

shoes had been taken from him for examination ~f blood

samples. (T. 990-91, 1019).

-16-

The interrogation of Petitioner after his adoption

of the rights to remain silent and to have an attorney and the

failure to give Miranda warnings before the statement was taken

are factors bearing on the voluntariness of Petitioner's state-

ment. Davis v. North Carolina, 384 U.S. 737 (1966).

C. Conclusion

After refusing to talk to the authorities for ten hours,

and repeatedly requesting an attorney, Petitioner's mind was

changed only after his will had been overcome. Hungry, shaking,

crying and half-undressed, he confessed “because I was scared <o

death. I didn't want to go to the electric chair . ..." (T.

1049) In sum, the trial court erred in finding that the con-

fession was freely and voluntarily made.*

It is respectully submitted that this case deserves the

Court's independent evaluation of the record and circumstances

surrounding Petitioner's statement. Mincey v. Arizona, supra, 437

U.S. at 398; Spano v. New York, 360 U.S. 315, (1959); Norris v.

Alabama, 294 U.S. 587 (1935). Such an evaluation, Petitioner sub-

mits, will require a finding ‘hat the statement was not "'the

product of a rational intellect and a free will,'" Townsend v.

Sain, 372 U.S. 293, 307 (1963), quoting Blackburn v. Alabama, 361

U.S. 199,208, but rather was taken in violation of Petitioner's

Fifth and Pourteenth Amendment rights.

bd The trial court had some apparent misgivings about the

statement at the time of Potitioner's motion for a mistrial

or directed verdict of acquittal. Prior to the charge to

the jury, the court stated, “my impression of the statement

+ « « is that it was taken informally, probably, to say

the least, too informally." (T. 1333)

THE COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER THE TRIAL COURT'S FAILURE TO INSTRUCT

THE JURY AS TO LESSER INCLUDED OFFENSES VIO-

LATED PETITIONER'S SIXTH, EIGHTH AND FOURTEENTH

AMENDMENT RIGHTS

A. The Trial Court's Failure to Instruct

In its decision last term in Beck v. Alabama, U.8.

__» 100 &.Ct. 2382 (1980), this Court reversed a judgment of the

Alabama Supreme Court, affirming a conviction of murder and a sen-

tence of death, because the jury was not permitted to consider a

verdict of guilty to a lesser included offense and the evidence

would have supported such a verdict.

In Beck, the defendant was convicted of murder committed

in the course of a robbery. Notwithstanding the fact that at trial

the nature of the defendant's intent was much disputed, the jury

was not instructed on any lesser included offenses to the murder

charge, such as simple assault, not requiring proof of an intent

to commit great bodily injury. As a result, the jury's only aontal

was to convict on the capital offense or to acquit the defendant

entirely. The failure of the trial court to charge as to lesser

included offenses stemmed from a provision in the Alabama death

penalty statute, Ala. Code §13-11-2(a), which prohibited the trial

judge fom giving the jury the option of convicting the defendant

of a lesser included offense.

This Court reversed the jury's sentence of death, and

invalidated the prohibition of the Alabama statute, reasoning

that the defendant in a capital case was entitled to the protec-

tion of lesser included offense instructions. As stated by

Justice Stevens, writing for the majority:

the

"Such a risk cannot be

defendant's life is a

"Providing the jury with the

Convicti On a le

that the 3

evidence, and emphasized the in-

enquestionably establishes

is gui of

that the defendant lt @ ser ous, Violent

Offense ~ eaves @ doubt y th Fespect to

element tha wou) 4 justify Conviction Of a ca ital

Offense ~ he failure ¢ ive the jury the *thira

Option’ victi ® lesser includeg Offense

WOuld seem inevitably to enh @ risk of

Unwarranted Conviction,

The Petitioner in the instant

Charged and Convicted of Malice murdere

e Malice murder

—_—_—_——

which Provides;

Under Geo

armed robbe

mstances of the

nant heart,*

rgia's bifurcat

ry Conviction

is defined in Ga.

murder when

ht, either ®xpress or

fon ars, and where a))

killing > abandon

ed death Pe

was furthe

(Pootnote

~19-

Code Ann., $26-1101(a)

*thira Option of

8ser includeg offense insures

defendant the full

bt ty es te

S.Ct. at 2387, cit ng Keeble Vv.

U.8. 205, 208, 93 8.Ct.T593;

Justice Stevens relied on the longstanding State

ice of Providing lesser included Offense instruc.

he unlawfully

nalty roceedings the

r consideres ay the jury

continued)

With respect to the homicide charge, the trial court charged the

jury only as to the crime specified in the indictment, malice

murder. (T. 1463-1464) No charge was given as to either of the

lesser included offenses of voluntary manslaughter*, or felony

murder**. Thus, at the guilt phase of the trial, the jury, in

this case as in Beck, was left only with the choice of convicting

the defendant of the capital offense of malice murder or acquitt-

ing the defendant of the homicide. Petitioner submits that, de-

pendent only on the existence of evidence in the record sufficient

to justify the giving of lesser included offense instructions, ***

(Footnote continued)

in the penalty phase as an aggravating circumstance justify-

ing a sentence of death as opposed to life imprisonment.

The statutory differences between the Georgia statute and

the Alabama statute do not, however, affect one way or the

other the constitutional infirmity raised in Petitioner's

case. The failure of the trial judge in the instant case

to give lesser included offense instructions where warranted

by the evidence created the same risk as that created

the Alabama statute in Beck, verse that in the convic-

tion phase, the jury's options were limited to convicting

for the capital offense or acquitting of the killing.

e Voluntary manslaughter is defined in Ga. Code Ann., §26-

1102 which provides in relevant part:

"A person commits voluntary manslaughter when

he causes the death of another human being, under

circumstances which would otherwise be murder, if

he acts solely as the result of a sudden, violent,

and irrestible passion resulting from serious provo-

cation sufficient to excite such passion in a rea-

sonable person. .. .*

ee Felony murder is defined in Ga. Code Ann., §26-1101(b)

which provides:

"A person also commits the crime of murder when

in the commission of a felony he causes the death of

another human being, irrespective of malice.*

*** Under Georgia state law, the quantum of proof needed to

justify the giving of a lesser included offense instruc-

tion, when requested, is whether there is any evidence

to support a conviction of the lesser offense. Jack v.

State, 239 Ga. 40 (1977); State v. Stonaker, 236 Ga.

TTS76); Loury v. State, Mr Ga hep ee tT " 978).

-20-

to provide the Petitioner with the due Process Protection Of such

instructions.

B. Evidence in the Recorg Warranting the Giving

of Lesser Included Offense Instructions

The record at tria] establishes the existence of evi-

dence indicating that Petitioner lacked the requisite intent

to commit Malice murder by reason of involuntary intoni cation

Q. Dia YOu mean to Shoot the first time?

A. No, Sir, didn't, When he turned @rounc

and started for me, I just shot. I didn't

(T.

tence,

the Supreme Court of Georgia dismisseq this enumeration of

error on the ground that under Georgia state law, "(tihere

is no requirement that a charge on a lesser included of fense

sede, Land geateence, of = written sosset tached See

$:9-, Lamb y. State, 245 Ga. 104, 263 8.8.24 143 (1980);

Jack 2 3

son v. State 39 Ga. 40 (1977). While it is true that

NO Buch request vas made by defense counse) low, Petitioner

Proce ended the

Court in Beck ig not

® request t> Charge is made

C. Conclusion

Petitioner submits that the risk addressed by this

Court in its decision in Beck has fully materialized in this

case. There is evidence in the record in this case which

supports the positition that, as a result of the failure to

charge as to the lesser included offenses, the Petitioner, a

twenty-eight year old man with no prior record of conviction of

any violent crime, who got drunk with his friends, decided to

hold up a local bootlegger, got scared when the victim started

towards him, and shot him, was convicted of malice murder and

——

Petitioner submits that the same unavailability of a

lesser included instruction has led to the same constitutional

infirmity, notwithstanding the fact that it was the judge's

failure to charge and not a statutory prohibition to so charge

that resulted in withdrawing from the jury the option of convict-

ing of a lesser included offense. Petitioner respectfully sub-

mits that this Court's decision in Beck requires that Petitioner's

| death sentence be reversed or that the conviction be vacated and

| the case remanded for further review in light of Beck.

IIl.

THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE DISQUALIFICATION

FOR CAUSE OF FOUR JURORS WITH CON-

SCIENTIOUS OR RELIGIOUS SCRUPLES AGAINST

THE DEATH PENALTY VIOLATED THE COURT'S

HOLDING IN ADAMS V. TEXAS, U.S. __,

100 S. Ct. 2521 (1980).

Just last Term, this Court in Adams v. Texas, U.S.

—_- 100 S.Ct. 2521 (1980) reaffirmed its consistent teaching

that the Sixth and Fourteenth Amendments do not permit a state

to challenge prospective jurors for cause merely because of

their “views about capital punishment, unless those views would

prevent or substantially impair the performance of [their]

duties. . . ." Accord: Witherspoon v. Illinois, 391 U.S. 510

(1968); Boulden v. Holman, 394 U.S. 478 (1969); Maxwell v. Bishop,

398 U.S. 262 (1970); Mathis v. New Jersey, et al., 403 U.S. 946

(1971) (per curiam); Davis v. Georgia, 429 U.S. 122 (1976). The

Court in Adams reiterated that only those veniremen may properly

be excluded

"*who made unmistakably clear (1) that they would

automatically vote against the imposition of capital

punishment STehout regard to any evidence that might

be developed at the trial of the case before them or

(2) that their attitude toward the death ge tds

would prevent them from making . eee decision

as to the defendant's gu “" Adams v. Texas, supra,

ilt.

100 8S. Ct. at 2325, quoting Witherspoon v. Illinois,

supra, 391 U.S. at 522-523, n.21.

In the present case, the trial court permitted excusal

of four prospective jurors in violation of Witherspoon and Adams.

First, prospective juror Beverly Decak Abbott testified

that her attitude toward the death penalty would not prevent her

from making an impartial decision as to guilt (T. 601)*. She

further testified: “I don't think I would automatically vote

against the death penalty.” (T. 602) Upon voir dire by Peti-

tioner's trial counsel, she testified that she would obey the

law and that she “believe[d]" she would not vote for the death

penalty. (T. 603) This sort of testimony falls far below the

“unmistakably clear” standard to which the Court has limited

exclusion for cause of veniremen opposed to the death penalty.

Similarly, prospective juror Janice Winkler Harben

testified that she did not think that her opposition to the death

penalty -- predicated on religious beliefs -- would prevent her

from making an impartial decision as to Petitioner's guilt, and

that “it would be hard to say" whether she would automatically

vote against the death penalty without regard to any evidence

that might be produced on the trial of the case. (T. 243) She

never made a stronger statement of impairment than responding to

the question "[t])hen, under no circumstances, would you vote for

the death penalty?", by saying "I don't think so." (T. 244)

"As the voir dire examination of this venireman illustrates, it

cannot be assumed that a juror who described himself as having

-+-religious scruples against the infliction of the death

penalty... thereby affirms that he would never vote in favor of

it or that he would not consider doing so in the case before

him." Witherspoon v. Illinois, supra, 391 U.S. at 515, n. 9.

e Adams v. Texas, supra, expressly extended the holding of

I nois, to the bifurcated procedure in

capita « Ct. at 2526-27.

No fair reading could find in the equivocal responses

of Ms. Abbott and Ms. Harben an “unmistakably clear" resolve

"automatically" to vote against the death penalty. Further, Ms.

Abbott categorically denied that her judgment would be impaired

as to Petitioner's guilt or innocence.

Nor can prospective juror David C. Ingram's removal be

justified under Witherspoon and Adams. Mr. Ingram testified dur-

ing a lengthy voir dire (T. 875-886) that he was not conscien-

tiously opposed ‘to capital punishment (T. 875), did not think

his attitude toward capital punishment would prevent him from

making an impartial decision on guilt (T. 876), would not

automatically vote against the death penalty, could follow the

law (T. 877), and that he would give equal consideration to

sentences of life imprisonment and death. (T. 882) Then, on

examination by the prosecutor, he testified "I don't know

whether I'm supposed to judge" whether to impose the death

penalty and that he would not vote to impose the death penalty

under any circumstances. (T. 883) When Petitioner's counsel

examined further, Mr. Ingram testified that he was “nervous” and

could not think of any circumstances under which he would impose

the death penalty. (T. 885)

Mr. Ingram admitted that he was nervous and having

difficulty understanding some of the questions. This Court

insisted in Adams v. Texas that “nervousness .. . is [not]

equivalent to an unwillingness or inability .. . to follow the

court's instructions and obey [his oath) regardless of his

feeling about the death penalty." 100 &.Ct. at 2528-2529.

~25-

re ——— +r - aS

Ingram‘'s inability to conjure up circumstances under which he

would impose the death penalty was scarcely the unmistakable

assertion of unqualified opposition required by this Court to

disquality a prospective juror for cause; he should not have

been disqualified. In Adams v. Texas, the Court made clear that

prospective jurors may not be excluded on any basis broader than

that enunciated by the decision of this Court, 100 S. Ct. at

2528.

A fourth prospective juror Nancy Ann Moon was also

improperly disqualified. She testified that she "guessed"

her disapproval of the death penalty would influence her decision

on guilt and that she would not automatically vote against a

sentence of death “because it depends on what it is." (T. 166-

167) When the prosecutor asked her specifically if she could

obey the law as instructed and impose the death penalty if

authorized, she said “yes.” (T. 166-167) Since her ambivalence

was accompanied by an unqualified commitment to doing her duty

as a juror, she was not properly disqualified.

The constitutional basis of Witherspoon and Adams is

that “a jury uncommonly willing to condemn a man to die", 391

U.S. at 521, falls “woefully short of that impartiality to which

the petitioner [is] entitled under the Sixth and Fourteenth Amend-

ments.” 391 U.S. at 518. In this case, the magnitude of the

error created by excusing these four jurors is enhanced by the

ovecall lack of impartiality of the jurors who were selected.

Petitioner was tried by a jury which included not only the

mother of a prosecution witness who testified that Petitioner

threatened her life at gunpoint (T. 1153-1165) but also jurors

who had admitted on voir dire to prejudice and opinions on

Petitioner's guilt, and jurors who had known the victim and his

family to varying degrees. The case was tried in a county of

5,000 people which had been the decedent's home all his life and

in which Petitioner, being from another county, was unknown and

an outsider.

Whether or not the local prejudice and actual juror

partiality in this case reached a level of unfairness compris-

ing constitutional error under Irvin v. Dowd, 366 U.S. 717 (1961)

and Murphy v. Florida, 421 U.S. 794 (1975), those factors cer-

tainly highlight the importance of providing a fair cross-section

of ‘community feeling with respect to imposition of the death

penalty. Witherspoon v. Illinois, 391 U.S. at 519.

In sum, none of these excluded jurors exhibited that

fixed opposition to the death penalty which alone might hve war-

ranted their exclusion for cause. Indeed, Beverly Abbott, Janet

Harben, Nancy Ann Moon and David Ingram were clearly willing to

lay aside their personal feelings. Yet each of the four was

excluded by the trial court, and the Supreme Court of Georgia on

appeal held that “(t]he jurors’ responses satisfied the test set

forth in Witherspoon, supra, as reiterated in Lockett v. Ohio. .

+ «" Dick v. State, supra, 273 S.E.2d at 129. In light of the

clear violations in this case, Petitioner respectfully submits

that summary reversal of his death sentence (see Davis v. Georgia,

supra) or vacation of his sentence with a remand for reconsidera-

tion in light of Adams v. Texas, supra, is warranted.

———

" CONCLUSION

Petitioner prays that his petition for a writ of

certiorari be granted.

February 23, 1981

New York, New York

Respectfully submitted,

EDWARD BRODSKY

THOMAS H. SEAR

DAVID W. BARGMAN

SUSAN ALLISON

SPENGLER CARLSON GUBAR & BRODSKY

280 Park Avenue

New York, New York 10017

(212) 682-4444

ATTORNEYS FOR yg TIONER

By |

oe)

has Eastern overhaul the Alaska Air Lines

72%. During the time that our aircraft

were ever overhauled we flew Eastern 727s

on our routes, They're equipped with a

. “flight director system where the cost of the

‘+ instruments for one pilot exceed the cost of

; @ f& Cessna 310.”

(1,2) “The rules of law governing the

.° Gegree of care owed by an operator of

aircraft to his guest riding therein are the

same as those governing the operator of a

motor vehicle under similar circumstances,

and in both cases the defendant operator is

liable for injuries to his guest only in cases

of gross negligence.” .Sammons v. Webb,

86 Ga. App. 382(12a), 71 8.E.2d 832 (1952);

C. &8. Nat. Bank v. Huguley, 100 Ga.App.

75, 110 S.E.2d 68 (1959); Code Ana. § 11-

of the risk and avoidance’ of consequences

are available to a defendant pilot of air-

craft. Crandall v. Sammons, 62 Ga.App. 1,

7 S.E2d 575 (1940).

“In its simplest and primary sense, as-

sumption of risk means that the plaintiff, in

from a known risk arising from what the

defendant is to do or leave undone.” Pros-

ser, Law of Torts (4th Ed.) p. 440. “In by

far the greatest number of cases, the con-

LP Pees

’ r4 . “es

-* -

—.*

os i > a . = ? cy ; : 4 a mr _ A r ES ae =. . oS ee Ce

‘ - ° - - - i 4 . a Pir

. +¥ > 2 ao ' A = ’ . : . : oe : a q

. , “~~ yal *) . < A S ‘ » ¥ / < P, > r+, !

b w ey a om ona, yr fa a: wes byw act an NS tet telat

Zz t- ‘ ae 3 ry « 7 e v 5 mh, . P ; :

:< >. ¢ S /\ ! 4 . fet ws ¥ « 5

bd bs - * “ 7 -.

> ; ae : ; “fi ‘ . . . fi : "td

. < « Swe 2 epces on 7 oF”, rb % ? ‘ : POR

- < cers : oe, ve *t . " : " 3 +e mes : 3

~ . ¥ id do—* *. ot “"e : b> o" 2 - . 3% ae SS od PS et 4 . - .

2 we e » a £ "te. > ont a:. ein a z to, > 5 . i.

See iy lng ' - > F Ve, OFS : o wr Se = = Yo a, 4 3% .

Ete 7s oe .. 23 . ~~ “ss er oX, : A Se: oh Meter JS ~~" >

. . 7. * ‘ ee to wt ‘ . ore ? ~~ ite . s pie tre amt e

~~, -* . : . , 2 be vf v 2. “ae ‘ bee b-

a << y p :

oo ane oe* - : eS ~? i

. = > %e -

° . N°

273 SOUTH EASTERN REPORTER, 2d SERIES gr

107. Similarly the defenses of assumption ©

tiff. Both rest upon the same fundamental

policy of making recovery depend upon the ~s ;

plaintiff's proper care for the protection of +:-,.

his own 4nteresta, and both require of him...

[3] In the present case the plaintiff was ©

a licensed pilot with 400 hours of flying ..

time of four years duration. Although not

licensed to fly instruments, he was familiar -

with VOR and the Fulton County Airport

-ratic and that a new ILS was being install-

ed. There was evidence that the air-

plane had “broken out” of the overcast and

was on visual flight rules. Under these

fects and the other circumstances of the

All the Justices concur, except JORDAN, ‘ ,

P. J. and HILL, J., who dissent.

Sy protec-

os oe of riah, the de- separ

‘ at oe the idea that the Supreme Court of Georgia.

Re aa... sete «

4 va the dostetnn of Decided pedir ile

rong £2 ia the rule of ‘avoidable conse- Rehearing Denied Nov. 25,

ros which denies recovery for any SS:

wy which could have been avoided by Defendant was convicted in the Daw-

D son Superior Court, Palmour, J., of armed

}

53a 4 . . :

a > . =

Mg >

a ‘$3 .

am Pee ~ ,

a Ee

USAT.

’ _ tr

“-

a Ty |

> oD “4

. cA

we ie ea

Sam

“

ing claim that each prospective juror had

heard something about case, where each

juror who was not struck ior prejudice ex-

pressly indicated that he or she could lay

aside any opinion he or she had formed and

render a sentence based solely on evidence;

(2) determination in favor of admitting de-

fendant’s confession was not error despite

claim that advice given defendant by his

brother to confess was the result of investi-

' gator’s conversation in which the brother

was told to convince the defendant to con-

fess; (3) conduct of trial court when, out-

side presence of jury, it questioned defend-

ant as to presence of telephones in the

sheriff's office was not a basis for conclud-

ing that trial court assisted the prosecution

and improperly interfered with trial of

case; and (4) sentence of death imposed on

conviction of armed robbery and murder

was not imposed under influence of passion,

prejudice, or any arbitrary factor and was

not unlawful. —

Affirmed.

1. Criminal Law @= 126(1)

Failure to grant a change of venue by

reason of pretrial publicity or local knowl-

edge of crime was not error, notwithstand-

ing claim that each prospective juror had

heard something about case, where each

juror who was not struck for prejudice ex-

pressly indicated that he or she could lay

aside any opinion he or she had formed and

render a sentence based solely on evidence.

2. Jury ¢=33(2)

That victim was well known in commu-

nity was not in itself indicative that jury

drawn from that community was death

prone.

3. Jury e97(1)

Low percentage of veniremen excused

for prejudice, approximately ten percent,

strongly corroborated expression of impar-

tiality by other jurors who were not ex-

cused for prejudice.

DICK v. STATE

Cite as, Ga., 273 S.E.26 124

Ge. 125

4. Criminal Law 121

A motion for change of venae lies with-

in the sound discretion of the trial judge.

5. Jury e108

Rule ‘in Witherspoon did not establish

that certain jurors were improperly excused

in case where each prospective juror on voir

dire responded that he or she could not

impose death penalty under any set of cir-

cumstances.

6. Criminal Law @=520(2)

A confession otherwise admissible is

not inadmissible because it was prompted

by advice of a relative of the defendant

7. Criminal Law @=517.2(2)

Ten-hour lapse between time of waiver

and actual confession at which time previ-

ous warnings were reiterated did not render

confession inadmissible. .

8. Criminal Law ¢=520(2)

defendant's confession was not error de-

spite claim that advice given defendant by

to confess.

9. Criminal Law ¢=537

Tangible evidence obtained as a result

of defendant's confession was not improper-

ly admitted given fact that confession itself

was freely and voluntarily given.

10. Homicide 250

Robbery e=24.1(3)

Evidence overwhelmingly supported a

finding of guilt beyond reasonable doubt of

crimes of armed robbery and murder.

11. Criminal Law @=656(2)

Conduct of trial court when, outside

presence of jury, it questioned defendant as

to presence of telephones in the sheriff's

office was not a basis for concluding that

trial court assisted the prosecution and im-

property interfered with trial of case.

126 Ga

12. Criminal Law 629

Trial court did not err in allowing de-

fendant’s confession in evidence and did

15. Criminal Law @=774

Failure to grant requested charge that

“intoxication or drunkenness is not a de-

a cor plete statement of law, no special or

general plea of insanity was filed, and trial

court adequately charged jury as to volun-

were properly refused. Code, § 27-2534.)

which are material to issues in case need

not be excluded on grounds that they would

273 SOUTH EASTERN REPORTER, 2d SERIES

inflame minds of jurors or are corroborative

or cumulative of other grounds.

18. Criminal Law @=438(4, 5)

Photographs, each of which depicted

location of wound, crime scene, and way in

which victim had been robbed, were materi-

al and admissible.

19. Criminal Law @=473, 476

Testimony of physician as to cause of

death and location of wound was relevant

evidence in that location of wound was a

crucial part of state's case and, as such,

could not be kept from jury by admission of

fact or waiver of requirement of proof.

20. Criminal Law o=828

A charge on lesser included offense of

voluntary manslaughter or felomy-murder

was not required to be given in absence of »

written request.

21. Criminal Law @=444

A proper foundation for use of tape

recordings of defendant's confession was

laid given evidence in record that mechani-

cal transcription device was capable of tak-

ing testimony, that operator of device was

competent to operate it, and that no

changes, additions, or deletions had been

made on tape.

22. Criminal Law @= 11194)

purpose of prejudicing the defendant.

a RE mr re ee ee

See ee ee eee ee

DICK v. STATE Ga. 127

Cite as, Ga., 273 S.E.3d 124

party had a right to a thorough and sifting

cross-examination of opposing witness.

Code, § 38-1706.

25. Criminal Law @=986.2(4)

Trial court did not err in admitting

indictment of a previous felony committed

by defendant at presentence hearing where

defendant brought out conviction on cross-

examination during trial of case and admit-

ted that he had committed crime.

26. Homicide e354

Sentence of death imposed on convie-

tion of armed robbery and murder was not

imposed under influence of passion, preju-

dice, or any arbitrary factor and was not

unlawful. Code, §§ 27-2534.1(b\(2), 27-

2537(eX 1-8). »

27. Homicide e354

Allowing jury to reach a verdict of a

death sentence was not error on ground

that no new evidence was introduced by

state during sentence phase of trial. Code,

$§ 27-2584. 1(bX2), 27-2537(c\ 1-8).

28. Homicide e354

Trial court's charge during sentencing

phase of trial was not unjustly weighted

toward the state and death penalty not-

withstanding claim that undue weight and

emphasis was placed on aggravating cir-

cumstances and too little on mitigating cir-

cumstances. Code, §§ 27-2534.1(b\2), 27-

2537(cX 1-8).

29. Criminal Law @= 1206(2)

That codefendant was sentenced to life

imprisonment, whereas defendant was sen-

tenced to death, did not establish that de-

fendant'’s sentence was disproportionate

considering crime. Code, §§ 27-2534. -

W(bX2), 27-2537%c\K 1-3).

CLARKE, Justice.

The appellant, Dennis Dick, was convict-

ed by a jury in the Superior Court of Daw-

‘ son County for armed robbery and the mur-

der of O. C. (Red) Rider. He was sentenced -

to death for murder and to life imprison-

ment for armed robbery. This case is here

on direct appeal and for mandatory review

of the death sentence.

. Summary of Facts —

From the evidence presented at trial, the

jury was authorized to find the following

facts: ;

——— pi

nie

7242

atid

His

pitt es

titted

but ran the car into a ditch. At this point,

appellant returned and told the three per-

sons lying on the ground to run into the

woods and not look back or

ffs

;

Bett

>eis

hiti

ered, but the murder weapon never

found.

Enumerations of Error

(1) The appellant in his first enumeration

in failing t> grant a change of venue. The

appellant argues that because of pre-trial

publicity and local knowledge of the crime,

it was impossible to obtain an impartial

jury.

At the outset, we note that the record

contains no evidence of prejudicial pre-trial

publicity. Appellant concedes that there is

no evidence of a “total inundation of the

judicial process by the media.” Sheppard v.

Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16

L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S.

532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965).

{1} Rather, appellant relies upon the

fact that each prospective juror had heard

something about the case. However, each

prospective juror not struck for prejudice

expressly indicated that he or she could lay

aside any opinion he or she had formed and

render a sentence based solely upon the

evidence. Tucker v. State, 244 Ga. 721, 261

S.E.2d 635 (1979); Collier v. State, 244 Ga.

553, 261 S.E.2d 364 (1979); Irvin v. Dowd,

966 U.S. 717, 81 S.Ct 1689, 6 L.Ed2d 751

(1960).

[2] The victim was well known in the

community but this alone does not indicate

that the jury drawn from that community

is death prone. Collier v. State, supra.

{3} The record in this case shows that

strikes and the state an additional 5. The

jurors were examined outside the presence

of exch other. See Collier v. State, supra.

Of tnese jurors, 49 were excluded for nor-

other jurors who were not excused for pre}-

udice. Murphy v. Florida, 421 U.S. 794, 96

S.Ct. 2081, 44 L.Bd.2d 589 (1974); Tucker v.

State, supra (5% dismissal rate corroborates

ene Cee 9 pers ae

THT TE

sii i Ht

“A ile el A

ai! dat Hy! natty it Et 5

HH BIHH HA slit i it Hite Hi is

HOE tril fais tit in ?d2aty © : rife Uitit if

ie rane peat Hh it ie i

i Fea

sete ean tet if stay He ere

+f PASE i ns foi Siti Tee

ly fife =242045 =f4-8)

oo ee ate. oe

130 Ga

frether was told to convince appellant to

confess or he would face a death penalty.

The investigator testified that he never had

such a conversation with the appellant's

brother and that appellant did not ask to

consult with an attorney. This conflict in

the evidence was resolved by the trial court

in favor of admissibility, and we find no

error in the trial court's determination.

Johnson v. State, 233 Ga. 58, 209 S.E.2d 629

(1974), Amadeo v. State, 243 Ga. 627, 255

§.E.2d 718.(1979); Burney v. State, 244 Ga.

33, 257 S.E.2d 543 (1979); McClesky v.

Siate, 245 Ga. 108, 263 S.E.2d 146 (1980).

(9) We also note in this regard that on

direct examination during the guilt-inno-

. cence phase of the trial, the defendant reit-

erated his confession and admitted his guilt.

Therefore, L. C. v. State of Ga. 151 Ga.App.

907, 259 S.E.2d 702 (1979), cited by appel-

* tant, is inapplicable. This enumeration of

error is without merit. Appellant's confes-

sion being freely and voluntarily given, ap-

pellant’s contention that tangible evidence

obtained as a result of the confession was

improperly admitted is similarly without

(10) (3) In his third and eleventh enu-

rile

naa

ink

mae

273 SOUTH EASTERN REPORTER, 2d SERIES

{12} (5) In his fifth enumeration of er-

ror, the appellant contends that the trial

court erred in allowing the~appellant’s con-

fession in evidence in that by doing so, the

appellant became a witness against himself,

and the appellant was not listed as a wit-

ness on the list of witnesses furnished to

the appellant. The appellant cites no au-

thority other than the statute itself. Code

. Ann. § 27-1403. The purpose of the statute

‘is to “ ‘insure that an accused is confronted

at trial with testimony against him from

witnesses whom he has not had an opportu-

nity to interview prior to trial.’” Herring

v. State, 238 Ga. 288, 289, 232 S.E.2d 826

(1977). This enumeration of error is with-

out merit.

[13] (6) During voir dire, over objection,

the daughter and son of the victim were

allowed to remain in the courtroom and

assist the prosecution. Appellant alleges

error and argues that the court's own order

granting a sequestered voir dire was there-

by violated. However, the court's order by

its terms allowed additional persons to re-

main during voir dire as the court deemed

necessary. The control over such matters

necessarily rests within the sound discretion

of the trial court and unless that discretion

is abused, it will not be controlled by the

appellate courts. White v. State, 230 Ga.

$27, 196 S.E.2d 849 (1973). In this case,

contrary to appellant's position that the

court's action prejudiced him, in at least one

instance, the daughter of the victim was

able to inform the court as to persons on

the jury who were related to the victim

within the prohibited degree. We note that

this is a problem in jury selection in some

rural counties. A review of the voir dire

(see Division 1, supra) disclosed very frank

prejudice due to the presence of the mem-

bers of the family during voir dire. Envu-

meration of Error 6 has no merit.

(14) (7) Under the evidence in this case,

appellant was the triggerman and actively

een fo. ® Le

DICK v. STATE Ga.

131

Chte as, Ga, 273 $.£.36 124

participated in the armed robbery including

receiving some of the proceeds. There is no

merit in the contention that in this case the

armed robbery was, as a matter of law or a

matter of fact, a lesser included offense of

the malice murder. See Hoerner v. State,

246 Ga. 374, 271 S.E.2d 458 (1980); Bell v.

State, 239 Ga. 146, 236 S.E.2d 47 (1977);

Barrow v. State, 235 Ga. 635, 221 S.E.2d 416

(1975). :

(8) In his eighth enumeration of error,

appellant contends that the trial court erred

in failing to give defendant's request to

charge number two.

Defendant's request to charge was as fol-

lows: “... generally intoxication or drunk-

enness is not a defense to a crime, however,

if prolonged drunkenness causes @ perma-

nent mania or insanity, then an insanity

defense may be used.”

No special or general plea of insanity was

filed; the defendant instead entered a gen-

eral plea of not guilty. See Taylor v. State,

245 Ga. 501, 265 S.E.2d 803 (1980); Lewis v.

State, 239 Ga. 782, 238 S.E.2d 892 (1977);

Ross v. State, 217 Ga. 569, 124 S.E.2d 280

(1962). ,

[15] The request is not a complete state-

ment of law, and the trial court did not err

in failing to charge the requent. Peek v.

State, 155 Ga 49, 116 SE. 629 (1922);

Strickland v. State, 187 Ga. 115, 72 S.E. 922

(1911); Ross v. State, supra.

jury as to voluntary intoxication. Testimo-

ny that the appellant began drinking at an

early age and sometimes did not remember

what happened does not raise an issue of

insanity. See Lewis v. State, supra.

not error. Pollard v. State, 236 Ga. 587, 224

§.E.2d 420 (1976). Appellant's sixth request

to charge, to wit: “Aggravating circum-

stances must be outrageously and wantonly

vile in that they involve torture to the

victim and depravity of mind on the part of

the defendant” is an incorrect statement of

law, and the court did not err in refusing to

so charge. Code Ann. § 27-2534.1 et seq.

‘Hance v. State, supra.

[16] Appellant's requ ts to charge that

if the jury could not reach ‘a verdict, the

trial court would impose a life sentence and

that the law presumes a life sentence means

that the defendant shall spend the remain-

der of his natural life in the penitentiary

are clearly not principles of law to be given

in a charge to a jury and were properly

refused.

(9) The appellant in his ninth enumer-

ation of error contends that the trial court

LLL

Lek

‘

Free

al te ae

132 Ga

[19] (10) In his tenth and seventeenth

enumerations of error, the appellant asserts

that the trial court erred in admitting the

‘ testimony of Dr. Whitcomb and other fo-

rensic evidence over objection. Appellant

argues that since the cause of death had

been stipulated, the testimony of Dr. Whit-

comb, who had examined the body of the

victim, was prejudicial and inflamed the

minds of the jury. The evidence com-

plained of was relevant testimony as to

cause of death and the location of the

wound, the location of the wound being a

crucial part of the state’s case. The trial

court did not err in admitting the testimo-

*" ny. Relevant evidence cannot be kept from

the jury by admission of the fact or waiver

of the requirement of proof. Franklin v.

State, 245 Ga. 141, 263 S.E.2d 666 (1980).

[20] (11) In his eleventh enumeration of

error, appellant contends that the trial

court erred in not instructing the jury as to

voluntary manslaughter of felony murder.

The trial judge charged the jury as to the

crime specified in the indictment, malice

murder. Since there is no requirement that

a charge on a lesser included offense be

given in the absence of a written request,

this enumeration is not meritorious. Lamb

v. State, 245 Ga. 104, 263 S.E.2d 143 (1980);

Thomas v. State, 243 Ga. 217, 253 S.E.2d

190 (1979); State v. Stonaker, 236 Ga. 1, 222

S.E.2d 354 (1976). ~

(12) Appellant's enumerations of error 12

and 20 through 22 deal with sentence and

will be considered in the sentence review

portion of the opinion.

[21] (13) In the appellant's thirteenth

and fourteenth enumerations of error, he

273 SOUTH EASTERN REPORTER, 2d SERIES

presents nothing for consideration on ap-

peal. Newman v. State, 259 Ga. 329, 236

S.E.2d 673 (1977); Dillard v. State, 128 Ga.

App. 747, 197 S.E.2d 924 (1973). However,

pretermitting , this court has exam-

ined the record concludes that the prop-

er foundation for the use of the tapes was

laid. Brooks v. State, 141 Ga.App. 725, 234

§.E.2d 541 (1977); Harris v. State, 237 Ga.

718, 230 S.E.2d 1 (1976); Solomon, Inc. v.

Edgar, 92 Ga.App. 207, 88 S.E.2d 167 (1955).

The record in this case affirmatively shows

that the mechanical transcription device

was capable of taking testimony, that the

operator of the device was competent’ to

operate it, and that no changes, additions,

or deletions had been made to the tape.

Furthermore, the manner of preservation

was shown; the speakers were identified,

and the testimony elicited was freely and

voluntarily made without duress. See Divi-

sion 2 hérein. In addition, appellant argues

that portions of the tape were improper and

were not part of the appellant's statement

but prejudicial assumptions of the interrog-

ator.

During the interrogation, the officers

asked appellant if he had struck the victim.

Appellant denied striking the victim. Fo-

rensic evidence established bruises on the

victim’s face. The question was relevant to

the inquiry. No prejudice having been

shown, this argument is without merit.

[22] (14) The state called the victim's

son as a witness. He had been the second

person to see the victim after the murder.”

In addition, the son worked in the victim's

place of business and had knowledge of the

——

oe ee rl -<—<<— =

“Se

het eer Ee ee

re oem 4s emelmat

DICK v. STATE

Ga. 133

Che as, Ga., 273 $.£.24 124

prejudicial comments or threats in the

courtroom. The record simply does not sup-

port appellant's contention that this witness

was placed on the witness stand by the

state for the sole purpose of prejudicing the

defendant. Furthermore, such emotions

are reasonably expected by one who is a

close relative of a murder victim. The trial

court did not abuse its discretion in failing

to grant appellant's motion for mistrial.

“Many, if not most, trials by jury involve

some degree of emotion by at least one

party or the other. It would be unreason-

able to expect that all emotions be com-

pletely frozen during a trial by jury when

such effective bridle on emotions cannot be

sustained elsewhere.” Associated Distribu-

tors, Inc., v. Strozier, 144 Ga.App. 206, 206,

240 S.E.2d 761 (1977). Demonstrations and

outbursts which occur during the course of

a trial are matters within the trial court's

discretion unless a new trial is necessary to

insure a fair trial. Sheppard v. State, 235

Ga. 89, 218 S.E.2d 830 (1975). Here the

trial court stopped the trial and allowed the

witness to compose himself, and it is unlike-

ly that the witness’ crying without more

prejudiced appellant's defense. Compare

Futch v. State, 151 Ga.App. 519, 260 S.E.2d

520 (1979) with Price v. State, 149 Ga.App.

397, 254 S.E.2d 512 (1979).

[23] (15) In his eighteenth enumeration

of error, the appellant asserts that the trial

court erred in failing to grant a mistrial as

a result of improper actions, remarks and

statements of the district attorney during

the trial and in his closing argument. In

one instance, the district attorney in cross

examining the defendant's brother re-

marked to the witness, “I wouldn't think

they would electrocute me, if 1 wasn't enti-

tled to it.” The defense counsel moved for

a mistrial on the grounds that the district

attorney was speaking with the witness and

not questioning him. The motion was de-

nied, but corrective instructions were given.

The decision of whether to grant a motion

for mistrial lies within the sound discretion

of the trial judge, and his judgment will not

be disturbed on appea! absent a showing of

abuse of discretion. Sims v. State, 243 Ga.

83, 252 S.E.2d 501 (1979); Patterson v.

(

10a

State, 239 Ga. 409, 288 S.E.2d 2 (1977).

Under the circumstance of this case, ‘we

find no abuse of discretion.

[24] (16) On direct examination, appel-

lant admitted a prior conviction for statuto-

ry rape. He went into the particulars of

that offense in an obvious effort to show

the jury he had not been convicted of a

crime of violence. Appellant contends that

the trial court erred in allowing the prose-

cution on cross examination to go into prej-

udicial aspects of the prior conviction of the

defendant. We do not agree. The prosecu-

tor’s questioning sought to show that the

defendant used the same defense in the

statutory rape convietion as he now was

attempting to assert. Each party has the

right to a thorough and sifting cross exami-

nation of the opposing witness. Ga.Code

Ann. § 3@-1705. The trial court has the

discretion to determine the scope of cross

examination, and in the absence of abuse of

that discretion, the action of the trial judge

will not be disturbed. Ruffin v. State, 243

Ga. 95, 252 S.E.2d 472 (1979). Enumeration

of Error 16 is without merit.

{25} (17) In his last enumeration of er-

ror, appellant asserts that the trial court

erred in admitting the indictment of a pre-

vious felony committed by the defendant at

the presentence hearing since there was no

showing that the defendant was represent-.

ed by counsel or that he intelligently

waived his right to counsel. However, the

defendant on direct examination during the

trial of the case brought out the conviction

of the previous felony and admitted that he

had committed that crime. Furthermore,

the indictment for the prior felony was

admitted without objection and shows upon

its face that the appellant was represented

by counsel. This enumeration is wholly

without merit.

Sentence Review

[26] As required by Georgia Law 1973,

p. 159, et seq. (Code Ann. § 27-253%eK1-

3)], we have reviewed the death sentence in

this case. We have considered the aggre-

vating circumstances found by the jury, the

Ai)

nena

ee te SE TRS He Pee

134 Ge

evidence concerning the crime, and the de-

fondant pursuant to the mandate of the

statute. We conclude that the sentence of

death imposed in this case was not imposed

under the influence of passion, prejudice, or

' ~ any arbitrary factor. See Division 1 herein.

The jury found the following aggravating

circumstance: The offense of murder was

committed while the offender was engaged

in the commission of another capital felony,

to wit: armed robbery. Code Ann. § 27-

2534. 1(b\(2).

During the guilt/innocence phase of the

trial, the jury found the defendant guilty of

armed robbery. We find the evidence fac-

tually substantiates and supports the find-

ing of the statutory aggravating circum-

stance, the finding of guilt, and sentence of

‘ death by a rational trier of fact beyond a

reasonable doubt. Jackson v. Virginia, su-

pra.

[27] (18) The appellant contends in

Enumeration 20 that the jury should not

have been allowed to reach a verdict of a

death sentence as no new evidence was

introduced by the state during the sentence

phase of the trial. However, the state nec-

essarily under the facts of this case intro-

duced during the guilt/innocence phase of

the trial all of the evidence required to

support the finding of the aggravating cir-

cumstance returned by the jury. This enu-

meration of error is without merit. See

Spivey v. State, 241 Ga. 477, 246 S.E.2d 288

(1978).

[28] (19) In his twenty-second enumer-

ation of error, the appellant contends that

the trial court's charge during the sentenc-

ing phase of the trial was unjustly weighted

toward the state and the death penalty, in

that undue weight and emphasis was placed

on aggravating circumstances and too little

on mitigating circumstances. Appellant ar-

gues that the trial court's charging of the

three aggravating circumstances upon

which the state sought the death penalty

was prejudicial. We do not agree. The

charge of the court complied with the stan-

dards set forth in Spivey v. State, supra;

Fleming v. State, supra, and Hawes v.

lla

273 SOUTH EASTERN REPORTER, 2d SERIES

State, supra. See Jones v. State, 243 Ga.

820, 256°S.E.2d 907 (1979) and Fleming v.

State, 243 Ga. 120, 252 S.E.2d 609 (1979).

[29] Appellant's co-defendant, Christo-

pher Hoerner, was sentenced to life impris-

onment. See Hoerner v. State, supra. The

question thus presented is whether appel-

lant’s sentence is disproportionate consider-

ing the crime and the defendant in light of

the lesser sentehce imposed on a co-defend-

ant.

There is no simplistic rule that a co-de-

fendant may not be sentenced to death

when another co-defendant receives a lesser

sentence. McClesky v. State, 245 Ga. 108,

263 S.E.2d 146, supra; Collins v. State, 243

Ga. 291, 253 S.E.2d 729, supra. Each case is

evaluated on its own unique factual circum-

stance.

As in McClesky v. State, supra, we find

material distinctions between appellant's

and the case of the other co-defendant.

First, the appellant was the actual perpe-

trator of the murder, whereas the other

defendant was not in the immediate area of

the killing but was stationed outside as a

lookout. Juries under similar circumstances

have sentenced triggermen to death while

the same penalty has not been imposed on

co-defendants. These cases have been af-

firmed by this court. Goins v. State, 245

Ga. 62, 262 S.E.2d 818 (1980); Ross v. State,

233 Ga. 961, 211 S.E.2d 356 (1974); Dobbs v.

State, 296 Ga. 427, 224 S.E.2d 3 (1976);

Pulliam v. State, 236 Ga. 460, 224 S.E.2d 8

(1976); Bowden v. State, 239 Ga. 821, 7.4

8.E.2d 905 (1977).

Contrary to appellant's position, this case

is not controlled by the recent United

States Supreme Court decision of Godfrey

v. Georgia, 446 U.S. —-, 100 S.Ct. 1759, 64

L.Ed.2d 398 (1980). In Godfrey the court

was concerned with a sentence of death

resting exclusively on Code Ann. § z-

2534.1(b\X7). The other statutory aggravat-

ing circumstances are more “specific and

measurable.” Godfrey v. Georgia, supra.

In reviewing the death penalty. in this

case, we have considered the cases appealed

to this court since January 1, 1970, in which

“¢* -s-&. ™“ ato

owe ae eee Oe te oe EE «

HAWN v. CHASTAIN

Ga. 135

Cite as, Ga., 273 S.£.2d 135

a death or life sentence was imposed. The

evidence shows thiat this was the intentional

killing of an unarmed victim of an armed

robbery. It was a coldblooded killing

perpetrated solely for the purpose of mone-

tary gain. We find that the following simi-

‘lar cases listed in the Appendix support

affirmance of the death penalty. Appel-

lant’s sentence to death for murder is not

excessive or disproportionate to the sen-

tence imposed in similar cases considering

the crime and the defendant. Kin

Judgment affirmed.

All the Justices concur.

APPENDIX

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

657 (1970); Johnson v. State, 226 Ga. 611,

175 S.E.2d 840 (1970); Pass v. State, 227

Ga. 730, 182 S.E.2d 779 (1971); Hunter v.

State, 231 Ga. 494, 202 S.E.2d 441 (1973);

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 (1974); Prevatte v.

State, 233 Ga. 929, 214 S.E.2d 365 (1975);

Mitchell v. State, 234 Ga. 160, 214 S.E.2d

900 (1975); Tamplin v. State, 235 Ga. 20,

218 S.E.2d 779 (1975); Berryhill v. State,

235 Ga. 549, 221 S.E.2d 185 (1975); Barrow

v. State, 235 Ga. 635, 221 S.E.2d 416 (1975);

Brown v. State, 235 Ga. 644, 220 S.E.2d $22

(1975); Dobbs v. State, 236 Ga. 427, 224

§.E.2d 3 (1976); Arnold v. State, 236 Ga.

534, 224 S.E.2d 386 (1976); Pulliam v. State,

236 Ga. 460, 224 S.E.2d 8 (1976); Hawes v.

State, 240 Ga. 327, 240 S.E.2d 833 (1977);

Corn v. State, 240 Ga. 130, 240 S.E.2d 604

(1977); Amadeo v. State, 243 Ga. 627, 255

§.E.2d 718 (1979); Jones v. State, 243 Ga.

R20, 256 S.E.2d 90 (1979); Hamilton v.

State, 244 Ga. 145, 259 S.E.2d 81 (1979);

Cobb v. State, 244 Ga. 344, 260 S.E.2d 60

(1979); Dampier v. State, 245 Ga. 427, 265

$.F.2d 565 (1980).

HAWN

CHASTAIN et al.

No. 36492.

Supreme Court of Georgia.

Argued Sept. 8, 1980.

Decided Nov. 5, 1980.

Rehearing Denied Nov. 25, 1980.

The Cobb Superior Court, Williford,

Senior Judge, dismissed appeal from county

. zoning board, and application for discretion-

ary appeal was granted. The Court of Ap-

. peals, Parley, J., 154 Ga.App. 609, 269

S.E.2d 50, affirmed. Petition for certiorari

was granted and the Supreme Court, Hill,

J., held that: (1) section of Civil Practice

Act governing involuntary dismissal of ac-

tion did not authorize dismissal of appeal to

Superior Court for failure to comply with

order requiring supersedeas bond where

General Assembly had not authorized dis-

missal as sanction for such failure, but had

merely authorized requiring of supersedeas

bond, and (2) sanction for failure to post

supersedeas bond is that appellee may pro-

ceed to enforce, or in accordance with, judg-

ment, subject to outcome of appeal, and

failure does not authorize dismissal of ap-

peal to Superior Court even where such

‘court finds failure is willful.

Judgment reversed.

1, Appeal and Error ¢=460(1), 780(1)

Section of Civil Practice Act governing

involuntary dismissal of action does not au-

thorize dismissal of an appeal to superior

court for failure to comply with order re-

quiring supersedeas bond where General

Assembly has not cuthorised dismissal as

sanction for such failure, but merely autho-

rized of bond. Code, §§ 6-105(b),

6- 1002, B1A-141(b). f

12a

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80-

DENNIS DICK,

Petitioner,

ay.=

THE STATE OF GEORGIA,

Respondent.

-OTION TO PROCEED IN FORMA PAUPERIS

The petitioner, Dennis Dick, by his undersigned coun-

sel, asks leave to file the attached Petition for Writ of

Certiorari to the Supreme Court of Georgia without prepayment

of costs and to proceed in forma pauperis pursuant to Rule 46.

Mr. Dick's affidavit in support of this motion is annexed.

Pend (realy

Edward Brodsky

Spengler Carlson Gubar & Brodsky

280 Park Avenue

New York, New York 10017

Attorney for Petitioner

No. 80-

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1980

DENNIS DICK,

Petitioner,

~against-

STATE OF GEORGIA,

Respondent.

AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED

ON APPEAL IN FORMA PAUPERIS

I, DENNIS DICK _, being first duly

sworn, depose and say that I am the Petitioner in the above-

entitled case; that in support cf 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 and instructions below relating to my ability

to pay the cost of prosecuting the appeal are true.

1. Are you presently employed? Yes No L<

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.

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. S-77- $700.00

eet Dee

Have you received within the past twelve months any

income from a business, profession or other form of self-

employment, or in the form of rent payments, interest,

dividends, or other source? Yes No et

a. If the answer is yes, describe each source of income,

and state the amount received from each during the

past twelve months.

Do you own any cash or checking or savings account?

Yes No aes

a. If the answer is yes, state the total value of the

items owned.

Do you own any real estate, stocks, bonds, notes, auto-

mobiles, or other valuable property (excluding ordinary

household furnishings and clothing)? Yes No et

a. If the answer is yes, describe the property and state.

its approxamate value.

List the persons who are dependent upon you for support

and state your relationship to those persons. None

I understand that a false statement or answer to any

questions in this affidavit will subject me to penalties for

perjury.

Os LE

DENNIS DICK

STATE OF GEORGIA

COUNTY OF Pi Any

SUBSCRIBED AND SWORN TO

before me th

the /9 day of Gee , 19s / .

My Commission expires:

Notary Public, Georgie Stete ot Large

My Commission Expires une 24, 1983

CERTIFICATE OF SERVICE

I hereby certify that I have served the annexed Petition

for Writ of Certiorari and Motion to proceed in forma pauperis on

appellee by placing copies in the United States mail, first class

mail, postage prepaid, addressed as follows:

Hon. William B. Hill, Jr.

Assistant Attorney General

132 State Judicial Building

40 Capitol Square, S.W.

Atlanta, Georgia 30334

Hon. Jeff C. Wayne

P.O. Box 1690

Gainesville, Georgia 30503

All parties required to be served have been served.

Done this 23rd day of February, 1981.

Coated Sule

Attorney for Appellant

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.