Petition — Fleming v. Austin

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RECEIVED

APR 1 4 1981

OFFICE OF THE CLERK

IN THE SUPREME COURT, US.

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. GYo-LS06&

SON H. FLEMING, Petitioner

Vv.

SAM AUSTIN, Warden, Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of Georgia

THIS IS A CAPITAL CASE

Alan M. Dershowitz

20 Elmwood Avenue

Cambridge, MA 02138

(617) 661-1965

Counsel for Petitioner

On the brief:

Cynthia Hamilton

Alex Makowski

April 13, 1981

II.

IIl.

Iv.

QUESTIONS PRESENTED

Does it violate the prohibition against cruel and

unusual punishment to execute a defendant who:

A) did not participate in a murder or intend the

fatal result;

B) was not given the benefit of a proper jury instruc-

tion on mitigating circumstances; and

C) was sentenced to death under procedures that were

applied arbitrarily?

Does it violate petitioner's right to counsel for this

indigent petitioner, facing the death penalty, to have

been unrepresented at his preliminary committal hearing

where important rights were not preserved and where he

was prejudiced?

Does it violate petitioner's constitutional rights for

the State to have introduced the testimony of its agent

and petitioner's cellmate who allegedly elicited

incriminating statements from the uncounseled and

confined petitioner; and where the State failed to

disclose to the jury the deal it had made with the

agent-cellmate for his cooperation and testimony?

Were petitioner's constitutional rights violated by the

statements of the prosecutor and judge impeaching his

exculpatory testimony by arguing that he had remained

silent at arrest and arraignment?

Is it constitutional to execute a defendant who vigorously

asserts his innocence, where the trial judge has

acknowledged that the evidence does not “foreclose all

doubt respecting the defendant's guilt,” where the

defendant's representation below was a textbook study

of incompetence, where his co-defendant received a

sentence of imprisonment, and where the defendant's

constitutional rights were massively violated at every

stage in the proceedings below?

aie

Questions PPE « 6 din' kk oo 5 Blam Cale'c ees 6s one s&s who bok eee

TABLE OF CONTENTS

Table of COOES och co CeSbb ea Coece wi Seo c so escecstscticdecocsaeane

Constitutional Provisions Involved... ..cccsescccccccsccsecce

Opinion DOR h oo tc ct ae bb o6 OC CME 46 Ob NEES 6 UHO6 34008040 we Se

UPL ORCCLGR 6 6.04 oc 0 0s taos eeereereeeeeeeeeeeeeeeeeeeeeeeeeee eee

Statement of the COD so 62 26.0.0 0 bubs. 6696.04.68 Ss CHO 64 OOS

TRE TOROBETOR 6.vclc hs 0 0s coh 2 0 06 Kab Oe Ree 850 ob Re

PaCtUBeccoccccvvescscecoeseese eeeee eoseeeeeeeeereeeeeeeee

How the Federal Questions Were Raised

and Decided Ie sce é ne bee 6 Ode Sd Sis we HEE e Pee eee

Reasons for Granting the WetSa i cicvocchcce es shew + ce eae Coenen

I. This Case Presents a Novel and Important Eighth

Amendment Issue: Does the execution of a man not

proven to have either actually participated in the

killing or to have intended the death of the victim

violate the prohibition against cruel and unusual

punishment found in the Eighth and Fourteenth Amend-

ments to the United States Constitution?........seseeeee

II.

Itt.

Petitioner was convicted of murder and sentenced

to death without a jury finding that he actually

participated in the killing or intended the death

Of the VICtim. cccccccccccccccccccscccesesscescecess

It is a violation of the Eighth Amendment's ban

against cruel and unusual punishment to execute

someone not proven to have actually killed the

victim nor intended his death... ..ceeeesensecccecs

The judge's charge to the sentencing jury so empha-

sized the statutory aggravating circumstances sought

by the State and said so little about the mitigating

circumstances presented by the defendant that the

jury was effectively precluded from giving full

consideration to the relevant mitigating, factors, in

violation of the principle of Lockett v. Ohio..........

Petitioner has been sentenced to death under proce-

dures that were applied arbitrarily and capriciously,

and for a crime that is not distinguishable on a

principled basis from crimes that are not punished

by death, in violation of Godfrey v. Georgia...........

Petitioner's Death Sentence is the result of an

arbitrary and capricious application of Georgia's

capital sentencing procedureS......ceeseescesceccces

Petitioner's death sentence must be vacated

because “there is no principled way to distin-

guish this case, in which the death penalty was

imposed, from the many cases in which it was

not." Godfrey v. Georgia... ..cccccccccee seseesesces

a ~tf- -ee Sae

IV. Petitioner's lack of Counsel at his preliminary

committal hearing violated his Sixth and Four-

teenth Amendment right to counsel as set forth

in prior decisions of this Court.....cccccccccccccccece 22

V. Petitioner's constitutional rights were violated

by the admission into evidence of incriminating

statements allegedly made by the uncounseled

petitioner to his cellmate-government agent, |

and by the prosecutor’s failure to disclose

the fact that the cellmate's cooperation and

testimony was the result of a deal for |

favorable treatment...

eeeeeeeeeeeeeeeeeeeeeeeeeeeeeere eee 24

VI. Petitioner's constitutional rights were violated

by the statements of the prosecutor and the trial

judge impeaching his exculpatory testimony by

arguing that he had remained silent at arrest

and arraignment......

MWoOnClusioOn..cceccccssccccecs

APPONGIH.cccccccsteccccvecs

eee eevee ereeeeeeeeeeeeeeree eee eeaeeeneeve 26

eeeeevreeeeeeeeeeeeeeereeeeeeeeeeeeee 27

eeeee eee eeoeeeeeeeeeeeeeeeerteeeeeeee 29

iii

TABLE OF CASES

Page

Bachellar y. Maryland, 397 U.S. 564 (1970)... .cccccccccceese 13

Comer V. Gaorgias,. 433: 0.8. S06 (1977) occ ciccccwcccccctvessee S85 26

Coaemen V.: Araneae, FOF O.Bi: B CASFOP iid sic ccoccccceccoetvecvcet’ an

Cramer Pe, U.B. » S25 Use FS TPES) ccccccvccccsccvcescceosscoee AS

Doyle -v. Ohio, 426 U.S. 610 (1976)... .ccccccccccccccccccccce 4, 26, 2%

Fleming v. Austin, unpublished opinion from the Superior

Court..of Tattnall County, Ga.: EL9CO)..ccccccocsccececee 1

TORIES Fs" DERG, FOP Gia BAO CISPR icc cicccccesecsescocia: 2

Gardner v. Florida, 430 U.S. 349 (1977). ..ccccccccccccccccee L?

Gideon v. Wainwright, 372 U.S. 335 (1963).......cseeeees eserves. ae

Giglio v. United States, 405 U.S. 150 (1972) .....cccccccccee 25

Godfrey v. Georgia, 100 S.Ct. 1759 (1980)..... eocnsecasecease Bp Sena

18, 19,

20, 21

Green v. Georgia, 442 U.S. 95 (1979)...... eeesecesscvcecceens AG

Gregg V. Georgias 428 U.B. 153 (1976) wcvccccccsccccccceccccece Se ASe Ee

17, 19, 2

Mem Sten F. Asawa, See Veh. SS CLPER ic cccvcsvcvececscecevens Ban an

Holloway v. Arkansas, 435 U.S. 475 (1978) .....cseeeececceevee 22, 23

Henry v. United States, 100 S.Ct. 4183 (1980)........... ecce 20, 25

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

14, 15, i

Napue v. Illinois, 360 U.S. 264 (1959).......eee000s Sesvcece Oe

New York Times v. Sullivan, 376 U.S. 254 (1964)........2++.-- 13

Peek v. State, 239 Ga. 422 cert. den., 439 U.S. 882 (1978)... 19

Rose v. Moffitt, 417 U.S. 600 (1974)... cccceccnceececeeveees SO

Sandstrom v. Montana, 442 U.S. 510 (1979). ....eeeeeeeeeeeeee 13

Spivey v. State, 241 Ga. 477, cert. den. 439 U.S. 1039

(197B) wc ccccccccccccccvcesccesccscccscceseesesceceseeees 16

State v. Hightower, 236 Ga. 58 (1976)... eeeeeeeeeneeeeveee 22

State Ve Houston, 234 Ga. 721 LASTS cacevecceceavescetsesese 22

Stromberg v. California, 382 U.S, 359. (1931) .....eeeeeeeeeee 13

Terminiello Vv. Chicago, 337 a # 1 C2OES) ic ccccesecvccesecces 13

United States v. Butler, 565 F.2d 885 (9th Circuit, 1978)... 25a

-iv-

White y. Maryland, 373 U.S. 59 GRPOOR occwesegecisogecocessse Smee

Williams y. State of North Carolina, 317 U.S. 287 (1942).... 13

Willis v. State, 243 Ga. 185, cert. den. 100 S.ct. 178

PES wELME NOES 00th beds eee SOD ReEWE HS eee wb ccheneedné

Woodson v. North Carolina, 428 U.S. 280 (1976)........cceces

Yates v. United States, 354 U.S. 298 (1957)... cc ccc cc ccc ccc

State Statutes:

Ga. Code Ann. § 27-2534.1 ee ee eeee oeee ee eee eeeeee Feseeeeereeee

U.S. Const. Amend. VV. eeeee we eeeeeeee eee eee eee ee eee eee eens .

AMONG. VI .ccccccccccces er eoccccccccccccce °

SUMS. WEEE cvsavcestsvsveuyausetvecioanes sane coe

-V-

— S| en

Constitutional and Statutory Provision Involved

United States Constitution:

Amendment V:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the Militia,

when in actual service in time of War or public danger;

nor shall any person be subject for the same offence

to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall

private property be taken for public use without

just compensation.

Amendment VI:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation;

to be confronted with the Witnesses against him; to

have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for

his defence.

Amendment VIII:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.

Georgia Code:

Petitioner's case involves Ga. Code Ann. §27-2534.1.

The text of this statute is included in the Appendix.

-vi-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No.

SON H. FLEMING, Petitioner

Vv.

SAM AUSTIN, Warden, Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of Georgia

The petitioner Son H. Fleming respectfully prays

that a writ of certiorari issue to review the order of the

Supreme Court of Georgia entered in this proceeding on

October 21, 1981. The order denied petitioner's appli-

cation to appeal a decision of the Superior Court of

Tattnall County, Georgia, refusing a writ of habeas corpus.

Petitioner has been sentenced to death on a charge of first

degree murder.

OPINION BELOW

No opinion was rendered by the Supreme Court of

Georgia. Copies of the Supreme Court's orders jeuueites

the request for habeas corpus, and the opinion by the

Superior Court of Tattnall County (not reported), appear

in the Appendix hereto. Also included in the ‘\ppendix

are the opinions of the Supreme Court of Georgia on

November 8, 1977, affirming petitioner's conviction and

January 24, 1979, affirming the petitioner's death sentence.

JURISDICTION

Petitioner was convicted on a charge of first degree

murder on January 26, 1977, in the Superior Court of Lanier

County, Georgia, and sentenced to death by electrocution.

On November 8, 1977, the judgment of the Supreme Court of

Georgia was entered affirming the conviction, vacating

the sentence, and ordering a new trial on the question of

punishment. Petitioner was again sentenced to death on

December 9, 1977, after a change of venue to the Superior

Court of Cook County, Georgia. On January 24, 1979, the

judgment of the Supreme Court of Georgia was entered

affirming the sentence. A timely petition for a rehearing

was denied on February 14, 1979. A petition for writ of

certiorari was denied by the United States Supreme Court on

October 1, 1979. On July 1, 1980, petitioner's application

for a writ of habeas corpus was denied by order of the

Superior Court of Tattnall County, Georgia. The Supreme

Court of Georgia entered an order denying petitioner's

application for a certificate of probable cause to appeal

the Superior Court's decision on October 21, 1980. A

timely motion for reconsideration was denied on November

14, 1980. On January 29, 1981, the Honorable Lewis Powell

of the United States Supreme Court granted an application

for an extension of time to file a petition for writ of

certiorari to and including April 13, 1981. The juris-

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

STATEMENT OF THE CASE

A. Introduction

This case, involving an innocent black defendant

awaiting execution on Georgia's death row, raises the most

fundamental constitutional questions about the administration

of capital punishment in Georgia. Defendant is on death row

awaiting execution, 1) despite an acknowledgement by the

trial judge himself that the evidence in this case does not

"foreclose all doubt respecting the defendant's guilt" ;-/ and

2) despite the fact that petitioner's far more culpable co-

defendant was sentenced to life imprisonment for his far

greater role in the crimes at issue. There are grave doubts

in this case about the defendant's involvement in the murder

of James Giddens. Indeed the only certainties reflected in

the record below are that defendant's constitutional rights--

pre-trial, during trial, and post-trial--have been massively

violated, and that for this defendant to be executed on the

basis of this record would make a mockery of the claim that

"when a defendant's life is at stake, the Court has been par-

ticularly sensitive to insure that every safeguard is observed.”

Gregg v. Georgia 428 U.S. 153, 187 (1976). The pre-trial,

trial, and post-trial proceedings in this capital case are

a textbook study of incompetence, sloppiness and casual

disregard of basic rights. This case would be a mockery of

justice even if it were not a capital one. As a capital

case, it cannot be permitted to reach its deadly result. This

Court must intervene and grant review to save Son Fleming

from an unjust and unconstitutional death.

*/7 The trial court so stated in its official Report (pg. 4)

concerning petitioner's second sentencing trial. (Attached at

Appendix G). For a déscription of the important role this

report is supposed play in facilitating review of the

constitutionality ofa death sentence, see Gregg vs Georgia,

428 U.S. 153, 167-68‘ (1976).

gy rn green >

Defendant was convicted and sentenced to death on the

basis of a jury instruction which invited the jurors to convict

him of murder and sentence him to death even if they concluded

that he did not fire the fatal shot nor intend the fatal

result. Moreover, the only evidence that the defendant ;

personally participated in the actual killing--evidence

which the jury was not obligated to believe in order to

convict or sentence to death--was a supposed "confession"

allegedly made by the defendant to a white inmate who the

defendant had never previously met. That inmate volunteered,

obviously in exchange for his immediate freedom, to assist

the prosecution in eliciting incriminating information from

his cellmate and then to testify. The jury was never

apprised of this deal, and the inmate was freed immediately

after his testimony and has never been heard from since.

Defendant vigorously denies that he ever made any "confession"

to the inmate and has constantly maintained--both before the

alleged confession and afterwards--that he did not shoot the

victim or intend the fatal result.

Moreover, the prosecutor was allowed to argue to the

jury--in plain violation of this Court's holding in Doyle

v. Ohio, 426 U.S. 610 (1976)--that the exculpatory testimony

given by defendant at his trials should be disbelieved, since

he had not offered his explanations to the arresting officers

at the time of his arrest.

It is not surprising, however, that despite his innocence,

the defendant--a semi-literate black--was convicted and sen-

tenced to death, since his "defense", both before and at

trial, constituted a massive violation of his 6th Amendment

right to counsel. The defendant, facing the punishment of

death, was not represented by counsel at the pre-trial committal

hearing--a crucial stage in the Georgia criminal process. His

defense attorneys did not conduct an investigation of the

circumstances surrounding the case; filed no discovery

motions; were unaware until trial of the existence of ail but

one of the prior statements made by the defendant to law

enforcement officials; did not obtain a copy of the statement

— —— LOL) a I Fe eee

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of which they were aware before trial; did not know before

trial whether any of the pre-trial statements was accompanied

by a waiver of rights; failed to object when the trial judge

asked the defendant--really gave judicial testimony--about a

prior hearing, in a manner designed to persuade the jury that

the petitioner was lying; actually argued to the jury that

petitioner was lying in part of his testimony, thereby

abandoning their client's interests; presented two contradictory theories

of defense to the jury, as a result of their failure to

investigate or discover the circumstances of the case and

their resultant surprise at the evidence at trial; and did

not offer any evidence of mitigating circumstances at the sen- |

tencing trial, though much was available’ Because of this

massively inadequate representation, both at trial and on

direct appeal, the defendant is facing execution without

having had his day in court. He is represented before ‘this

Court by volunteer out-of-state counsel--who is ' Serving

without fee or expenses--because petitioner has been unable

to secure representation by a Georgia lawyer, and because

this Court makes no provision for the appointment of counsel

at the critical certiorari stage, even in capital cases.

Russ _v. Moffitt, 417 U.S. 600, 617 (1974).

z, “Now, they [the prosecution] have said much about

on's not telling the truth. I don't know but what I

agree with them. . . I don't think Son was beat by those

policemen. I don't believe it, not one bit in this world."

Tr. 2, at 465.

The following abbreviations for transcript references

will be nsed.

"Tr. 1": for the transcript of petitioner's first trial

encompassing conviction and sentence. _

“Args. of counsel": for the transcript of the arguments

of counsel at petitioner's first trial.

“Tr. 2": for the transcript of petitioner's second

sentencing trial.

**/ In addition, trial counsel did not request a change of

venue in spite of prejudicial pre-trial publicity and community

hostility to the d:fcndant; did not request a hearing on Mr.

Fleming's competency to stand trial or any testimony concerning

his mental condition; failed to voir dire prospective jurors

meaningfully and agreed to excuse jurors with scruples about

the death penalty who were not legally excusable for cause;

did not object to the prosecutor's repeated references, questions

and argument concerning crimes that defendant might have committed,

for which he had never been arrested or charged; 8nd allowed the

case to go to the’ juryon incorrect theories of law without objection.

i all

Even if defendant's conviction were not constitution—

ally tainted--which it most certainly is--his capital sentence

cannot stand since the trial court's instruction to the jury

invited it to impose the death penalty even if it found that

defendant neither fired the fatal shot nor intended the

fatal result. The instruction on mitigating circumstances

was also constitutionally inadequate. Moreover, the Georgia

capital punishment statute itself is unconstitutional, since

it provides a harsher penalty--execution--for the killing of

a policeman than for the killing of an ordinary citizen;

our Constitution does not tolerate a class or caste system

under which the livesof certain special citizens are deemed

to be more valuable than the lives of other ordinary citizens.

Finally, the facts of this case--even taken in the light

most favorable to the State, which is not the standard for

reviewing capital sentences--do not make out the kind of

extraordinarily heinous murder warranting the most extreme

penalty. The murder in this case was less heinous than the

one at issue in Godfrey, and this defendant's role in the

murder--even assuming the accuracy of the disputed “confession”

to his cellmate--was no more heinous than Godfrey's role in

that murder. Petitioner's co-defendant received a life sentence for his far

more substantial participation in the same events. Thus, the

roulette wheel of injustice--a roulette wheel unfairly

skewed against petitioner in this case--has landed him on

death row, while granting his co-defendant the right to

live.

In sum, therefore, it must be emphasized that this

defendant vigorously asserts his innocence of the crime for

which he has been sentenced to die. The trial judge agrees

that the evidence--including that presented at the trial and

at both sentencing proceedings--does not “foreclose all

doubts respecting the defendant's guilt.* Significant

Constitutional issues are presented by this petition as

well--issues going to the validity of the conviction and

sentence. Our nation prides itself on never executing

innocent persons, and on being “particularly sensitive

-}-

to insure that every safeguard is observed" when life is

at stake. Here we have a defendant whose vigorous assertion

of innocence is supported by the record and by the trial

judge's acknowledgement that there are lingering doubts

about his guilt. Mere we have a defendant whose safeguards

were massively violated by the almost casual manner in which

his defense and trials were conducted. He has exhausted all

review--both direct and collateral--in the State court system.

If this defendant is allowed to be killed without review by

this Court, these boasts will become hollow mockeries.

B. facts

Petitioner Son H. Fleming is a 43-year-old semi-literate

black male who has been tried and sentenced to death for his

alleged role in the murder of James Giddens, the white police

chief of Ray City, Georgia. Fleming has spent all of his

life in rural southwestern Georgia, where he worked as a

common laborer. Prior to the events of this case, his

criminal record was limited to convictions for misdemeanors

and other minor charges.

On the night of February 11, 1976, two black men robbed

a grocery store near Adel, Cook County, Georgia. Shortly

after the robbery, Chief Giddens spotted a car that aroused

his suspicions. He followed the car, radioed that he was

stopping it for investigation, and was never heard from agair

Giddens’ empty patrol car was found by the side of the road

a few minutes later.

Two hours later the suspect car was spotted again,

travelling at a moderate rate of speed a few miles from

Ray City. Two policemen stopped the car, and ordered the

three occupants out. One of them was the petitioner, who

was driving the car. The other two were the petitioner's

nephew, Larry Fleming, and a friend of the nephew, Henry

Willis, both of whom were later identified as the men who

had committed the robbery. The policemen asked where Giddens

was, and the three replied they didn't know. The policemen

then searched the car, found a bag of money and two handguns,

and arrested the three men. Giddens' body was found the

next day.

In January of 1977, Son Fleming was tried for his role

in Giddens’ death. The only evidence linking Fleming with

the Giddens killing was the inconsistent testimony of two

men who claimed to have been taken into Fleming's confidence.

One was Sheriff Ray Alderman, who had known Fleming for

30 years. Alderman testified that he had talked with

Fleming, at Fleming's request, several days after his arrest.

Fleming allegedly told Alderman that his two passengers

“had Overpowered Giddens after the police chief had ordered

their car to the side of the road. Fleming had pleaded with

the two to spare Giddens' life, but to no avail. The other

man testifying to an alleged confession from Fleming was

Ira Bass, a white male serving concurrent sentences for child

molestation. Bass, who had never met Fleming prior to their

incarceration in the Cook County jail, claimed that Fleming

sought him out within hours of his incarceration; that Bass

then offered to help the prosecution; and that Fleming

eventually confessed, among other details, that he had fired

the first (and non-fatal) shot at Giddens. Bass's testimony

relating Fleming's alleged confession was the only evidence

to show that Son Fleming actively participated in the shooting

of Giddens. Without Bass's testimony, the evidence supports

petitioner's contention that he is totally innocent. Without

the uncorroborated and inherently suspect hearsay testimony

of the cellmate-agent, there is no evidence that petitioner

participated in the original robbery of the store in Adel,

Georgia. Two men--Henry Willis and Larry Fleming--went into

the store brandishing the .22 caliber pistol that was later

used in the killing. Without the cellmate-agent's testimony,

the only evidence is that petitioner was in the car when it

was stopped by Officer Giddens; that he pleaded with the

others not to kill Giddens; that Giddens ran from the car

and was wounded first at a distance of 40-50 feet by a

shot from his own gun; and that Giddens was then killed at

Close range by Willis who followed Gidden into the pond.

The gun used belonged to Willis and had been brandished by

him earlier that night. Willis' clothes were found in

the trunk of the car. They were wet. Petitioner's clothes

were dry. Under these facts, petitioner is simply not guilty

of the crime of murder, for which he stands convic ed and for

which he was sentenced to die.

The jury found Son Fleming guilty of the murder of James

Giddens. At the subsequent sentencing hearing the jury found

that the government had proved two aggravating circumstances--

that the victim was a police officer in the performance of his

duties, and that the death occurred in the course of a capital

felony (kidnapping with bodily injury)--and recommended the

death penalty. That sentence was overturned by the Georgia

Supreme Court because the trial judge failed properly to instruct the

durors that they should disregard portions of the prosecutor's

closing arguments and that they could sentence petitioner

to life imprisonment even if they found the existence of an

aggravating circumstance.

At the second trial held to re-sentence Son Fleming, much

of the same evidence was presented to the new jury. Ira Bass,

however, was not available to testify. He had been released

on probation within days after his testimony at Fleming's

first trial, on the recommendation of both Fleming's prosecutor

and presiding judge. The Georgia police were unable to locate

him to testify at the new sentencing hearing, and his present

whereabouts are unknown. The transcript of Bass's testimony

from the first trial was read to the jury at the second.

The same aggravating circumstances were charged, and Son

Fleming was again sentenced to death.

Additional facts are set out where appropriate in the

body of this petition.

-10-

HOW FEDERAL QUESTIONS WERE RAISED AND DECIDED BELOW

ZI., 222. The arguments that petitioner's death sentence

II.

IV.

vi.

was excessive (the Lockett issue) or disproportionate

to the penalty imposed in similar or less serious

cases (the Godfrey issue) were rejected by the

Supreme Court of Georgia following the second sen-

tencing trial. Fleming v. State, 243 Ga. 120, 123

(1979). The arguments were then raised in petitioner's

application for habeas corpus, but rejected by the

Court. Fieming v. Austin, unpublished opinion from

the Superior Court of Tattnall County, pages 8-9,

(1980).

At the second sentencing trial, petitioner's counsel

objected, once the jury had retired to begin their

deliberations, to the emphasis on aggravating circum-

stances created by the judge's choice of language and

the use of the court-supplied forms for reporting

aggravating circumstances. No corrective instructions

were issued. (Tr. 2, pages |

492-493.) The issue was also raised on appeal to the

Supreme Court of Georgia following the second sentencing

hearing and again in the petition for habeas corpus

to the Superior Court of Tattnall County. It was

rejected by both courts. 243 Ga. 120, 122. Tattnall

County opinion, pages 9-10 (1980).

The failv.* to provide petitioner with counsel for his

committal hearing was raised as soon as new counsel

replaced the original court-appointed counsel in the

petition for a writ of habeas corpus. It was denied

in the court's order. Tattnall County opinion, page

28-29.

The claim that the use of Ira Bass's testimony

was constitutionally improper because the jury was

not informed of the arrangements made to secure the

witness's testimony was raised in petitioner's request

for habeas corpus, and dismissed by the Court's order.

Tattnall County opinion, page 25. The argument that

any use of the Bass testimony was a violation of

petitioner's Sixth Amendment rights to counsel was not

raised below. Direct appeals and the application

for a writ of habeas corpus both occurred before the

United States: Supreme Court handed down its decision

in Henry v. United States, which is controlling on

the use of government informants in prison.

Objections to the prosecutor's and judge's references

to petitioner's post-arrest silence were raised on

petition for habeas corpus; the conduct of the judge

was addressed in the order denying the petition,

Tattnall County opinion, page 19.

& -li-

REASONS FOR GRANTING THE WRIT

I. This Case Presents a Novel and Important Eighth Amendment

Issue: Does the execution of a man not proven to have

either actually participated in the killing or to have

intended the death of the victim violate the prohibition

against cruel and unusual punishment found in the Eighth

and Fourteenth Amendments to the United States Constitution?

In Lockett v. Ohio, 438 U.S. 586 (1978), the plurality

opinion of this Court expressly reserved the following question:

whether, "the death penalty is constitutionally disproportionate

for one who has not been proven to have taken life, to have

attempted to take life, or to have intended to take life."

Id. at 609 n. 16. The facts of this case place that issue

squarely before the Court. The issue is not only of crucial

importance to petitioner, but may well mean the difference

between life and death for many other defendants, for as

Justice White noted in his separate opinion in Lockett,

", . .approximately half of the States have not legislatively

foreclosed the possibility of imposing the death penalty upon

those who do not intend to cause death.” Id. at 625.

A. Petitioner was convicted of murder and sentenced

to death without a jury finding that he actually

participated in the killing or intended the death

of the victim.

The trial court in this case instructed the jury that

it could convict the defendant of intentional murder on the

basis of accessorial liability growing out of a conspiracy

theory. He instructed the jury as follows: "Where a

conspiracy is shown, the act of one becomes the act of all,

insofar as the furtherance of the conspiracy is concerned,

and each is as fully responsible for the act of the other in

carrying out the common purpose as if he, himself, had

committed the act.” (Tr. 1 at 5ll). After the jury

had begun their deliberations, they asked the judge to

explain again the law as to conspiracy. Tr.} at516. The

judge complied by repeating the charges he had previously

given as to aiding and abetting and conspiracy. (Tr.

1 at 516.) The prosecutor also repeatedly emphasized

that "what one did, the other is guilty of" in both his

opening and closing arguments to the jury in the guilt

phase of the first trial. (Args. of "Counsel", 14, 28, 34.)

It is equally clear that the sentencing jury need not

have found that petitioner himself killed Giddens to sentence

him to death. The first statutory aggravating circumstance

found by the jury related only to the identity of the victim,

the fact that he was a police officer. The second statutory

aggravating circumstance was that the murder was committed

while the petitioner was "engaged in the commission of

another capital felony,” the kidnapping of and bodily injury

to Giddens. Ga. Code Ann. 27-2534.1(b) 2, 8. Since

the jury was never instructed as to what constituted "bodily

injury", they could quite easily have assumed that the

shooting done by Larry Fleming and Willis constituted the

bodily harm, This is particularly possible because the prosecutor

once again argued, in both his opening and closing statements,

that "The act of one is the act of all." (Tr. 2 at 44, 425)-/

Moreover, the bulk of the state's evidence demonstrated that

petitioner did not in fact participate in the actual killing

of James Giddens.—/

In light of the trial court's instructions, the

arguments of the prosecutor, and the evidence presented,

it must be presumed that petitioner has been convicted of

murder and sentenced to death even though he himself did not

kill Giddens and neither jury believed that he did. Neither

jury was required to find that petitioner himself committed

#7 The same of course can be said for the verdict of the

first sentencing jury, as they found the same two aggravating

circumstances, were not charged as to the definition of

"bodily harm", and heard the prosecutor argue that ~

what one did they all did” (Args. of Counsel at 71.)

**/ §=See supra at p. 8, 9.

-13-

the killing, and neither jury did so find. Since the

jury's verdicts do not reveal whether or not they believed

that petitioner killed or intended death, the constitution-

ality of petitioner's sentence must be reviewed on the

assumption that they did not. Bachellar v. Maryland, 397

U.S. 564, 569-571 (1970) oS this principle applies with special

force when someone has been sentenced to die, for "...the

qualitative difference between death and other penalties calls

for a greater degree of reliability when the death sentence

is imposed." Lockett v. Ohio, 438 U.S. 586, 604 (1978).

B. It is a violation of the Eighth Amendment's ban

against cruel and unusual punishment to execute

someone not proven to have actually killed the

the victim nor intended his death.

As noted above, this Court in Lockett explicitly

reserved the question of whether death is a disproportionate

punishment for one not proven to have actually killed or

intended death. However, the Court's opinions, both prior

and subsequent to Lockett, have strongly implied that the

penalty of death would be unconstitutionally disproportionate

for one who has not himself killed or intended to kill. In

Gregg v. Georgia,428 U.S. 153 (1976), the Court stated that

", . « when a life has been taken deliberately by the offender,

we cannot say that the punishment is invariably disproportionate

to the crime.” Id. at 187 (footnote omitted) (emphasis

added). In Coker v. Georgia, 433 U.S. 584 (1977),the Court

held that the death penalty ". . .is an excessive penalty

for the rapist who, as such, does not take human life" Id.

at 598 (emphasis added). In Lockett itself, the Court held that

*/ A deeply rooted principle of law ". . .requires a

verdict to be set aside in cases where the verdict is

supportable on one ground, but not on another, and it is

ig ae to tell which ground the jury selected." Yates

v. U.S. 354 U.S. 298, 312 (1957). See Sandstrom v. Montana,

442 U.S. 510, 526 (1979); Street v. New York, 394 U.S.

585-87 (1969); New York Times v. Sullivan, 376 U.S. 254, 284

(1964); Terminiello v. Chicago, 337 U.S. 1, 5 (1949); Cramer

v. U.S.,325 U.S. 1, 36 n. 45 (1945); Williams v. State of

North Carolina, 317 U.S. 287, 292 (1942); Stromberg v.

California, 382 U.S. 359, 368 (1931).

-14-

the sentencing authority cannot be precluded from considering

any relevant mitigating factor, and specifically identified

"the absence of direct proof that the defendant intended to

cause the death of the victim” and "the defendant's compara-

tively minor role in the offense" as factors the unconstitu-

tional sentencing procedure had excluded from consideration.

Lockett v. Ohio, supra 438 U.S. at 608. Finally, in Green v.

Georgia, 442 U.S. 95 (1979), the Court vacated a death

sentence because evidence that the petitioner himself had

not participated in the murder had been excluded as hearsay.

The Court termed this evidence ". . .highly relevant to a

critical issue in the punishment phase of the trial. . .

Id. at 97 (emphasis added). See also Lockett v. Ohio, supra

438 U.S. at 613-616 (opinion of Blackmun, J.); id. at 619-620

(opinion of Marshall, J.); id. at 624-628 (opinion of White, J.}

The decision of the Supreme Court of Georgia to let

petitioner's death sentence stand without proof that he

either actually killed or intended the death of the victim

is in direct conflict with the implications of these decisions.

If death is an excessive punishment for a rapist, who commits

the "ultimate violation of self" short of homicide, Coker v.

Georgia, supra, 433 U.S. at 597, it is even more excessive

for one who has been sentenced to die under a theory of

vicarious liability.

II. The judge's charge to the sentencing jury so emphasized

the statutory aggravating circumstances sought by the

State and said so little about the mitigating circum-

stances presented by the defendant that the jury was

effectively precluded from giving full consideration

to the relevant mitigating factors, in violation of

the principle of Lockett v. Ohio.

In Lockett v. Ohio, supra, 438 U.S. at 604, this

Court quoted from Woodson v. North Carolina, 428 U.S. 280,

304 (1976), saying “in capital cases the fundamental respect

=iS«

for humanity underlying the Eighth Amendment. . .requires

consideration of the character and record of the individual

offender and the circumstances of the particular offense as

a constitutionally indispensable part of the process of inflic-

ting the penalty of death." In Lockett itself, the Court held

that "the Eighth and Fourteenth Amendments require that the

sentencer, in all but the rarest kind of capital cases, not

be precluded from considering as a mitigating factor, any

aspect of a defendant's character or record and any of the

circumstances of the offense that the defendant proffers as a

basis for a sentence less than death." 438 U.S. at 604

_ (footnotes omitted).

The judges’ instructions to the sentencing jury (Appendix H) effec-

tively precluded this constitutionally required consideration

of mitigating circumstances. The judge never mentioned the

specific mitigating circumstances urged by the defense,_’

and in fact only spent two sentences discussing mitigating

circumstances at all. One sentence gave a general definition

of “mitigating circumstances" (Tr. 2 at 484), and the other

charged the jury ". ..[to] consider evidence as to the miti-

gating circumstances which the Defendant contends exist in

this case." (Tr. 2 at 486) .—/

In contrast, the judge gave a detailed recital of the

statutory aggravating circumstances sought by the State (Tr. 2 at

a/ The specific mitigating circumstances proffered by the

defense were petitioner's lack of involvement in the actual

killing, his low intelligence, and his exemplary conduct in

jail. (Tr. 2 at 468-70, 477, 479.)

we / The judge mentioned the words "mitigating circumstances"

In two other places, one when stating that "The law provides

that the Judge shall instruct the jury concerning mitigating

or aggravating circumstances. . ." (Tr. 2 at 484), and

the other in connection with another part of the charge concerning the

jury's consideration of statements made by a defendant.

(Tr. 2 at 481).

y “=iée

485). He also provided the jury with forms containing the

wording of the suggested statutory aggravating circumstances

and gave detailed instructions upon the use of the forms.

(Tr. 2 at 485, 487-491).-’ He finally stated to the jury

"Now, you have two aggravating circumstances. You could find

one or two or both, but which ever one you find or if you

find both you have to write it in here the ones you find.”

(Tr. 2 at 490) (emphasis added). SUCh a lopsided charge in effect

tells the jury that the judge gives short shrift to the proffered miti-

gating circumstances and thus leads to the practical elimination of this "constitu-

tionally indispensable part of the process of inflicting the

penalty of death," Woodson v. North Carolina, supra, 428 U.S.

at 304.

Georgia law specifically states that "the

judge . .. 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 be

supported by the evidence. . ." Ga. Code Ann. §27-2534.1(b) .—-/

(emphasis supplied). This Court approved the Georgia statute

in Gregg v. Georgia, 428 U.S. 153 (1976) in part based upon

an understanding that "“th[is] statute permitted the jury ‘to

consider any aggravating or mitigating circumstances.'"

Lockett v. Ohio, supra, 438 U.S. at 606. For the judge to

fail to charge the jury as to any of the specific mitigating

circumstances presented by petitioner not only contravenes

the statute, but makes a mockery ef the expectations of this

Court that were voiced in Gregg and Lockett.

ad Georgia law requires that "the statutory instructions

As determined by the judge to be warranted by the evidence

shall be given in charge and in writing to the jury for its

deliberation.” Ga. Code Ann. §27-2534.1(c).

ee} Despite this plain mandate of the statute, the Georgia

“Supreme Court has ruled that the trial court need not

charge the jury as to the specific mitigating circumstances

proffered by the defendant. Spivey v. State, 241 Ga. 477,

246 S.E. 2d 288, 291 (1978), cert. den. oD (1978). ‘The rationale for

this ruling was that *. . .Georgia law nowhere defines mitigating

circumstances. . . The conclusion is inescapable that the

legislature meant to empower the jury to consider as

mitigating anything they found to be mitigating, without

limitation or definition." Id. at 290-291. This reasoning

would seem to lead, however, to the further conclusion

that the trial court is required to instruct the jury on

all the mitigating circumstances argued by the defendant,

Father than not required to instruct them on any.

-j}-

III. Petitioner has been sentenced to death under procedures

that were applied arbitrarily and capriciously, and for

a crime that is not distinguishable on a principled

basis from crimes that are not punished by death, in

violation of Godfrey v. Georgia.

In Godfrey v. Georgia, 100 S.Ct. 1759 (1980), this

Court stated that it "is of vital importance to the defendant

and to the community that any decision to impose the death

sentence be, and appear to be, based on reason rather than

caprice and emotion." Id. at 1767, quoting from Gardner v.

Florida, 430 U.S. 349, 358 (1977). Two corollaries of this

principle were soatticeed te Godfrey. The first is that a

State “has a constitutional responsibility to tailor and

apply its law in a manner that avoids the arbitrary and

capricious infliction of the death penalty." Godfrey v.

Georgia, supra, 100 S.Ct. at 1764. The second is that "“[a)

capital sentencing scheme must, in short, provide a ‘meaningful

basis for distinguishing the few cases in which [the penalty]

is imposed from the many cases in which it isnot.'" Id.,

quoting from Gregg v. Georgia, 428 U.S. 153, 188 (1976).

Because these constitutional mandates have been violated in

petitioner's case, this Court must vacate petitioner's sentence

of death.

A. Petitioner's Death Sentence is the result of an

arbitrary and capricious application of Georgia's

capital sentencing procedures.

In Godfrey v. Georgia, supra, this Court said that a

State ". . .must channel the sentencer's discretion by ‘clear

and objective standards' that provide ‘specific and detailed

guidance' and that 'make rationally reviewable the process

for imposing a sentence of death.'" Id. at 1764-65 (footnotes

omitted). In striking down the overly broad application of

one of Georgia's aggravating circumstances to Godfrey, the

Court stated that "(t]he other statutory aggravating circum-

stances upon which a death sentence may be based. . .are

considerably more specific or objectively measurable than

-18-

[the aggravating circumstance at issue in Godfrey.) ." Id.

at 1762, n. 2. Even if the other statutory aggravating factors

may appear to be “specific” and "measurable", the random

manner in which Georgia has applied them has

sesulted in the totally arbitrary infliction of the death

penalty upon the petitioner, as is demonstrated by comparing

petitioner's case with those of his co-indictees--as well

as with the facts in the Godfrey case.

In this case, three defendants, petitioner, Henry

Willis, and Larry Fleming, were separately tried for and

convicted of the murder of James Giddens. The jury in

Larry Fleming's case was charged as to three aggravating

circumstances. The first was that the victim was a police

efficer, the second was that the murder was committed to

avoid lawful arrest, and the third was that the crime was

“outrageously or wantonly vile. . ." Ga. Code Ann. 27-2534.1(b)

7, 8, and 10. The jury made no finding as to the existence

of any of these aggravating circumstances and sentenced Larry

Fleming to life in prison. Petitioner, on the other hand,

who from all the evidence in the record was far less culpable

than Larry Fleming, was sentenced to die by another jury

for committing--at worst--the same crime. Petitioner's jury

found as an aggravating circumstance that the victim was a

police officer (not found by Larry Fleming's jury although

the victim was the same) and that the murder was committed

in the course of another capital felony, an aggravating

circumstance not even presented to Larry Fleming's jury. Such

procedures and results in the same case are stark evidence

that Georgia has not fulfilled its “constitutional responsi-

bility to tailor and apply its law in a manner that avoids

the arbitrary and capricious infliction of the death penalty. "-/

Godfrey v. Georgia, Supra at 1764.

o7 In the case of the third defendant, Henry Willis, who

was the actual gunman who personally “executed” Giddens,

the jury was charged as to the same three aggravating circum-

stances that were presented in Larry Fleming's case. Willis'

jury found the existence of all three and sentenced Willis

to die. Willis v. State 243 Ga. 185, 253 S.E.2d 70, cert.

den. 100 S.Ct. 178, reh. den. 100 S.ct. 475 (1979).

—

A comparison of the facts of petitioner's case with

those in Godfrey itself “underscores this arbitrariness.

After a telephone argument with his estranged wife, Godfrey

took his shotgun to the trailer where his wife was playing

cards with his mother-in-law and his ll-year-old daughter.

He proceeded to shoot his wife in the head, strike his young

daughter with the gun, and shoot his mother-in-law in the

head. Id. at 1763.

The total arbitrariness of the Georgia capital punishment scheme is

shown by the fact that in Georgia, a murder may be punishable by

death if it ". . .was committed while the offender was engaged

in the commission of another capital felony." Ga. Code

Ann. 27-2534.1(b) (2). The two murders in Godfrey occurred

within such a short period of time of each other that it

seems clear that under Georgia law, one murder could have

served as an aggravating circumstance for the other. See,

e.g. Peek v. State 239 Ga. 422, 238 S.E. 2d 12, cert. den.,

439 U.S. 882 (1978 ) (second murder was aggravating circum-

stance for first murder). If Godfrey had been convicted of

one murder and sentenced to death on two aggravating circum-

stances, instead of being convicted of two murders and sen-

tenced to death on one aggravating circumstance, he might now

be dead. However, the judge apparently did not charge the

jury that this aggravating circumstance could be found, and

in any case, it was not so found. Godfrey, supra at 1764. Surely life

and death should not, and under Furman cannot, hang on such

chance or discretionary use of aggravating factors.

B. Petitioner's death sentence must be vacated because

“there 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 at 1767.

In Gregg v. Georgia, supra, this Court stated that

"...the decision that capital punishment may be the appropriate

sanction in extreme cases is an expression of the community's

belief that certain crimes are themselves so grievous an

affront to humanity that the only adequate response may be

the penalty of death." Id. at 184 (footnote omitted). The

Court emphasized its belief that the “extreme sanction [was]

suitable to the most extreme of crimes,” id. at 187, by

reaffirming in Godfrey that “[a] capital sentencing scheme

must, in short, provide a ‘meaningful basis for distinguishing

the few cases in which [the penalty] is imposed from the many

cases in which it is not.'" Godfrey v. Georgia, supra, 100

S.Ct. at 1764, quoting Gregg v.- Georgia, supra, at 188.

No such meaningful basis exists in this case. There

is nothing in the facts of this case to make it any more

heinous or deserving of the extreme penalty than in the

facts of the approximately 20,000 murders and 100 murders

of policemen that occur in this country every year. Every

killing is a tragedy; every killing of a police officer is

a tragedy. This case did not involve lingering torture,

multiple murder, or other factors which would make it more

monstrous than the vast majority of murders that are not

punished by death. Indeed, the Supreme Court of Georgia

described the crime in this case as "...an uncomplicated

murder of a police officer...°-/

The fact that the victim was a police cfficer cannot, by

itself, constitutionally transform this crime into one

deserving of death. It is a fundamental tenet of the U.S.

Constitution--and of American society in general--that all

people are equal. We eschew castes, classes and statuses.

Punishment may not differ on the basis of the race, gender

or religion of either the perpetrator of the crime or his

victim. Yet the Georgia capital punishment statute carries,

in effect, a different penalty for the murder of a policeman

than for the comparable murder of an ordinary citizen. This

is a return to the discredited days of the vergelt, under

bd Willis v. State, 243 Ga. 185, 253 S.E.2a 70, 71, cert.

en. 100 S.Ct. 178, reh. den. 100 S.Ct. 475 (1979).

-21-

which the lives of different persons were valued differently.

The lives of all people in this country are worth precisely

the same, regardless of status, wealth or occupation. It

cannot constitutionally be a more serious crime--or a crime

punishable by a more serious punishment, especially the

punishment of death--for a defendant to murder a policeman

than to murder an “ordinary” citizen.—/

Moreover, there are no compelling social reasons for

such a distinction. The fact that policemen are engaged

in the risky occupation of protecting the public cannot justify

the distinction; indeed the distinction, if permissible,

would seem to operate in precisely the opposite direction.

The policeman's family--if there is a family--is far better

prepared, both emotionally and financially, to cope with the

death of their breadwinner than would be a comparable family,

not affiliated with the police, whose breadwinner were to be

murdered. Provisions are made for insurance and other

benefits for the survivors of policemen killed in the line

of duty; no such provisions are typically made for non-policemen.—/

If the murder in this case had involved an ordinary

citizen, rather than a police officer, it would clearly come

within the principles of Godfrey. The fact that it involves

a police officer cannot permit a different result. But even

if the killing of a police officer could convert a non-capital

A If a state could punish the murder of a policeman more

rshly than the murder of an ordinary person, could it

establish a series of graded punishments depending on the

occupations, worth, educational status, etc. of the victims?

Surely such a caste system, employed in other countries

and at other periods of history, would be repugnant to

equal protection.

**/ Likewise, the fact that the jury found that petitioner

was engaged in another capital felony at the time of the

murder does not distinguish this case from the vast number

of murders that are not punished by death. The State did

not even bother to present this aggravating circumstance to

the juries that tried the other men indicted for the same

crime. (See Supra at 18 ). Such an apparently random

selection of this factor belies any contention that its

invocation provides a “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,

at 1767.

-22-

crime into a capital crime, the state must justify why

this particular police killing is more deserving of death

than the many police killings that do not result in execution.

This case was, in the words of the Georgia Supreme Court,

"an uncomplicated murder of a police officer..." Willis

v. State 243 Ga. 185, 253 S.E. 2d 70, 71, cert. den. 100 S.Ct.

178, reh. den. 100 S.Ct. 475 (1979). Indeed, the facts of

this very case--where one of the co-defendants in the very

same crime received a sentence of life imprisonment for his

more substantial participation in the identical killing of

the same police officer--vividly illustrate the roulette

wheel nature of Georgia's process of imposing death.

Iv. Petitioner's lack of Counsel at{"iis preliminary committal

hearing violated his Sixth and urteenth Amendment

right to counsel as set forth in prior decisions of this

Court.

The record establishes that petitioner was unrepresented

at his preliminary committal hearing in this capital case,

thus requiring automatic reversal under the governing case

law. An adversarial preliminary hearing is a critical stage

of criminal prosecution. Consequently, the Sixth and Four-

teenth Amendments to the United States Constitution guarantee

the right to counsel to the accused at the hearing. Coleman

v. Alabama, 399 U.S. 1 (1970). The Georgia Supreme Court has

recognized that Georgia's preliminary committal hearing is a

critical stage of the prosecution, at which counsel must be

appointed for an indigent defendant. State v.Hightower , 236

Ga. 58, 222 S.E.2d 333 (1976); State v. Houston, 234 Ga. 793;

2a0 8:38.26 32 44970) <

In Hamilton v. Alabama 368 U.S. 52 (1961), this Court

held that when a capital defendant is denied counsel at a

critical stage in the proceedings against him, his conviction

will be reversed without inquiry as to whether or not prejudice

resulted. Id. at 55. See also White v. Maryland, 373 U.S. 59

(1963). These holdings were reaffirmed in Holloway v. Arkansas,

435 U.S. 475 (1978), where the Court stated ". . .

when a defendant is deprived of the presence and assistance

of his attorney, either throughout the prosecution or during

-23-

a critical stage in, at least, the prosecution of a capital

offense, reversal is automatic. Gideon v. Wainwright, 372

U.S. 335 (1963); Hamilton v. Alabama, 368 U.S. 52 (1961);

White v. Maryland, 373 U.S. 59 (1963)." Id. at 489 (emphasis

added).

Petitioner was arrested on February 12, 1976, and was

detained thereafter without bond. On May 14, 1976, a committal

hearing was conducted against him and against the two other

men who had been indicted for the same crime, Larry Fleming

and Henry Willis. Larry Fleming and Henry

Willis were represented by retained counsel, attorney Millard

Farmer. Petitioner was represented by no one.—/

On August 12, 1976--3 months after the committal hearing-~

attorney Reece Franklin was appointed, but he did not represent

Mr. Fleming, and the record is silent as to why not. On August

24, 1976, attorney Edward Parrish was appointed for the peti-

tioner. Beginning on September 12, 1976, attorney Benjamin

Zeisman began assisting Mr. Parrish at the request of the

petitioner's mother. Thus Mr. Fleming first received counsel

over six months after he was arrested and over three months

after he was forced to stand alone at the committee hearing.

Therefore, under the standards enunciated in Hamilton v. Alabama,

supra, and Holloway v. Arkansas, supra, petitioner's conviction

aa/

must be reversed. —

*7 Exhibit I in the Appendix contains the title page from the

transcript of the committal hearing. Although Millard Farmer

is listed as "Attorney for Defendants", Mr. Farmer has at no

time represented petitioner.

**/ It is apparent that petitioner in fact suffered substantial

harm because he was unrepresented at the hearing. It was at

the committal hearing, and only there, that the District Attorney

allegedly tendered a copy of Mr. Fleming's prior statement to

law enforcement officers about the crime (Tr.1,332)Since petitioner

was not represented by counsel, neither he nor his subsequently

appointed attorney received copies of the statements. Petitioner's

attorneys first learned of the existence of all but one of the

statements during the trial, and had not prior to that time

seen the contents of any of them, including the signed waivers

of rights. (Tr. 1, 313-14, 331, 414). In addition, witnesses

who later testified at petitioner's trial testified at the

committal hearing. Inconsistencies between their statements,

which could have been used to impeach them at trial, were lost

to the defense. Finally, of course, the extent to which an

attorney could have developed and preserved evidence favorable :

to petitioner can never be known.

~24-

V. Petitioner's constitutional rights were violated by the

admission into evidence of incriminating statements

allegedly made by the uncounseled petitioner to his

cellmate-government agent, and by the prosecutor's

failure to disclose the fact that the cellmate's

cooperation and testimony was the result of a deal for

favorable treatment.

Witness Ira Bass was a white male who had been incar-

cerated in the Cook County, Georgia jail in September, 1975

following his arrest and indictment for two counts of child

molestation. (Tr. 2 at 215). On February 9, 1976, he pleaded

guilty and was sentenced to serve two concurrent four year

prison terms, followed by three years probation. (Tr. 2 at

214). On February 13, 1976, Son Fleming was committed to the

same general inmate area where Ira Bass was held. (Tr. 2

at 297). The following morning, February 14, Ira Bass sent

the jail warden a note that he had information on the death of

Chief Giddens (Tr. 2 at 287). His first meeting with jail

officials came that same afternoon (Tr. 2 at 287); the next day,

February 15, he met with the police and district attorney who

were investigating Giddens' death. (Tr. 2 at 315).

Over a period of "several days" (Tr. 2 at 285) Fleming

allegedly provided Bass with a detailed description of the

night of February 11. There were no witnesses to the purported

conversations: Bass testified that Fleming would stop the

conversation whenever another inmate drew near. (Tr. 2 at 287).

Petitioner denies that any of the purported conversations with

Bass ever occurred. There was no corroboration either of the

claim by Bass that the conversations occurred or of the incrimin-

ating content of the purported admissions allegedly made by

petitioner to Bass.

Once Bass met with government authorities on February 14,

the day after petitioner's incarceration, to discuss the infor-

mation he could obtain about Giddens’ death, he acted as a

de facto government agent and informant .—/ This brings his:

4 At trial, the government failed to distinguish between

) information that Bass allegedly secured in the brief

one-day interval between Fleming's incarceration and the

first meeting with prison officials, and 2) information

allegedly obtained during the following two weeks before

Bass was removed from the Cook County jail. Therefore,

all of the Bass testimony suffers from the same constitu-

tional infirmity.

-25-

testimony squarely under the rule established by the Supreme

Court in United States v. Henry, 100 S.Ct. 2183 (1980).

A second constitutional defect created by the introduction

of Ira Bass's testimony at Son Fleming's first trial was the

government's failure to apprise the jury of the arrangements

made with Bass to secure his assistance and testimony. Bass

was asked on the witness stand what promises the government

had made in exchange for his testimony. He responded that

the only promise tendered for his co-operation was that he

would not be sent to the State prison at Reidsville, where

he feared reprisals for testifying against a black inmate.

(Tr. 2 at 289). In fact, Bass was released from custody ou:

probation within days after Fleming's first trial was concluded

(Tr. 2 at 195). The recommendation for parole was made by the

same Georgia district attorney who prosecuted Son Fleming and

called Ira Bass to the witness stand (Tr. 2 at 202). The

release was supported by the judge that presided at Son

Fleming's trial (Tr. 2 at 202).

When factors affecting the credibility of government

witnesses are withheld from the jury, the government violates

the defendant's due process rights secured by the Fourteenth

amendment to the United States Constitution. Napue v.

Illinois, 360 U.S. 264 (1959), and Giglio v. United States,

405 U.S. 150 (1972).

The timing and circumstances of Bass's release--and

subsequent disappearance --establish a clear presumption

that his testimony at Fleming's trial was delivered in the

expectation of favorable treatment by the government. —

Since Georgia could not locate Bass to testify at Fleming's second

(sentencing) trial (Tr. 2 at 217-218)--a convenient and highly suspicious

disappearance--there had been no opportunity for the peti-

tioner to question him regarding the particulars of his

conversations with the government and subsequent anomalous

probation. The defense should not, however, be penalized

for the government's inability to produce its key witness,

“xs

especially in the circumstances of a case like this.’

Footnotes */ and **/ appear on following page.

-25a-

*/ The State of Georgia has argued that the early release

of Bass, serving concurrent sentences for child molestation

following earlier convictions and incarceration for armed

robbery, was a routine probation decision that was uncon-

nected with his testimony at Fleming's first trial. However,

the Record from Fleming's second (sentencing) trial, following

Bass's discharge from custody, demonstrates that Bass's

release was anything but routine. On the witness stand,

the probation officer charged with Bass's supervision

following his release described his first contact with Bass:

A. Well this was an unusual situation. We

received Mr. Bass in our office on February

9. We did not have any prior notice that

he was coming in.

Q. How did he get to your office?

A. He was sent to our office from the Adel

Probation Parole Authorities.

Q. Yeah, but how did he travel?

A. I don't know, sir.

Q. Did he just walk in your office?

A. He appeared in our office--

Q. He was not in the custody of any officer?

A. Bo; She;

Q. But you do know that although it is the ordinary

thing for you to be furnished with a record of

the crimes that he's been committed of and the

sentences that he's served heretofore, you were

not furnished that in this case?

A. We did not receive it immediately, no, sir,

and I--

Q. Have you ever received it?

A. --I don't find it in his file, sir.

*eenevee

Q. Do you remember how long he said he'd been out

of the Cook County jail--when he first went

to your place?

A. No, sir. When he first came in he said that

he had been put on parole in Adel and he had

some paperwork from Adel. It was an unusual

situation. I've never encountered it before

and I called Atlanta to ascertain what the

situation was. I was advised that this was

not a common occurrence but that this sentence

had been remitted to probation rather ‘an

being placed on parole. This does happen from

time to time; however, I had never experienced

it before.

Tr.2 at 207-208.

**/ Furthermore, it should not be necessary for the petitioner

to prove that the government exchanged clear promises with

its witness. In United States v. Butler, 567 F.2d 885

(9th Circuit, 1978), the court remanded for a new trial

in spite of government testimony that no promises of leniency

had been made. The opinion quoted the observation of the

District Court:

[w]e know from experience that the Government,

the Government agents and counsel for the

Government have ways of indicating to defen-

dant's counsel that benefits are likely to

result from cooperation. That can be indicated

without making a bald promise that the charge

is going to be reduced or that the case is

going to be dismissed. Id., at 888.

=26-

Since Bass's testimony was the only evidence introduced

by the government to show that Fleming participated in

the actual killing of Sheriff Giddens, it was obviously

crucial.

Either of the two constitutional infirmities cited

above for Bass's testimony would warrant reversal of

Fleming's guilty verdict. The only appropriate remedy

is a new trial where Bass's testimony is barred altogether

(in the event he is conveniently re-discovered) for its

violation of Fleming's right to counsel, or only admitted

with accompanying evidence of the arrangements the government

made to secure Bass's cooperation.

VI. Petitioner's constitutional rights were violated by the state-

ments of the prosecutor and the trial judge impeaching his

exculpatory testimony by arguing that he had remained

silent at arrest and arraignment.

Both the prosecutor and the trial judge violated the

holding of this Court in Doyle v. Ohio, 426 U.S. 610 (1976).

In discussing petitioner's claim that he did not shoot the

policeman, but that the others did, and that he had tried

to get the others not to kill him, the prosecutor made the

following argument to the jury: "Even when he saw Willie

Jones [the arresting officer] he could have said that. He

didn't." (Args. of Counsel, at 40-41). In addition, the trial judge himse]

at the second sentencing trial, sought to impeach petitioner's

testimony by informing the jury that petitioner had been

silent at the arraignment (where he was unrepresented by

counsel). In questioning petitioner about his claim that

a confession had been beaten out of him, the judge asked the

following rhetorical "question": "Why didn't you tell me

about all this other though at that time when I was talking tc you." (Tr

2 at 380)."That time” referred to the arraignment hearing at

which petitioner was unrepresented by counsel. The prosecutor

followed up on this in his closing argument to the jury:

"They say he beat him [but] did he tell the Judge that?

Did he tell anybody that?. . . He did not." The prosecutor

also argued as follows:

—

aXFa

Well, what is the truth?...Oh, I begged them

not to kill him... When did he make his first

complaint to anyone?...If he was innocent and

didn't actually want to take part in that

murder... [H]e cannot be excused for not

making an outcry when Deputy Sheriff Willie

Jones commanded him to get out of that car

that night. He did not make an outcry,,.

(Emphasis supplied). (Tr. 2 at 425-27)-—

This Court has held that the use of a defendant's

silence at arrest cannot be used to impeach his subsequent

claim of innocence or his subsequent exculpatory explanation

of the events At issue. Doyle, supra. Surely in a capital

case, involving a defendant who was unrepresented during

crucial stages of his case, the statements of the prosecutor

and trial judge violated petitioner's rights. This

important issue should be reviewed by this Court.

CONCLUSION

When this Court upheld the constitutionality of the

death penalty, it imposed a series of sacred trusts and duties

upon itself: to assure that no possibly innocent person is

ever executed; to require "a greater degree of reliability”

than in non-capital cases; to assure that only those most

deserving the extreme penalty are executed; to assure that

no person is executed whose pre-trial and sentencing procedures

have not complied with the highest standards of constitutionality;

to assure that no one is executed who did not personally commit

a crime deserving of that unique and irrevocable penalty. This

case--involving a poor, semi-literate, black man from rural

Georgia--invokes those trust and duties. Son Fleming forcefully

maintains his complete innocence of the killing of Chief Giddens.

The trial judge has formally acknowledged that all doubts

about his guilt have not been foreclosed. His co-defendant,

whose involvement in the crime far exceeded that of petitioner,

was sentenced to imprisonment. The defendant raises the most

The prosecutor also listed other opportunities that

petitioner allegedly had to make his “outcry” of innocence

to others.

=~2§~

fundamental constitutional challenges to the processes by

which he was convicted and sentenced to death as well as to

the substance of those determinations. The proceedings which

resulted in his death sentence were so fundamentally flawed

by the sloppiness of the trial counsel and trial court that

the verdict and sentence do not even contain the degree of

reliability that should suffice for a sentence of imprisonment.

Surely they do not satisfy the "greater degree of reliability"

required in a capital case. Petitioner is entitled to review

by this Court and reversal of his conviction and death

pb submitted,

Qfan M. Dershowitz

20 Elmwood Avenue

Cambridge, MA 02138

(617) 661-1965

sentence.

Exhibit

o 4 w Vg

=39-

APPENDIX

Denial of Motion for Reconsideration by the

Supreme Court of Georgia, dated Nov. 14, 1980.

Denial of Application for a certificate of

probable cause to appeal by the Supreme Court

of Georgia, dated Oct. 21, 1980.

Denial of Petition for a Writ of Habeas Corpus

by the Superior Court of Tattnall County,

Georgia, dated July 1, 1980.

Fleming v. State, 243 Ga. 120 (1979).

Fleming v. State, 241 Ga. 42 (1977).

Ga. Code Ann. 27-2534.1.

Report of the Trial Judge, Second Sentencing

Trial, Dated Oct. 24, 1978.

Trial Judge's Charge to the Jury, Second

Sentencing Trial, Tr. 2 pp. 480-493.

Title page from Transcript of Committal Hearing,

dated May 14, 1976.

oh |

Applic. No. 1333 o EXHIBIT A 0) ;

RECE}y

ED wow

NOY 2 1 1980

SUPREME COURT OF GEORGIA

ATLANTA, November 14, 1980

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

SON H. FLEMING V. SAM AUSTIN, WARDEN

Upon consideration of the Motion for Reconsideration filed

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

SUPREME COURT OF THE STATE OF GEORGIA,

CLERK’s OFFICE, ATLANTA,

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

of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto affixed

the day and year last above written.

Kyl é. Maseford » Deputy Clerk.

weer = - —- -—- —+-- - - —~

( EXHIBIT B

Application “No. 1333

RECEIy

SUPREME COURT OF GEORGIA ED OCT 2 7 1899

vrtanra, October 21, 1980

The Honorable Supreme Court met pursuant te adjournment.

The following order was passed:

SON H. FLEMING V. SAM AUSTIN, WARDEN

Upon consideration of the application for a certificate of

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

be hereby denied . All the Justices concur, except

Hill, J., dissents.

SUPREME COURT OF THE STATE OF GEORGIA,

CLERK'S OFFICE, ATLANTA,

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

of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto affixed

the day and year last above written. ~

Lhe B. Witbams

ee: A EXHIBIT C U

IN THE SUPERIOR COURT OF TATTNALL COUNTY

STATE OF GEORGIA

SON H. FLEMING, :

Petitioner, : CIVIL ACTION NO. 80-41

Vv. : HABEAS CORPUS

SAMUEL W. AUSTIN, * (DEATH PENALTY CASE)

WARDEN, y

Respondent. &

ORDER OF THE COURT

The above-styled habeas corpus petition is the result of

a death sentence which the Petitioner received for the murder

of Ray City Police Chief James Giddens. 4

Petitioner has had

two trials on this charge, the first in the Superior Court of

Lanier County in which a sentence of death was imposed, but was

later reversed by the Supreme Court of Georgia due to a deficiency

in the sentencing instruction during the penalty phase of the ,_

trial. Fleming v. State, 240 Ga. 142, 240 S.E.2d 828 (1977).

Petitioner's trial for resentencing was removed from Lanier

County to Cook County. Petitioner once again received a death

sentence. This sentence was later “pheld by the Supreme Court

of Georgia. Fleming v. State, 243 Ga. 120, 252 S.E.2d 609

(1979), cert. den., U.S. » 62 L.Ed.2d 115 (1979).

The first issue this Court will address is the request

for a continuance which was filed by Petitioner's counsel on

lf A stay of execution accompanied this petition for writ of

habeas corpus, said stay having been granted by this Court

on March 10, 1980.

Filed in Office

this I day of gh 0

Time:

La ut Auten.

Cle

oT A. _— ——

the morning of the hearing set for this matter, March 27, 1980.

At that time this Court denied the request for a continuance.

Petitioner argues that he was not allowed to a a evidence

because le cin not prepared and needed the continuance. For

reasons set forth Petitioner did not show an adequate basis upon

which a continuance should have been granted. This was not the

first time this matter was set for a hearing, as there was an

earlier petition, No. 79-146 which was dismissed without prejudice

by another attorney who then represented the Petitioner. The first

petition was dismissed on March 1, 1980. This Court notes that

the stay granted under petition No. 79-146 was dated December 4,

1979, with the Court at that time setting the matter down for

a hearing on January 25, 1980. The January, 1980 hearing was

continued at Respondent's request due to a schedule conflict.

The Petitioner did not contest the continuance at that time.

The reason the first petition was dismissed was because the

attorney who had represented the Petitioner pro bono accepted

employment outside the State of Georgia, and was not able to

meet the rescheduled hearing date. A new execution date following

the dismissal of the first petition was set by the trial court

for March 14, 1980.

Petitioner's new attorney who is presently representing

him is not a member of the State Bar of Georgia, but proceeds

with this Court's approval following her filing a petition to

proceed pro hac vice. It appears to this Court that this attorney

accepted this case at a time when she was already experiencing

a heavy work load. Nevertheless, approximately two weeks elapsed

from the time that the stay was granted by this Court until the

hearing date. The request made upon this Court on the

morning of March 27, 1980, for a continuance was an unreasonable

request, in that Petitioner's counsel requested a three month

continuance. Contrary to the Petitioner's contentions at the time

this Court denied the request for a continuance the Court,was

fully aware of the Petitioner's right to have a full and fair

| state evidentiary proceeding. Townsend v. Sain, 372 U.S. 293

(1963). This Court finds that the Petitioner was not denied

his right to a full and fair state evidentiary hearing, particularly

based upon the documentary evidence presented to the Court during

that hearing on the issues raised in the petition and amended

petition for habeas corpus. Specifically, this Court finds

that counsel for Petitioner made no offer of proof that any

witnesses whom she may have desired to subpoena would have been

pnable to come to the hearing on March 27, 1980, but would have

been able to come at a later date. There was no showing whatsoever

by Petitioner's counsel that she had contacted any witnesses

and as such, the request for a continuance was unsupported by

any good faith effort, even though ‘local counsel in this matter

had been secured, that being an attorney from Savannah, Georgia.

While Petitioner's counsel is not a member of the State Bar of

Georgia, nor does she reside in the State of Georgia, there was

no showing whatsoever that co-counsel could not have proceeded

with the contacting of any witnesses whom the Petitioner might

have wished to have present at the hearing. More importantly,

this Court specifically finds that based upon the material contained

in the trial transcripts of the proceedings in Lanier and Cook

Counties that additional testimony from witnesses would not have

altered the findings of fact and conclusions of law which this

Court will make later on inthis order.

Next, this Court finds that in the request seeking a three

month continuance the Petitioner had asked this Court in connection

with this request for funds with which to pay certain experts

on the issues of the impact of pretrial media coverage as well as

to explore the possibility that there nee have been some infirmity

in the composition of the grand and petit jury pools. / Petitioner's

2/ This specific issue will be dealt with separately in the later

portion of this order.

attorney made absolutely no showing whatsoever that any infirmity

existed in any of the areas sought to be explored through the

appointment of experts and funds to support ‘anes’ expiet. In-

short, pétitioner sought a continuance not founded on fact, but

upon speculation in hopes that evidence in support of a general

hunch could be supported. This Court concludes that this is not

a sound nor is it a legally sufficient basis for the granting of a

continuance in this case. The fact that the Petitioner is under

a death sentence does not set forth a different constitutional

standard in determining whether a motion for a continuance should

be granted.

This Court further finds that the denial of Petitioner's

request for a continuance was proper, in that the fifty-two

issues raised in the petition and amended petition can be

answered by examining the trial transcripts in both the Superior

Courts of Lanier and Cook Counties and the records and other

documentary evidence which was introduced at the hearing on

March 27, 1980. These documents have convinced this Court that

the issues raised by the Petitioner can be resolved from examining

the contents of these documents, or as a matter of law can be

decided without the necessity of a further evidentiary hearing,

or for that matter,” without having the matter continued. ?/

It is also the finding of this Court that the Petitioner's

attorney in this habeas corpus proceeding had an excellent knowledge

3/ A specific finding on each of the issues contained in the

petition and amended petition will follow the discussion

concerning the denial of the motion for a continuance.

of the issues which were raised in both the petition and amended

petition, this Court basing its finding upon the lengthy discussion

with which said counsel went through each of whe tecabe contained

in the petition and amended petition. As noted earlier, this

Court has found that the issues contained in the petition for

writ of habeas corpus and its amendment can be addressed by

examining the documentary evidence introduced at that hearing.

Consequently, for these reasons this Court finds that its initial

pronouncement to deny the continuance is amply supported by the

findings which the Court now enters concerning the denial of

the motion for a continuance.

This Court has since the hearing on March 27, 1980, had

a sufficient opportunity to examine the voluminous documents

which were introduced at that hearing, documents which include

the trial transcripts of the proceedings held in the Superior

Courts of Lanier and Cook Counties. Based upon that examination,

this Court enters the following Findings of Fact and Conclusions

of Law:

VOLUNTARINESS OF INCRIMINATORY STATEMENTS

MADE BY PETITIONER FOLLOWING HIS ARREST

Petitioner has alleged in his habeas corpus complaint

that he did not make a knowing, intelligent and voluntary waiver

of his right to appointed counsel at the time of his arrest,

and subsequently his later statements to the police were not

made with a knowing and intelligent waiver of his right to have

counsel present before making such incriminatory statements.

Petitioner also argues that he suffers from a serious speech

impediment, and that he was not mentally competent at the time

of his arrest or at the time of his trial. It is the

finding of this Court that at the hearing on March 27, 1980,

Petitioner offered no evidence in support of his contention that

he was "effectively illiterate," or that he was mentally incompetent.

This Court has examined Respondent's Exhibit No. 7 which is the

‘transcript of the first trial which occurred in Lahier County in

January of 1977. From this Court's examination of this exhibit

the Court finds that the trial court's inquiry into the voluntariness

of a statement made by the Petitioner is supported by the evidence

which resulted from a hearing conducted in accordance with the

United States Supreme Court's decision in Jackson v. Denno, 378 U.S.

366 (1964). Specifically, this Court finds that at pages 315-356

and at pages 410-442 in Respondent's Exhibit No. 7, the State

has clearly established the voluntariness of the waiver of

counsel and the ensuing incriminatory statements made by the

Petitioner. The Court further finds that even though the State

was not required at the resentencing procedure in Cook County to

go into the jutentebioces of the statements, the matter having

been determined at the first trial, the trial court nevertheless

directed the state to hold another inquiry into the voluntariness

of the Petitioner's statements. This material was contained in

Respondent's Exhibit No. 2 at pages 230-248. It is therefore

the conclusion of this Court that the evidence presented at

both these hearings supports the trial court's finding of

voluntariness by a preponderance of the evidence. Lego v. Twomey,

404 U.S. 477 (1972); High v. State, 233 Ga. 153 (1974).

This Court further notes that the voluntariness of Petitioner's

statements were not challenged at trial, although counsel for

Petitioner did file a motion to quash those statements. See, Record

at pages 30-32. This Court having found that the voluntariness

of the various statements rendered by the Petitioner is supported

by a prepondernance of the evidence will not at this time relitigate

the voluntariness of these statements, particularly in the absence

of there being a showing of actual prejudice. See, Wainwright

ALLEGED JURY PREJUDICE IN IMPOSING DEATH SENTENCE

This Court finds that the contention that the ‘juries which

imposed the Petitioner's death sentence acted andiile the influence

of passion, prejudice or any other arbitrary factor is without

merit. Specifically, this Court finds that the jurors who tried

the Petitioner in both cases had not formed any preconceived

notions as to the guilt or innocence of the Petitioner. This

Court specifically bases this finding of fact upon its examination

of the voir dire proceedings in both the Superior Courts of

‘Lanier and Cook Counties. Moreover, this Court finds that the

Supreme Court of Georgia in reviewing the imposition of the death

penalty in this case specifically found that the sentence of

death in this case had not been imposed under the influence of

passion, prejudice or afiy other arbitrary factor. Fleming v. State,

“243 Ga. at 123. More specifically, this Court by way of an appendix

to this opinion, which is adopted and made a part of this Court's

Order and Findings of Fact and Conclusions of Law establishes

that an impartial jury was assembled in both the Superior Courts

of Cook and Lanier Counties.

Also without merit is the Petitioner's claim that when he

was retried following the setting aside of his first death

sentence that the same jury which determined his guilt or innocence

should have been the jury which resentenced him, The Supreme Court

of Georgia has settled this question adversely to the Petitioner,

Fleming v. State, 243 Ga. 120 (1979), and consequently, this

Court will not in the absence of any intervening law change its

decision by ruling to the contary. See, Phillips v. Hopper, 237

Ga. 68 (1976).

The Petitioner also contends that the imposition of the

death penalty in his case was unconstitutional because the death

penalty statute in Georgia does not specifically delineate mitigating

circumstances. Petitioner also argues that the death penalty

statute is unconstitutional as it allows prior convictions

to be used for aggravation, and because the aggravating circumstances

are not contained in the indictment, and that the Seath penalty

is applied arbitrarily and capriciously by geographic locations.

Petitioner ‘also argues that the manner in which the death sentence

is actually carried out is unconstitutional,and that the death penalty

has been rejected by contemporary standards of decency and dignity

by society. This Court finds that all of these contentions are

unmeritorious. Specifically, the Supreme Court of Georgia has

said in numerous opinions that it is not required that the specific

mitigating circumstances be singled out by the court when it gives

its sentencing instructions. Collier v. State, 244 Ga. 553, 569

(1979); Potts v. State, 241 Ga. 67 (1978). Mitigating circumstances

should be anything that the jurors so desire to consider as

mitigating circumstances, and to specifically place in a statute

those things which would constitute mitigating circumstances would

more than likely meet with constitutional problems in view of

Green v. Georgia, U.S. , 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979)

and Lockett v. Ohio, 438U.S.586, 98 S.Ct. 2954, 57 L.Ed.2d 973

(1978).

Our Supreme Court has also held that aggravating circumstances

need not be alleged in the indictment. Goodwin v. Hopper, 243 Ga.

193 (1979). Also without merit is the Petitioner's argument that

the death penalty is unconstitutional because it permits considera-~-

tion of prior convictions as aggravating circumstances. This argument

has absolutely no merit to these proceedings since this aggravating

circumstance was not sought by the State, nor was it found by the

jury. This Court further finds that there is no merit to the

contention that the death penalty is administered and applied in

an arbitrary and capricious fashion. Specifically, this Court

finds that no evidence was presented on any of these matters. While

the Petitioner did request a continuance, a matter which has been

addressed earlier, this Court finds that there was no o*fer of

proof made whatsoever to establish that the death penalty is

imposed arbitrarily because of geographic locations. Lastly,

the Petitioner's argument that the death penalty is cruel and

—

unusual ‘punishment or is against the contemporary standards

of decency in the United States was rejected in Gregg v. Georgia,

428 U.S.°153 (1976).

Also without any basis whatsoever is the Petitioner's

allegation that the jury which sentenced him to death did not

believe that the Petitioner would in fact be executed. This

‘amounts to nothing more than speculation on the Petitioner's

part. Perhaps at best, this is wishful thinking, but wishful

thinking is not a basis upon which to allege that there has

been a constitutional deprivation. The Petitioner's earlier

attempts to secure a continuance so that evidence could be

gathered on this matter establishes the weak basis upon which

the motion for a continuance was requested, since the Petitioner

obviously sought to use this continuance as a expedition to

see if evidence could be supported to back up this assertion.

There was no offer of proof, nor has there been any showing

by the Petitioner that his theory has any basis in this case,

or that any continuance would establish evidence in support

of this contention. Neither has Petitioner established that this

theory has been recognized by the courts.

Also without merit is the allegation that the trial judge

failed to adequately charge the existence and consideration of

mitigating circumstances as against the aggravating circumstances

which the State needed to prove beyond a reasonable doubt. This

specific contention was the basis upon which the Supreme Court |

of Georgia first set aside Petitioner's death sentence in 1977.

Fleming v. State, 240 Ga. at p. 146. In reviewing the retrial

‘for sentencing which again imposed the death sentence,the Supreme

Court of Georgia found the trial judge had properly complied with

its earlier holding in Petitioner's first trial, as well as finding

that the trial court had specifically addressed the issue as to

mitigation. Hawes v, State, 239 Ga. 630 (1977).

This Court also finds that there is no merit so the

allegation that the trial judge improperly filled out his

report or that the report which is to be filed after a death

sentence is imposed is unconstitutionally inadequate. Once

again, no evidence was presented, nor did the Petitioner

point out where the report was deficient. Certainly, a

continuance was not needed to point out any alleged deficiencies

or unconstitutional aspect of the trial judge's report.

This Court further finds that there is no merit in

the contention that the Georgia Death Penalty Statute denies

one the right of effective assistance of counsel since the

statute does not provide an indigent with sufficient resources

to develop a defense. Once. again, no evidence was presented,

nor was a continuance needed to make this contention develop

in a different manner. This matter is resolved as a question

of law, and a matter which is resolved adversely to the

Petitioner by this Court, See Gregg v. United States, supra.

WITHERSPOON CONTENTIONS

Petitioner contends that during the jury esiéetion process

in both tfials potential jurors were improperly struck for

cause even though they were “unalterably opposed" to the death

penalty, and would not impose it regardless of the evidence

presented during the trial. In Witherspoon v. Illinois, 391

U.S. 510 (1968), the Supreme Court of the United States held

that potential jurors who expressed a view which renders them

unalterably opposed to the death penalty regardless of the

evidence presented is a proper basis for striking those

potential jurors for cause. See also, Lockett v. Ohio, supra.

In Witherspoon, supra, the Supreme Court of the United States

held that merely because one had a religious scruple against

the death penalty would not be a basis for striking him, but

if that individual would not vote to uphold the death penalty

regardless of the evidence presented because of his views

on the death penalty, then that individual could properly be

stricken, because the individual in that case would not be

considering a punishment in terms of the evidence presented.

That is, the individual had already prejudged a sentence

regardless of the evidence presented in the case. An examination

of Respondent's Exhibits 2 and 7 fails to establish that any

potential jurors were improperly excused under the Witherspoon

standard. Finney v. State, 242 Ga. 580 (1978); Douthit v. State,

239 Ga. 8 (1977); Corn v. Hopper, 244 Ga. 28 (1979). In the

Cook County trial in 1977, ten potential jurors were challenged

for cause and excused because they would vote against the

imposition of the death penalty regardless of the evidence.

These potential jurors were Sharon T. Flythe (T. 5-6) (all

references refer to Respondent's Exhibit No. 7); Joe Holmes

(T. 608); Ms. Lucious Hill (T. 10-11); Robert Pitts (T. 17-18);

Johnnie Mae Jenkins (T. 18-19); Mary Suggs (T. 19-20); Theodis

Williams (T. 20); Charles Mae McCormick (T. 28); and, Alva Head

(T. 35-36).

elie

In the original trial in 1977, in Lanier County, the following

individuals were challenged for cause in accordange with the

guidelines set down in Witherspoon, supra: Sylvia 0. Quinn (T. 9)3

Ms. Foster (T. 10); Louvenia Williams (T. 10-11); John H. Sanders

(T. 61); Nell Foster (T. 61); Deloris Woodward (T. 62); and, an

unnamed juror (T. 108). Petitioner's allegation concerning

Witherspoon violations is totally unsupported by the evidence

before this Court.

JURY COMPOSITION

Petitioner attacks not only the composition of the grand

and traverse juries, but the method by which jurors were picked

for jury service. As noted in an earlier discussion of this

order, Petitioner had requested a continuance so that research

could be done into determining whether the manner in which the

juries were selected contained any constitutional deficiencies.

As noted earlier, this Court found that without any offer of

proof, or that other evidence existed which would tend to

indicated that this claim could be substantiated, a continuance

was not in order. This Court further finds that the Petitioner's

contention that young people, specifically that individuals

eighteen through thirty were left off both the grand and traverse

jury lists fails to state a claim, since this is not a recognized

class for the purposes of jury composition. Hudson v. State,

240 Ga. 70 (1977). Petitioner also challenges the provision of

Georgia law which allows women to apply for a special exemption

if they have children under the age of fourteen. See, Ga. Code

Ann. § 50-112(b). Petitioner says this violates Duren v. Missouri,

439 U.S. 357 (1979). In Willis v. State, 243 Ga. 185, 188(3)

(1979), our Supreme Court held: "We hold that the Georgia statute

authorizing the trial judge to excuse the juror who is a housewife

~t™

with children fourteen years of age or under does not violate

the Sixth and Fourteenth Amendments to the United.states

Constitution.” Id.

_ pie

Petitioner in arguing his jury composition allegations

says his attorney was ineffective because he did not challenge

the composition of the grand jury. Under Georgia law a challenge

to the grand jury composition must be made prior to indictment,

and any later challenge would not have been timely. Young v.

State, 239 Ga. 295 (1974); Goodwin v. Hopper, 243 Ga. 193

(1979). Additionally, there must be a showing of actual

prejudice resulting from the jury's not having been challenged,

as well as cause for there not being a challenge. Absent such

a showing counsel cannot be said to have been ineffective.

Francis v. Henderson, 425 U.S. 536 (1976); Steward v. Ricketts,

451 F.Supp. 911 (M.D. Ga. 1978); Spencer v. Hopper, 243 Ga. 532

(1979).

The classes of people which the Petitioner contends were

left out in both the grand and petit juries, such as poor people

and teachers in addition to those between the ages of eighteen

and thirty does not establish a recognizable class of individuals

for the purposes of challenging jury composition. Cobb v. State,

244 Ga. 344 (1979).

Petitioner has also made a conclusory allegation that

the prosecutor had a role in picking the grand jury which indicted

the Petitioner. Here there has been no evidence to support

this allegation. Also without merit is the contention that the

district attorney exercised his peremptory challenges in striking

blacks and women. It is well recognized that an accused has no

right to a jury composed of a particular race, nor is it improper

for a district attorney to use peremptory challenges to strike

on the basis of race or sex. Swain v. Alabama, 380 U.S. 202 (1965);

Jordan v. State, 235 Ga. 732 (1975).

-13=

DISTRICT ATTORNEY'S CLOSING

ARGUMENTS AND CONDUCT DURING

BOTH TRIALS IN GENERAL.

Petitioner makes several allegations concerning the alleged

prejudicial arguments made by the district attorney in both the

Lanier and Cook Counties’ trials. These contentions are unfounded.

This Court finds that references to previous brushes with the law

which the Petitioner had were brought out on cross-examination by

the Petitioner's counsel during the examination of State's

witness Terry Coney. See, Respondent's Exhibit No. 2, page 79.

On redirect, questions were asked of witness Coney concerning

the questions brought out on cross-examination, since the

Petitioner's lawyer had opened the door to those questions.

Respondent's Exhibit No. 2 at page 81. Further evidence as

to the Petitioner's character was brought out again in recross~

examination by the Petitidner's lawyer. Responéent's Exhibit

No. 2 at pages 83-84.

During the district attorney's closing arguments references

to witness Coney's testimony on cross-examination by the Petitioner's

lawyer appears on page 421 in Respondent's Exhibit No. 2. Sub

judice, where defense counsel elicits the complained of testimony

on cross-examination he cannot later complain. Lemon v. State,

235 Ga. 74(2) (1975); Lunsford v. State, 145 Ga. App. 446 (1978);

Huff v. State, 144 Ga. App. 764 (1978). Consequently, this

Court may find that the references to prior scrapes with the

law which the Petitioner had were brought out on cross-examination

by the Petitioner's counsel, and not by the State, and as such,

the Petitioner cannot now complain. Again on cross-examination

Petitioner's counsel brought out his characte regarding previous

arrests, and the supposed taking of money from a cab driver.

-14-

Respondent's Exhibit No. 2 at page 348. See, Shepherd v.

State, 239 Ga. 28 (1977). Moreover, the fact that’this was

referenced in oral argument by the State's attorney does not

provide a basis for habeas corpus relief, particularly since

there was no objection. Reid v. State, 137 Ga. App. 495 (1976).

Petitioner's references of the district attorney commenting

upon the injury to the Petitioner's jaw as alleged veiled

references that the Petitioner was on welfare, and supposed comments

on the failure of the Petitioner to call his fellow accused is

unsubstantiated by the trial transcripts. See Smith v. State,

245 Ga. 205, 207(4) 1980.

Petitioner also states that the prosecutor improperly

used as an aggravating ¢ircumstance during his argument

reference to a taxi driver's accusation of robbery by the

Petitioner which did not result in a formal charge. See page

421 of Respondent's Exhibit No. 2. This, again refers to

testimony which was brought out through cross-examination by the

Petitioner's attorney, as is the reference to a sheriff's

statement that the Petitioner had been involved in fighting

and drinking. The same goes for the reference to co-defendant

Willis. A prosecutor is permitted to draw deductions from

the evidence, and these deductions may be illogical, unreasonable

or even absurd. Owens v. State, 120 Ga. 209 (1904). The

prosecutor's inference that the Petitioner had driven the get-away~

car during the robbery which occurred before the murder is a

reasonable inference which can be gleaned from the evidence.

While the district attorney's argument may have been strong,

it was in line with the evidence presented throughout the trial.

It is also important to note that the Supreme Court of

Georgia when it reviewed the Petitioner's second proceeding -

-15-

on sentencing specifically stated, "We find no evidence that

the sentence of death was imposed under the influence of passion,

prejudice, or any other arbitrary factor." Fleming v. State,

243 Ga. Supra at 123. Petitioner further states that in the

closing argument by the district attorney that there are

improper references concerning the fact that the death penalty

is a deterrent to crime when there are no facts to support

it! Petitioner further argues that improper argument occurred

when the district attorney said that a State's witness had

disappeared because he had testified against the Petitioner,

but no evidence to support this fact was introduced at trial.

These allegations are also unmeritorious. At page 444 in

Respondent's Exhibit No. 2, which is the resentencing proceeding

in the Superior Court of Cook County, this Court finds that it

is not improper or unreasonable for a prosecutor to argue that

the death penalty is a deterrent to crime. Furthermore, this

is merely the statement of the prosecutor, which is not evidence,

since the jury was later charged as to what circumstances they

must find beyond a reasonable doubt before they could impose the

death penalty.

Neither does this Court find based upon its examination

of page 442 of Respondent's Exhibit No. 2, that the district

attorney stated that State's witness Ira Bass was not at trial.

The inference that he may have disappeared because he had first

testified is not an unreasonable inference which can be taken

from the evidence. Furthermore, there was no objection to

the district attorney's argument in this regard. This amounts

to a waiver. See Reid v. State, 137 Ga. App- 495 (1976).

Petitioner states that his right to confrontation was

denied because of the prosecutor's references to facts not in

evidence or facts which were contrary to the evidence. As noted

in an earlier discussion, most of the district attorney's argument

was unobjected to and therefore any objections were waived.

-16-

Furthermore, the prosecutor's arguments contained reasonable

inferences that could be drawn from the evidence’in the record.

“ae

The Petitioner also alleges that the use at the second

trial of the prior testimony of witness Bass denied him his

right of confrontation. This matter was addressed by the

Supreme Court of Georgia in headnote 6 concerning the Petitioner's

trial for resentencing. 243 Ga. 120, 123.

P Next, Petitioner argues that the prosecutor during the

resentencing proceeding in Cook County improperly stated that

an aggravating circumstance was the fact that the police chief

left behind a widow and small children. As noted earlier

the Georgia Supreme Court when it reviewed the new trial

for sentencing purposes in Cook County found that the imposition

of the death penalty was not imposed under passion, prejudice

or any other arbitrary factor. Fleming v. State, 243 Ga. supra.

Moreover, a district attorney's argument is not the law, but

merely his version of the evidence, and it was not an unreason-

able inference or deduction that because the victim left behind

a wife and two small children that this would establish the

heartless and senseless killing of the victim by the Petitioner

and his cohorts. See, Respondent's Exhibit No. 2 at pages 419

and 421. References to the wife and the children are reasonable

inferences which can be drawn from the evidence. Furthermore,

at page 420 in Respondent's Exhibit No. 2 the district attorney

specifically said, “You'll not have this one as one of the

statutory aggravating circumstances, but the State is entitled

to show you, to argue to you how violent, how horrible, this

crime was when they may leave a mother helpless and a widow

and leave three children, small children all of them." It

should also be noted that the Petitioner argues that the

@istrict attorney said that the children were made orphans, and

yet there is no reference to this whatsoever in the prosecutor's

argument. This assertion of prejudicial axoisent st the

delineation of an aggravating circumstance not provided for in

the statute is totally unfounded. See Respondent's Exhibit

No. 2 at. p. 485.

-18-

CONDUCT OF TRIAL JUDGE

Petitioner has alleged that during his retrial for

sentencing in Cook County the trial judge acted improperly

when he asked the Petitioner certain questions concerning his

earlier testimony that he had been physically abused by law

enforcement officers. Petitioner says this violated his Fifth

Amendment right to remain silent. Petitioner's contention

is a reference to the United States Supreme Court holding in

Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle the Supreme Court

held that the prosecutor improperly cross-examined the defendants

about their failure to tell a story that they had been framed

when they were arrested. Sub judice, the trial judge at the

resentencing trial on pages 379 through 380 asked the Petitioner

a question or two as to why he had not, several months prior

to arraignment, mentioned that he had been allegedly beaten by

law enforcement officers. This type of questioning is far

different from that which appears in Doyle, since in this

case the question of guilt or innocence of the Petitioner had

already been determined. In Doyle the prosecutor's cross-

examination of the defendants occurred during the guilt or

innocence phase of the trial, and substantially effected their

right to remain silent following their arrest, and their right

to talk with an attorney before they made any divulgences of

the fact that they had allegedly been framed. In Doyle post-

arrest silence was used to impeach, and in this instance the

Court's questions to the Petitioner were not designed to

impeach the Petitioner. See, Hall v. State, 241 Ga. 252 (1978).

This Court finds this contention to be without merit.

-19-

Next, the Petitioner argues that because the trial Judge

after the first trial placed State's witness Ira Bass on probation

that he should have excused himself from presiding over the

second trial which dealt solely with punishment. Petitioner

argues that the judge's action in probating Bass' sentence is

evidence of his bias towards the Petitioner. All of this

has been totally unsubstantiated by the Petitioner. Petitioner

has failed to point to any conduct on the trial judge's part

that would even hint of a bias towards him,

-20-

VOIR DIRE

Petitioner argues that the failure of the trjal judge to

conduct an individual sequestered voir dire, that is where

each potential juror was questioned outside the presence of the

others, violates his constitutional rights. There was an

individual examination of each juror as provided for in Ga.

Code Ann. § 59-705. The matter of whether to have a sequestered

individual voir dire rests within the discretion of the trial

judge, and there is nothing in this case to show the trial

- judge abused his discretion, or that a request for an individual

sequestered voir dire was made. Finney v. State, 242 Ga. 580,

582 (1978).

EVIDENTIARY CONTENTIONS

There is an allegation that the admissibility into evidence

of two pistols, some wet clothing, a paper sack and a cup were

improperly placed into evidence because they were the result

of an unlawful search and seizure. In this case they followed

the execution of a consent form. The testimony concerning ;

the execution of this consent form appears on pages 278 through

280 in Respondent's Exhibit No. 7, which is the transcript of

the first trial. That testimony establishes that Petitioner fully and

readily gave his consent to that search. (T. 280). No objection

was made as to the voluntariness of this procedure, nor was

there any objection to the admissibility of the above-referenced

matters. The absence of any objection at the time the evidence

is admitted bars the right to raise and present such an issue

in a collateral proceeding. Estelle v. Williams, 425 U.S. 501

(1976); St. John v. Estelle, 544 F.2d 894 (Sth Cir. 1977), aff'd,

563 F.2d 168 (1977). Moveover, even if the officers had not

obtained a written consent from the Petitioner, the search would

have been permissible as being incident to an arrest in a motor

vehicle. See, Carroll v. United States, 267 U.S. 132 (1925).

Chambers v. Marooney, 399 U.S. 42 (1970).

Next, it is alleged that the prosecution improperly bolstered

the credibility of one of its own witnesses, that peing witness

Ira Bass. This is alleged to have occurred at the first trial.

Again, fire was no objection to this testimony, and the failure

to make a timely objection as to its admissibility forecloses

habeas review. See, Wainwright v. Sykes, 433 U.S. 72 (1977).

There is also an allegation that the Petitioner was

unable to properly cross-examine and confront certain experts

who testified on behalf of the State in the areas of ballistics

and pathology because he was indigent. For the same reasons as

mentioned in the discussion above this contention is unmeritorious.

See, Spencer v. Hopper, 243 Ga. 532 (1979). See also, Pulliam v.

Balkcom, 245 Ga. 99, 100 (1980).

=22@

INSTRUCTIONAL ISSUES

Petitioner states that his constitutional rights were

violated in his trial for sentencing in Cook County because

of the trial court's charge on credibility in general, as

well as credibility and impeachment of witnesses. This Court

finds that there was no objection to this instruction. Before

a court will grant habeas corpus relief on an unobjected

to instruction, the error must be so egregious so as to rise

to the level of constitutional violation, or be so prejudicial

that it rendered the trial fundamentally unfair.

It is the rare case in which an improper

instruction will justify reversal of a

criminal conviction when no objection has

been made in the trial court. Henderson

v. Kibbee, 431 U.S. 145 (1977).

The sentencing court's charge on credibility

taken as a whole is a correct statement of

the law concerning credibility. See, Braxton

v. State, 240 Ga. 10, 12 (1977).

Petitioner also alleges that this instruction is improper

because the jurors were not instructed on the difference

between felony offenses involving moral turpitude and misdemeanor

offenses, or in summary the instruction did not include sufficient

definitive words. As a general rule, the failure to request

a more complete charge when the charge in itself is adequate

fails to state a causefor relief. Jackson v. State, 239 Ga.

40 (1977). I find the trial court's instruction to be a correct

statement of the law which is not subject to a collateral attack

because of the failure to give an additional definition within

the charge. See, Talbott v. State, 148 Ga. 171, 173 (1978).

-23-

Neither do I find any merit concerning the instruction

on credibility as being in error because it tended to as

Petitioner states, "had the effect of Suakcoctine’ the jury

that it had a positive duty to disregard Petitioner's

testimony in its entirety if it found that he had been

‘impeached.'" This charge is taken from Ga. Code Ann. §

38-1806. It has previously been upheld by the appellate >

courts in our State. Jeffers v. State, 145 Ga. 74, 77(1)

(1916); Henderson v. State, 146 Ga. App. 114, 115(2) (1978).

This particular charge appears on page 483 of Respondent's

Exhibit No. 2. Petitioner also alleges that the trial court

should have given an explanation of the word "impeachment."

For the reasons stated earlier, a failure to request a more

complete instruction or to provide a definition for a particular

word will not serve as a basis to set aside a conviction. Spear

v. State, 230 Ga. 74 (1973). In enn the court's instruction

on credibility when taken as a whole is not so harmful so

as to constitute a denial of the Petitioner's constitutional

rights. See, Jackson v. State, 239 Ga. 44 (1977).

Next is the argument by the Petitioner that at the Cook

County trial the court failed to charge the jury on the elements

of kidnapping with bodily injury in connection with the second

aggravating circumstance, to wit: "The offense of murder was

committed while the defendant was engaged in the commission of

another capital felony, to wit: kidnapping of and bodily injury

to James Edward Gidden, a human being." A review of the record

in the new sentencing trial fails to show that any requests for

a definition of kidnapping with bodily injury were requested, or

that the jurors did not understand the meaning of the words

kidnapping with bodily injury. See, Goodwin v. Hopper, 243 Ga.

193, 196(4) (1979).

DISCOVERY ALLEGATIONS

In various counts of the petition it is alleged that

severe itene of a supposed exculpatory nature were withheld

from Petitioner. Petitioner for example alleges that there

was a desi with the district attorney between witness Ira

Bass and the State concerning agreements which the State

had made with Mr. Bass in return for his testimony. During

the testimony of witness Ira Bass it was brought out by the

State that the only agreement made between the State and

witness Bass in return for his testimonywas that witness Bass

would not have to go back to Georgia State Prison following

his court appearance in this case. See, Respondent's Exhibit

No. 7, at pages 289, 291. During the hearing on March 27, 1980,

Petitioner's attorney argued that after Ira Bass testified his

sentence was reduced to a period of probation. This the

Petitioner's attorney suggests shows that the complete terms

of the agreement for Bass' testimony were not given to the jury

so that they could properly assess this individual's credibility,

and that as such this violates the Supreme Court's holdings in

Giglio v. United States, 405 U.S. 150 (1972). The only assertion

that there is any deal beyond that which appears in the trial

transcripts is a naked assertion from Petitioner's counsel.

Petitioner's counsel could have obtained a certified copy of any

adjusted sentence, if any existed, and filed it as an exhibit

with the Court. Counsel for Petitioner failed to so do, and

in light of the evidence presented in the trial transcripts

this contention is unfounded. In Fleming v. State, 236 Ga. 434

(1976), the Supreme Court of Georgia held that there was no

evidence of any agreement in return for testimony even though

subsequent disposition of charges pending against certain State

witnesses took place after the trial. Sub judice, there is no

evidence of any agreement other than that which appears in the

trial transcript.

Petitioner states that the district attorney failed to

disclose and provide him with copies of the statenénts taken

from a capa a eco mama Initially, there has been no showing

that such statements existed. Furthermore, there is nothing

showing that these statements contain exculpatory material. The

mere fact that there are witness statements in a prosecutor's

file does not mean that they are discoverable unless they

contain exculpatory material. Spain v. State, 243 Ga. 15 (1979);

Chambliss v. State, 149 Ga. App. 659 (1979). The State does

not have to do a defendant's discovery for him. Rini v. State,

236 Ga. 715, 718 (1976).

Petitioner also argues that the State failed to make

available the results of. any paraffin tests which it may have

made of the Petitioner concerning the firing of the murder

weapon. Petitioner further argues that the State did not identify

the name of a woman dispatcher who had earlier been talking

with the victim, as well as not providing a copy of the dispatcher's

log. The mere possibility that favorable evidence might exist

which could affect the jury's verdict does not establish

materiality in the constitutional sense. United States v. Agurs,

427 U.S. 97 (1976). In Moore v. Illinois, 408 U.S. 786, 795

(1972), the Supreme Court held that there is, "(No constitutional

requirement that the prosecution make a complete and detailed

accounting to the defense of all police investigatory work on

a case.” Id. In this ma‘ter there ijs no showing that any paraffin

tests were run, and the fact that there may have been one does

not indicate that exculpatory evidence has been withheld. The

same goes for the contentions surrounding the identity of a

female dispatcher and the fact that the State aid not produce at

trial the complete dispatcher's log. The Petitioner has not made

any showing that any of these matters contain exculpatory

evidence. The burden rests with the Petitioner to show that

-26-

beneficial evidence was withheld denying him a fair trial. Dickey

v. State, 240 Ga. 634 (1978). This he has failed $o carry.

There is also the contention that the district attorney

failed to send or provide a copy of Petitioner's confession to

his attorneys and that this constitutes a suppression of

exculpatory material. There is no constitutional requirement

that in the absence of a request for a statement made by an

accused that the prosecutor turn it over sua sponte, particularly

if it does not contain exculpatory material. Clearly, by the

nature of a confession its substance is incriminatory versus

exculpatory. While Federal Rule 16, Federal Rules of Criminal

Procedure requires a federal prosecutor to turn over any

statements nite by a defendant, such is not the case in state

practice. The record at pages 30 through 31 shows counsel for

Petitioner was aware of the confession. See also, Hearing

Transcript of January, 1977, pages 19 through 20.

=27<

COMMITTAL HEARING

Petitioner argues to this Count that a committal hearing

was conducted without the benefit of counsel to assist the

Petitioner, this being in violation of Coleman v. Alabama, 399

U.S. 1 (1970). In Coleman, supra, the United States Supreme

Court said that failure to provide counsel at a preliminary

hearing unconstitutionally denies a defendant the assistance

of counsel, but also stated that the dai should be remanded

for a determination as to whether the denial of the right of

counsel was harmless or prejudicial error. Id. In this

case, the question as to whether there was a preliminary

hearing is a matter which is not entirely clear from the

ptensedings. At page 314 te Respondent's Exhibit No. 7,

which is the transcript of the first proceeding in the

Superior Court of Lanier County, the district attorney makes

reference to a committal hearing by stating that at that time

he gave a copy of the Petitioner's statements to the Petitioner's

counsel. Appointed attorney Edward Parrish stated that he was

not present at a committal hearing, since his client had not

demanded it and he did not see any need to be there, although he

was in and out of the proceedings at different times. (T. 314,

333). The district attorney says that such a hearing was held

on May 14, 1976 (T. 332). If there was such a hearing then

it was apparently a joint committal hearing involving all three

co-defendants. (T. 332). While Mr. Parrish may have been

present at the committal hearing in May of 1976, as he stated

on page 222 in Respondent's Exhibit No. 7, the record indicates

that he was not appointed until August 24. 1976. (R. 18).

Another attorney by the name of Reece Franklin was appointed

to represent the Petitioner on August 12, 1976. (R. 14).

-28-

PO aaa oro CO a a a eee

The trial judge's report shows that counsel was appointed to

represent the Petitioner in March of 1976 and again in August

of 1976...

The Supreme Court of Georgia in the case of State v. Houston,

234 Ga. -721 (1975), recognized that a preliminary hearing was a

"critical stage" in the prosecutorial process in Georgia similar

to that which was found to exist in the A\abama proceedings

referenced in Coleman v. Alabama, supra. However, in State v.

_Houston, the Supreme Court of Georgia said the fact that counsel

was not present at a preliminary hearing does not equate with

the holding of prejudicial or harmful error, and unless it can

be shown that the lack of counsel at the hearing contributed to

the conviction it will..be deemed to be harmless error. State v.

Hightower, 236 Ga. 58 (1976); Tarpkin v. State, 236 Ga. 67 (1976).

Assuming arguendo that a preliminary hearing was held on May

14, 1976, this Court finds based upon the material contained in

the trial judge's report,that an attorney had been appointed

to represent the Petitioner in March of 1976, and as such it

could be assumed that the attorney was present at the preliminary

hearing. Furthermore, even if the other assumption is made that

there was no counsel present, there has been no showing

whatsoever that the lack of counsel contributed to the

Petitioner's conviction. There has been no showing that at the

preliminary hearing, if one existed, that the Petitioner gave any

statement which was later used against him at trial, or that

any favorable evidence was brought forth. In short, even if

this Court were to find that there was a preliminary hearing

and there was no counsel present, the Petitioner has not shown

that the lack of counsel might have contributed to his conviction

as he has not pointed to any specific matter which occurred

during that preliminary hearing which would have altered the

outcome of his trial.

FUNDS FOR EXPERTS

Petitioner says that it is a violation of his constitutional

rights because the State does not provide him counsel, the

funds to subpoena witnesses and to pay for experts and other

investigators in a habeas corpus proceeding. It is well settled

that habeas corpus is a civil proceeding, and the right to counsel

appointed by the court is not applicable. Moye v. Hopper, 234 Ga.

230 (1975); Abraham v. Wainwright, 407 F.2d 826 (5th Cir. 1969).

The fact that the nature of the penalty in this case involves a

sentence of death by electrocution does not in and of itself

require the appointment of counsel or the State to provide counsel

and costs. See, Graham v. State, 372 S.E.2a 1363 (1979). Neither

in a habeas corpus proceeding is the State under any right to

subpoena those witnesses. Krist v. Caldwell, 230 Ga. 536, 540

(1973). Nor is the State in a habeas corpus proceeding under

any right to provide funds for an investigator to prepare for

litigation in a habeas corpus petition. Bowden v. Zant, 244

Ga. 260, 264 (1979); Spencer v. State, 243 Ga. 532 (1979); Ross

v. Hopper, 240 Ga. 369 (1977).

-30-

MENTAL INCOMPETENCE

Under this count of the amended petition, petitioner states

that prior to trial and resentencing trial he exhibited

cheneatantetten and behavior which would indicate that he was

mentally incompetent, and chat he should have been given a

psychiatric examination. There is no evidence of this in either

the first trial or at the resentencing trial. See, Pulliam v.

Balkcom, 245 Ga. 99(1) (1980). See, Respondent's Exhibit Nos.

2 and 7. The fact that an individual may be illiterate, or be of

‘a low educational level does not equate with the conclusory

allegation that he is mentally incompetent and in need of a

psychiatric examination. There is no evidence whatsoever

to establish that the Petitioner was mentally incompetent at the

time of his trial. Neither is there any evidence that during

the trial he exhibited behavior calling for a psychiatric examination,

See, Drope v. Missouri, 420 U.S. 162 (1975). This Court finds

this contention to be without merit as there is nothing in the

recoraé which would have placed a trial judge on notice that

the Petitioner needed a psychiatric examination, or that he

was mentally incapable of either cooperating with counsel or

unable to understand the nature of the charges against him or

the courtroom proceedings.

=-3i-

MISCELLANEOUS CONTENTIONS

Petitioner states that due process was violated because

the Supreme Court of Georgia did not properly compare his

case with other similar cases. The Fifth Circuit in the case

of Spinkellink v. Wainwright, 578 F.2d 582 (Sth Cir. 1978),

specifically held that it would not be the function of

courts in habeas corpus to review case by case comparisons by

the state's appellate courts. Corn v. Hopper, 244 Ga. 28 (1979).

This allegation is without substance.

Next Petitioner argues that the evidence concerning the

aggravating circumstances was inadequate as a matter of law to

support this finding. This matter was directly ruled on by the

Supreme Court of Georgia in its reconsideration of the Petitioner's

trial for sentencing. Fleming v. State, 243 Ga. supra at 123.

There the court stated, "The verdict is factually substantiated."

Id. Moreover, the Supreme Court of Georgia found that the death

penalty in this case was not excessive or disproportionate to

the penalty imposed in similar cases, when considering both

the crimes and the defendant. Id. Even by applying the standard

of review in Jackson v. Virginia, U.S. , 99 S.Ct. 228 (1979),

this argument is without merit.

The issue as to a denial of the right to a speedy trial

was raised on direct appeal, and may not be renewed again in

habeas corpus. Strozier v. Hopper, 234 Ga. 597, 598 (1975).

Likewise the allegation that the review by the Supreme

Court of Georgia is inadequate in that the Court did not in its review

discuss the mental competency of the Petitioner is without merit.

As noted earlier, mental competency was not an issue in this case,

~32@

and the sufficiency of the review conducted by the Supreme

Court of Georgia is not a matter which is to be second guessed

and reexamined in habeas corpus. Spinkellink v. Wainwright,

i‘

supra; -Corn v. Hopper, supra.

=33-

EFFECTIVENESS OF COUNSEL

The general allegation of ineffective assistance of counsel

contains the following specific contentions that ‘the Petitioner

was deniéd his Sixth Amendment right to effective assistance

of counsel as follows: that because of the age of his attorneys

they were incapacitated; his attorneys failed to investigate;

they were not aware of his confession; they failed to ask for

a mental competency hearing; they failed to move for a change

of venue based on pretrial publicity; they did not seek to

exclude the Petitioner's confession; they did not properly

examine jurors in light of Witherspoon v. Illinois, supra;

they failed to object to certain of the prosecutor's innuendoes

during his closing arguments; the appellate briefs they filed

were inadequate; and, they failed to challenge the grand and

traverse juries.

This Court specifically finds from its reading.of both trial

transcripts, that the performance of the Petitioner's appointed

and retained counsels does not evidence any incapacity because

of their age. The cross-examination and examination of potential

jurors and witnesses shows that these two lawyers vigorously

represented the Petitioner. Their questions on cross-examination

show astuteness, and familiarity with the facts, which belies

the Petitioner's contention that they did not investigate the

charges against him. While the Petitioner's attorneys argued

that they were not made aware of the fact that the State had

a confession, this contention is belied by a motion to suppress

the confession (R. 30-32), and the discussion which occurred

at a motion hearing held in January of 1977, before the beginning

of the first trial.

"“'Now, Judge, there's one other issue that’s

raised in the first paragraph under 4, that I

think might bear mentioning. He indicates that

he signed a confession that was induced

by -- the inference being that it was

coerced. Now of course if such is the.”

_-ease, a Jackson v. Denno hearing would

be in order at the proper time during

_ the trial.

THE COURT: That's right, before they

can introduce any confession we'll

have a hearing SadPahe the presence

’

of the Jury, to determine if its

admissible.

MR. ZEESMAN: We realize that's the

law. Your Honor,'"

See, transcript of January hearing at pages 19-20.

Neither is there any evidence whatsoever that the Petitioner

was mentally incompetent which would have required counsel

to have moved for a psychiatric examination. See, Pulliam v.

Balkcom, 245 Ga. 99 (1980).

Also without merit is the contention that Petitioner's

attorneys were ineffective because they failed to move for a

change of venue based on pretrial publicity. An examination of

the voir dire proceeding of the first trial which was held in

Lanier County, shows that of the sixty-seven potential jurors,

four were excused because they could not dismiss the pretrial

publicity they had experienced, which means that five percent

of the jurors excused were excused because of pretrial publicity;

three were excused because of bias towards the accused or in all

between basic bias and pretrial publicity ten percent were excused.

- — -———~- i" ”_ ~~ ve yy

Two jurors were excused for other reasons, one because he

knew one of the witnesses and the other because vi age and

physical problems. The voir dire proceeding shows that potential

suineed Wacreri (T. 38-39), Livingston (T. 48-49), Spell

(T. 95-96), and Bradford (T. 106), were excused because of

pretrial publicity. Juror Register was excused because he was

velated to Sheriff Bradley.. (T. 8).° Jurors Ginlock (T. 6-7),

Simpson (T. 32), and Yeomans (T. 60) were excused because

they had a bias or prejudice opinion either towards the accused

cor the State. Juror Metts was excused because he knew the

victim. (T. 54). It is interesting to note that three jurors

specifically stated that while they had read the newspaper accounts

they felt that they could either shut them out, or did not believe

what they read in the paper. These were jurors Mullis (T. 82),

Spradley (T. 91), and Dorsey (T. 113). As evidenced by the

exceedingly small percentages of partiality which was shown

in the first trial, the fact that the attorneys did not move for

a change of venue based on pretrial publicity is unfounded, and

does rot establish ineffective assistance of counsel. Collier

v. State, 244 Ga. 553, 572 (1979). The second trial which

dealt with sentencing was moved to a different county, and for

the reasons stated earlier in this Order concerning the jury

issue, this Court finds that the facts and the percentages

of those who either had a preconceived bias for or against the

defendant or the State as well as those who had a bias based

on pretrial publicity was exceedingly small.

The Petitioner suys that his attorneys were ineffective

because they failed to move to exclude his confession for lack

of voluntariness. As noted in an earlier discussion on this

matter, the trial court held a hearing under Jackson v. Denno, supra,

and found the statement elicited from the Petitioner to have

been freely and voluntarily given. The evidence in this matter

supports such a contention by a preponderance of the evidence

and the fact that it was not excluded does not show ineffective

Pr,

assistance of counsel. Willis v. State, 243 Ga. 185, 191 (1979).

Petes

Also without merit is the contention that the attorneys

failed to ask adequate questions concerning jurors who expressed

a belief that they could not impose the death penalty regardless

of the evidence presented. Petitioner contends that additional

questions should have been asked in hopes of obtaining from the

jurors the fact that they were not unalterably opposed to the

death penalty regardless of the evidence. An examination of the

jury selection process in both trials shows that the jurors

who were excused under Witherspoon v. Illinois, supra, as further

reiterated by the United States Supreme Court in Lockett v. Ohio,

U.S. , 98 S.Ct. 2954 (1978); Collier v. State, supra, clearly

establishes that those jurors were properly excused, and that

any further cross-examination by Petitioner's attorneys would

not have changed the outcome or ‘have resulted in those jurors

being seated. Finney v. State, 242 Ga. 582 (1978). See also,

Willis v. State, 243 Ga. 185, 188(4) (1979).

Petitioner says that his attorneys were ineffective because

they did not object to certain subtlies and innuendoes made during

the closing arguments by the prosecutor and the assistant prosecutor.

This matter has been previously discussed, but in connection with

that issue this Court notes that the matter concerning the

character of the Petitioner was first brought out on cross-

examination by the Petitioner's attorneys. The decision as

to whether to object or not to object to the argument of counsel

is basically one of trial tactics. In the absence of any testimony

that these tactics were outside the bounds normally elicited from

counsel, this matter is without substance. See, Reid v. State,

235 Ga. 378, 379 (1975).

-37-"

AS > Be fae a

Petitioner also argues that he was denied effective assistance

of counsel because the only testimony which was offered in his

behalf at the sentencing hearing was his own testimony, and that

this violates his constitutional rights. The decision as to

whether any testimony is to be elicited through the Petitioner,

or through other witnesses is a matter which rests in the

discretion of the trial attorneys. There has been no evidence

presented to show that the decision to present solely the testimony

of the Petitioner during the sentencing phase of the trial

amounts to a constitutional deprivation. See, Reid v. State,

235 Ga. 378 (1975); McAllister v. State, 231 Ga. 368, 369 (1973);

Coco v. United States, 569 F.2d 367 (5th Cir. 1978).

Another matter which the Petitioner alleges constitutes

ineffective assistance of counsel is the contention that his

attorneys failed to challenge the grand and traverse jury

composition. As noted earlier, the time to challenge the

composition of a grand jury is prior to indictment. Consequently,

since counsel was not appointed until after indictment challenge

would not have been timely. See, Tennon v. State, 235 Ga. 594

(1975). This general assertion of counsel's ineffectiveness for

not challenging the grand and traverse juries, particularly

since there has been no showing of cause for not challenging,

or that actual prejudice resulted, is unfounded. Goodwin v.

Hopper, 243 Ga. 193, 194(2)(a) (1979); Harris v. Hopper, 243

Ga. 244, 245(2) (1979).

The Petitioner has also alleged that the appellate briefs

filed with the Supreme Court of Georgia were inadequate. It is

well settled that the question as to what issues are to be raised

on appeal is a matter which rests within the discretion of the

-38-

attorneys. Reid v. State, 235 Ga. 378, 379 (1975). See also,

Young v. State of Oklahoma, 428 F.Supp. 288 (D.C. Ok. 1976);

Hooks v. Roberts, 480 F.2d 1196 (5th Cir. 1973). This Court takes

particetar notice that in the first appeal Petitioner's attorneys

were successful in getting the matter remanded for a new trial

for sentencing, which in the Court's view does not establish

ineffective assistance of counsel because of the type of appellate

brief which was filed. Fleming v. State, 240 Ga. 142 (1977).

Petitioner further argues that the attorneys’ decision

‘to request a charge concerning murder and conspiracy to commit

murder was improper in that it improperly confused the elements

of murder and conspiracy to commit murder. Even though an

individual is charged with a substantive offense, such as murder,

and there is evidence to establish that others may be involved,

it has been held by the Supreme Court of Georgia that it is not

error to charge on conspiracy. Thomas v. State, 242 Ga. 716, 717

(1978); Battle v. State, 231 Ga. 501 (1973). Sub judice, the

evidence in this case clearly established that the Petitioner

and others were involved in the murder of the police chief.

On pages 509 through 511 in Respondent's Exhibit No. 7, the trial

court's instructions on conspiracy are set forth. The court's

recharge on the law of conspiracy appears in Respondent's

Exhibit No. 7 at pages 516 through 518. The court's charge on

conspiracy does not confuse or interject any irrelevant and

immaterial matters, but is a correct statement of the law

concerning conspiracy when construed with a substantive crime

such as murder. The court's charge on conspiracy is not

misleading or confusing, and as a matter of fact this matter

was addressed in headnote 3 by the Supreme Court of Georgia when

it initially affirmed Petitioner's conviction. Fleming v. State,

240 Ga. supra at 145. Herring v. Ault, 230 Ga. 398 (1973).

-39-

hatin ain ied -_——o —— € ———— ——_ —- _ aati we @ Oe mer >

When the jurors asked for a recharge on conspiracy, Respondent's

Exhibit No. 7 at page 576, which was given, they expressed no

further need for clarification. Respondent's Exhibit No. 7

at gt oft Dixon v. Balkcom, 614 F.2d 1067 (Sth Cir. 1980).

Petitioner charges that at his sentencing hearing in Cook

County that one of his attorneys argued to the jury that

the Petitioner was lying in his testimony. This the Petitioner

says evidences an abandonment by his lawyer of his best interests,

and as such amounts to a denial of his right to effective assistance

of counsel under the Sixth Amendment. To -the contrary, on

page 454 of the resentencing proceeding which appears as

Respondent's Exhibit No. 2, this Court will find that Attorney

Parrish said for the purposes of argument that, "But, lets say

that Son's wrong about that. Let's say that I'm gullible and

believed him from the start that he told me." Further on during

the attorney's argument at pages 465 and 466 the attorney says

that even if his client did not tell the truth it was because

he was afraid, and this is certainly a reasonable and plausible

explanation of the defendant's testimony of a man who was afraid.

Therefore, the attorney's comment in his summation provided a

Plausible explanation to what the State catagorized as a lie,

this being the Petitioner's testimony that he confessed after

having been beaten. Petitioner's counsel was painting a picture

of his client as a man who was trapped, ignorant, and afraid.

This Court concludes that based upon all of the above

Petitioner was not denied effective assistance of counsel.

Pitts v. Glass, 231 Ga. 638 (1974). Accord, Pitts v. Hopper,

402 F.Supp. 119 (N.D. Ga. 1974), aff'd 502 F.2d 941 (Sth Cir. 1975).

-40-

’ CONCLUSTON

For all the above and foregoing reasons this, Court

concludes that none of the Petitioner's constitutional rights

were vdianes. Consequently, the Petitioner is remanded

to the Respondent's custody so that the sentence of death

as Imposed by the trial court can be carried out. The stay

of execution issued by this Court on March 14, 1980, is

vacated.

IT IS SO ORDERED.

Ch uel’ Es Cases &

PAUL E. CASWELL, Senior Judge

1 ONE Di ae Vee OUR) ee re ee Ye ny Oe ee ee eee Oe Pa ee ee ——

——————— ee ———— — — — — = ———

APPENDIX A

COOK COUNTY PROCEEDINGS Ps

of the first 14 jurors impaneled and examined, potential

juror Sharon T. Flythe stated that while she did not know the

Petitioner,she had made a decision based upon what she had

read and heard and that she could not be an impartial juror.

(T. 4, 5, Respondent's Exhibit No. 2). At the request of

Petitioner's counsel potential juror Flythe was excused after

being challenged for cause. (T. 6, Respondent's Exhibit No. 2).

Potential juror Sharen T. Fythe was the only person in the

first panel of 14 who had formed any opinion about the case.

In a further examination of this panel of 14, when it came time

to select members from that panel, none of the remaining

jurors questioned either knew the Petitioner or had formed any

fixed opinion in the case. See, Respondent's Exhibit No. 2

at pages 13-16.

In the second panel of 14, Respondent's Exhibit No. 2 at

page 16, there was no response from any of those potential jurors

as to whether they had formed an expressed opinion as to the

guilt or innocence of the accused. When it came time for each

of the members of the second panel to be individually asked or

questioned after they were generally examined on the statutory

questions, only one potential juror stated that she knew Fleming.

Respondent's Exhibit No. 2 at pages 25 through 26. The remaining

jurors had no personal involvement with either the victim o) any

of the other State witnesses. Respondent's Exhibit No. 2 at pages

21 through 27.

In the third panel of 14 potential jurors, again, none of

these potential jurors stated that they had any prejudice or

bias resting on their minds either for or against ‘the Petitioner,

or that they had formed any judgment ahead of time. Respondent's

Exhibit No. 2 at page 27. Likewise, none of the potential jurors

in the third panel knew the Petitioner or any of the other

participants in the case. (T. 27, Respondent's Exhibit No. 2).

In the fourth panel of 14 potential jurors there was

again a negative response from the inquiries concerning whether

any of these potential jurors had formed any opinion as to the

guilt or innocence of the accused, Respondent's Exhibit No. 2

at page 34, or whether they had any bias or prejudice resting

either for or against the Petitioner. Respondent's Exhibit

No. 2 at page 35. There was also a negative response concerning

whether any potential jurors were related to either any of the

participants in the trial or to the victim. Respondent's Exhibit

No. 2 at page 36.

ese ee. ee ee

LANIER COUNTY PROCEEDINGS -

In examining the voir dire in the first proceedings which

took place in Lanier County, this Court finds as follows:

Of the first panel of 14 potential jurors, jurors Ginlock and

West stated that they had formed an opinion concerning the guilt

or innocence of the Petitioner, and for that reason they were

excused for cause. See, Respondent's Exhibit No. 7, at pages

6-7, 11-14. }

Later, potential juror Ruth B. Harrell was excused

because she was unable to lay aside an opinion as to the

Petitioner's guilt based upon what she had read. Respondent's

Exhibit No. 7 at pages 38-40. Potential juror Livingston was

also challenged for cause for the same reason. See, Respondent's

Exhibit No. 7 at pages 48-49. Potential juror Metts was also

disqualified for the same reason. Respondent's Exhibit No. 7,

pages 54-55.

In the second group of 24 potential jurors the following

jurors were stricken for cause because they were not able to

maintain on open-mindedness or impartiality: Juror Yeomans

(Respondent's Exhibit No. 7, page 60); Juror Spell (Respondent's

Exhibit No. 7, page 95).

In the remaining group of potential jurors called, only

one was disqualified for cause as having formed an opinion

concerning the guilt of the Petitioner: Bobby Dean Bradford

(Respondent's Exhibit No. 7, page 106).

The Petitioner‘s assertion that pretrial publicity made

it impossible to impanel a jury either in Lanier or Cook

Counties is unsupported by the evidence contained in’Respondent's

Exhibits Nos. 2 and 7. |

* a

While there were some potential jurors in both proceedings

who had formed a fixed opinion as to the guilt or innocence of

the Petitioner, the answers elicited from all potential jurors

in both trials fails to support the Petitioner's contention

that it was impossible to impanel an impartial jury. Those

jurists who had formed fixed opinions were properly disqualified,

and there has absolutely been no showing whatsoever that from

the panels of potential jurors in both counties that it was

impossible to impanel an impartial jury, or that venue in both

trials should have been changed. See, Murphy v. Florida, 421

U.S. 794 (1974); Collier v. State, 244 Ga. 573 (1979); Campbell

wv. State, 240 Ga. 352, 357 (1977); Young v. State, 239 Ga.

53, 56 (1977); Coleman v. State, 237 Ga. 84 (1976); Krist v.

Caldwell, 230 Ga. 536 (1973).

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