Petition — GARY X. NELSON v. GEORGIA (No. 80-6749)

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80-6749

No. 80-

IN THE

i] SUPREME COURT OF THE UNITED STATE

October Term, 1980

RECEIVE

ene COU, US,

GARY X. NELSON,

-against-

STATE OF GEORGIA,

Petitioner,

Respondent.

PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME

COURT OF THE STATE OF GEORGIA

Supreme Court, U.S.

FILED

MAY 26 1981

Alexander L. Stevas, Clerk

Richard H. Sayler

Allan R. Freedman

(212) 489-4100

Of Counsel:

Doris K. Shaw

Robert Garcia

Clifford Richner

DONOVAN LEISURE NEWTON & IRVINE

Counsel of Record for

Petitioner Gary X. Nelson

30 Rockefeller Plaza

New York, New York 10112

QUESTIONS PRESENTED FOR REVIEW

Whether the circumstantial evidence here was

sufficient to permit any rational trier of

fact to convict petitioner?

Whether the evidence wae sufficient to permit

any rational trier of fact to exclude every rea-

sonable hypothesis save that of petitioner's

guilt, as required by Georgia law?

Whether the Georgia statute permitting a death

sentence if a murder is “outrageously or wantonly

vile, horrible or inhuman in that it involved

torture, depravity of mind, or an aggravated

battery to the victim" (Ga. Code Ann. § 27-2534.1(b)(7)

("section (b)(7)") is unconstitutionally vague

and overbroad, thus conferring unbridled sentenc-

ing discretion upon the jury in violation of the

Eighth and Fourteenth Amendments?

Whether section (b)(7) was unconstitutionally

applied on the facts of this case?

Whether the trial court's vague and overbroad

jury charge unconstitutionally conferred

unbridled sentencing discretion on the jury?

Whether petitioner's right to due process was

violated by displaying to the jury five color

photographs, found by the trial court to be

“highly infl«mmatory" during the guilt phase

of the trial, immediately before the jury

retired to consider imposition of the death

penalty?

Whether petitioner's right to due process was

violated when the prosecutor read to the jury a

lengthy transcript of a police interrogation of

petitioner containing material, unfounded factual

assertions, assumptions, and innuendo that were

known by the prosecutor to be false when used?

otte

TABLE OF CONTENTS

CITATION TO OPINION BELOW ccc . . „ „. „ „ 0% %%% % eee e ee e e ee e e

XIIILEII Ce

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED....

STATEMENT OF THE C ASB... „ h h „„ „„ „ „„

A. Procedural His tor̃ yy

B. Statement of Facts „ „ „ . . . . e . e „„ „ „ „„ „ „

. The Guilt PRAGB cc céccoteocereececaesceseeesee

2. The Penalty ase. . . „ „„ „ 0e „%%% % ꝗ%; 6 0 0 0

C. How the Fedecal Questions Were

Raised and Decided GA .

1. The Sufficiency of the Evidence

2. The Constitutionality of Section

(CD) CT) ... . „ „ „ „ „ „„ „ „ „ „ „ „„ „ „ „ „„ „ „ „ 20

3. Evidence at Feil. . . . „ „ „% hee

REASONS FOR GRANTING THE Mir... „eee eee eee e ese

I. THE COURT SHOULD GRANT CERTIORARI

TO CONSIDER WHETHER DEFENDANT WAS

DENIED DUE PROCESS BY A CONVICTION

ON INSUFFICIENT Vio es.. „ „ „ „ „6 „ „„ „ „ „0 „% % % 0

A. No Rational Trier Of Fact could Have

Found Proof Of The Essential Elements

Of Each Crime Beyond A Reasonable Doubt.....

B. The Evidence Presented At Trial Was

Such That No Rational Trier Of Fact

Could Have Found That The Requirement

Of The Georgia Circumstantial Evidence

Statute Was Satisfied Beyond A Reasonable

DOUDC . . „„ „„ „%%% % eee eee e e eee ee eee eee e eee

I. THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER GEORGIA'S STATUTORY

BASIS FOR IMPOSING DEATH HERE IS

UNCONSTITUTICNALLY VAGUE OR OVERBROAD

ON ITS FACE OR AS APPLIED IN THIS CAS.

A. Section (b)(7) Is Unconstitutional

On Its FACE sc cccccccccecececeserccedecsseccecees

B. Section (b)(7) Was Unconstitutionally

Applied On The Pacts of This Case. „ . „ „%% „

111

Oo e — —

— —

—

TABLE OF CONTENTS (cont'd)

1. The Vague and Overbroad Language of

Section (b)(7) Conferred Unbridled

Sentencing Discretion on the Jury,

In Violation of the Eighth and

Fourteenth Anendmentn222ss .

2. The State's Evidence Wholly Failed

to Establish That Section (b)(7)

Appl 1cccccccſgcfr ..

3. The Trial Court's Penalty Charge

Concerning Jury Unanimity Was

Unconstitut ionaaaalMkñã½,0U .

III. ThE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE JURY, CONFRONTED

DURING THE PENALTY PHASE WITH GRUESOME

COLOR PHOTOGRAPHS EXCLUDED FROM THE

GUILT TRIAL BECAUSE THEY WERF INFLAM-

MATORY, IMPOSED THE DEATH SENTENCE ON

THE BASIS OF EMOTION, PASSION, OR CAPRICE,

IN VIOLATION OF THE EIGHTH AND FOURTEENTH

AMENDHEHEN T8. „„6ö

IV. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER THE ADMISSION INTO EVIDENCE OF

PETITIONER'S PRETRIAL STATEMENT TO INVESTI-

GATORS CONSTITUTED GROSS PROSECUTORIAL

MISCONDUCT CREATING SUCH FUNDAMENTAL

UNFAIRNESS AS TO DENY PETITIONER DUE

PROCESS OF LAW ũuæ᷑U sss.

A. By His Use of The Statement, The

Prosecutor Knowingly Placed Before

The Jury False Evidence, Inadmissible

Evidence, And Unfounded Assumptions

ANG Innuendo oc .. „„ „ %%% %% % % „ „ „ „ „ „ „ „ „ 6 „ „ „ 0

B. The Prosecutor's Use Of The Statement

So Infected The Trial With Unfairness

As To Deny Petitioner Due Process of

LAW ccc cbs esse ee ee reer e e eee e e e e e e e e e e e eee e

CONCLUS IO „ . . . . 6 . . „ . e e % „ „ „ „% „ „ „ „ „0

-iv-

Page

TABLE OF AUTHORITIES

Cases:

Alcorta v. Texas, 355 U.S. 28 (19577

Apodaca v. Oregon, 406 U.S. 404

(1972). * . . * * * . * . * . * . * . * *

Arnold v. State, 236 Ga. 534,

224 8.8. 24 466 (19760) „ „„ „ „

Ballew v. Georgia, 435 U.S. 223

(1978). * * * * . 7 . . * 7 * * * .

Banks v. State 237 Ga. 325, 227

8. E. 2d 380 (1976), cert. denied,

e 6 8 Te eee. C6 6! eke

Beck v. Alabama, 447 U.S. 625 . « « « «© « «

Bell v. Ohio, 438 U.S. 637 (197)

Berger v. United States, 295 U.S.

78 (1935) . * * * . * * * * * . * * * . *

Blake v. State, 239 Ga. 292,

236 8. E. 2d 637, cert. denied,

434 U.S. 960 (1977) * * * . * — — * . * *

Bowen v. State, 244 Ga. 495, 260 8. E. 2d

855 (1979), cert. denied, 446 U.S.

970 (1980) > * * * * . * * * * — . >. — *

Brooks v. State, 246 Ga. 262, 271 8. E. 2d

172 (1980). * * * * * * * * — >. >. * * >. *

Brown v. State, 247 Ga. 298, 275 8. E. 2d 52

(1981). . * * . * * * * * . * * * * * * *

Burger v. State, 245 Ga. 458, 265 8. E. 2d

796, cert. denied, 446 U.S. 988 (1980). .

Cape v. State, 246 Ga. 520, 272 S.E.2d

487 (1980), cert. denied, 101 S. Ct.

956 (1981). * . * . ° . * * . * . * * *

Chambers v. Mississippi, 410 U.S. 284

(1973). * * * . * . * * * . . * . *

Cobb v. Wainwright, 609 F.2d 754 (5th

Cir.), cert. denied, 447 U.S. 907

(1980). * — * . * > * — . > * * * — * *

Page

77,77n

59n

32n,44

46,47n

28, 38n, 53,

55,595, 60,

6285 65,66

35,47, 62n

47n

4ln

48n

62n

TABLE OF AUTHORITIES (cont'd)

Cases:

Commonwealth v. Batty, 482 Pa. 173,

393 A. 2d 435 (1978 . * . * * . 7. — — * — .

Cox v. Louisiana, 379 U.S. 559 (196 .

Dix v. State, 238 Ga. 209, 232 8. E. 2d

47 (1977), cert. denied, 445 U.S. 946

(1980). . * * . . * . * ° * . * . * * * * *

Donnelly v. DeChristoforo,

SiS 'Daba COL- Cael ed ete oh 6 tele eee eo eked

Duncan v. Louisiana, 391 U.S. 145 (19663)

Edelman v. California, 344 U.S. 357 (19533

Fair v. State, 345 Ga. 868, 268 S.E.2d 316,

cert. denied, 101 S. Ct. 407 (19800)

Foster v. Barbour, 613 F.2d 59 (4th Cir. 1980)

Fulghum v. State, 246 Ga. 184,

269 8. E. 2d 455 (1980). * . * . * * * * * * .

Furman v. Georgia, 408 U.S. 238 (19777

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

Germany v. State, 235 Ga. 836,

221 8. E. 2d 817 (1976). S18. 6) OB. 0B) Ra Oh 28) eee

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

Godfrey v. State, 243 Ga. 302, 253 8. E. 2d

710 (1979), rev'd, 446 U.S. 420 (1980)...

Grayned v. City of Rockford, 408 U.S. 104 (1972)

Gregg v. Georgia, 428 U.S. 153 (197616)

Hamric v. Bailey, 386 F. 2d 390 (4th Cir. 1967) .

Hance v. Georgia, 101 8. Ct. 796 (1960)

Hance Ve State, 245 Ga. 856, 268 8. E. 2d 339,

cert. denied, 101 S. Ct. 796 (1980) Ses es: Ob Aue

Page

59n

47n

67,76,

59n

45n

58,59,

59n,60n

56n

29,30,33,

34,37, 41,

46,51, 52,

33,54, 55

38, 60,

62m, 65,66

26n

75,77,81

passim

47n

44,51

passim

37n

passim

TABLE OF AUTHORITIES (cont'd)

Cases:

Hardy v. State, 245 Ga. 272, 264, S.E.2d

209 (1980), vacated, 101 8. Ct. 523 (1981)

Harris v. State, 237 Ga. 718, 230

S.E.2d 1 (1976), cert. denied, 431

U.S. 933 (1977). * . — * * * — . >. * . — *

Haves v. State, 240 Ga. 327,

240 8. E. 2d 833 (1977). 7 * * * * * . * *

High v. State, 247 Ga. 289, 276 8. E. 2d 5

(1981) * . . * * * . 7 * . * . * * * * * .

Holcomb v. State, 130 Ga. App. 154,

202 8. E. 2d 529 (1973). * * . * * * . * . *

Holton v. State, 243 Ga. 312, 253 8. E. 2d

736, cert. denied, 444 U.S. 925 (1979) ..

House v. State, 232 Ga. 140, 205 8. E. 2d

217 (1974), cert. denied, 428 U.S.

910 (1976) >. > * * * * * 7 * * * * +. * >. *

Huffman v. United States, 297 F. 2d

754 (5th Cir.), cert. denied, 370

U.S. 955 (1962). . * . * . — . * . * — . *

Imbler v. Craven, 298 F. Supp. 795 (C.D.

Cal. 1969), aff'd sub nom. Imbler v.

California, 424 F.2d 631 (9th Cir.),

cert. denied, 400 U.S. 865 (1970). ....

Irvin v. Dowd, 366 U.S. 717 (1961

Jackson v. Virginia, 443 U.S. 307 (1979). .

Johnson v. Louisiana, 406 U.S. 356 (1972). .

Johnson v. State, 242 Ga. 649, 250 8. E. 2d

BOE CLGISD 6 be 6 6 ee ORM ce Crea

Jurek v. Texas, 428 U.S. 262 (1976) „„

King v. United States, 372 F.2d 383

(D.C. Cir. 1966) SO OOH Oe’ Se O\oerr 6. e' 6.5 @

Lackey v. State, 246 Ga. 331,

271 8. E. 2d 478 (19660)

Lamb v. State, 241 Ga. 10, 243 8. E. 2d

59 (1978). * — * — * — * * * — * * 8 **

48n

35,46,47n

33n,62n

48n

47n

14,15,

28,56,

59n

47n

78,79

56n

47n

es | , .

TABLE OF AUTHORITIES (cont'd)

Page

Cases:

Lockett v. Ohio, 438 U.S. 586 (197) «+ «+ «© « « 54

Mapp v. Ohio, 367 U.S. 643 (19617. 80n

Maxwell v. United States, 368 F.2d 735

(9th Cir. 1966). ä 7 * — * 29 * 0 29 * . * 2 * 92 „ 66

McCorquodale v. State, 233 Ga. 369,

211 S.E. 2d 577 (1974), cert. denied,

428 U.S. 910 (1976). . >. * * * * . . * . * . . * 7 47n

McGruder v. State, 213 Ga. 259,

98 8. E. 2d 564 (1957). * . >. * * — * * . >. > . . * 26n

Miller v. North Carolina, 583 F. 2d

701 (4th Cir. 1978) * * * * * . * . * * * * . . . 78

Miller v. Pate, 386 U.S. 1 (1967) . « «© „ 69,77

Miller v. State, 237 Ga. 557,

229 8. B. 20 376 (1976) . « «© ee eo ee eo ew eee 59,59n,

60,60n,

Mooney v. Holohan, 294 U.S. 103 (1933) 77

Moore v. Dempsey, 261 U.S. 86 (192) „ 65

Morgan v. State, 241 Ga. 485, 246 8. E. 2d

198 (1978), cert. denied, 441 U.S.

967 (1979). * * — — * * . * . * * * . * * . — . * 47n

Mulligan v. State, 245 Ga. 266, 264

8. E. 2d 204, supp'l op., 245 Ga. 881

260 3. 8. 24 381 Gace Senied, 101

8. Ce. 407 (1980) . * * — > — * * * . — * . L . 48n

Napue v. Illinois, 360 U.S. 264, (1959) . «+ «+s ti bak

Nelson v. State, 247 Ga. 172, 274 S.E.2d 317

(1981). , e AUR WN bk i Mi Se Me ea passim

Papachristou v. City of Jacksonville, 405

U.S. 156 (1972) 7 . * >. — * . 7. * * * . . — * * 44

patrick v. State, 245 Ga. 417, 265 8. E. 2d

553, vacated, 101 8. ct. 522 (19804 48n

TABLE OF AUTHORITIES (cont'd)

Cases:

Presnell v. Georgia, 439 U.S. 14 (197)

Proffitt v. Florida, 428 U.S. 242 (1976)...

Pyle v. Kansas, 317 U.S. 213 (1947)

Raley v. Ohio, 360 U.S. 423 (1959)

Roberts v. Louisiana, 428 U.S. 325 (1976)

Roberts v. Louisiana, 431 U.S. 633 (1977) ..

Sanders v. State, 97 Ga. App. 158,

102 8. B. 2d 635 (19838) „„

Smith v. Goguen, 415 U.S. 566 (19744)

Spraggins v. State, 243 Ga. 73, 252

S. E. 2d 620 (1979), vacated in part,

446 U.S. 961 (1980) . * — * . * . * . * . *

Stephens v. Hopper, 241 Ga. 596, 247

S.E.2d 92, cert. denied, 439 U.S. 991

(1978) * . * * 7 * „ — * 5 „ 6 * „ * *

Street v. State, 415 Ga. 707, 227

S. E. 2d 750, vacated, 429 U.S. 995

(1976). — — . o * . „ „ >. * . * . . * * * *

Strickland v. State, 247 Ga. 219, 275

8. E. 2d 29 (1981). * >. * * 7 * > > . * * „

Thomas v. State, 234 Ga. 615, 216 8. E. 2d

inne . „„

Thomas v. State, 245 Ga. 688, 266 8. E. 2d

499, vacated, 101 S. Ct. 523 (1980) ....

Thompson v. Louisville, 362 U.S. 199 (1960) .

Tyler v. State, 247 Ga. 119, 274 S.E.2d 549

(1981). * * . * . * * * . * * . * * * . .

United States v. Anderson, 574 F.2d 1347

(5th Cir. 1978) * . * > * . * > * > > * * *

United States v. Gipson, 553 F.2d 453

J CCC) ĩ Es

United States v. Herberman, 583 F. 2d 222

(5th Cir. 1978) a 7 „ * . > * . * * „ „ * *

-ix-

53,57

37n,54

59n

26n

38n;43

47n

62n

48n

62n

48n

77n,81

60,62n

TABLE OF AUTHORITIES (cont'd)

Cases:

United States v. 37 Photographs, 402 U.S. 363

(1971) — * . * * * 7. * * — * 7. * „ — *

Vachon v. New Hampshire, 414 U.S. 478

(1974) * * * — > — * * * „ * — * * * 7

Ward v. State, 239 Ga. 205, 236 8. E. 2d

365 (1977) * — — — * 7. * * — * * * * * — >

Watkins v. Foster, 570 F.2d 501 (4th Cir. 1978).

Westbrook v. Balkcom, 49 U.S.L.W. 3371

(1980) (Stevens, J., concurring in the

genial ‘Gf / „

Williams v. United States, 338 F.2d 530

(D.C. Cir. 1964) r 8: 8... @

Willis v. Balktom, 49 U.S.L.W. 3786 (1981)

(Marshall, Brennan, Stewart, J.J. dissenting

from the denial of certiorari). . ..«.++«.-s.

Witherspoon v. Illinois, 391 U.S. 510

(1968). * * * . > . „ * * . 7 * . 7 * * * .

Wong Sun v. United States, 371 U.S. 471

(1963). * * . * . * . * * * * . * > * * . *

Woodson v. North Carol ina, 428 U.S. 280

(1976). 7 * — * * . * > * * * — — * * * *

ick Wo v. Hopkins, 118 U.S. 356 (16866)

Constitutional Provisions:

U.S. Const. amend. V . * . * * + * * . * .

U. 8. Const. mend. i

6. 6. Const. amend. VIII « « eo « «© e« ee 6

U.S. Const. amend. XIV. * 4 * o „ 7 * * — *

Page

37n

62n

47n

4ln

80n

38n,54,

59n

58,59,

59n,61

12,34,35,

51,52,58,

59,59n,61,

12,15,35,

51,52,58,

59,59n,61,

65,79

TABLE OF AUTHORITIES (cont'd)

Statutes:

28 U.S.C. § 1257 (3) Ga „

Ga. Code Ann. § 24-331

Ga. Code Ann. § 26-1101 . l

Ga. Code Ann. § 26-1305 . . 1. « se cee eevee e

Ga. Code Ann. 26-2001 2 ĩ Ä -w o o „ 2

Ga. Code Ann. 26-2002 «%) „ „ „% „„ @ „% „ „ „ „ „ „„

Ga. Code Ann. 26-3102 peas he WS Ok Sey ee ee Bee hes re ee RE

Ga. Code Ann. 27-2503(b). ee © % „% „„ „„ „% @ ©

Ga. Code Ann. 27-2534.1 2. we we eo eo ee ee eo

Ga. Code Ann. §§ 27-2534.1(b)(1)-(10) . . « « «

Ga. Code Ann. § 27-2534.1(b)(1) . « «© « © ew we ow

Ga. Code Ann. § 27-2534.1(b)0 (.

Ga. Code Ann. §§ 27-2537(c)(1)-(3). )))

| Ga. Code Ann. § 27-2537(c)(1) se ee .

Ga. Code Ann. § 27-2537000 (.

Ga. Code Ann. § 38-100)

Ga. Code Ann. § 70-207 (afk

a. Code Ann. § 70-207(c) JJ].

5 Articles and other Authorities:

Baldus, Pulaski, Woodworth & Kyle, Identifyin

Comparatively Excessive Sentences of Death:

A Quantitative Approach, 33 Stan. L. Rev. 1

0). * * 5 * . 2 * > * * * „ * * * * * — *

C. Black, Capital Punishment: The Inevitability

of Caprice ahd ,, 6.6 0 60 «6%

Dix, A llate Review of the Decision to

Impose Eeath. r

H. Kalven & H. Zeisel, The American Jury

(Phoenix ed. 1971). * * * . „ * * * . * . * . * *

10, 10n, 39,

32n

passim

62n,65

15,25, 26

62n

49n

43n

34n

TABLE OF AUTHORITIES (cont'd)

Books, Articles and Other Authorities: (Cont'd)

ABA Code of Professional Responsibility,

DR 7-106. / EOS, 8. OE Oe OY Se O06 78n

ABA Project on Standards for Criminal Justice,

The Profession Function §§ 1.1(b)-(d), 2.8(a),

5-6(a)(b), 5-7(a)(b) (1974). * „ * — 5 es 78n

NAACP LDF Memo, Re: Death Row Inmates,"

(July 2, 1976) 0 * * * * * * . — — — _ * * . * os L 48

NAACP LDF Newsletter, "Death Row, U.S.A."

{April 20, 1981). ink PO tee Fk Wak eee coge Lp Taew Siow eed Lone Wie eee Deeg Ma 48n

-xii-

No. 80 —

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

GARY X. NELSON,

Petitioner,

| -against-

STATE OF GEORGIA,

Respondent.

| PETITION FOR A WRIT or

“ CERTIORARI TO THE SUPREME

COURT OF THE STATE OF GEORGIA

Petitioner Gary X. Nelson respectfully prays that

this Court issue a writ of certiorari to review the judgment of

the Supreme Court of the State of Georgia in this case.

CITATION TO OPINION BELOW

The opinion of the Supreme Court of the State of

Georgia is reported at 247 Ga. 172, 274 8. E. 2d 317 (1981) and

is attached as Appendix A.*

JURISDICTION

The judgment of the Supreme Court of Georgia was

entered on January 27, 1981. The court denied a timely motion

* Although a citation to the official report of the Nelson

decision is available, the advance sheets of the official

reporter are not available in New York City as of this writing.

Therefore, the unofficial report is included in Appendix A

and is cited throughout this petition.

for rehearing on February 24, 1981. The Honorable Lewis F.

Powell, Jr., Associate Justice of the Supreme Court of the United

States and Circuit Justice for the Fifth Circuit, granted an

extension of time to file the present petition for a writ of

certiorari from April 24, 1981, to and including May 25, 1981.

Because May 25, 1981, is a federal legal holiday, the final

ay for filing the petition is May 26, 1981, pursuant to Rule

29.1 of the Supreme Court Rules. The jurisdiction of this Court

is invoked under 28 United States Code section 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Sixth, Eighth, and Fourteenth

2 of the United States Constitution, and Georgia Code

Annotated sections 24-3319, 26-1101, 26-1305, 26-2001, 26-2002,

26-3102, 27-2503(b), 27-2534.1, 27-2537(c), 38-109, 70-207(a),

70-207(c). These provisions are set forth in full in Appendix

to this petition.

STATEMENT OF THE CASE

R. Procedural History

After three grand juries failed to indict, a fourth

prand jury indicted petitioner for the murder (Ga. Code Ann.

26-1101), aggravated sodomy (Ga. Code Ann. § 26-2002), and

rape (Ga. Code Ann. § 26-2001) of Valerie L. Armstrong. R 7-9.*

t mind, or an aggravated battery to the victim.” R 53. See Ga.

code Ann. § 27-2534.1(b)(7).** The jury recommended a death

sentence on the murder conviction. R 53. The trial court entered

Hudgment sentencing petitioner to death on the murder conviction

land to two consecutive life terms on the aggravated sodomy and

rape convictions. R 55-60. The Georgia Supreme Court affirmed

che convictions and sentences, Nelson v. Georgia, 247 Ga. 172,

E74 s. E. 2 317 (1981), and denied a timely petition for rehearing.

B. Statement of Facts

This is not the typical death penalty case considered

by this Court over the last five years; here, there has been no

Ponfess ion or incriminating statement by the petitioner or

another admitted participant in the crime. Because the evidence

Las purely circumstantial and unconstitutionally thin, it is

necessary to present a full statement of the facts shown at

trial.

* The record on appeal to the Georgia Supreme Court is

designated by an “R" followed by the page number.

* onder Ga. Code Ann. § 27-2534.1(b)(7) (hereafter cited as

"section (b)(7)"), the death penalty may be imposed if the

jury finds that the "offense of murder . . . was outrageously

or wantonly vile, horrible or inhuman in that it involved

torture, depravity of mind, or an aggravated battery to

the victim."

1. The Guilt Phase

On Sunday morning, February 19, 1978, petitioner visited

Ray McCray, the victim's stepfather, to borrow some automotive

tools. TT 179-80.* Petitioner lived about half a block away

from Mr. McCray, in a house that he had been sharing with Alphonso

Swinton. TT 180-82. Mr. McCray decided to help petitioner, and

the two spent the day working on a Volkswagen in petitioner's back

yard. TT 180-81, 182. Mr. McCray went home in the late afternoon

accompanied by petitioner, who soon returned to his own yard to

continue working on his car. TT 1862-84.

At dusk, as it was getting dark, Mr. McCray sent his

seven year old son, Michael Armstrong, to petitioner's house with

a drop cord so that petitioner could continue working after dark.

TT 185, 218. Michael knocked on petitioner's door but there was

no answer. He looked in the back yard but there was nobody there.

Michael returned home where he saw his six year old sister, the

victim, in her own back yard playing with another girl. TT 221,

223, 225-27.

Later that evening, around seven p.m., Mr. McCray became

concerned becaur the victim had not returned home, TT 185-86.

Mr. McCray and his other children searched for her in the neigh-

borhood but did not find her. TT 186. Mr. McCray called the

police around 10:30 p.m. TT 206, 214, 228-29.

Sabrina Williams, eight years old, was visiting her

grandmother across the street from Mr. McCray's house on February

19. TT 297, 299-300. Her testimony at trial demonstrated that

her perception and recollection of the day's events were in-

accurate, incomplete, and unreliable. The night the victim

* he trial transcript is designated by a "TT" followed

by the page number,

isappeared, the victim's sister asked Sabrina if she had seen

he victim. Sabrina said she had not seen the victim that day.

309-10.

Three days later, at a police interview on February

2, 1978, when Sabrina was “scared” (TT 322), and “very nervous

cause of her age” (TT 327), Sabrina for the first time said that

he had gone to the store with the victim to buy some candy on

ebruary 19. TT 301-03, 325-26. Sabrina testified at trial

hat on the way back from the store the victim left Sabrina

round dusk to go to what the victim referred to as her “uncle's

ouse." Sabrina testified that that was “Al's house.” TT 304-05.

t a pretrial hearing on August 30, 1978 (TT 321), Sabrina testi-

led that she saw the victim go into the back yard, but did not

ee anyone else in the yard: |

Question, "Whose back yard was she in?"

Answer, she was in Al's back yard."

Question, “Was there anybody else in the

back yard?"

Answer, 1 don't know. I ain't looked in

the back yard.“

Question, "Did you see anybody before you

left?"

Answer, "No, I didn't look in there."

Question, "Other than Valerie?"

{Answer,] “No, nobody else.”

320. Sabrina's testimony at trial was different; at trial

he said that she saw 4 man in the back yard, dressed in black.

305, 326.

Although it was “almost dark" when she claims to have

een someone in the back yard (TT 320), at the February 22 inter-

iew (when she was "scared" and “very nervous") she selected a

picture as possibly representing the person in the back yard.

She was not sure that the person in the picture was the person

in the yard: "No, I wasn't sure, ‘cause it might have been another

person” (TT 314); "I really wasn't sure, but it looked like him"

(TT 318); "I wasn't sure" (id.); "No, I wasn't sure." Id. The

picture that Sabrina selected was that of petitioner. TT 328.

However, upon seeing petitioner at trial, she testified that

petitioner was not the man she claimed to have seen in the

ack yard that day. TT 324. She did not see that person in

the courtroom. TT 312, 315, 321.

At the February 22 interview, Sabrina also selected a

second picture as representing an unidentified man she had seen

n the corner by the store on the day the victim disappeared.

329-30.

The police found the victim's body in a ditch on the

fternoon of February 20, 1978. TT 232-33. A pathologist testi-

fied that the victim died of a stab wound to the left side of

the chest, which caused her to bleed to death “not long” after~-

ards. TT 293. The body had been raped and anally sodomized.

294. He said he “couldn't swear” that the body had been

rally sodomized and, in fact, that there was "some doubt that

here was oral intercourse." TT 294-95, 296-97. The prosecution

introduced absolutely no evidence of the sequence of events

urrounding the victim's death, nor anything indicating whether

he murder was committed on February 19 or 20. There is no

vidence as to whether the victim was killed first and later

aped and sodomized, or raped and sodomized and then killed. If

he was killed first, there is no evidence of how much later she

as raped and sodomized.

A forensic serologist testified that a semen sample

[taken from the victim's coat came from a man with type O blood.

lrorty- four percent of the population, including the tee,

nas type o blood. TT 362-64, 369. The serologist testified

jthat she could have conducted a further test on the semen sample

ſenat could have precluded petitioner as a suspect. She did not

| onduct that test. TT 375-76. The prosecution introduced no

levidence as to the blood type of Mr. Swinton, petitioner's former

ſroomma te.

A microanalyst testified that a single hair removed

lerom the victim's body was similar to or could have come from at

lthe very least 120 people in the county, including petitioner.

337-44. The microanalyst agreed that 120 was an “off-the-wall

Ifigure" that “wouldn't be very accurate," and that the actual

lfigure could run much higher. TT 343. The prosecution did not

introduce any evidence as to whether the hair could have come

t rom Mr. Swinton.*

The police found a broken knife handle wrapped in

masking tape and a blade about 15 or 17 feet from the victim's

body. TT 247-48. The police pieced the knife together, photo-

Igraphed it for identification (TT 247, 263), and then removed

che tape to search for fingerprints on the handle (TT 248, 259),

put found none on the tape, handle, or knife blade. TT 260.

e serologist testified that she found human blood on the knife,

put that there was an insufficient amount to perform blood typing

srocedures. TT 362. The prosecution introduced no evidence that

his particular knife was used to kill or stab the victim, or was

physically consistent with her wounds,

In its opinion below, the Georgia Supreme Court incorrectly

stated that such evidence had been adduced. Nelson v. State,

247 Ga. 172, „ 274 8. F. 2d 317, 323 (1981). We discuss

the significance of this error in Part I.B., infra.

Patricia Brown testified that when she was dating

Alphonso Swinton, she had visited Swinton and petitioner at their

house to cook chicken. TT 346-47. Ms. Brown identified a photo-

graph of the knife that the police had pieced together as repre-

senting a knife that she had used to cut chicken at the house.

She recalled that the knife was not sharp. Tr 348-49. She could

not remember the last time that she had seen the knife because she

“hadn't been over there in a long, long time.” TT 349. Ms. Brown

examined only the photograph, not the actual knife.

Diane Knight. lived with petitioner until December 1977.

TT 525-26. She examined the knife found near the victim's body

and testified that she had never seen it before and that it had

never been in petitioner's house. TT 526-27, 545. Ms. Knight

testified that she did most of the cooking and that she never saw

Patricia Brown cook at petitioner's house. TT 528-29. Prior to

trial, she told the police that a photograph of the knife depicted

a knife that had once belonged to her father and that she had left

it at petitioner's house. TT 527.* However, at trial she

testified that she had made the former statement only because she

had been kept in jail for nothing, for three whole months” (TT

527), the police were questioning her about the knife “every other

day” (id.), the police offered her a reward for identifying the

knife (id.), the police threatened to charge her with killing the

victim (TT 530, 542), and the police tried to bribe her. TT 543.

Bobby Butler, Diane Knight's brother, examined the

knife found near the body and testified that he had never seen

it before the police showed it to him during an interview on May

24, 1978, that it had never belonged to his father, and that he

had frequently visited petitioner's house but had never seen the

* Her father died sometime prior to trial. TT 553.

knife there. Tr 552-57. Mr. Butler did tell the police that

his father had owned a pen knife with a toothpick in the handle

so that it would open faster, but said that black people in

Savannah commonly put toothpicks in the handles of such knives

for that reason. The knife found near the body had a toothpick

in the handle. TT 559-60, 614-19, 624-25.

Petitioner testified that he did not kill, rape, or

sodomize the victim. TT 581, 601. He frequently saw many chil-

dren in the neighborhood, but he did not know or recognize the

victim individually. TT 570, 579. He examined the knife found

near the body and denied that it had ever been in his house. TT

573-74, 596.

2. The Penalty Phase

After being sequestered for three days of trial, the

jury began its deliberations at the guilt phase on a Friday af ter-

noon at 5:30 p.m. The jury returned with three guilty verdicts

at 6:35 p.m. TT 669-70. The trial judge immediately commenced

the penalty phase. The only evidence introduced during the

half-hour penalty phase consisted of five photographs of the

victim, which the trial court had excluded at the guilt phase

as being inflammatory and prejudicial, TT 251-52.

The trial court then charged the jury on aggravating

circumstances in the statutory language of section (b)(7), as

described in more detail below. The jury retired for sentence

deliberations at 7:10 p.m. and, evidently eager to avoid being

sequestered for the weekend, returned with a death sentence

at 7:50 p.m. TT 680. While quoting the literal language of

section (b) (7),“ and explaining “aggravated battery” in the

language of Georgia Code section 26-1305,** the trial court did

not otherwise define aggravated battery or any of the other terms

contained in section (b)(7): "outrageously or wantonly vile,

horrible, or inhuman,” “torture,” and “depravity of mind.” In

addition to instructing the jury in the undefined language of

section (b)(7), the court gave a brosder, open-ended definition

of what constituted aggravating circumstances: “Aggravating

circumstances are those which increase tiie guilt or the enormity

of the offense and add to its injurious consequences.” TT 678.

* The Court charged section (b)(7) as follows:

Now, before you would be authorized to recom-

mend the death penalty, you must determine whether,

at the time the crime was commited, the following

statutory aggravating circumstance existed beyond

a reasonable doubt... . I quote: “The offense

of murder was outrageously or wantonly vile, horrible,

or inhuman, in that it involved torture, depravity

of mind, or an aggravated battery to the victim.”

TT 677.

** The Court described aggravated battery as follows:

Now, a person commits aggravated battery

when he maliciously causes bodily harm to another

by depriving him or her of a member of her body

or by rendering a member of her body useless or

by seriously disfiguring her body or a member

thereof.

TT 677. Ga. Code Ann. § 26-1305 defines the criminal offense

of aggravated battery: “A person commits aggravated battery

when he maliciously causes bodily harm to another by depriv-

ing him of a member of his body, or by rendering a member of

his ay useless, or by seriously disfiguring his body or a

member thereof.”

-10-

The prosecutor argued to the jury that section (b)(7) was only

one aggravating circumstance at issue in the case,* although

the "guilt or enormity" language used in the trial court's charge

is not a separate statutory aggravating circumstance under the

Georgia death penalty statute. See Ga. Code Ann. § 27-2534.1.

The trial court also instructed the jury that it must

unanimously agree upon one of three alternative findings“ as

transcribed and given to it. In essence, the jury was forced

to choose between finding that the crime fell within the precise

statutory language of section (b)(7), or finding unanimously that

"no aggravating circumstance” existed, despite the inflammatory

pictures it had just been shown. See pp. 62-63, infra.

C. How the Federal Questions Were

Raised and Decided Below

1. The Sufficiency of the Evidence (Point I, infra)

Petitioner challenged the sufficiency of the evidence

on at least three occasions before the trial court,** and again

* fhe prosecutor argued:

The Judge is going to Charge you there are

certain aggravating circumstances you must find

before you can impose the death penalty and one

of them's 21 to be that the crime of murder

was committed in a wanton and willful total dis-

respect for human life, and that, Ladies and

Gentlemen, is total disrespect of the highest

and to the nth degree.

TT 674 (emphasis added).

* See Motion for a Directed Verdict, TT 515-22; Renewed Motion

for a Directed Verdict, TT 627-28; Motion for a New Trial,

R 62. See generally Transcript of Proceedings on Petitioner's

Motion for a New trial (May 9, 1980) [hereafter cited as

“May 9 Transcript"] at 4-5.

appeal to the Georgia Supreme Court. Brief on Behalf of Appel-

ant ("Appellant's Brief") . 1-3.* ‘The Georgia Supreme Court

eld that "(t]he evidence, when viewed as a whole, is sufficient

to authorize a rational trier of fact to find the appellant guilty

yond a reasonable doubt.“ Nelson, 247 Ga. 2e 274 8. E. ad at

320. ’

2. The Constitutionality of Section (b)(7

n „ infra

Petitioner challenged the aggravating circumstance

instructions in the trial court in a motion for a new trial on

Eighth and Fourteenth Amendment grounds, arguing: (1) that the

instructions "failed to adequately charge“ the jury (R 68); (2)

that "the jury was not given adequate guidance concerning standards

overning their deliberation of Petitioner's sentence" (R 70);

: and (3) that “the charge should have included more language which

uld have given the jury a different or potentially different

result than that of finding aggravated circumstances sufficient

to impose the death penalty.” (May 9 Transcript at 15). Petitioner

also challenged the death sentence on the grounds that it was

pplied in an arbitrary and capricious manner (R 69), and was

not supported by the evidence in this case. R 70; see generally

May 9 Transcript at 15, 17-21, 23.

The May 9 proceedings were held ten days before this

Court decided Godfrey v. Georgia, 446 U.S. 420 (1980). The May 9

Transcript reveals that trial counsel and the trial court were

aware that Godfrey involved the issue of whether section (b)(7)

* The pages of Appellant's Brief below are not numbered.

as unconstitutional on its face and as applied in that the vague

nd overbroad language conferred too much sentencing discretion

n the jury. May 9 Transcript at 17-19. Although the trial

ourt expressed an interest in having “more guidance on that"

from the Georgia Supreme Court or the United States Supreme

ourt, id. at 18, the trial court nevertheless overruled the

tion on May 9 and declined any briefing on the issue. Id. at

15; R 73.

after this Court decided Godfrey, petitioner renewed

his challenge to the death sentence through an extraordinary

motion for a new trial, on the same grounds as he presented

in the earlier motion for a new trial, citing Godfrey. R 74-75.

The trial court denied the motion. Supplemental Record at 4.

petitioner challenged the death sentence on appeal to

the Georgia Suprene Court on the same grounds that he raised

before the trial court. Appellant's Brief 44 14, 19, 23, 25,

38. The Georgia Supreme Court affirmed the death sentence in

general terms on the grounds that the Georgia death penalty

statute is constitutional, 247 Ga. at — 274 S.E.24 at 323,

and that “(t)he yerdict is factually substantiated.” Id.

at 274 8. E. zd at 323.

3. Evidence at Trial (Points 111 and Iv, infra)

Petitioner objected to the admissibility of photo-

graphs of the victim's body at both the guilt phase (TT 251-52),

and the sentence phase. TT 671-72. The trial court sustained

the objection and excluded the evidence at the guilt phase (TT

251-52), but overruled the objection and admitted the photographs

at the sentence phase. TT 671-72.

On appeal to the Georgia Supreme Court, petitioner

argued that the trial court erred in admitting the photographs

at the sentence phase. Appellant's Brief 1 27. The Georgia

Supreme Court held that the trial court did not abuse its

discretion in admitting the photographs. 247 Ga. ate 274

S.E.2d at 323.

Petitioner's counsel objected to the reading at trial

of a transcript of petitioner's pretrial police interrogation,

although counsel attempted to substitute the actual tape recording

for the transcripts. Before the Georgia Supreme Court, peti-

tioner's counsel claimed, inter alia, that “the use of the

transcript [was] improper, as edited, when appropriate editing

could be done by the District Attorney to exclude inadmissible

evidence... ." Appellant's Brief 4 8. Although finding no

objection by petitioner's counsel at trial, the Georgia Supreme

Court apparently considered the point but found "no abuse of

discretion on the part of the trial court in admitting the

transcripts." 247 Ga. at 274 S.E.2d at .

REASONS FOR GRANTING THE WRIT

THE COURT SHOULD GRANT CERTIORARI

TO CONSIDER WHETHER DEFENDANT WAS

DENIED DUE PROCESS BY A CONVICTION

ON INSUFFICIENT EVIDENCE

"The Constitution prohibits the criminal conviction of

any person except upon proof of guilt beyond a reasonable doubt."

Jackson v. Virginia, 443 U.S. 307, 309 (1979). In this case, peti-

tioner Gary X. Nelson's right to due process was violated because

he was convicted of murder, rape, and aggravated sodomy based on an

-14-

evidentiary showing that simply does not meet the reasonable doubt

standard. First, when the evidence is viewed as a whole in the

light most favorable to the prosecution, no rational trier of

fact could have concluded beyond a reasonable doubt that petitioner

was guilty as charged. Second, as to one specific element of

proof required by the Georgia circumstantial evidence statute,

Ga. Code Ann. § 38-109, as authoritatively construed by the

Georgia Supreme Court in this case, the evidentiary showing

at trial was clearly deficient and the convictions must be

reversed.

A. No Rational Trier Of Fact Could Have

Found Proof Of The Essential Elements

Of Each Crime Beyond A Reasonable Doubt

In In re Winship, 397 U.S. 358, 364 (1970), this Court

held that the Due Process Clause of the Fourteenth Amendment

protects a defendant in a state criminal case against conviction

"except upon proof beyond a reasonable doubt of every fact neces-

sary to constitute the crime with which he is charged.” Jackson

reaffirmed Winship and held that in reviewing whether this standard

has been met, “the relevant question is whether, after viewing

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt." 443 U.S. at 319 (original

emphasis).

The Court should review the instant case because the

proof at trial was so weak as to petitioner's guilt that it falls

far short of the Winship and Jackson standards. The record

here, when read in the light most favorable to the prosecution,

inexorably contradicts the notion that any rational factfinder

18.

could have found petitioner guilty beyond a reasonable doubt of

murder, rape, ox oral sodomy under Georgia law.

The record reveals no direct evidence and merely a few

pieces of circumstantial evidence connecting petitioner with any

of the crimes for which he was convicted. Two of the items of

circumstantial: evidence are tenuous bits of physical evidence.

First, petitioner's blood type is o, and analysis showed that

dried semen scraped off the victim's coat was that of a man with

type O blood. TT 363-64. However, the State's own case revealed

that 44 percent of the population also has type O blood.“ TT

369. Although it might have been possible to analyze the sample

further to establish a more precise identification, no such test

was performed in the State's crime lab. Rather, the police held

the sample for months before analyzing it; by then, only the fact

that it was type 0 could be determined. TT 370-76. In addition,

the only semen that was typed was a dried sample removed from

the victim's coat. Although the State's pathologist testified

that semen was present in the victim's vaginal and anal cavities,

none was removed, typed, or tested in any way. TT 376-77.**

Second, a hair found in the victim's vagina had “suffi-

cient similarities in coloration and microscopic properties to

indicate” that it “could have come from" and vas “similar” to the

hair from petitioner's forearm. TT 340, 342. However, the

* While no evidence was submitted as to the blood type of

defendant's former roommate, Al Swinton, colloquy between

counsel and the court revealed that he, too, had type 0

blood. yy 4 268-69.

** This is but one example of the careless police work that

permeates this entire case. See pp. 21, 22-3, 66-82 infra.

State's expert on identification of hair samples admitted that

hair analysis is imprecise and that the hair in question could

have come from at least 120 other persons in the surrounding

county alone. TT 342-43.* Moreover, there was no evidence

* The cross-examination of the State's expert on hair analysis,

Roger Parian, included the following exchange:

Q. Could have been the same hairs that were found

in the vaginal scrapings of the deceased child, Valerie

Armstrong, or from the same portion of the body of

that person.

A. The hair that was brought in by Mike Hogan was

identified as coming from a vaginal area of a Valerie

Armstrong. That hair could have come from the forearm

of Gary Nelson. It's similar.

Q. Can you fix a percentage of possibility or

probability, beyond general language, could have

been or might have been, possibly could have

been - I don't want to engage in semantics, but 1

vou understand ny point.

A. Yes, sir. It is very difficult to assign a

number of probability to the hair comparison

process.

Q. It's not like seriographic [sic] comparisons,

where w2 have a known percentile of the population

as to certain blood types; it's not that type of

thing.

A. No, sir; it has not been classified into a

population distribution.

Q. Right. We all don't go around giving hair

samples.

A. Not yet.

Q. Maybe someday. Mr. Parian, the possibilities,

then, you really couldn't assess. It could be

plus or minus fifty percent.

A. It could be, yes, sir. I don't think so,

but it could be.

Q. Okay, either way; right, sir?

A. It could be more than one individual, I

would say that.

Q. It could be how many individuals? Can you

give me a figure? We have 120,000 people who -

approximately - who live in this general metropolitan

area known as the City of Savannah, of which

forty percent, approximately - approximately

forty percent is black, I think that's the current

population ratio, and of that forty percent, or

45,000, how many of the black people in this

county could have been, or in the city limits of

the City of Savannah could that have been?

(Footnote continues)

217.

-- the statement of the Georgia Supreme Court to the contrary

notwithstanding — as to whether the Recovered Date was consistent

with the hair of defendant's former roommate, Alphonso Swinton.

The prosecution stated it would prove that the hair sample found

on the victim was inconsistent with Mr. Swinton's hair and it

marked for identification a hair sample stated to be Mr. Swinton's,

but no evidence was ever offered as to whether that sample was

consistent with the hair found on the victim. TT 332-33.

The remaining items of circumstantial evidence connecting

petitioner with any of the crimes are contradictory testimonial

evidence given by a little girl, Sabrina Williams, and by Al

Swinton's girlfriend, Patricia Brown. Sabrina Williams, 10 years

old at trial and 8 years old when the crime occurred, was a play-

3 of the victim's. TT 299. According to the State, Sabrina

was the last person to have seen the victim alive. TT 172.

When the victim's sister came searching for her at Sabrina's

grandmother's house on the night she disappeared, Sabrina did

not tell the sister that she had been with the victim that day.

TT 310.

(Footnote continued)

Can you give me a breakdown, an off-the-wall

figure?

A. Off-the-wall? Yes; it wouldn't be very

accurate, though.

Q. Okay, how many?

A. Out of 60,000 Negroid population?

Q. Let's say out of Chatham County.

A. I would say approximately 120, at least.

Q. At least.

A. Yes, sir.

Q. Minimum, and the. and computations could

run even higher, could they not?

A. Oh, yes, sir.

TT 341-43.

-18-

However, at the pretrial hearing and at trial, Sabrina

testified that she had been with the victim on the day she dis-

appeared. Consistent with her pretrial hearing testimony, Sabrina

stated at trial that she and the victim had gone to the store

together but that while she had money to buy candy, Valerie did

not. TT 303. On their way back from the store, the victim left

her in order to go to her “uncle's” house to get some money. TT

319. Sabrina last saw Valerie Armstrong sometime around dusk

walking towards what Sabrina referred to as "Al's" house. TT 304.

At trial, Sabrina deviated from her pretrial hearing testimony --

in which she had stated that she saw no one in the back yard of

Al's house — and testified that there had been a man dressed in

black clothes working on one of three Volkswagens in the yard.

TT 305. Although she had selected petitioner's picture from a

photo array a few days after the crime as depicting the man in

the yard, at trial Sabrina definitively stated that petitioner was

not the man in the yard. She reiterated no less than four times

that she “wasn't sure” of her previous photographic identification,

explaining that she had been “scared” and "nervous" when it was

made. TT 311-14, 317-24.

Another prosecution witness, the victim's brother

Michael, testified that at about dusk on the day his sister dis-

appeared he took an electric cord and light to the petitioner's

home but that petitioner was not there and one of his cars was

missing. The boy then returned home where his sister, the victim,

was still alive and playing in the yard. TT 221-27.

The testimony of Patricia Brown, who for over ten years

had been the girlfriend of petitioner's roommate, Al Swinton,

related to the knife. The police separately found a taped handle

and a knife blade some 15-17 feet from the body of the victim,

which they pieced together to form a complete knife. TT 246-48,

263. While laboratory analysis revealed human blood on the

knife, the traces could not be typed. TT 362. Other than

the presence of the unknown blood, there was no evidence that

the knife was in fact the murder weapon, nor even that the size

and shape of ‘the blade was consistent with the stab wounds on

the victim's body.

The prosecution, however, sought to establish that the

knife belonged to the defendant. Patricia Brown could not remem-

ber the month or even the year she had last seen Al Swinton, the

man whose girlfriend she admitted to being for 11 or 12 years.

TT 354-55. But, looking only at a photograph of the knife more

than two years after the crime and more than two years since she

had been at Al's house, she testified that it was the same knife

that was present in the house before Al moved out and that while

the knife was not sharp, she had used it occasionally to cut

p chicken. TT 347-49. Ms. Brown further testified that she had

gone to the house about a week before the crime. At that time,

Al was not there. She did not notice whether the knife was

still there. TT 350. On cross-examination, she explained that

she recognized the knife because of the taped handle and that

nothing else distinguished it. TT 351-52. She also testified

on cross that Al Swinton's nickname was Chicken and that

petitioner had been upset with Swinton because he left candy

around, thus encouraging the neighborhood children to come over

to the house, TT 353-54.

With respect to the knife, petitioner's girlfriend,

Diane Knight, and her brother -- both originally subpoenaed

-20-

by the State -- testified for the defense that the knife was not

familiar to them.* TT 526-28, 531, 549, 552-57. And, during

the State's case, the police admitted that while masking tape

had been found during an illegal search of defendant's house,

it did not match the tape on the knife handle. TT 383. It

was also revealed that in taking the tape off the knife handle,

the police might have destroyed any fingerprint evidence otherwise

recoverable from the tape.** TT 264-66.

Not only was the prosecution's evidence tenuous, but

in examining what the prosecution did show, there are numerous

* Both had made unsworn pretrial statements to the police. While

Ms. Knight's statement was in conflict with her trial testimony

she swore that the earlier statement, elicited while she was in

custody, was false. TT 542-43.

** The only other evidence conceivably connecting petitioner

with either the victim or the crime came from the victim's

stepfather, Rayfield McCray. Mr. McCray testified that on

the day of his daughter's disappearance, while petitioner

was at his home and his children were playing in the yard,

he pointed out the victim to the petitioner, stating, "That's

my little girl right here.“ He testified that petitioner

responded, “Yeah, I know, that's my little buddy, because

she comes down to the house all the time to go to the

store for us." TT 184. Mr. McCray also testified that

before the body was discovered petitioner stopped by to

express his regrets that the child was missing. TT 187.

Petitioner admitted to being at Mr. McCray's home on the day

of the disappearance, denied discussing the child that day,

denied stopping by the next day, and testified that he did

not know the child by name. TT 566, 579-80.

McCray also testified that at 2 a.m. on Tuesday,

February 21, the day after discovery of the body, he received

an anonymous phone call from a person whom he identified

as petitioner, telling him “a feliow on the east side by

the name of Blue“ killed his daughter. TT 188-89. While

petitioner was not questioned about the phone call, the

statement he gave to the police reveals that he did not

have a phone in his home. TT 452. The police testified

that they had identified Blue“ but did not arrest him for

the crime. TT 391-92. No evidence submitted at trial

showed "Blue's" whereabouts at the time of the crime or

his involvement, if any, with the murder.

omissions and questions unanswerable from the record. The victim

was last seen walking towards "Al's" house, but there was not a

shred of evidence as to what transpired between that moment and

the discovery of the body a day later. There was absolutely no

evidence as to when the crime was committed during the many

hours the victim was missing. There was absolutely no evidence

of actual contact between petitioner and the victim at or about

the time the crime was committed. Indeed, the State's own case

showed that immediately before the victim disappeared petitioner

was absent from the area. Nor was there a shred of evidence

that petitioner was present at the scene of the crime at any

time, let alone prior to or immediately following the time of

death. And, there was no evidence as to Mr. Swinton's where-

abouts on the day of the crime, or Mr. Swinton's hair type,

despite the fact that Mr. Swinton was apparently the "Uncle" to

whom the victim referred when she was last seen by her playmate,

Sabrina.

Similarly, even if the knife the police pieced together

was petitioner's, other than the presence of the untyped human

blood on the knife there is no evidence that the knife was the

the murder weapon. The State offered no proof that the knife

blade was physically consistent with the stab wounds, or, a

fortiori, that petitioner used that knife on the victim. There

were no fingerprints on the knife linking it to the petitioner.

Thus, aside from the semen and hair samples, both of which were

so common as to be virtually worthless as evidence, there was

no physical evidence linking the petitioner to either the victim

or the crime scene. Petitioner voluntarily gave hair and blood

-22-

samples and submitted to a lengthy verbal interrogation by the

police. Although the police used what may charitably be described

as questionable techniques in interrogating Petitioner, no in-

criminating admission was made. TT 413-504.“

Other material omissions abound. There was absolutely

no evidence as to any possible motive petitioner might have had

for the killing. In fact, the State's own case showed petitioner

on friendly terms with both the victim and her family. TT 179-90.

There was absolutely no evidence that the murderer was in fact

one and the same person as the rapist and sodomist. Finally,

there was no evidence that the murder was committed in connection

with an aggravated battery or other serious physical abuse or

torture prior to death. Specifically, there was absolutely no

evidence of when the murder took place or whether the murder pre-

ceded or followed the rape and sodomy. While there was testimony

that one particular knife wound caused the victim to bleed to

death “not long after its infliction, there was no evidence

whether the victim was conscious or unconscious during that tine.

Although the Georgia Supreme Court stated there were multiple

stab wounds, 247 Ga. at 274 S.E.2d at 323, the evidence in

fact shows there was but one deep stab wound and several surface

wounds. TT 293, 295.

In sum, viewing the evidence regarding the murder in

the light most favorable to the prosecution, the State placed

petitioner near the victim while she was alive, but wholly failed

to prove the time of her death or petitioner's whereabouts at

* petitioner's house had also been gus apart in an admittedly

unlawful search shortly after the crime, but no incciminating

evidence was uncovered. TT 168-69, 512-13.

-23-

hat time. It placed near the body a knife with traces of human

lood of unknown type, which had been seen in petitioner's home

hen both he and Mr. Swinton lived there, but failed to prove that

he knife was in the house on February 19 or, in fact, that it

as used in this crime. The State advanced no motive, and failed

in any way to rule out a second suspect of seemingly equal prob-

ability as petitioner -- Mr. Swinton. on this basis, petitioner

as found guilty of murder and ultimately sentenced to death.

In regard to the charges of rape and aggravated sodomy,

the evidence most favorable to the prosecution was even more

eager. The State showed that petitioner was near the victim

at some time before she disappeared. The only other evidence

introduced by the State connecting petitioner to the rape and

sodomy was that the semen recovered from the victim's coat belonged

to a person with type O blood — a group that included petitioner,

Mr. Swinton, and 44 percent of the U.S. population — and that a

hair in the child's body belonged to a member of a group comprised

of, at minimum, 120 persons in that county alone. Moreover, the

medical evidence showed rape and anal sodomy. TT 292-93. The

pathologist specifically testified that he “couldn't swear" that

there was oral sodomy and in fact stated that there is “some

doubt that there was oral intercourse." TT 294-97. No other

evidence in regard to oral sodomy exists on the record. WNonethe-

less, the trial court read to the jury the aggravated sodomy

indictment which charged only oral, not anal, sodomy.* MTT 655.

Incredibly, the jury found petitioner guilty of oral sodomy

beyond a reasonable doubt and the Georgia Supreme Court affirmed.

* The indictment charged that Gary Nelson did “unlawfully perform

a sexual act involving the penis of the said defendant and the

mouth of Valerie L. Armstrong . . . with force and against

the will of Valerie L. Armstrong." Tr 655.

We submit that the evidence is so weak as to mandate the

iconclusion that no rational trier of fact could have found that

[chere vas proof of any of the charged crimes beyond a reasonable

U oubt °

B. The Evidence Presented At Trial Was Such That No Rational

Trier Of Fact Could Have Found That The Requirement Of The

Georgia Circumstantial Evidence Statute Was Satisfied

Beyond A Reasonable Doubt

As set forth above, we believe that the evidence as a

| hole is such that it should be reviewed by this Court as to its

| onstitutional sufficiency. Assuming, arguendo, that the

jevidence otherwise would pass constitutional muster, a review of

ene record below reveals that one essential element required to

iconvict petitioner of the crimes charged under Georgia law simply

Iwas not established by the State. Because, as the State conceded

err 175-76, 651-52), this was a totally circumstantial case,

Georgia law required that the State's proof rule out every rea-

isonable hypothesis consistent with innocence, Ga. Code Ann.

38-109, and the jury was so charged. TT 662-63. The Georgia

supreme Court held that the Georgia circumstantial evidence

statute, as applied to the facts adduced at trial, required

ithe State to introduce evidence excluding the possible guilt

lof Alphonso Swinton, petitioner's roommate. That court also

ifound that the State had discharged that burden. 247 Ga. at

„ 274 8. E. zd at 323.

The Georgia Supreme Court's decision, however, misstates

hat was proven at trial regarding Mr. Swinton. When the record

lis reviewed as to Mr. Swinton it is apparent that no rational

itrier of fact could have ruled out his guilt as a hypothesis at

least as reasonable as that of petitioner's guilt. On this limited

asis alone, the evidence was constitutionally insufficient to

onvict Mr. Nelson.

Section 38-109 of the Georgia Code provides:

To warrant a conviction on circumstantial

evidence, the proved facts shall not only be con-

sistent with the hypothesis of guilt, but shall

exclude every other reasonable hypothesis save

that of the guilt of the accused.

Pursuant to the statute, the jury was instructed by the trial

judge that the “circumstances proven must not only be consistent

with the guilt of the Accused, but they must exclude every other

reasonable hypothesis . . . except that of guilt of the Accused."

TT 663.* Thus, exclusion of every reasonable hypothesis save that

of guilt was one of the necessary elements which the jury was

required to find in order properly to convict.** Under Winship,

397 U.S. at 364, this necessary element of the charged crimes

had to be proven beyond a reasonable doubt.

The Georgia Supreme Court, in reviewing the evidence and

authoritatively interpreting Georgia Code section 38-109 as applied

to this record, so held:

* In the Report of the Trial Judge (required under Ga. Code

Ann. § 27-2537(a)) at 4, the trial judge stated that he

“cannot say that the verdict foreclosed all doubt respecting

[petitioner's] guilt. However, . . it is my opinion that

the jury was well authorized to reach the conclusion that

[ur Nelson] was guilty... -"

** Indeed, where, as here, the case is close or doubtful and

the evidence relied on to convict is wholly circumstantantial,

failure to charge on this section of the Georgia Code would

have been reversible error under Georgia law, even if there

had been no request for such a charge. 75.255 Germany v.

State, 235 Ga. 836, 221 8. E. 2d 817 (1976); Sanders v.

State, 97 Ga. App. 158, 102 8. F. 2d 635 (1958); McGruder

v. State, 213 Ga. 259, 98 8. E. 2d 564 (1957).

~26-

Swinton was the appellant's roommate. In order

for the state to prove its case against the

appellant, it was necessary for the state to

exclude the possibility that Swinton, who also

had access to the murder weapon, could have

committed the murder, BAe:

247 Ga. at 274 8. E. zd at 323.“ The court correctly held that

the State had to exc’ de the possibility of Mr. Swinton's guilt

in order to prove its 4 No rational trier of fact confronted

with this record could have ruled out every hypothesis consistent

with innocence without ruling out Mr. Swinton.

However, the Georgia Supreme Court seriously misread

the trial record as to a crucial fact, asserting that "[t)he

evidence introduced included proof that the hair found on the

victim could have come from the appellant's arm, but could not

have come from Swinton's arm." 247 Ga. at 274 8. E. 2d at

323. This observation is contrary to the record. At trial, the

prosecutor stated, outside the jury's presence, that he would

prove that the hair found on the victim could not have come from

Mr. Swinton (TT 269), and marked for identification a hair sample

said — but not proven — to have come from Mr. Swinton's arm.

TT 333. But, despite the prosecutor's statement as to what he

"would" prove, the State's expert gave no testimony concerning

his examination of the Swinton sample or how it compared with

the sample found on the victim. Thus, no evidence whatsoever

sistent with Mr. Swinton'’s hair. And the Georgia Supreme Court,

relying on a wholly erroneous factual premise -- that the State

* The court's opinion refers to the knife as the “murder weapon"

although there is no evidence to support that characteriza-

tion. See pp. 7, 22, supra.

27.

had proven that the hair found on the victim could not have come

from Swinton -- improperly concluded that "the evidence excludes

every reasonable hypothesis save that of guilt." 247 Ga. at fide oy

274 S.E. 2d at 323.

Petitioner cannot be sent to his death in the face of

this glaring oversight. The prosecution did not exclude the

possibility of Mr. Swinton's guilt. Accordingly, the State

failed to prove its case against petitioner under Georgia law,

as authoritatively interpreted by the Georgia Supreme Court in

this very case. Winship and Jackson compel reversal of his

conviction, if not on the record as a whole, certainly on the

narrower basis that, as to the exclusion of Swinton, the Georgia

Supreme Court relied on testimony that did not exist in the

record. Cf. Thompson v. Louisville., 362 U.S. 199, 206 (1960)

(due process violated by a criminal conviction based on “no

evidence"). As demonstrated by the Georgia Supreme Court's

misreading of the record, the lack of evidence in this case

introduced “a level of uncertainty and unreliability into the

factfinding process that cannot be tolerated in a capital case."

Beck v. Alabama, 100 8. Ct. 2382, 2392 (1980).

11.

THE COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER GEORGIA'S STATUTORY BASIS FOR IMPOSING

DEATH HERE IS UNCONSTITUTIONALLY VAGUE OR OVER-

BROAD ON ITS FACE OR AS APPLIED IN THIS CASE

The only statutory aggravating circumstance supporting

the death penalty imposed in this case is section (b)(7), which

permits a capital sentence if the jury finds unanimously and

beyond a reasonable doubt that the offense of murder "was out-

rageously or wantonly vile, horrible or inhuman in that it

involved torture, depravity of mind, or an aggravated battery to

the victim." Ga. Code Ann. § 27-2534(b)(7). This Court has

long been concerned about the apparent vagueness and overbreadth

of section (b)(7). We submit that experience in the application

and construction of section (b)(7) now requires a holding that it

is unconstitutional on its face. In the alternative, as we show

in Part B, infra, section (b)(7) was applied unconstitutionally

in this case.

A. Section (b)(7) Is Unconstitutional On Its Face

Well before this Court's decision in Furman v. Georgia,

408 U.S. 238 (1972), studies of jury behavior strongly suggested

that arbitrary and capricious sentencing results were likely in

any effort to compare “heinous” murders. In their influential

work on juries published in 1966, Kalven and Zeisel studied 111

pre-Furman cases in “which either judge or jury found the defend-

ant guilty of a capital crime and hence could have given the death

eet H. Kalven & H. Zeisel, The American Jury (hereafter

cited as “Kalven and Zeisel") 435-36 (Phoenix ed. 1971) (original

emphasis; footnote omitted). After noting that imposition of

the death penalty was itself relatively rare (juries imposed it

in only 19 percent and judges in only 26 percent of these cases),

Kalven and Zeisel also concluded that the “cases in which jury

and judge agree that the defendant should pay for his crime with

his life are marked for the most part by peculiar heinousness."

Id. at 437. However, Kalven and Zeisel also found that there

was a randomness to classifying crimes on this basis: "([MJany

of the murder cases in which the judge and jury disagree on the

death penalty [-- 21 in this study -- ] appear no less heinous

than those in which they agree.” Id. at 439.

When Georgia re-enacted the death penalty after Furman,

the legislature obviously attempted to preserve the capital jury's

right to make judgments based on “heinous” circumstances. Section

(b)(7) was the result, and this. case poses the issue of whether

specifying heinousness as a statutory aggravating circumstance

truly guides or channels jury discretion so as to avoid "freakish"

imposition of the ultimate sanction. We submit that it does not,

at least absent: (1) a legislative effort that is considerably

more detailed and specific than that exemplified in the unelabor-

ated words of settion (b)(7), and (2) a requirement that such

detailed standards be invariably explained to capital juries in

a consistent manner through trial court instructions. Both of

these requirements are absent in the present case and, indeed,

they are absent in most (if not all) Georgia capital cases where

the death sentence is based solely on section (b)(7). Unless

these criteria are met, and they were not met below, a sample of

“heinous” murders in which the death penalty is sought solely on

the basis of section (b)(7) will, on a random basis, sometimes

produce a death sentence and other times life imprisonment.

This perception has long troubled this Court. Gregg

v. Georgia, 428 U.S. 153 (1976), rejected a broad challenge to

Georgia's post-Purman capital punishment statute. The two prin-

cipal opinions noted that the new sentencing procedures “channeled”

the jury's sentencing discretion, 428 U.S. at 206 (plurality

opinion), and that this legislative “effort to guide the jury

in the exercise of its discretion” was not vulnerable to “the

naked assertion that the effort is bound to fail,” id. at 222

(White, J., concurring). Focusing specifically on the special

role of the Georgia fiupreme Court in reviewing all death sentences

-30-

„to ensure that the sentence of death in a particular case is

not disproportionate," the plurality also concluded that that

court's role was "an important additional safeguard against

arbitrariness and caprice” which, combined with the other proce-

dures, “[o]n their faces . . seem to satisfy the concerns

of Furman." Id. at 198.“

The plurality also responded to a specific claim that

section (b)(7) was unconstitutionally vague and overbroad:

It is, of course, arguable that any murder

involves depravity of mind or an aggravated

battery. But this language need not be con-

strued in this way, and there is no reason

to assume that the Supreme Court of Georgia

will adopt such an open-ended construction.

In only one case has it upheld a jury's deci-

sion to sentence a defendant to death when

the only statutory aggravating circumstance

found was that of the seventh, see McCorquodale

v. State, 233 Ga. 369, 211 8. E. 2d 577 713777

and that homicide was a horrifying torture-

murder.

428 U.S. at 201 (footnotes omitted). ““

In the years since Gregg, however, the Supreme Court

of Georgia has adopted an open-ended construction of section

(b)(7). The clearest evidence of this is in the Georgia Supreme

* Justice White's opinion concurring in the judgment in Gregg

also stressed the special staff and procedures attending

mandatory appellate review, 428 U.S. at 223, concluding that

“if the Georgia Supreme Court properly performs the task

assigned to it under the Georgia statutes, death sentences

imposed for discriminatory reasons or wantonly or freakishly

for any given category of crime will be set aside.“ Id. at

224. On the facts of this case, see pp. 27-28 supra, “One

cannot escape the conclusion that appellate review of the

trial record was something less than meticulous.

** In Gregg itself, § (b)(7) was one of three aggravating

circumstances subaitted to the jury on the sentencing

phase, and the jury failed to find that aggravating

circumstance although the evidence indicated that the

murders were brutal, execution-style killings. See 428

U.S. at 159-60.

Court's reaction to Gregg and to this Court's ruling last term

in Godfrey v. Georgia, 446 U.S. 420 (1980). Furthermore, the

number of cases in which section (b)(7) is the sole support for

a sentence of death has expanded: significantly, indicating that

prosecutors, juries and the Georgia courts are increasingly

using section (b)(7) -- by far the most general of the statutory

aggravating circumstances -- as a catch-all provision to justify

imposition of the death penalty on an essentially random basis.

The central problem posed by section (b)(7) is that it

requires the jury to make an unguided, comparative judgment rather

than to find facts. With one possible exception,* none of the

ther aggravating circumstances in the Georgia death penalty

statute (Ga. Code Ann. §§ 27-2534.1 (b)(1)-(10)) requires the

jury to do anything other than to determine whether the prosecution

as proved specific, objective facts.** Thus, section (b)(7) --

particularly when it is the only aggravating circumstance relied

upon by the State -- poses wholly unique problems under the

Georgia capital punishment scheme. In effect, it requires the

jury to determine that the murder was so especially heinous as

* The exception consists of a clause in the first aggra-

vating circumstances rmitting imposition of the death

penalty if the jury finds that a “murder was committed

by a person who has a substantial history of serious

assaultive criminal convictions." Ga. Code Ann.

§ 27-2534.1(b)(1). That clause, although seemingly more

precise than § (b)(7), was struck down on grounds of

vagueness by the Georgia Supreme Court. Arnold v. State,

236 Ga. 534, 540, 224 S.E.2d 386, 391 (1976). See Gregg,

428 U.S. at 202.

** For example, a jury may be called upon to decide whether

the murder was for hire (the sixth aggravating circum-

stance) or whether the victim was a policeman, fireman

or prison employee engaged in performing his or her

duties (the eighth aggravating circumstance).

~32<

to warrant the ultimate sanction. To avoid arbitrariness, a jury

making such a finding must necessarily compare, in a carefully

channeled way, degrees of heinousness. The jury might do this

in several ways. For example, it might be apprised about all

the murders that have occurred in Georgia, and whether the

offenders were sentenced to life or death, so that it could

weigh the evidence presented to it against those other murders.

However, the Georgia trial courts have not, to our knowledge,

sought to instruct juries about the facts of other heinous

murders.* Alternatively, the jury might make such a finding

guided by some objective standard in such a way as to avoid

arbitrariness. Although it is apparently this second course

that the Georgia legislature intended in drafting section (b)(7),

the trial courts have wholly failed to narrow or to explain such

objective standards in their jury charges. Rather, they routinely

rely simply upon a reading of the statute without elaboration.**

The constitutional infirmities of the statute as it is

worded and applied in Georgia -- particularly in light of the

0 Indeed, it would apparently be error in Georgia for the

prosecutor to comment on the facts of other cases. See

Ga. Code Ann. § 24-3319:

Counsel shall not be permitted, in the argument

of criminal cases, to read to the jury recitals

of fact or the reasoning of the court as applied

thereto, in decisions by the Supreme Court or

Court of Appeals.

Accord, Hawes v. State, 240 Ga. 327, 336, 240 S.E.2d 833,

840 (1977).

** See, e.g., Godfrey v. Georgia, 446 U.S. 420, 426 (plurality

opinion}; id. at 440-41 (Marshall, J., concurring in the

judgment). At the sentencing phase of petitioner's trial,

the trial court quoted § (b)(7) without any limiting in-

struction, except as to the statutory definition of aggra-

vated battery. Tr 677.

-33-

Eighth Amendment concerns expressed in Furman -- are: (1) that

the jury is expressly required to make a comparative choice, and

(2) that the guidance provided by the unexplained statutory

language of section (b)(7) is an insufficient basis upon which

to make such a choice.

Review of all capital cases by the Georgia map

Court has not corrected these deficiencies.* That court continues

to permit juries in capital cases to determine whether their case

is somehow “outrageously or wantonly vile, horrible or inhuman"

as compared to other murders, based apparently, not on evidence

of record, but simply on the jurors“ general knowledge, colored

by the arguments of counsel.** This is hardly conventional fact-

finding, although the Georgia statute expressly requires that

each element of the section (b)(7) aggravating circumstance must

be found “beyond a reasonable doubt." Moreover, in its review,

the Georgia Supreme Court, rather than following a restrictive

view of the second clause of section (b)(7), has adopted extremely

loose definitions of each term contained in that clause, and has

not hesitated to expand even those definitions on an ad hoc basis

* See Dix, A llate Review of the Decision to Impose Death,

68 Geo. L.J. 97, 159 (1979).

** Por example, in the present case, while exhibiting to the

jury inflammatory photographs depicting the condition of

the victim's body, the prosecutor stated:

I'm going to let you see right now. . . how

that little girl lay on the table at the Morgue.

You know, what kind of person does that? What

kind of a person takes a six-year old baby and

does that to her? Or would you even classify

that as a person? Is that a person? Was that

a human being that's supposed to be made in the

image and likeness of God who could do that?

TT 673.

-34-

in order to uphold death penalties imposed in later cases. Nor

has the Georgia Supreme Court required that even such definitions

as it has offered from time to time be included in jury charges.

Thus, the most that can be said of a determination under section

(b)(7) is that each juror, somehow, must form the opinion that

the crime established by the state was especially heinous.

In Godfrey v. Georgia, 446 U.S. 420 (1980), this Court

was compelled to intervene. Confining itself to the situation

presented. the plurality opinion clearly established that any

death sentence resting solely upon a jury finding that defendant's

offense was “outrageously or wantonly vile, horrible and inhuman"

was constitutionally infirm under the Eigiith and Fourteenth

Amendments:

There is nothing in these few words, standing

alone, that implies any inherent restraint on

the arbitrary and capricious infliction of the

death sentence. A person of ordinary sensibility

could fairly characterize almost every murder as

“outrageously or wantonly vile, horrible and

inhuman." Such a view may, in fact, have been

one to which the members of the jury in this

case subscribed. If so, their preconceptions

were not 1 by the trial judge's sentenc-

ing instructions [which quoted the statutory

language of § (b)(7) in its entirety). These

gave the jury no guidance concerning the meaning

of any of § (b)(7)'s terms. In fact, the jury's

interpretation of § (b)(7) can only be the sub-

ject of sheer speculation.

446 U.S. at 428-29 (bracketed material from id. at 426).

Godfrey also considered extensively the impact of the

second, “limiting” clause contained in section (b)(7). The

plurality opinion observed that two post-Gregg Georgia decisions

interpreting section (b)(7), Harris v. State, 237 Ga. 718, 230

Blake v. State, 239 Ga. 292, 299, 236 S.E.2d 637, 643, cert.

denied, 434 U.S. 960 (1977),

-35-

suggest that the Georgia Supreme Court had

by 1977 reached three separate but consistent

conclusions respecting the § (b)(7) aggravating

circumstance. The first was that the evidence

that the offense was “outrageously or wantonly

vile, horrible or inhuman" had to demonstrate

"torture, depravity of mind, or an aggravated

battery to the victim." The second was that the

phrase, “depravity of mind," comprehended only

the kind of mental state that led the murderer

to torture or to commit an aggravated batte

ore ng s victim. e der ved

from Blake alone, was that the word, torture“

must be construed in pari materia with "aggra-

vated 8 so as to require evidence of

serious physical abuse of the victim before

death.

446 U.S. at 431 (emphasis added; footnote omitted). The plurality

went on to stress the lack of any evidence of torture or aggravated

battery to Godfrey's two victims, and the fact that both were

killed “instantaneously.” Id. at 432-33.*

The plain meaning of the passage quoted above is that

any constitutional “core” subsisting within the language of

section (b)(7) is extremely limited in scope: i.e., this

aggravating circumstance could be constitutionally applied only

if the evidence of record establishes beyond a reasonable doubt

the objective fact that the victim suffered serious physical

abuse prior to death. The Godfrey plurality's second observation

quoted above is particularly significant in light of subsequent

interpretations of section (b)(7) by the Supreme Court of Georgia

(see pp. 37-46, infra), because it requires an extremely limited

construction of the phrase “depravity of mind." In effect, we

submit, Godfrey held that, in order for section (b)(7) to be

constitutional, the “depravity” phrase -- which is exceedingly

* There was a vigorous dissent by Mr. Justice White contest-

ing, inter alia, the plurality's interpretation of the

evidence, particularly as regards Mr. Godfrey's second

victim, his mother-in-law. See 446 U.S. at 449-51 (White,

J. dissenting).

-36-

broad and vague — must be stripped of independent significance

by always being clearly linked in jury instructions to the con-

siderably more specific requirement that the evidence demonstrate

“torture” or “aggravated battery." This was hardly surprising,

since the plurality opinion in Gregg had singled out the “depravity

language by observing that it was, “of course, arguable that any

murder involves depravity of mind." 428 U.S. at 201.“

Thus, it seemed clear after Godfrey how section (b)(7)

had to be interpreted if it was to survive constitutional scrutiny.

Petitioner's trial occurred in February 1980, after certiorari

had been granted in Godfrey, 444 U.S. 897 (October 9, 1979), and

prior to this Court's Godfrey decision in May 1980. He unsuccess-

fully raised the question of the constitutional validity of his

sentence in light of Godfrey in both courts below. The Georgia

Supreme Court's response, stated in its sentence review, was that:

{f£)rom the evidence [concerning the condition

of the victim's body), the jury was fully autho-

rized in finding that the murder was “outrageously

or wantonly vile, horrible or inhuman in that

it involved torture, depravity of mind, or an

aggcavated battery to the victim." See generally

Hance v. State, 245 Ga. 856, 268 S.E.2d 339

Supra. The verdict is factually substantiated.

Nelson, 247 Ga. at „ 274 S.E.2d at 323 (January 27, 1981).

We are thus directed to Hance v. State, 245 Ga. 856,

268 S.E.2d 339 (1980),** to determine whether the Georgia Supreme

Court has complied with Godfrey. At the outset, we state our

* See also Proffitt v. Florida, 428 U.S. 242, 255-56 (1976).

** This Court denied certiorari following the cited decision of

the Georgia Supreme Court in Hance. Hance v. Georgia, 101

S. Ct. 796 (1980). The petition filed in this Court, however,

did not attack the constitutionality of § (b)(7). See

Petition for Certiorari filed in Hance v. Georgia, No.

80-5561, on October 19, 1980.

@37=

conclusion: Hance demonstrates that the Supreme Court of Georgia

as not yet adopted a constitutionally permissible construction

f section (b)(7), despite the passage of five years and the

issuance of two opinions of this court requiring such a response.

Because “death is different,"* and because this Court itself

is without authority to construe definitively section (b)(7) in

a constitutional manner,** this Court must now intervene and

eclare that portion of the statute unconstitutionally vague

and overbroad on its face in order to prevent the arbitrary and

capricious imposition of the death penalty condemned in Furman.

The Hance opinion of June 24, 1980, contains the Georgia

Supreme Court's most extensive interpretation of section (b)(7)

since the statute was amended in 1973 in the wake of Furman.

Directly responding to Hance's claim of unconstitutional over-

breadth and vagueness in light of Godfrey, the state court held

that:

In order for [section (b)(7)] to be con-

stitutionally applied in a given case, we hold

that th evidence presented at trial must satisfy

the following criteria as they apply to the

specific factual situation of each case.

1111

This statutory aggravating circumstance

consists of two major components, the second

of which has three sub-parts, as follows: (I)

The offense of murder was outrageously or want-

only vile, horrible or inhuman (II) in that it

bd Grea. 428 U.S. at 188 (plurality opinion); accord, Beck

v. Alabama 447 U.S. 625, 637-38 (1980); Gardner v. Florida

430 U.S. 349, 357-58 (1977) (plurality opinion); Woodson v.

North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion).

** Smith v. Goguen, 415 U.S. 566, 575 (1974); United States

v. Thirty-seven Photographs, 402 U.S. 363, 369 (1971).

-38-

involved (A) aggravated battery to the victim,

(B) torture to the victim, or (C) depravity of

mind of the defendant. In determining "“[w) hether

+ « « the evidence supports the jury's or judge's

finding of [this] statutory aggravating circum-

stance..." (Code Ann. § 27-2537(c)(2)), the

evidence must be sufficient-to satisfy the first

major component of the statutory aggravating

circumstance and at least one sub-part of the

second component, as hereinafter set forth. .. .-°

The phrases “outrageously or wantonly vile,

horrible or inhuman" are words of common under-

standing, have essentially the same meaning, and

are included in the statute to distinguish ordi-

nary murders for which the penalty of death is

not appropriate, from those murders for which

the death penalty may be imposed. Godfrey v.

Georgia, [446 U.S. 420 (1980)].

1 3)

Under the plain meaning of the statute, not

only must the murder be outrageously or wantonly

vile, horrible or inhuman, but in addition, the

facts of the case must show either an aggravated

battery to the victim, torture of the victim, or

depravity of mind of the defendant as hereinafter

explained.

11 4)

An aggravated battery occurs when "[a]

person .. . maliciously causes bodily harm to

another by depriving him of a member of his body,

or by rendering a member of his body useless,

or by seriously disfiguring his body or a member

thereof." Code Ann. § 26-1305. In order to

constitute aggravated battery, the bodily harm

to the victim must occur before death. Godfrey

v. Georgia, supra.

11 5)

Torture occurs when the victim is subjected

to serious physical abuse before death. Godfre

v. Georgia, [supra]. Serivus sexual abuse may 5

found to constitute serious physical abuse. ‘House

v. State, 232 Ga. 140, 205 8. E. 2d 217 (1974).

Torture also occurs when the victim is subjected

to an aggravated battery as hereinabove defined.

-39-

Evidence of psychological abuse by the

defendant to the victim before death where it is

shown to have resulted in severe mental anguish

to the victim in anticipation of physical harm

may amount to serious physical abuse (i.e.,

torture of the victim), and also will support a

finding of depravity of mind of the defendant.

11 71

Insofar as aggravated battery and torture

are concerned, only facts occurring prior to death

may be considered. The death of a victim who dies

instantaneously with little or no forewarning does

not involve torture or aggravated battery (Godfre

v. Georgia, [supra]. . .; i.e., only facts showing

aggravated battery or torture (as hereinabove

defined), which are separate from the act causing

instantaneous death, will support a finding of

torture or aggravated battery. The instantaneous

death of a victim as a result of- being killed by

a shotgun, although the scene of death be gruesome

(no other facts appearing), does not constitute

torture, aggravated battery or depravity of mind.

(Godfrey v. Georgia, supra.)

Where only facts occurring prior to death

are relied upon to support a finding of torture

or aggravated battery, the fact that the victim

was tortured or was the victim of an aggravated

battery will also support a finding of depravity

of mind of the defendant; i.e., a defendant who

tortures the victim or subjects the victim to an

aggravated battery before killing the victim can

be found to have a depraved mind.

11 9)

In determining whether the evidence shows

"depravity of mind,” the age, and the physical

characteristics of the victim may be considered.

See 69 22 v. State, 245 Ga. 688 1266 8. E. 2d 499]

(1980). .

11 10)

A defendant who mutilates or seriously dis-

figures the victim's body after death (cf. Code

§ 26-1305, supra [the aggravated battery statute]),

or who commits a sex act upon the victim's body

after death may be found to have a depraved mind

and such acts would be sufficient to show depravity

of mind of the defendant within the meaning of the

statute.

-40-

11 11)

Where it cannot be determined whether the

victim was subject to an aggravated battery or

torture before death, or to mutilation or dis-

figurement after death, because the exact time

of death or the precise act causing death cannot

be ascertained, the penalty of death nevertheless

may be sustained on the basis of aggravated battery

or serious physical abuse before death or depravity

of mind demonstrated after death.

Hance, 245 Ga. at 860-62, 268 S.E.2d at 345-46.

To our knowledge, such an instruction has never been

given to a Georgia jury charged with determining whether section

(b)(7) is satisfied. See Godfrey, 446 U.S. at 436-37, 440-42

(Marshall, J., concurring in judgment).* Certainly no such charge

was given in petitioner's case. See TT 676-80, discussed at

pp. 8-11 supra. However, even this extensive interpretation of

section (b)(7) is constitutionally deficient under Godfrey in

at least tour major respects.

First, the Georgia court continues to maintain that

the jury must, and constitutionally may, make the inherently com-

parative judgment that the murder before it is “outrageously or

wantonly vile, horrible or inhuman.” Hance, 44 1, 2 and 3,

* As this Court is aware, the Georgia Supreme Court holds

the view that it is unnecessary for it to vacate death

sentences imposed in whole or in part under § (b)(7) so

as to require a new sentencing trial. Rather, that court

itself purports to review the evidence presented and attempts

to determine whether that evidence establishes the existence

of one or more of the aggravating circumstances originally

found by the jury. See Westbrook v. Balkcom, 49 U.S.L.W. 3371

(1980) (Stevens, J., concurring in the denial of certiorari).

See also Brooks v. State, 246 Ga. 262, 271 8. E. 24 172

(1580). This Court, however, has yet to rule definitively

on the propriety of this procedure. Cf. Willis v. Balkcom,

49 U.S.L.W. 3786 (1981) (Marshall, Brennan and Stewart, JJ.,

dissenting from the denial of certiorari).

quoted supra. It may be, as the Georgia court observed, that

phrases such as “outrageously or wantonly vile” employ words of

"common understanding,” but that begs the question. It is their

application across a universe of murders -- to distinguish the

ordinary from the extraordinary -- that is not a matter of common

understanding or experience. This is why Godfrey held that a

jury's finding that a particular murder was horrible or vile could

not constitutionally support the imposition of the death penalty,

unless there was also an evidentiary finding of serious physical

abuse of the victim before death. Thus, as interpreted in Hance,

the phrase “outrageously and wantonly vile, horrible or inhuman"

continues to have independent significance despite the fact that

its breadth and vagueness can only serve to increase arbitrary

nd capricious capital sentencing in violation of the basic tenets

f Furman.

The second deficiency of the authoritative construc-

ion of section (b)(7) by the Georgia Supreme Court in Hance is

nalytically distinct from the first, but -- absent intervention

y this Court -- is likely to be of greatest practical import to

hose accused of murder in Georgia. As we have shown, Godfrey

ndicates that section (b)(7) could not constitutionally be

pplied in a case where the jury found only that the murder was

outrageously . . . vile,” etc., in that it involved...

epravity of mind... his conclusion follows inevitably

rom the fact that the plurality opinion in Godfrey required

hat the latter phrase be stripped of independent significance

y linking it -- in each and every case -- to the somewhat more

pecific language concerning torture and aggravated battery.

fFompare Godfrey, 446 U.S. at 431 (plurality opinion), with id.

-42-

at 451 (White, J., dissenting). The Georgia Supreme Court in

Hance -- in 11 1, 3, 8, 9, 10 and 11 quoted supra -- flatly

refused to so hold. Since Gregg, that court has been aware of

this Court's particular concern about the vagueness of the

"depravity of mind" phrase in section (b)(7), yet its opinion

in Hance gives this phrase immense independent significance.*

This result -- which contravenes Godfrey -- cannot be permitted

to stand, for Hance permits Georgia juries, performing the already

unfamiliar task of exercising sentencing discretion, see Gregg,

428 U.S. at 192, to impose the ultimate punishment under a statute

of such “standardless sweep" that it permits those “juries to pur-

sue their personal predilections." Smith v. Goguen, 415 U.S. 566,

575 (1974). See also Godfrey, 446 U.S. at 427-33; Grayned v.

* professor Black has made a powerful case against this par-

ticular phrase in § (b)(7):

"Depravity of mind," one of the Georgia sentencing cri-

teria, may seem to you, as it does to me, a term so vague

as to make the standard“ in which it oceurs a non-

standard, a pseudo-standard, a phrase having the look of

a standard but possessed of no resolving power. But if

another view be taken -- the view that “depravity of

mind“ has a real meaning in some metaphysical sphere of

transcendent lexicography, so that there is drawn, in

that abstract realm, a real line between “depravity”

and "“nondepravity" -- the position is still no better.

For this precise meaning, even if assumed to exist, is

not discoverable by humans. If there is a line, the

light is too dim for us to see it. Mistake is therefore

exceedingly likely -- indeed, quite certain -- to occur

frequently. It really depends on our philosophy of

language whether we say that this phrase, “depravity of

mind," has no sharp meaning and so cannot decently be

part of a "standard" or say that it has a “correct”

meaning, so that every presented case does in fact fall

on one side or the other of a line, but that this line

(and this is the empiric fact, not changeable by philo-

sophy) is impossible to locate accurately, so that

mistake in judgment is certain. There is nothing to

choose between these alternatives; neither will do for

hanging men and women.

C. Black, Capital Punishment: The Inevitability of Caprice

and Mistake 88 (1974).

ity of Rockford, 408 U.S. 104, 109 (1972); Papachristou v.

ity of Jacksonville, 405 U.S. 156, 165-79 (1972). If a citizen

ay not constitutionally be fined or sentenced to jail upon

onviction of an offense defined solely as "prowling by auto,"

apachristou, 405 U.S. at 158, 171, how can he be sentenced to

eath -- as Hance would permit -- for a murder that is "out-

rageously . . . horrible... in that it involved . . . depravity

Third, the Georgia court in Hance has itself undermined

the relative precision of the terms torture“ and aggravated

battery” by creating a “laundry list” of new factors which can

henceforth be equated with or imported into those phrases. Thus,

we are told that “psychological abuse by the defendant to the

victim before death may amount to serious physical abuse (i.e.,

torture of the vict in),“ (Hance, 16 quoted supra), and that ser-

ious sexual abuse can constitute serious physical abuse. (Hance,

1 5, quoted supra). A plurality of this Court in Godfrey rejected

at least the former contention, 446 U.S. at 428-31, and the latter

statement is itself impermissibly vague because the word "serious"

is not modified by any limiting statutory language. Cf. Arnold

v. State, 236 Ga. 534, 540, 224 S.E.2d 386, 391 (1976).

Fourth, the Hance opinion -- far from confining the scope

of the objectionable “depravity” language -- has interpreted it

exceedingly broadly. Going beyond the limiting language employed

in section (b)(7) itself ("torture" or “aggravated battery"), the

Georgia Supreme Court explained that psychological abuse of the

victim before death, mutilation or disficurement of a victim's

body after death, or the commission of a sex act upon the body

after death would be sufficient to show depravity of mind (Hance,

—44—

11 6 and 10, quoted supra), and that the age and physical

haracteristics of the victim may be considered in assessing

"depravity of mind." (Hance, 19, quoted supra). Finally, if,

s is true in petitioner's case, the evidence is insufficient to

stablish the sequence of events, the time of death, or the

ause of death, the defendant may nevertheless be executed under

ine Hance rationale “on the basis of aggravated battery or serious

hysical abuse before death or depravity of mind demonstrated

fter death." (Hance, 1 11, quoted supra).*

All of these additional factors relating to torture,

epravity, and insufficient evidence about the sequence of a

ictim's wounds -- articulated in Hance for the first time in

orgia's jurisprudence of death -- were necessary, of course,

to save one or more previously affirmed death sentences. But

the fact that the Georgia Supreme Court was finally compelled by

this Court to provide such a list seven years after the statute

as amended is itself a direct condemnation of the administration

f section (b)(7). We reiterate that such a list of factors has

ever to our knowledge been read to a Georgia jury deciding a

apital case, either before or after the decision in Hance,

and, pointedly, not in this case. The inevitable result is

that the seventh aggravating circumstance has become, in practice,

recisely the kind of “catch-all” provision permitting random

The Georgia court's effort to define further this indefin-

able phrase evokes Justice Black's dissent in Edelman v.

California, 344 U.S. 357, 364 (1953), which observed that

a state court's efforts in defining a vagrancy statute so

as “to reduce ambiguity greatly increased it." And there

remains the problem alluded to earlier -- i.e., that the

Georgia Supreme Court is, through decisions like Hance,

substituting its sentencing judgment for that of the jury,

the body charged under Georgia law with determining whether

the death sentence should be imposed.

-45-

imposition of the death penalty which the majority of a divided

Georgia Supreme Court promised to guard against in its first

post-Gregg decisions involving section (b)(7). Harris v. State,

237 Ga. 718, 732, 230 8. E. 2d 1, 10 (1976). See also Banks u.

State, 237 Ga. 325, 227 S.E.2d 380 (1976), cert. denied, 430

U.S. 975 (1977). In the wake of Gregg, one member of the

Georgia Supreme Court determined that Georgia's “discretionary

system" of capital sentencing did not alleviate the concerns

that this Court expressed in Furman about “wanton or freakish

imposition" (408 U.S. at 310 (Stewart, J., concurring)) of

the death penalty and was hence invalid under the Georgia

constitution:

I respectfully disagree with [the Se opinion of]

Mr. Justice Stewart, Mr. Justice Powell, and Mr.

Justice Stevens. My experience in reviewi cases

tried under the current Georgia system convinces

me that a jury's discretion is not channeled, and

a Georgia jury can “at its whim" impose or not

impose the death neg art | in any case wherein the

statutes say it can be imposed and where the

statutory aggravating circumstances are found

to be present and unrefuted. Furthermore, my

experience also teaches me that a majority of

the membership of this court can “at its whim"

affirm a death penalty or set it aside as exces-

sive and unconstitutional.

Street v. State, 237 Ga. 307, 322, 227 8. E. 2d 750, 760 (Gunter,

J., dissenting), vacated, 429 U.S. 995 (1976). At least as

respects the administration of section (b)(7), this Court's

intervention is now required to remedy such whimsical adminis-

tration of the ultimate, irrevocable sanction.

Our concern is magnified because, so far as one can

tell from reported cases, the use of section (b)(7) as the sole

ground for seeking or imposing the death penalty has increased

dramatically since that section escaped outright condemnation

in Gregg. In Gregg, this Court noted that it was aware of only

one case in which section (b)(7) was the sole basis for a death

sentence, 428 U.S. at 201, suggesting, of course, that

the provision was rarely used.* Since Gregg, however, our

tudy of the Georgia decisions indicates that 24 additional

eath sentences have been imposed or affirmed solely on the

sis of section (b)(7).** Moreover, the trend seems to

accelerating: in 1973, there were no death sentences

rounded only on section (b)(7); in 1974, two;*** in

$75, none; in 1976, two;**** in 1977, three;***** in

978, three;****** in 1979, four;******* in 1980,

* Actually, there were two such cases as of the date Gregg

was decided. See p. 47 n.*** infra.

** We have not deleted from these numbers cases in which the

death sentences were reversed by the Georgia Supreme Court

itself, or where a death sentence initially affirmed by

the Georgia Supreme Court was subsequently vacated, since

our point is that this particular aggravating circumstance

is being employed more and more often in trial courts in

283 as the sole ground for seeking or imposing the

death penalty.

*** House v. State, 232 Ga. 140, 205 S.E.2d 217 (April 4,

1974), cert. denied, 428 U.S. 910 (1976); McCorquodale v.

State, 233 Ga. 365, 211 S.E.2d 577 (Dec. 3, 1974), cert.

denied, 428 U.S. 910 (1976). As a dissent in Banks v.

State, n.**** below, makes clear, House involved only

S (b)(7).

**** Banks v. State, 237 Ga. 325, 227 S.E.2d 380 (July 13,

1976); Harris v. State, 237 Ga. 718, 230 8. E. 2d 1 (Sept.

28, 1976).

„ Dix v. State, 238 Ga. 209, 232 S.E.2d 47 (Jan. 4, 1977),

cert. denied, 445 U.S. 946 (1980); Ward v. State, 239

Ga. 205, 236 8. F. 2d 365 (June 9, 1977); Blake v. State,

239 Ga. 292, 236 S.E.2d 637 (June 28, 1977).

**#eee* Lamb v. State, 241 Ga. 10, 243 S.E.2d 59 (March 7,

1978); Morgan v. State, 241 Ga. 485, 246 S.E.2d 198

(June 28, 1978), cert. denied, 441 U.S. 967 (1979);

Johnson v. State, 242 Ga. 645, 250 S.E.2d 394 (Oct.

17, 1978).

, Soraggins v. State, 243 Ga. 73, 252 S.E.2d 620 (Feb.

6, 1979), vacated in part, 446 U.S. 961 (1980); Godfrey

v. State, 243 Ga. 302, 253 8. E. 2d 710 (Feb. 27, 1979)

rev'd, 446 U.S. 420 (1980); Holton v. State, 243 Ga.

IIZ, 253 8. E. 2d 736 (Mar. 6, 1979), cert. denied, 444

U.S. 925 (1979); Bowen v. State, 244 Ga. 495, 260

S. E. 2d 855 (Oct. 3, 1979), cert. denied, 446 U.S.

970 (1980).

-47-

seven*; and, so far in 1981, five**.

Moreover, as of July 2, 1976, just after this Court

ecided Gregg, the NAACP Legal Defense and Educational Fund, Inc.

("LDF") — a frequent litigant in capital cases in this Court --

stimated that there were 37 people on death row in Georgia.***

us, as of that time, only about 5 percent of the death row popu-

tion had been sentenced to die solely on the basis of section

(b)(7). As of April 20, 1981, the LDF estimates that the total

pulation of death row in Georgia is 95.**** Thus, the spate

f death sentences resting solely on section (b)(7) since this

ount sustained that section in Gregg has resulted in a situation

here 26 out of the 95 -- fully 27 percent of the total death

patrick v. State, 245 Ga. 417, 265 S.E.2d 553 (Jan. 24,

1980), vacated, 101 S. Ct. 522 (1980); Hardy v. State, 245

Ga. 272, 264 S. F. 2d 209 (Feb. 20, 1980), vacated, 101 8.

Ct. 523 (1981); Mulligan v. State, 245 Ga. 266, 264 8. F. 2d

204 (Feb. 20, 1980) supp'l op., 245 Ga. 881, 268 S.E.2d

351, cert. denied, 1 » Ct. 407 (1980); Burger v. State,

245 Ga. 458, 265 8. E. 2d 796 (Mar. 14, 1980), cert. denied,

446 U.S. 988 (1980); Thomas v. State, 245 Ga. 688,

S.E.2d 499 (Apr. 23, 1980), vacated, 101 8. Ct. 523 (1980);

Hance v. State, 245 Ga. at 856, 268 8. E. zd at 339 (June 24,

1980); Cape v. State, 246 Ga. 520, 272 S.E.2d 487 (Oct. 8,

1980), cert. denied, 101 S. Ct. 956 (1981).

Nelson, 247 Ga. at „ 274 8. E. zd at 317 (June 27, 1981);

Strickland v. State, 247 Ga. 219, 275 S.E.2d 29 (Feb. 10,

1981); Tyler v. State, 247 Ga. 119, 274 S.E.2d 549 (Feb.

11, 1981); Brown v. State, 247 Ga. 298, 275 S.E.2d 52 (Feb.

24, 1981); High v. State, 247 Ga. 289, 276 S.E.2d 5 (Feb.

24, 1981).

*** NAACP LDF Memo, “Re: Death Row Inmates" at 2 (July 2, 1976).

This total number excludes capital inmates whose convictions

and/or sentences have been vacated, where a State's appeal

is pending, and whose sentences have been vacated where new

sentencing proceedings are pending.

*** NAACP LDF Newsletter, “Death Row, U.S.A." at In.“,

8 (April 20, 1981). This total excludes the inmates

described in the immediately preceding footnote “ supra,

-48-

row population -- could be there solely because of that aggravating

circumstance.*

Other empirical research now underway tends to confirm

widespread use of the seventh aggravating circumstance in Georgia.

Three of the four authors of a recent Stanford Law Review article

discussing statistical bases for comparing death sentences** are

currently working under a National Institute of Justice grant***

on an analysis of data taken from the court records of a sample

including more than 330 murder cases tried in Georgia under the

new capital punishment statute and disposed of on direct appeal

by the Georgia Supreme Court on or before June 29, 1978. Their

preliminary data -- as yet unpublished but furnished to us orally

-- indicate that during the period covered, out of the total

sample of more than 330 murder cases, 94 went to a penalty phase

at which death could have been imposed. The death sentence was

in fact pronounced in 60 (64 percent) of these cases and life

imprisonment in 34 (36 percent). Specifically considering section

(b)(7), the data show:

* We use the word could,“ because a few of the defendants

among the 26 we found in the Georgia Supreme Court's

opinions have emery aber secured, in one form or another,

a reversal or vacation of their conviction or sentence.

For example, Mr. Godfrey is included in our sample of 26,

although this Court reversed his sentence. We submit that

this does not undercut our point about the administration

of § (b)(7), however, since in every one of the 26 cases,

the Georgia Supreme Court or a Georgia jury held at some

point that the sentence of death was proper based solely

on § (b)(7).

Baldus, Pulaski, Woodworth, & Kyle, Identifying Compar-

atively Excessive Sentences of Death: A Quantitative

Approach, 33 Stan. L. Rev. 1 (1980).

Nat ſonal Institute of Justice, Grant No. 80-IJ-CxX-0035, "The

Impact of Procedural Reform on Capital Cases in Georgia."

-49-

Georgia Murder Cases Resulting in Penalty Trials

1973 - June 1978

60 34 94

Death Sentence Life Sentence Totals

No. & No. 8 No. ©

s (b)(7) was the only

aggravating circum-

stance charged* 10 17% 4 12% 14 15%

§ (b)(7) was charged

with one or more other

aggravating circum-

stances 23 38 9 26 32 34

Subtotal: Cases in

which § (b)(7) was

charged 33 55 13 38 46 49

§ (b)(7) was not

charged 27 45 21 62 48 51

Total 60 100% 34 100% 94 100%

Thus, of the 94 murder trials in the sample that went to a penalty

phase, section (b)(7) was charged to the jury, alone or in con-

junction with other aggravating circumstances, 46 times, i.e., in

fully 48 percent of the cases. In the 60 murder trials where the

death penalty resulted, the jury was charged on section (b)(7),

alone or in conjunction with other aggravating circumstances, 33

times, i.e., in 55 percent of the cases. And in 14 of the 94

cases in the sample, section (b){7) was the only aggravating

circumstance charged -- fully 15 percent of the penalty trials.**

We submit that increased use of section (b)(7) -- which

we concede is crudely measured because of the limitations of

the data available to us -- is not a coincidence, but rather a

* pata as to each case are taken from trial judge's charge

to the jury.

** These data are, of course, consistent with that which we

presented at pp. 46-49 above, although, at present, they

are not arranged so as to permit further verification of

pom point that the use of § (b)(7) has been increasing over

time.

-50-

direct result of the Georgia Supreme Court's willingness to

condone expanded use of this inherently vague provision. We

do not dispute that vague and overbroad statutes are more con-

venient vehicles for prosecutors, judges, and juries to employ

to the disadvantage of individuals who stand accused of crime.

Rather, because of this we urge this Court to reaffirm that such

statutes are constitutionally invalid precisely because they make

it easier for “policemen, judges and juries" to resolve basic

matters “on an ad hoc and subjective basis, with the attendant

dangers of arbitrary and discriminatory application." Grayned

v. City of Rockford, 408 U.S. 104, 109 (1972).

B. Section (b)(7) Was Unconstitutionally

Applied On The Facts Of This Case

1. The Vague and Overbroad Language of Section

(b)(7) Conferred Unbridled Sentencing

Discretion on the Jury, in Violation of

the Eighth and Fourteenth Amendments

In Furman, this Court held that the death penalty con-

stitutes cruel and unusual punishment in violation of the Eighth

and Fourteenth Amendments, unless the discretion of the jury to

take or spare a human life is suitably directed and limited so

as to minimize the risk of arbitrary and capricious action.

See Gregg, 428 U.S. at 169 n.15, 189 (plurality opinion), and

220-21 (White, J., concurring). Gregg identified the procedural

safeguards that Georgia must follow to impose a constitutionally

permissible death sentence. First, the jury must be given adequate

sentencing information, and careful instructions on the law and

how to apply it. Id. at 188-95, 197-98 (plurality opinion), and

221-22 (White, J., concurring). Second, the Georgia Supreme Court

485

must engage in meaningful appellate review ;to ensure that death

sentences are not imposed in a capricious or freakish manner.

Id. at 195, 198, 204-206 (plurality opinion), and 224-25 (White,

J., concurring).

Specifically addressing the validity of section (b)(7),

Gregg held that the section was not unconstitutional on its face,

a holding premised on the assumption that the Georgia Supreme

Court would give discernible content to section (b)(7) that would

be read to the jury and consistently applied by the Georgia 3

Court on appeal. 428 U.S. at 201, 202 n. 54 (plurality opinion).

Experience proved this assumption to be incorrect, and in Godfrey

the Court held that the Georgia Supreme Court had there adopted

such a broad and vague construction of section (b)(7) as to violat

the Eighth and Fourteenth Amendments. After once again 4

the procedural safeguards that Georgia must follow before it may

constitutionally impose a death sentence,* Godfrey articulated a

narrow, constitutional construction of section (b)(7) to guide

Georgia juries and the Georgia Supreme Court so that these safe-

guards would not be eroded. 446 U.S. at 431; accord, id. at 432

(plurality opinion). See pp. 35-37, supra.

The jury instructions below, couched solely in the

vague and overbroad language of section (b)(7) itself, conferred

unbridled sentencing discretion on the jury in violation of

the Eighth and Fourteenth Amendments as construed in Furman,

* The State must formulate clear and objective standards that

(1) provide specific and detailed guidance to the jury and

channel its sentencing discretion, and (2) make possible

meaningful and rational appellate review of the process of

imposing the death sentence. Godfrey, 446 U.S. at 428

(plurality opinion).

Gregg and Godfrey. There is nothing in the language of section

(b)(7) standing alone that implies any inherent restraint on

the arbitrary and capricious infliction of the death sentence.

Godfrey, 446 U.S. at 428 (plurality opinion).* Thus, this

case represents the standardless and unchanneled imposition

of a death sentence in the uncontrolled discretion of a basically

uninstructed jury, precisely the vice condemned in Furman.

Godfrey, 446 U.S. at 428-29 (plurality opinion). Assuming,

arguendo, that the Georgia Supreme Court's interpretation of

section (b)(7) in Hance, quoted supra at pp. 38-41, complied

with Godfrey, petitioner's jury was not instructed in such terms

and his death sentence therefore must be reversed.

The failure to instruct the jury properly was not cured

by the Georgia Supreme Court's sentence review in this case.

First, the function of appellate review of capital sentences is

not to determine whether the jury, if it had been properly in-

structed, could have permissibly imposed a death sentence. This

Court's death penalty cases make clear that it is the discretion

of the sentencing body which must be guided by clear, objective,

and specific standards. See Beck v. Alabama, 447 U.S. 625

(1980) (death penalty statute that prevented jury instructions

on lesser included offenses held unconstitutional); Godfrey, 446

U.S. at 428-29 (plurality opinion); id. at 436-37 (Marshall, J.,

concurring); Presnell v. Georgia, 439 U.S. 14 (1978) (pex curiam)

* "A person of ordinary sensibility could fairly characterize

almost every murder as outrageously or wantonly vile, hor-

rible and inhuman,” Godfrey, 446 U.S. at 429 (plurality

3 and arquably “any murder involves depravity of

mind or an aggravated battery." Gr „ 428 U.S. at 201

(plurality opinion).

(appellate court may not affirm death sentence on the basis of a

theory on which the jury was not instructed); Lockett ~. Ohio,

438 U.S. 586 (1978) (plurality opinion) (death penalty statute

that prevented sentencer from considering individualized mitigat-

ing circumstances held unconstitutional); Bell v. Ohio, 438 U.S.

637 (1978) (plurality opinion) (same); [Stanislaus] Roberts Vv.

Louisiana, 428 U.S. 325 (1976) (plurality opinion) (mandatory

death penalty statute that prevented sentencer from considering

individualized aggravating and mitigating circumstances held

unconstitutional); [Harry] Roberts v. Louisiana, 431 U.S. 633

(1977) (plurality opinion) (same); Woodson v. North Carolina,

428 U.S. 280, 302 (1976) (plurality opinion) (mandatory death

penalty statute that “simply papered over the problem [condemned

in Furman] of unguided and unchecked jury discretion" held

unconstitutional); Jurek v. Texas 428 U.S. 262, 276 (1976)

(plurality opinion) (in capital cases, the state must ensure

that “the sentencing jury will have adequate guidance to enable

it to perform its sentencing function"); Proffitt v. Florida,

428 U.S. 242, 253 (1976) (plurality opinion) (state must ensure

that sentencing bodies are “given specific and detailed guidance

to assist them in deciding whether to impose a death penalty or

imprisonment for life"); Gregg, 428 U.S. at 193 (plurality opinion)

("It is quite simply a hallmark of our legal system that juries

be carefully and adequately guided in their deliberations."

“It would be virtually unthinkable to follow any other course

« « « . Furman v. Georgia, 408 U.S. 238 (1972) (standardless

capital sentencing held unconstitutional because it permits

juries to impose death penalty in a discriminatory (id. at 256-57

(Douglas, J., concurring)), wanton and freakish (id. at 310

(Stewart J., concurring)), and infrequent (id. at 313 (White,

J., concurring)) manner).

-54-

The proper function of appellate review of capital sen-

tences in Georgia is much more circumscribed: If and only if a

properly instructed jury imposes a death sentence on the basis

of sufficient information and duly admitted evidence in a proce-

durally adequate sentence hearing, then the Georgia Supreme Court

must review the sentence to determine whether it was imposed under

the influence of passion, prejudice, or any other arbitrary factor

whether it is supported by the evidence; and whether it is exces-

sive or disproportionate to the penalty imposed in similar cases.

Ga. Code Ann. §§ 27-2537(c)(1)-(3).

The second reason that appellate review did not cure the

sentencing errors is that the Georgia Supreme Court failed to per-

form its task properly in this case. Despite the increased need

for reliability at both the guilt and sentence phases of a capital

trial, Beck v. Alabama, 447 U.S. 625, 638 (1980), the Georgia

Supreme Court misread the evidence of record concerning Swinton's

hair, see pp. 27-28 supra, the sequence of events surrounding the

victim's death, see pp. 55-57 infra, and the knife, see pp. 7, 22

supra. To paraphrase Gregg, It is apparent that the Supreme

Court of Georgia has [not] taken its review responsibilities

seriously." Gregg, 428 U.S. at 205 (plurality opinion). Cf.

id. at 224 (White, J., concurring).

2. The State's Evidence Wholly Failed to Establish

That Section (b)(7) Applied

Under Godfrey, to sustain a death sentence premised

solely on section section (b)(7), the State must prove beyond

a reasonable doubt that there was evidence of serious physical

abuse of the victim prior to death. 446 U.S. at 431, 432

nh See

(plurality opinion). The prosecution below introduced absolutely

no evidence of the sequence of events surrounding the victim's

death, nor of when the victim was killed. There is no evidence

as to whether the victim was killed first and sexually abused

later, or sexually abused and then killed. If she was killed

first, there is no evidence of how much later she was sexually

abused. Nor was there any evidence that the non-fatal knife

wounds found on the body were inflicted before death. Indeed,

the State's pathologist expressly admitted that he could not

determine whether they were made before or after death. TT 295.

Therefore, no reasonable trier of fact could have found

an essential element of section (b)(7) -- that the victim suffered

serious physical abuse before being killed.* The jury therefore

should not have been charged under section (b)(7), and the evidence

does not support the finding of such an aggravating circumstance.

The death sentence must be reversed. Godfrey, 446 U.S. at 431,

432 (plurality opinion); Jackson v. Virginia, 443 U.S. 307 (1979).

The Georgia Supreme Court in the present case incorrectly

asserted that “[p)rior te being killed, the victim was raped and

sodomized." 274 Ga. at + 274 S.E.2d at 323. This factual assert

tion is not supported by any evidence in the record. Moreover,

* We cannot dispute that the victim's body was a gruesome sight

when found and when examined by the pathologist who testified

at trial. But in Godfrey, the plurality observed that laln

interpretation of § (By) so as to include all murders re-

sulting in gruesome scenes would be totally irrational.” 446

U.S. at 433 n. 16. Moreover, even in Georgia, not all “grue-

some" murders produce death sentences. See, e.g., Lackey

v. State, 246 Ga. 331, 271 8. E. 2d 478 (1980) Téeutal abuse

of 9-month old victim prior to death, life sentence imposed;

Fulghum v. State, 246 Ga. 184, 269 8. E. 2d 455 (1980) (victim

disembowled and stabbed 44 times in the trunk and chest, life

sentence imposed).

36.

whether serious physical abuse occurred before or after death is

a factual inquiry that was peculiarly suited for determination by

the jury. Because the jury below was not instructed to determine

whether the physical abuse occurred before death, the Georgia

Supreme Court in affirming the death sentence improperly relied

on its postulated, but not proven, factual theory that the rape

and sodomy occurred before death. See Presnell v. Georgia, 439

U.S. 14 (1978) (per curiam) (death sentence may not be affirmed

under a theory on which the jury was not instructed).

3. The Trial Court's Penalty Charge Concerning

Jury Unanimity Was Unconstitutional

The trial court at the penalty phase instructed the

jury that it must unanimously and beyond a reasonable doubt

agree on one of three verdicts.* The trial court's unanimity

e The judge instructed the jury:

I Charge you that the form of your findings

concerning punishment would be one of the following:

The first, “We, the Jury, find the following

statutory aggravating circumstance against the defend-

ant: The offense of murder was rahe ba pee or wantonly

vile, horrible, or inhuman, in that it involved torture,

depravity of mind, or an aggravated battery to the

victim, and we recommend the death penalty."

The above finding would mean that the defendant

would be put to death by electrocution.

Another alternative, “We, the Jury, find the

following statutory aggravating circumstance against

the defendant: The offense of murder was outrageously

or wantonly vile, horrible, or inhuman, in that it

involved torture, depravity of mind, or an aggravated

battery to the victim, and we recommend mercy for the

defendant."

The above finding would mean that the Court

would sentence the defendant to life imprisonment.

The third alternative, "We, the Jury, do not

find an aggravating circumstance and recommend life

impr isonment."

If the above should be your finding, it would

mean that the court would sentence the defendant to

life imprisonment.

(Footnote continues)

charge violated petitioner's rights under the Sixth, Eighth,

and Fourteenth Amendments in three respects.

First, the trial court improperly instructed the jury

to make a finding in the diatenative under section (b)(7). As

described above, the second clause of section (b)(7) includes

several elements -- torture, “aggravated battery“ and, perhaps,

“depravity of mind.” The jury must unanimously agree beyond a

reasonable doubt on the same one or more elements of section

(b)(7). See Fair v. State, 245 Ga. 868, 268 8. E. 2d 316, 320,

cert. denied, 101 8. Ct. 407 (1980). But the trtal court below

failed to charge the jury that the members must unanimously

agree on the same one or more elements of section (b)(7), and

the verdict that the jury returned is phrased in the disjunctive.*

Thus, there is no way of knowing whether the jury in the present

(Footnote continued)

Now, let me emphasize at this point that when

you unanimously agree beyond a reasonable doubt on

one of the foregoing findings, your Foreman should

write the particular finding on the reverse side of

the indictment in the exact language as it is given

to you.

I believe I said unanimous, didn't 17 It must

be unanimous, as it was before. Okay, you may retire,

TT 679-80. The trial court also delivered this charge

to the jury in typewritten form to take into the jury

room. TT 678,

0 The trial court specifically instructed the jury foreman to

write out the exact language of § (b)(7) if the jury found

the statutory aggravating circumstance, TT 680. The clerk

published the jury's finding as:

We the Jury, find the following statutory

aggravating circumstances against the defendant:

The offense of murder was ree rq y sg | or wantonly

vile, horrible, or human, in that it involved torture,

depravity of mind, or an aggravated battery to the

victim, and we recommend the death penalty.

TT 680-81.

case unanimously agreed upon the existence of the same element

of section (b)(7). For example, one juror might have found

aggravated battery, but not torture or depravity of mind, while

the remaining 11 jurors found torture, but not aggravated battery

or depravity of mind. Under Georgia law, a split vote should

have resulted in life imprisonment. See Miller v. State, 237

Ga. 557, 229 8. k. 2d 376 (1976).

Petitioner therefore has been sentenced to die without

an adequate basis for rational and meaningful appellate review

of whether the jury unanimously recommended death on the basis

of the same factual finding, in violation of his Sixth Amendment

right to trial by jury, the Eighth Amendment prohibition against

cruel and unusual punishment, and the Fourteenth Amendment guar-

antees of due process and equal protection.* “Such a risk

Because the jury must unanimously find an aggravating circum-

stance and must unanimously recommend death under the Georgia

death penalty statute (see Miller, 237 Ga. at, 229 8. K. 2d

at 376; Gregg, 428 U.S. at 208, 211 (White, J., Concurring),

this Court need not decide whether 5 unanimity is required

in a state capital case under the Sixth, Eighth and Fourteenth

Amendments, given the increased need for reliability in such

cases (see Beck v. Alabama, 447 U.S. 625, 637-38 (1980)),

even if unanimity is not required in a noncapital state

criminal case (see Johnson v. Louisiana, 406 U.S. 356 (1972);

Apodaca v. Oregon, 406 U.S. 404 (1972)). Because the Georgia

Supreme Court in Miller and Fair has ruled that jury unanimity

is required to find ati aggravating circumstance and to recom-

mend death, but is not required to fail to find an aggravating

circumstance or to recommend life imprisonment, the State was

required to apply this rule W es | at petitioner's trial,

Cf. Cox v. Louisiana, 379 U.S. 559 (1965); Raley v. Ohio, 360

Us. 423 (1959). Failure to do so violated petitioner's con-

stitutional rights (1) to equal protection under the Fourteenth

Amendment (see Yick Wo v. Hopkins, 118 U.S. 356 (1886); (2)

to trial by an impartial jury under the Sixth Amendment, made

applicable to the states under the Fourteenth Amendment

(Duncan v. Louisiana, 391 U.S. 145 (1968)); (3) to due process

of law under the Fourteenth Amendment (id.); and (4) to be free

from cruel and unusual punishment under the Eighth Amendment,

-59- *

cannot be tolerated in a case in which the defendant's life is at

stake." Beck v. Alabama, 447 U.S. 625, 643 (1980). The death

sentence therefore must be reversed. See United States v. Gipson,

553 F.2d 453 (5th Cir. 1977) (conviction reversed where court gave

erroneous unanimity charge and it was impossible to tell whether

all jurors agreed on the same theory of guilt); cf. Gardner v.

Florida, 430 U.S. 349 (1977) (death sentence based on confidential

presentence report not in the record provided no basis for ade-

quate appellate review; sentence reversed).

Second, the trial court incorrectly instructed the jury

that it must unanimously fail to find an aggravating circumstance

and unanimously recommend life imprisonment (the second and third

alternative verdicts quoted at pp. 57-58, n.*, supra). This

charge was directly contrary to Georgia law. Miller v. State, 237

Ga. 557, 229 S.E.2d 376 (1976), interpreting Georgia Criminal Code

section 26-3102 and Criminal Procedure Code section 27-2503(b),

held that unless the jury at the sentence phase of a bifurcated

capital trial unanimously finds at least one statutory aggravating

circumstance and unanimously recommends the death penalty, the

trial court may not sentence the defendant to death. If evena

single juror fails to find an aggravating circumstance or fails

to recommend death, the trial court may not retry the sentence

phase before a new jury but must instead impose life imprisonment.

Thus, under Georgia law, jury unanimity is required only to find

* Similarly, in Gregg, Mr. Justice White, joined by Mr. Chief

Justice Burger and Mr. Justice Rehnquist, observed that under

the Georgia statute the sentence will be life imprisonment,

unless the jury unanimously finds at least one statutorily

defined aggravating circumstance and unanimously determines

that the death penalty should be imposed. 428 U.S. at 208,

211 (White, J., concurring).

an aggravating circumstance and to impose death. There is no

requirement that a capital jury unanimously agree upon the absence

f an aggravating circumstance or that it unanimously recommend

life imprisonment.

The trial court's erroneous unanimity instructions

unconstitutionally increased the chances that petitioner would

receive a death sentence rather than life imprisonment, in

iolation of his Sixth Amendment right to trial by an impartial

jury, the Eighth Amendment prohibition against cruel and unusual

punishment, and the Fourteenth Amendment guarantees of due process

and equal protection. The death sentence therefore must be

reversed. See Witherspoon v. Illinois, 391 U.S. 510, 520-23

(1968); Ballew v. Georgia, 435 U.S. 223, 236 (1978) (five-person

jury held unconstitutional in part because it diminished the

hances of, and therefore infringed on a defendant's interests in,

a hung jury, in violation of the Sixth and Fourteenth Amendments);

illiams v. United States, 338 F.2d 530, 533 (D.C. Cir. 1964)

(hung jury is as much a part of the jury system as a unanimous

verdict); Huffman v. United States, 297 F.2d 754, 759 (5th Cir.)

cert. denied, 370 U.S. 955 (1962) ("[A]) hung jury is a safeguard

to liberty. In many areas it is the sole means by which one or

a few may stand out against an overwhelming contemporary public

sentiment. Nothing should interfere with its exercise.“ (Brown,

J., dissenting).*

* Although petitioner's appointed trial counsel did not specifi-

cally object to the plainly erroneous unanimity instructions

in the trial court or on appeal to the Georgia Supreme Court,

this does not constitute a waiver of the error and does not

preclude this Court from reviewing the issue on certiorari

for several reasons. First, petitioner objected to the

aggravating circumstances instructions in the trial court and

on appeal on the broader grounds that the instructions did

[Footnote continues]

461

Finally, the Court’s charge gave the jury the unfair

choice of having to find unanimously that there were "no aggra-

vating circumstances,"* in the face of the gruesome color photo-

graphs submitted by the prosecution, as its only permissible

alternative to finding aggravating circumstances in the specific

[Footnote continued]

not adequately charge the jury, did not adequately guide the

jury's sentence deliberation, and should have included more

language that would have enabled the jury to recommend life

imprisonment. See pp. 12-13, supra. Petitioner also chal-

lenged the death sentence in the trial court and on appeal on

the ground that it was applied in an arbitrary and capricious

manner, Id. The objection to the erroneous unanimity charge

is a subsidiary objection fairly included within these broader

objections, and therefore it is clear that petitioner did

present his claim in some fashion to the state courts. See

Beck v. Alabama, 477 U.S. 625, 630 n.6 (1980); Chambers v.

Mississippi, 410 U.S. 284, 290 n.3 (1973); cf. Supreme Court

Rules, Rule 21.1(a). The absence of a clearer objection is

excusable in light of the unsettled state of the law concern-

ing section (b)(7) at the time of trial, on appeal, and even

as of this filing. Second, a contemporaneous objection to an

erroneous jury charge in a criminal case is not required under

Georgia law. Thomas v. State, 234 Ga. 615, 617-18, 216 S.E.2d

859, 860-61; Ga. Code Ann. §§ 70-207(a), 70-207(c). Moreover,

the Georgia Supreme Court had an independent statutory duty

to determine whether the death sentence was imposed under the

influence of prejudice or any other arbitrary factor, such as

the plainly unconstitutional unanimity instruction below.

See Hawes v. State, 240 Ga. 327, 240 8. E. 2d 833 (1977); Ga.

Code Ann. § 27-2537(c)(1); accord, Beck v. Alabama, 477 U.S.

625, 630 n.6 (1980); Gardner v. Florida, 430 U.S. 349, 361

(1977); Vachon v. New Hampshire, 414 U.S. 478 (1974). The

Georgia Supreme Court has recognized that the jury charge in

a death penalty case is so crucial to the outcome of the

trial that it will review those charge whether or not objec-

tion was made in the trial court. Stephens v. Hopper, 241

Ga. 596, 247 S.E.2d 92, 96, cert. denied, 439 U.S. 991 (1978).

Third, there is no basis for presumin, that the petitioner

himself made a knowing and intelligent waiver, or that counsel

could possibly have made a tactical decision to forego a

correct unanimity instruction. Gardner v. Florida, 430 U.S.

349, 361 (1977); cf. United States v. Gipson, 553 F.2d 453,

456 n.4 (5th Cir. 1977) (right to unanimous jury cannot be

waived).

* fhe trial court broadly defined “aggravating circumstances"

as “those which increase the guilt or enor ity of the offense

and add to its injurious consequences." Ti 678,

~62=

statutory language of section (b)(7), i.e., that the crime was

"outrageous or wantonly vile, horrible or inhuman in that it

involved torture, depravity of mind, or an aggravated battery

to the victim." By giving such false alternatives to the jury

here, together with the gruesome photographs, the trial court

vastly and impermissibly increased the prospect of the jury

finding, as it did, that an aggravating circumstance existed

as defined in section (b)(7).

111.

THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER

THE JURY, CONFRONTED DURING THE PENALTY PHASE WITH

GRUESOME COLOR PHOTOGRAPHS EXCLUDED FROM THE GUILT

TRIAL BECAUSE THEY WERE INFLAMMATORY, IMPOSED THE

DEATH SENTENCE ON THE BASIS OF EMOTION, PASSION, OR

CAPRICE, IN VIOLATION OF THE EIGHTH AND FOURTEENTH

AMENDMENTS

The only new evidence introduced at the sentence phase

of petitioner's trial consisted of five gruesome color photographs

of the victim's body taken at the morgue on the day after the

police found the body. The trial court excluded these grisly

photographs at the guilt phase expressly because they were “highly

inflammatory" and prejudicial, and had no probative value since

the prosecution could establish the facts concerning the alleged

murder, rape, and sodomy through less inflammatory medical testi-

mony. TT 251-52.* Nonetheless, at the sentence phase the prose-

cutor displayed such a petulant interest in the photographs ("Now

can I get my pictures into evidence?" TT 671) that the court,

* The trial court stated:

I do believe the pictures are highly inflammatory

and I think that that inflammatory nature of the pic-

tures would outweigh any probative value they might

have, especially since the State can establish the

fact of rape and sodomy by medical means.

TT 252.

ary

ile acknowledging that the photographs were “extremely inflam-

atoxy, admitted the evidence over defense counsel's objections.

Id. The trial court and the prosecutor then compounded the pre-

judice by informing the jury that the photographs had been excluded

from the guilt phase because “we didn't want to inflame your

inds." TT 672; accord, TT 671.“ The message to the jury was

crystal clear: At the sentence phase the State could justifiably

arouse their passions, and the jury could properly succumb to

these inflammatory tactics and sentence petitioner to die.

The following discussion concerning the photographs occurred

at the sentence phase:

MR. RYAN: Now can I get my pictures into evidence?

THE COURT: Yes. Do you want to object?

MR. McGLASSON: I certainly do want to object. They are

extremely inflammatory.

THE COURT: I agree

THE COURT: The State has moved to introduce certain photo-

graphs of the deceased, which I would not allow in the

guilt or innocence phase of the trial, because it was my

opinion that it was only necessary to establish the cause

of death at that time and that Doctor Guerry could do that.

The State now tenders these photographs, I allowed

them over objections in this sentenci phase of the trial,

and they will be admitted as Exhibits [A-E].

MR. RYAN: Ladies and Gentlemen of the Jury, what I'm

getting ready to show you now, I'm going to show it to

you reluctantly, it's very bad, very horrible

These particular pictures were kept out during the

main trial of this case and the reason they re kept out,

in the Judge's wisdom, and I think he's right, we didn't

want to inflame your minds.

TT 671-72.

-64-

The trial court and the prosecutor thus guaranteed that

the jury would return a death sentence on the basis of caprice

or emotion rather than reason, in violation of the Eighth and

Fourteenth Amendments. As this Court observed in Gardner v.

Florida, 430 U.S. 349, 358 (1977) (plurality opinion), "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 or emotion." The Court reaffirmed

this principle in Godfrey (reversing a death sentence which

could not be said to be based on reason rather than caprice or

emotion,'" 446 U.S. at 433, quoting Gardner, 430 U.S. at 358),

and yet again in Beck v. Alabama, 447 U.S. 625, 637-38 (1980).

Indeed, in Gregg the Court upheld Georgia's death penalty statute

against an Eighth Amendment challenge in part because of the

statutory mandate that a death penalty must be reversed if it

“was imposed under the influence of passion, prejudice, or any

other arbitrary factor" (Ga. Code Ann. § 27-2537(c)(1)). See

Gregg, 428 U.S. at 198. In its earlier capital cases, this

Court similarly paid careful heed to the constitutional concern

that the decision to extinguish the life of an individual must

not be the product of passion or emotion. See, e.g., Irvin v.

Dowd, 366 U.S. 717, 728 (1961) ("[w]ith his life at stake, it

is not requiring too much that petitioner be tried in an atmo-

sphere undisturbed by so huge a wave of public passion"); Moore

v. Dempsey, 261 U.S. 86, 91 (1923) (due process prohibits depriva-

tion of an accused's life where “counsel, jury, and judge were

swept to the fatal end by an irresistible wave of public passion").

Under common law evidentiary principles, gruesome evi-

dence must be excluded when, as in the present case, the danger

of passion and prejudice outweighs the probative value of the

evidence. See, e.: , Maxwell v. United States, 368 F.2d 735,

739-40 (9th Cir. 1966); Holcomb v. State, 130 Ga. App. 154, 155

202 8. E. 2d 529, 531-32 (1973); Commonwealth v. Batty, 482 Pa.

173, 177, 393 A. 2d 435, 437-38 (1978). In capital cases, this

common law prohibition against unnecessary injection of passion

into the decision-making process rises to a sdnatitutdenal level.

en, as here, photographs of the victim's body are admitted into

evidence even though their admission adds nothing factual and

serves no purpose other than to inflame the passions of the jury,

it cannot be said that the ensuing sentence of death both is, "and

appear[s] to be, based on reason rather than caprice or emotion."

ardner, 430 U.S. at 358; accord, Godfrey, 446 U.S. at 433; Beck,

447 U.S. at 637-38.

IV.

THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER

THE ADMISSION INTO EVIDENCE OF PETITIONER'S PRETRIAL

STATEMENT TO INVESTIGATORS CONSTITUTED GROSS PROSECU-

TORIAL MISCONDUCT CREATING SUCH FUNDAMENTAL UNFAIRNESS

AS TO DENY PETITIONER DUE PROCESS OF LAW.

On February 25, 1978, six days after Valerie Armstrong's

urder, petitioner learned that his house had been illegally

searched in connection with the investigation of the crime and

that he might be a suspect. Voluntarily, he went to the Chatham

County Police and submitted to interrogation by two detectives.

422. In the course of this interview, the detectives asked

numerous questions containing knowingly false and inflammatory

allegations in an attempt to provoke petitioner into a confession

or an incriminating statement. These tactics proved unsuccessful.

petitioner steadfastly maintained his innocence and ignorance of

the crime. Nevertheless, the transcript of this statement, with

-66-

only minor deletions, was read to the jury as part of the State's

case-in-chief (TT 413-504), although the prosecutor admitted it

was relevant only to impeach petitioner's credibility. Tr 397.*

A. By His Use Of The Statement, The Prosecutor Knowingly

Placed Before The Jury False Evidence, Inadmissible

Evidence, And Unfounded Assumptions And Innuendo

Calculated To Prejudice And Inflame The Jury

Examination of the lies, half-truths and innuendo which,

framed as questions, were placed before the jury in the course of

reading this statement compels the conclusion that the jury could

not have remained unbiased towards petitioner after hearing it.

It undoubtedly colored their view of petitioner's subsequent trial

testimony, and their deliberations as to his guilt or innocence

and sentence. We submit that the reading of this statement con-

stituted prosecutorial misconduct which “so infected the trial

with unfairness as to make the resulting conviction a denial of

due process“ requiring reversal. Donnelly v. DeChristoforo, 416

U.S. 637, 643 (1974).

Prior to taking this statement from petitioner, local

detectives had conducted a search of his house and seized certain

evidence. The State agreed at the outset of trial that this searc

was illegal, and the prosecutor stipulated in lieu of a suppressio

hearing that he would not use any of the evidence seized in that

search. TT 168-69. Defense counsel specifically objected to all

* The prosecutor thus unconstitutionally turned the law of

evidence on its head and impeached petitioner before

petitioner had indicated in any way that he intended to

waive his Fifth Amendment right to remain silent and

testify at trial.

-67-

references “which might appear to any article of clothing or bed-

sheet or anything else taken from the residence of Mr, Nelson."

TT 168. Despite this clear and unequivocal agreement, the pro-

secutor proceeded to read to the jury* questions from the statemen

which sought to tie petitioner to the crime by repeatedly asking

him to explain the presence of fresh blood on his mattress (TT

455-56, 461, 490), and on sheets found in his garbage dump. TT

464. There is also the suggestion that bloody clothes (TT 462-63,

488) and und: rwoar (TT 489-90) belonging to Mr. Nelson were found

in the house. Nelson explained that the blood on the mattress and

sheets “[m)ust, be [from] a woman on her monthly thing" (TT 455),

and identified the woman as Diane Knight, his steady girlfriend,

TT 456. But the jury could not help but infer that the detectives

believed the blood to be that of the victim. And, if the jury

needed help in making that connection, the prosecutor read a

question in which the detective stated, "You go on believing

that. I'm telling you that that was the little girl's blood,

Gary." TT 465.

In fact, the State knew that the blood was not the

victim's. The victim had type O blood, and the blood on the

sheets in petitioner's garbage was type B. TT 468-70. There

is nothing in the record which indicates that any blood-stained

clothing ever existed.

0 Initially a tape ä of the statement was played to the

jury after defense counsel objected that the transcript con-

tained inaccuracies and failed to convey the tone of voice and

attitude of petitioner's inquisitors. TT 408, 464-65, 469.

However, the court then ruled that the tape was inaudible and

directed that the transcript be read. TT 425, The district

attorney then read the detective's questions end the detective

read petitioner's responses, TT 429. That the jury heard the

questions directly from the prosecutor's lips only could have

increased the bona fides which the jurors attached to them and

compounded the prejudice to petitioner.

In Miller v. Pate, 386 U.S. 1, 7 (1967), this Court

freed a state prisoner who had been convicted after the prosecutor

introduced false evidence similar to that used here. In Miller,

the state introduced a pair of blood-stained shorts which the

state's expert identified as being the same blood type as the

murder victim's. Id. at 3-4. The prosecution advanced the theory

that defendant had been wearing the shorts when he committed the

murder and afterwards discarded them because of the incriminatory

stains. After trial, the defense learned that the blood“ stains

were, in reality, paint and that the prosecutor had known this

during the trial. Id. at 5, 6. Finding that the prosecution had

deliberately misrepresented the truth, this Court reversed the

denial of defendant's habeas corpus petition. Id. at 7.

After painting a picture of a house awash in blood, the

prosecutor below introduced other spurious evidence through the

pretrial interrogation in an attempt to connect petitioner

and the victim:

Q. What would her fingerprints be doing in

her [sic] bedroom?

° Pingerprints in my bedroom?

Q. I said what would her fingerprints be doing

l in your bedroom?

A. That fingerprints ain't got no right being in

there, because she ain't never been in it.

Q. What would her earring be doing in your bedroom?

A. Earring?

Q. Uh-huh.

A. It ain't got no right being in there, because

| she ain't never been in my house.

TT 470-71. However, as one of the detectives admitted on cross-

examination, neither an earring nor fingerprints belonging to the

victim were found in petitioner's house. TT 509-10. In fact,

nothing found in petitioner's house during the illegal search in

any way connected him with the murder.“ TT 512-13,

Admission of this evidence, despite the prior agreement

to suppress and despite the total lack of a factual predicate for

the investigators’ questions, seriously prejudiced the defense in

two ways. First, it placed before the jury the inference, totally

false and unfounded, that substantial physical evidence existed

connecting petitioner to the crime, Given the circumstantial and

contradictory nature of the legitimate evidence on this crucial

point,** it is impossible to conclude that such an inference had

no effect on the jury in reaching its verdict. Perhaps more

seriously, the prosecutor's misuse of the pretrial statement

created the impression in the jurors“ minds that highly relevant

evidence had in fact been seized which would have helped them

find petitioner guilty, but that this evidence was being withheld

from them as the result of some “legal technicality" employed by

the defense. The defense was placed in the untenable position

of objecting within hearing of the jury to evidence which was

clearly inadmissible in the first place. Presented in this

fashion, the pretrial interrogation and the concededly illegal

search, which in reality yielded only exculpatory evidence,

* In addition to the blood, the earring, and the fingerprints,

the jury also learned that petitioner kept masking tape in

the house which he used to work on cars. TT 492. In light

of the fact that the knife claimed to have been the murder

weapon was wrapped in masking tape, that may not have been

an insignificant bit of information, The record shows, how-

ever, that forensic tests conducted by the FBI conclusively

proved that tape illegally seized from petitioner's house

did not match the tape on the knife. TT 383-84. Unfortu-

nately, this fact came out in testimony given the day before

the statement was read, and the jury was never informed that

these tests had been performed on the same tape referred to

in petitioner's pretrial statement,

** See Part I, supra.

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became incriminating in the jurors“ minds as a result of what

they failed to hear.“ While some of the damage as to specific

pieces of false evidence may have been partially cured by defense

counsel's cross-examination of the detective (TT 509-10, 312-13), 7

the subtler prejudice created by this “hidden evidence" was,

in reality, impossible to cure,

e That the jury was concerned about what it was not hearing is

illustrated by the following colloquy which occurred after

defense counsel objected to the question concerning the vie-

tim's fingerprints "found" in petitioner's bedroom:

MR. MCGLASSON: Could we ask that the jury be excused

for one second?

THE COURT: All right, step in the jury room.

JUROR: Your Honor?

THE COURT: Yes, sir?

JUROR: Could I ask a queation before ~ had we been

listening to the tape, would any of this have been

edited out?

Tit COURT: Would any of it have been edited?

Sometimes questions are asked - you mean has any of

the transcription been edited?

JUROR: No, sir; had we been listening to the tape,

would any of it have been edited, that we would not have

heard? Would we have heard everything on the tape that

they are now ---

THE COURT: Well, some things are just not admissible

in an interrogation of this kind. When you get into a

courtroom, it gets a lot more technical. What they

might ask a person outside the courtroom - - -

JUROR: But had the tape been running, would we have

heard everything?

THE COURT: Oh, I assume — I don't know; would they?

MR. RYAN: No.

MR. MCGLASSON: No that would had to have been

edited out. We would have had to stop them,

THE COURT: Okay, step out for a moment,

TT 466-67. It is doubtful that the juror's mind was set

at ease by the judge's statement that he didn't know whether

the jury would have “heard everything" had the tape been

played and that "When you get into a courtroom, things get

a lot more technical."

** Defense counsel did elicit d., cross-examination that the

police found no earring, fingerprint, or gun, and that the

blood on the sheets found in the garbage was not the same

blood type as the victim's,

Aside from misepresenting the physical evidence found in

the search, the statement placed before the jury other inadmissib

and prejudicial information and innuendo regarding petitioner's

prior criminal record, deviant sexual propensities, and general

character. In the course of reading the statement, the prosecu-

tor informed the jury that petitioner had met Ray McCray, the

victim's father, while serving time in a reformatory (TT 428);

that a warrant had recently been sworn out against him for an

aggravated assault on Diane Knight's “little sister" (age unspec-

ified) (TT 456-57); that he had been in jail for an aggravated

assault “with my girlfriend” (TT 490); and that he had been in-

volved in an automobile accident which was the subject of a pol eq

investigation. TT 438-39.“

Perhaps even more damaging was the following exchange:

Q. Have you ever been arrested on any sexual offenses

before?

MR. MCGLASSON: Your Honor,

THE COURT: Leave that out.

MR. MCGLASSON: I've tried to be tolerant of all the

other references and the rambling nature of this interview,

but we're going to have to be careful at this point,

THE COURT: Yes. Don't ask any questions like that.

(NOTE: A portion of the transcription was then excluded.)

THE WITNESS: Down at the bottom of page 30, Detective

Lietz asked him, "Do you have a car now?"

TT 461. The jury was thus left with the impression that, but for

the objection of defense counsel, they would have heard highly

relevant (though clearly inadmissible) testimony that petitioner

had a history of sex offenses, In fact, the Report of the Trial

Judge filed in the Georgia Supreme Court indicated that petitioney

* In addition, the inference was raised that petitioner used

cocaine and heroin (TT 500), and had spent time in a mental

institution. TT 499.

-72<

had never been convicted of a sex crime. Report of the Trial

Judge at 5. The jury, however, was never apprised of this fact.

Federal courts have frequently found similar prosecu-

torial misbehavior grounds for reversal of state convictions.

For example, in Watkins v. Foster, 570 F.2d 501, 506 (4th Cir.

1978), defendant in a burglary case was cross-examined about

six other burglaries as to which the state could not, and did

not, offer any extrinsic evidence" of defendant's complicity.

The Court of Appeals clearly explained why such questioning was

a denial of due process:

Foster's entire defense rested on his credi-

bility, and thus the prosecutor's attack on this

credibility was critical. Poster's denial of the

prosecutor's insinuations in theory should have

left his credibility intact but in actuality could

not erase the blemish on his character which had

been left in each juror's mind,

Id. At the felony-murder trial of a different Mr. Foster

in Poster v. Barbour, 613 F. 2d 59, 60 (4th Cir. 1980), the

prosecutor posed a series of questions asking defendant if he

had been convicted of several other felonies. The Court of

Appeals affirmed habeas corpus relief, stating:

We agree with the district court that the

repeated assertion that Foster had been convicted

of other crimes, particularly larceny and robbery,

when those assertions were untrue, in a trial on

the charge of homicide in the course of a robbery,

destroyed the fairness of Foster's trial and

denied him due process of law. The attack on the

defendant's veracity played a critical role in

the trial. . Foster's denials of the prose-

cutor's accusations “could not erase the blemish

on his character” created by the persistent ques-

tioning and apparent reliance on court documents.

Id. Petitioner's credibility was similarly damaged by the ques-

tions regarding other “sexual offenses" and prior run-ins with

272.

the law, and the damage was compounded by the fact that his cred-

ibility was attacked before he took the stand.*

The impression that Nelson regularly engaged in aberrant

sexual behavior was reinforced by the following line of questions

-- also totally unsupported by evidence when asked and when read

at trial:

Q. Do you have any tendencies sexually toward

A. How do you mean?

Q. Do you have homosexual tendencies?

A. No, I don't mess around with homosexuals and

I try to teach them not to mess around with ne.

Q. How do you teach them?

A. By letting them know that I'm all man and

I don't go no [sic) freakish areas. I don't mess around

like that.

Q. You never wear any women's dresses or anything,

A. No, I don't.

Q. Okay, you never wear dresses?

A. Never wear dresses.

Q. Okay, it's just - I'm not saying I think you

do, I'm just asking a question. When is the last time you

had intercourse with a woman in your bed and who was that

woman?

A. Last night.

Q. Last night? Who was that woman?

A. Brenda Butler.

Q. Brenda Butler?

A. Yes.

Q. She having her period?

A. Not that I know of.

Q. Okay, you got all the time you need. Let

me ask you this question, maybe this will help; when was

the last time that you had sexual intercourse with a woman

who was having her period and what was that woman's name?

A. You know like this, a woman ain't going to let

you know her period on if she going to do something with

you.

Q. You going to know when you pull it out.

A. Not all the time, not - you don't know.

Q. You going to know when you wake up in the morning

and see the mess.

A. I don't look that much, ‘cause I get up in the

morning, it be dark.

* See p. 67 n.* supra, and accompanying text.

-74-

Q. We are talking about a large amount of blood on

your mattress, a lot of blood. You ought to know where it

came from,

A. It be from some woman. It won't be no

six-year old girl, I can assure you of that, that what I

mean, and - well, I can assure of that, cause I don't know

why this led to me. I was wanting to find out, you know,

myself.

TT 457-58, 460-61. The prosecutor also seemed to feel that it

was relevant for the jury to know with whom petitioner had slept

in the weeks preceding the crime. See TT 458-60.

Facts can be rebutted with facts. But what words can

adequately redress the prejudice engendered in the minds of 3

left with the lurid impression, unsupported by a single shred of

evidence, that petitioner was a sexual deviate who sought sexual

gratification amidet the touch, feel, and smell of a woman's

blood?“ Particularly here, where the jury was charged with dis-

passionately deciding if petitioner committed the murder of a

child -- a murder with sexual overtones -- it is impossible to

conclude that the improper use of this statement “could [not]

. « in any reasonable likelihood have affected the judgment of

the jury." Giglio v. United States, 405 U.S. 150, 154 (1972).

Finally, as the reading of the interrogation was drawing

to a close, the jury learned that petitioner had been asked the

following patently inflammatory questions which might, by them-

selves, have been grounds for a mistrial in a more enlightened

jurisdiction: %. Maybe you forgot that particular time when

you went ahead and dumped the little girl’s body” (TT 498), and

"0. Is that when you went and got rid of the little girl's

body?" TT 503. Although the prosecutor had stated in his

* Defense counsel made a half-hearted attempt to een tere the

effect of this testimony on cross-examination, but it was

quickly abandoned. TT 510.

78.

opening remarks that the state would show the murder occurred at

the site other than that where the victim was found, TT 176, no

evidence to that effect was introduced. Once again, a policeman's

unfounded question was deviously.used by the prosecution as

affirmative evidence of petitioner's guilt.

Since the State introduced no evidence supporting any

of the matters covered in its reading of petitioner's pretrial

statement, the prosecutor -- who used the statement as part of

his case-in-chief -- must be charged with knowledge that there

was no basis in fact for the questions the police had asked

petitioner.* This pretrial statement constituted approximately

one third of the testimonial evidence introduced by the State

against petitioner. As demonstrated above, it was replete with

false, unsupported, and inflammatory references, and reading it

to the jury can only be characterized as flagrant prosecutorial

misconduct calculated to inflame the jury and to deny petitioner

the fair trial which due process requires.

B. The Prosecutor's Use Of The Statement So

Infected The Trial With Unfairness As To

Deny Petitioner Due Process of Law

The appropriate standard for review of state criminal

cases in which a violation of due process is claimed as a result

of prosecutorial misconduct was established in Donnelly v.

DeChristoforo, 416 U.S. 637 (1974). We submit that the prejudice

injected into petitioner's trial “so infected the trial with

unfairness as to make the resulting conviction a denial of due

process." Id. at 643.

* Moreover, as we have shown, there is clear evidence in the

record itself that most of the matters covered had no basis

in fact.

=76=

In deciding such questions, the federal courts weigh

several factors: the nature of the misconduct, its materiality

to the issues in the case in light of the record as a whole, its

likely effect on the trier of facts, and any factors vitiating

the taint.

Regarding the nature of the misconduct, this Court has

long held that a state criminal conviction obtained by the knowing

use of false evidence cannot be ‘olerated under the Fourteenth

Amendment. Giglio v. United Ste 8, 405 U.S. 150, 153 (1972);

Miller v. Pate, 386 U.S. 1, 7 (1967); Napue v. Illinois, 360

U.S. 264, 269 (1959); Alcorta v. Texa:, 355 U.S, 28, 31-32 (1957)

(per curiam); Pyle v. Kansas, 317 U.S. 213, 216 (1942); Mooney

v. Holohan, 294 U.S. 103, 112-113 (1935). ‘This rule applies even

if the prosecution, while not soliciting false evidence, allows

it to go uncorrected or allows the jury to be presented with a

materially false impression.*

As a public official and officer of the court, the

prosecutor occupies a special position of public trust. Mr.

Justice Sutherland eloquently explained the role of a federal

prosecutor:

The [prosecutor] is the representative not

of an ordinary party to a controversy, but of a

sovereignty whose obligation to govern impartially

is as compelling as its obligation to govern at

all; and whose interest, therefore, in a criminal

prosecution is not that it shall win a case, but

that justice shall be done. As such, he is ina

* See, e.g., Napue v. Illinois, 360 U.S. at 269 (prosecutor

failed to correct testimony of witness that he had not been

offered consideration in exchange for his testimony); Alcorta

v. Texas, 355 U.S. at 31, (prosecutor failed to correct false

testimony of sole eye-witness to murder which left jury with

false impression of relationship between witness and victim;

United States v. Anderson, 574 F. 2d 1347, 1355 (5th Cir.

1978).

77.

peculiar and very definite sense the servant of the

law, the twofold aim of which is that guilt shall

not escape or innocence suffer. He may prosecute

with earnestness and vigor -- indeed, he should do

so. But, while he may strike hard blows, he is

not at liberty to . foul ones. It is as much

his duty to refrain from improper methods calculated

to produce a wrongful conviction as it is to use

every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935); see, Donnelly

v. DeChristoforo, 416 U.S. at 648-49 (Douglas, J., dissenting).

These duties apply with equal force to state prosecutors. See,

e.g., Miller v. North Carolina, 583 F.2d 701, 706 (4th Cir. 1978);

Imbler Ve Craven, 298 F. Supp. 795, 808-09 (C. o. Cal. 1969),

aff'd sub nom. Imbler v. California, 424 F.2d 631 (9th Cir.)

cert. denied., 400 U.S. 865 (1970). The average jury is likely

to give great weight to what the prosecutor says, in the reason-

able expectation that he is faithfully observing these obligations.

Berger, 295 U.S. at 88; United States v. Herberman, 583 F.2d 222,

230 (Sth Cir. 1978); King v. U

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