# Petition — GARY X. NELSON v. GEORGIA (No. 80-6749) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2426%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 ## Text 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 — — — — — — — — Wn — > 14 15 25 28 29 51 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 51 55 57 63 66 67 76 83 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). * — * . * > * — . > * * * — * * 22 Page 77,77n 59n 32n,44 61 46,47n 28, 38n, 53, 55,595, 60, 6285 65,66 54 78 35,47, 62n 47n 4ln 48n 48n 48n 62n 81 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 66 59n 47n 67,76, 78 59n 45n 58,59, 59n,60n 73 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 79 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 66 47n 47n 61 78 65 14,15, 28,56, 59n 47n 54 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, 61 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 8 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 77 59n 54 54 26n 38n;43 47n 62n 46 48n 62n 48n 28 48n 77n,81 60,62n 78 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 73 4ln 61 41 61 80n 38n,54, 59n 67 58,59, 59n,61 12,34,35, 51,52,58, 59,59n,61, 65 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]. G 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, 40 32n passim 55 62n,65 39 15,25, 26 62n 62n 49n 43n 34n 29 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. 12 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 I. 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. 16 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. 21 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 7 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. 31 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) 27 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 se [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2426%3A1. Public record. Not legal advice.