Petition — Zant v. Stephens

Oficn-- Dour, 'bS.

ol “89 FILED |

JX—18

ALEXANDER

IN THE oped STEVAS,

Supreme Court of the United States

OCTOBER TERM, 1980

WALTER ZANT, WARDEN,

Petitioner,

v.

ALPHA OTIS O’DANIEL STEPHENS,

Respondent.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

HARRISON KOHLER

Assistant Attorney General

Counsel of Record for the

Petitioner

Please serve: Don A. LANGHAM

HARRISON KOHLER

132 State Judicial Bldg. Attorney General

40 Capitol men S.W. JOHN C. WALDEN

Atlanta, Senior Assistant

(404) 656-33 Attorney General

QUESTION PRESENTED

Ae

When a death penalty is imposed

on the basis of a plurality of aggra-

vating circumstances, each of which has

been established beyond a reasonable

doubt, is the death penalty to be set

aside because one of these aggravating

circumstances is set aside?

TABLE OF CONTENTS

QUESTION PRESENTED .....+2+-e+-ei

OPINIONS BELOW... + «+e ceeeel

JURISDICTION . 7 . . . . * . . . . 3

CONSTITUTIONAL AND STATUTORY

PROSIVISONS . . . «© «© «© © «© «© of

STATEMENT OF THE CASE. . . . «+ «5

REASON FOR GRANTING THE WRIT

WHERE A DEATH PENALTY IS IMPOSED

ON THE BASIS OF A PLURALITY OF

AGGRAVATING CIRCUMSTANCES, EACH

OF WHICH HAS BEEN ESTABLISHED

BEYOND A REASONABLE DOUBT, THE

DEATH PENALTY SHOULD NOT BE SET

ASIDE BECAUSE ONE OF THESE

AGGRAVATING CIRCUMSTANCES IS

SET ASIDE . . «© «© «© © © «© «© #9

CONCLUS ION . . . . . - . . . . . . 15

CERTIFICATE OF SERVICE. .... -16

ii

TABLE OF AUTHORITIES

Cases Cited: Page(s)

Arnold v. State, 236 Ga. 534, 542,

224 S.E.20 586 (1976). .... 6

Bachellar v. Maryland, 397 U.S. 564

(1970) 7 . . + . . . . . . 12

Brooks v. State, 246 Ga. 262, 263,

271 S.E.20 172 (1980), cert.

denied U.S. (1981). . 10

Burger v. State, 245 Ga. 458, 460-

61, 265 S.E.2da 797 (1980),

cert. denied, 446 U.S. 998

NaS a elec ek ee ole

Collins v. State, 246 Ga. 261, 252,

271 S.E.2d 352 (1980), cert.

denied U8. (160a) 2 « 20

Dampier v. State, 245 Ga. 427, 883

n. Ll, 265 S.E.2d 565 (1980),

cert. denied U.S.

eeet sc eae 6 tele oe 6. 2D

Gates v. State, 244 Ga. 587, 599,

261 S.B.2d0 349 (1979, cert.

denied 445 U.S. 938 (19580) .. 10

Gregg v. Georgia, 428 U.S. 153

[aevGl «0 6 6 « 6 © « 0 ecetere «=aaeed

Gregg v. State, 233 Ga. 117, 210

S.E. 9 (1974). . . . . . . ll

Hamilton v. State, 246 Ga. 264 n. l,

271 S.E.20 173 (1980), cert.

denied U.S. Gee «ss 26

iii

(Cont. ) Page(s)

Hughes v. State, 239 Ga. 393, 397-

98, 236 S.E.2d 829 (1977). ... 14

Stephens v. Hopper, 241 Ga. 596,

603-04, oh S.E.2d 92 (1978),

cert. denied 439 U.S. 991 (1978). 7,10

Stephens v. State, 237 Ga. 259,

261-62, 227 S.E.2d 261 (1976),

cert. denied 429 U.S. 986

[wer 2 6 676s « 6 6" e.6 « « « Opal

Stephens v. Zant, 79-30-MAC (M.D.

Ga. May Li, 1979). «© ee ee o & Sot

Stephens v. Zant, 631 F.2d 397

(Stl Cir. 1980). . « «© © © © © o LgSgFgh3

Stephens v. Zant, F.2d (5th

Came 29Gb) 2 0 0 0 © 6 8 6 6 lk wo Ogee Gee

Stevens v. State, Ga. ’

S.E.2d (No. 36943

ga eg re |

Street v. New York, 394 U.S. 576

en “6. 6 le 6-6 ¢ & * . 6 6 of

Stromberg v. California, 283 U.S.

— 359 (19231) . . . . . - + . . . . 12

Westbrook v. Balkcom, U.S. P

101 S.ct. 541, 543, 66 L.Ed. 2d

298 (1980) (J. Stevens con-

Gurring) « «s«*e«eeeee et 0 oe oe

Yates v. United States, 359 U.S.

Bec taeeas «66.6 a © © * «© © «© BO

iv

(Cont. ) Page(s)

Constitution Amendments Cited:

Fourteenth Amendment, United States

CUCU AWUUOOMs « + 6 6 6 66 ES

Statutes Cited:

Ga. Code Ann. § 27-2534.1(b) (1). . . 5+ 6

Ga. Code Ann. § 27-2534.1(b) (9). . . 6

me UcB.0. § T2068). 6 ko 6 ee

28 U.S.C. § 2286ta). 2 wc ee tee ®

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

WALTER ZANT, WARDEN,

Petitioner,

Vv.

ALPHA OTIS O'DANIEL STEPHENS,

Respondent.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Court of Appeals

is reported as Stephens v. Zant, 631 F.2d

397 (5th Cir. 1980). (Appendix 1). The

opinion of the Court of Appeals on

rehearing is not yet reported. See

Stephens v. Zant, F.2d (5th Cir.

1981). (Appendix64 ). The opinion of

the District Court dismissing the writ

of habeas corpus is an unreported deci-

sion. See Stephens v. Zant, 79-30-MAC

(M.D. Ga. May 11, 1979). (Appendix50 ).

JURISDICTION

The judgment of the Court of Appeals

for the Fifth Circuit was entered November

26, 1980. See Stephens v. Zant, 631 F.2d

397 (5th Cir. 1980). A timely petition

for rehearing and rehearing en banc was

filed, and that Court entered a judgment

June 18, 1981. See Stephens v. Zant,

__. F.2d ss (Sth Cir. 1981). This peti-

tion for certiorari has been filed within

the allowable ninety days of that date.

This Court's jurisdiction is invoked

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Fourteenth Amendment, United States Con-

stitution:

", . . mor shall any State deprive

any person of life, liberty, or

property without due process of

aOW 2 6 ee”

28 U.S.C. § 2254(a):

", . . a district court shall enter-

tain an application for a writ of

habeas corpus in behalf of a person

in custody pursuant to a judgment

of a State Court only on the ground

that he is in custody in violation

of the Constitution of laws...

of the United States."

STATEMENT OF THE CASE

Respondent Alpha Otis O'Daniel

Stephens was tried January 20-21, 1975,

in the Superior Court of Bleckley County,

Georgia, for the murder of Roy Asbell,

and the jury found him guilty. During the

sentencing phase of the trial, Respondent's

prior convictions for motor vehicle theft,

six counts of burglary, three counts of

armed robbery, kidnapping with bodily

injury, and murder were introduced into

evidence.

The jury found three aggravating

circumstances and recommended the death

penalty:

(1) Respondent had a prior record

of conviction for a capital felony, see

Ga. Code Ann. § 27-2534.1(b) (1);

(2) Respondent had a substantial

history of serious assaultive convic-

= 8 «

tions, see Ga. Code Ann. § 27-2534.1(b)

(1);

(3) Respondent was on escape when

he committed the murder, see Ga. Code

Ann. § 27-2534.1(b) (9).

After Respondent was tried but before

his appeal was final, the Georgia Supreme

Court held that the portion of Ga. Code

Ann. § 27-2534.1(b) (1), which allows the

death penalty where a murder is committed

by a person with a substantial history of

assaultive convictions, is unconstitutional.

Arnold v. State, 236 Ga. 534, 542, 224

S.E.2d 386 (1976). Nevertheless, the

Georgia Supreme Court upheld Respondent's

death penalty because the evidence sup-

ported the jury's findings of the other

two aggravating circumstances. Stephens

v. State, 237 Ga. 259, 261-62, 227 S.E.

2d 261 (1976), cert. denied 429 U.S. 986

(1977).

-6-

On Respondent's State habeas appeal,

the Georgia Supreme Court again held that

the fact the jury was allowed to consider

an aggravating circumstance later held to

be unconstitutional did not require the

vacating of the death penalty. Stephens

Vv. Hopper, 241 Ga. 596, 603-04, 247 S.E.

2d 92 (1978), cert. denied 439 U.s. 991

(1978).

The District Court of the Middle

District of Georgia denied federal habeas

corpus relief. Stephens v. Zant, 79-

30-MAC (M.D. Ga. May 11, 1979). However,

the Fifth Circuit Court of Appeals vacated

Respondent's death penalty on appeal.

Stephens v. Zant, 631 F.2d 397 (5th Cir.

1980). Upon Warden Zant's timely petition

for rehearing and rehearing en banc, that

Court changed one paragraph of the prior

Opinion but the petition for rehearing and

“Je

rehearing en banc were denied. Stephens

v. Zant, F.2d ss (Sth Cir. 1981).

REASON FOR GRANTING THE WRIT

WHERE A DEATH PENALTY IS IMPOSED

ON THE BASIS ON A PLURALITY OF

AGGRAVATING CIRCUMSTANCES, EACH

OF WHICH HAS BEEN ESTABLISHED

BEYOND A REASONABLE DOUBT, THE

DEATH PENALTY SHOULD NOT BE SET

ASIDE BECAUSE ONE OF THESE

AGGRAVATING CIRCUMSTANCES IS

SET ASIDE.

This case presents a clear and direct

conflict between the Fifth Circuit Court

of Appeals and the Georgia Supreme Court,

which should be resolved by this Court.

The law in Georgia is well-settled

that if a death penalty is imposed on the

basis of a plurality of aggravating cir-

cumstances, each of which has been esta-

blished beyond a reasonable doubt, the

death penalty will not be set aside

because one of these aggravating circum-

stances is set aside. Stevens v. State,

Ga. _, ___ S.E.2d ____ (No. 36943

June 2, 1981); Hamilton v. State, 246 Ga.

264 n. 1, 271 S.E.2d 173 (1980), cert.

denied U.S. __—s—« (1981); Brooks v. State,

246 Ga. 262, 263, 271 S.E.2d 172 (1980),

cert. denied U.S. ss - (1981); Collins

v. State, 246 Ga. 261, 462, 271 S.E.2d

352 (1980), cert. denied U.S.

(1981); Burger v. State, 245 Ga. 458, 460-

61, 265 S.E.2d 797 (1980), cert. denied

446 U.S. 988 (1980); Dampier v. State,

245 Ga. 427, 883 n. 1, 265 S.E.2d 565

(1980), cert. denied U.S. ss (1980);

Gates v. State, 244 Ga. 587, 599, 261

S.E.2d 349 (1979), cert. denied 445 U.S.

938 (1980); Stephens v. Hopper, 241 Ga.

596, 603-04, 247 S.E.2d 92 (1978), cert.

denied 439 U.S. 991 (1978); Stephens v.

261 (1976), cert. denied 429 U.S. 986 (1977).

= 10 «

"(T]he Georgia Supreme Court's posi-

tion is clear, and. .. I consider it

consistent with this Court's decisions."

Westbrook v. Balkcom, U.S. , 101

S.Ct. 541, 543, 66 L.Ed.2d 298 (1980)

(J. Stevens concurring).

Georgia's death penalty statute was

upheld in Gregg v. Georgia, 428 U.S. 153

(1976). This Court upheld Gregg's death

penalty even though the jury had been

allowed to impose a death penalty for

armed robbery. Id. at 161-62. The Georgia

Supreme Court had ruled that the death

penalty for armed robbery was dispropor-

tionate, Gregg v. State, 233 Ga. 117, 210

S.E.2d 659 (1974); yet the fact the jury

considered and imposed a death penalty for

armed robbery did not require that the

death penalty for murder be vacated.

- il -

In vacating Respondent's death

penalty, the Fifth Circuit Court of Appeals

relied primarily on the authority of

Stromberg v. California, 283 U.S. 359

(1931); accord, Bachellar v. Maryland,

397 U.S. 564 (1970); Street v. New York,

394 U.S. 576 (1969); Yates v. United

States, 354 U.S. 298 (1957). In Stromberg

v. United States, supra, at 367-68, this

Court noted that where there was a general

verdict of guilty, which could have rested

on three grounds, one of which was uncon-

stitutional, it was impossible to tell on

which ground the verdict rested and the

conviction had to be set aside. Bachellar

v. Maryland, supra; Street v. New York,

supra; and Yates v. United States, supra,

all involved general verdicts of guilty,

each of which could have been based on an

unconstitutional ground.

-i12<

The penalty verdict at Respondent's

trial was not a general verdict, and the

jury found two aggravating circumstances.

The Court of Appeals admitted that there

was "no uncertainty" as to the two valid

aggravating circumstances and either cir-

cumstance "by itself would be legally

sufficient to permit the jury to impose

the death penalty." Stephens v. Zant,

631 F.2d 397, 406 (5th Cir. 1980).

Originally the Court of Appeals

held that "[t]he presence of the uncon-

stitutionally vague aggravating circum-

stance made it possible for the jury to

consider several prior convictions of

- « « [Respondent] which otherwise would

not have been before it." Id. Warden

Zant pointed out that this was an incorrect

statement of Georgia law, as all of the

accused's prior convictions are admissible

» 13 @

during the sentencing phase of the trial.

Hughes v. State, 239 Ga. 393, 397-98,

236 S.E.2d 829 (1977). The Court of

Appeals modified the holding but denied

the petition for rehearing and rehearing

en banc. Stephens v. Zant, F.2d

(5th Cir. 1981).

The decision of the Court of Appeals

conflicts with well-settled law of the

Georgia Supreme Court, with this Court's

actions in denying petitions for writs of

certiorari from the Georgia Supreme Court,

and with this Court's reasoning in Gregg

v. Georgia, 428 U.S. 153, 161-62 (1976).

e 14

CONCLUSION

For all the previously stated reasons,

a petition for writ of certiorari should

be granted by this Court.

Respectfully submitted,

99

RRISON KOHLER

Assistant Attorney

General

Counsel of Record for

Petitioner

ARTHUR K. BOLTON

Attorney General

ROBERT S. STUBBS, II

Executive Assistant

Attorney General

ON A. G

First Assistant

Attorney General

Please serve: Ss. . SS \\

HARRISON KOHLER JOHN - WALDEN

132 State Judicial Senior Assistant

Bldg. Attorney General

40 Capitol Square,

S.W.

Atlanta, Georgia 30334

(404) 656-3359

- 15 -

CERTIFICATE OF SERVICE

I, Harrison Kohler, Attorney of

Record for the Petitioner and a member of

the Bar of the Supreme Court of the United

States, certify that in accordance with

the Rules of the Supreme Court of the

United States, I have served three copies

of this Petition for Writ of Certiorari

upon the Respondent by depositing this

petition in the United States Mail with

sufficient, first-class postage affixed

and addressed to counsel for Respondent

as follows:

Mr. James C. Bonner, Jr.

Prisoner Legal Counseling

Project

475 North Lumpkin Street

Athens, Georgia 30601

Mr. John Charles Boger

NAACP Legal Defense and

Education Fund

10 Columbus Circle

New York, New York 10019

# 16 <-

RRISON KOHLER

Assistant Attorney

General

Counsel of Record for

Petitioner

@ 17 «

TABLE OF CONTENTS

Page

Opinion of United States Court

of Appeals for the Fifth

|

Des 8 eo 6 et ew ee elk le

Opinion of United States District

Court dismissing Respondent's

habeas corpus petition... 50

s

Order of United States Court of

Appeals for the Fifth Cir-

cuit denying petition for

rehearing and rehearing en 64

banc . . . . . . . . . . . .

APPENDIX

ALPHA OTIS O'DANIEL STEPHENS,

Petitioner~-Appellant,

Vv.

WALTER ZANT, SUPERINTENDENT,

Respondent~-Appellee.

No. 79-2407.

United States Court of Appeals

Fifth Circuit.

Nov. 26, 1980.

Appeal from the United States Dis-

trict Court for the Middle District of

Georgia.

Before INGRAHAM, RONEY, and THOMAS

A. CLARK, Circuit Judges.

RONEY, Circuit Judge.

Petitioner, convicted of murder and

sentenced to death by the State of Georgia,

appeals from a denial of a writ of habeas

corpus. Petitioner contends his convic-

tion violates the Double Jeopardy Clause

and his sentence is invalid under the

Eighth Amendment because closing argu-

ments were not transcribed, the jury

was not properly instructed that it could

recommend a life sentence if it found

aggravating circumstances, and the jury

was permitted to consider an unconstitu-

tional aggravating circumstance. Although

we reject his other contentions, we

agree that because the jury considered

an unconstitutional aggravating circum-

stance, petitioner's death sentence

cannot stand.

In August of 1974, petitioner escaped

from jail where he was serving sentences

for earlier burglary convictions. He

committed a number of crimes in Twiggs

County, Georgia. While petitioner and

an accomplice were burglarizing a house,

Roy Asbell drove up in his car. Petitioner

forced Asbell at gunpoint from the car,

@2e

hit him several times in the face and took

a large sum of money from him. Petitioner

then forced Asbell back into the car and

drove him approximately three miles,

across the county line into Bleckley

County. There, petitioner killed Asbell

by shooting him twice in the head at close

range.

Shortly thereafter petitioner was

apprehended and was indicted by the

Twiggs County grand jury for motor vehi-

cle theft, armed robbery and kidnapping

with bodily injury. Petitioner pleaded

guilty in Twiggs Superior Court and was

sentenced to ten years for motor vehicle

theft and to life sentences for armed

robbery and kidnapping.

Afterwards petitioner was indicted

in Bleckley County for the murder of Roy

Asbell, found guilty and sentenced to

- 3-

death. His conviction and sentence were

affirmed on direct appeal to the Georgia

Supreme Court. Stephens v. State, 237

Ga. 259, 227 S.E.2d 261, cert. denied,

429 U.S. 986, 97 S.Ct. 508, 50 L.Ed.2d

598 (1976). His state petition for a

writ of habeas corpus was denied. Stephens

v. Hopper, 241 Ga. 596, 247 S.E.2d 92,

cert. denied, 439 U.S. 991, 99 S.Ct. 593,

58 L.Ed.2d 667 (1978). Petitioner then

sought a writ of habeas corpus in federal

court, alleging the same constitutional

flaws as were raised in state court. The

district court denied relief. Petitioner

appeals, his execution having been stayed

pending appeal.

Petitioner asserts four errors in

his conviction and sentence: (1) jeopardy

for the murder charge attached when he

pleaded guilty to the kidnapping charge

and therefore his subsequent murder trial

a

was constitutionally barred; (2) the court

failed to transcribe closing arguments

and voir dire; (3) the instruction to the

jury did not adequately charge that they

could still impose life imprisonment even

if they found aggravating circumstances

that would justify the death sentence;

and (4) when one of the three aggra-

vating circumstances founau by the jury

was later declared unconstitutionally

vague, the sentence should not have been

affirmed on the basis of the other two.

I. DOUBLE JEOPARDY

The Twiggs County indictment for

kidnapping recited that he killed the

kidnap victim. The third count reads

as follows:

COUNT III

And the aforesaid Grand Jurors...

charge and accuse Alpha Otis 0'

Daniel Stephens...with the offense

of KIDNAPPING for that the said

Alpha Otis O'Daniel Stephens...

in the county aforesaid...did unlaw-

fully and with force and arms

abduct and steal away Roy Asbell,

a person, without lawful authority,

and held Roy Asbell against his

will and did physically abuse

and did inflict and cause bodily

injury to the body of Roy Asbell

by beating, hitting and kicking

Roy Asbell and did threaten t»

kill Roy Asbell and then did

kill Roy Asbell by shooting Roy

Asbell, contrary to the laws

of said State...

Petitioner argues that by stating

that in the course of the kidnapping he

killed Asbell, the State unwittingly

—

accused him of the crime of murder be-

cause the indictment alleged all the

elementsof murder. When he pled guilty

under Count III of the Twiggs indictment,

he admitted every fact averred in the

indictment. At that point, his argument

continues, he ran the risk - i.e., was

placed in jeopardy - of a conviction of

murder under a felony - murder theory.

Since under Georgia law felony murder

and malice murder are different ways

in which one offensw may be committed,

Leutner v. State, 235 Ga. 77, 218 S.E.2d

820 (1975), he argues the State was barred

by the Double Jeopardy Clause from prose-

cuting him for malice murder in Bleckley

County.

The Supreme Court of Georgia re-

sponded to petitioner's argument by

holding that malice murder and kid-

napping are not the same in law or in

- J7-

fact and thus are not the same offense

under state law. It also determined that

the state legislature intended, under

the test in Ga. Code Ann. §§ 26-505

to 507, to permit multiple prosecutions

and punishments in a case such as this.

Stephens v. Hopper, 241 Ga. at 598-600,

United States, 445 U.S. 684, 100 S.Ct.

1432, 63 L.Ed.2d 715 (1980) (holding

that the Double Jeopardy Clause prohibits

courts from imposing greater penalties

than the legislature intended).

While this is the definitive inter-

pretation of Georgia law and binding upon

this Court, Mullaney v. Wilbur, 421 U.S.

684, 691, 95 S.Ct. 1881, 1885, 44 L.Ed.2d

508 (1975), the holding does not adequately

respond to petitioner's argument.

Petitioner's contention is not that kid-

napping and malice murder are the "same

offense." Rather, he asserts that felony

murder was charged in the indictment,

that by pleading guilty he was placed in

jeopardy of conviction for that crime

and therefore the state is barred from

any further attempt to prosecute him for

murder.

[1,2] Petitioner's contention that

he was placed in jeopardy of a conviction

for murder in Twiggs County is erroneous,

because there was no jurisdiction in that

county to try him for the homicide. The

rule is absolute that a person is not

put in jeopardy unless the court in which

he was tried the first time had jurisdic-

tion to try him for the charge the person

now seeks to avoid. The Supreme Court

‘has twice spoken to the point.

We assume as indisputable, on princi-

ple and authority, that before a person

can be said to have been put in jeopardy

of life or limb the court in which he

was acquitted or convicted must have

had jurisdiction to try him for the

offense charged.

Graftonv. United States, 206 U.S. 333,

345, 27 S.Ct. 749, 751, 51 L.Ed. 1084

(1907).

An acquittal before a court having

no jurisdiction is, of course, like

all the proceedings in the case,

absolutely void, and therefore

no bar to subsequent indictment

and trial in a court which has

jurisdiction of the offense.

United States v. Ball, 163 U.S. 662, 669,

16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896).

- 10 -

The Georgia Constitution requires

that, unless an impartial jury cannot

be obtained, "all criminal cases shall be

tried in the county where the crime was

committed." Ga. Const. Art. VI, § XIV,

{ VI (Ga. Code Ann. § 2-4306). The Supreme

Court of Georgia specifically held in this

case that the Twiggs County court did not

have jurisdiction to try the murder

offense. Stephens v. Hopper, 241 Ga. at

599, 247 S.E.2d at 95. The Fifth Circuit

held in Tennon v. Ricketts, 574 F.2d 1243,

1245 (1978), cert. denied, 439 U.S. 1091,

99 S.Ct. 874, 59 L.Ed.2d 57 (1979), that

"it is for the Georgia Supreme Court,

not this Court, to expound the decisional

rules of that, jurisdiction." Accord,

Hortonville Joint School District No. l

v. Hortonville Education Assn., 426 U.S.

482, 488, 96 S.Ct. 2308, 2312, 49 L.Ed.2d

1 (1976); Mullaney v. Wilbur, 421 U.S.

» 22 «

684, 691, 95 S.Ct. 1881, 1885, 44 L.Ed.2d

508 (1975); Eisenstadt v, Baird, 405 U.S.

438, 441-42, 92 S.Ct. 1029, 1032, 31

L.Ed.2d 349 (1972) (all holding that the

highest state court is the final authority

on questions of state law and federal

courts are bound to accept its interpre-

tation of state law).

[3] The question of the jurisdic-

tion of a state trial court in a state

criminal prosecution is clearly a question

of state law, which binds this Court.

Since the Twiggs Superior Court had no

jurisdiction to hear the murder offense,

petitioner was not placed in jeopardy of

a murder conviction, under either a

malice murder or felony murder theory,

in the Twiggs County proceedings.

[4] Petitioner was, however,

placed in jeopardy for the offense of

2? =

kidnapping with bodily injury. The Double

Jeopardy Clause bars a subsequent prosecu-

tion for any offense deemed the "same

offense" under the test in Blockburger

v. United States, 284 U.S. 299, 304, 52

S.Ct. 180, 182, 76 L.Ed. 306 (1932).

[W)here the same act or transac-

tion constitutes a violation of two

distinct statutory provisions,

the test to be applied to determine

whether there are two offenses or

only one, is whether each provi-

sion requires proof of a fact

which the other does not.

The Supreme Court held in Brown v. Ohio,

432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d

187 (1977), that a lesser or greater

included offense is the “same offense"

for double jeopardy purposes. It thus

@ 13 «

becomes necessary to determine whether

petitioner's murder conviction was for

the "same offense" as his kidnapping

charge.

[5] Malice murder and kidnapping

with bodily injury have sepurate and

distinct elements and require proof of

different facts. Kidnapping consists of

abducting another unlawfully and against

his will, plus inflicting some bodily

injury. Malice murder consists of

killing another with malice aforethought.

Thus, even if they involve the same trans-

action and considerably overlap each

other factually, they are not the “same

offense" under Blockburger. In addition,

as found by the Georgia Supreme Court,

the Georgia legislature intended multiple

punishment for kidnapping and malice

murder in a case such as this. Stephens

~~! =

v. Hopper, 241 Ga. at 599-600, 247 S.E.2d

at 95-96.

[6,7] As felony murder is defined

under Georgia law, the underlying factor

is a lesser included offense of felony

murder and thus the same offense under

Blockburger. See Young v. State, 238

Ga. 548, 233 S.E.2d 750 (1977); Reed v.

State, 238 Ga. 457, 233 S.E.2d 369 (1977).

Once the State tried and convicted

petitioner for kidnapping, it would be

barred from prosecuting him for felony

murder only if the underlying felony upon

which that prosecution was based were

that same kidnapping. Illinois v. Vitale,

U.S. , 100 S.Ct. 2260, 65 L.Ed.2d

- See Whalen v. United States, 445

U.S. 684 100 S.Ct. 1432, 63 L.Ed.2d

715; Hazrci« v. Oklahoma, 433 U.S. 682,

97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977).

e 18 «

[8] We have examined the record

closely to see whether the Bleckley County

murder prosecution was based in any part

on a theory of felony murder with the under-

lying felony being the kidnapping of Roy

Asbell. The record clearly shows that

petitioner was indicted, tried and con-

victed solely on the grounds that he

committed murder with malice aforethought.

The trial judge specifically instructed

the jury on the requirement of malice.

I further charge you that on the trial

of a defendant for the offense of

Murder the burden is on the State

to prove malice, either expressed

or implied, and unless the State

proves malice beyond a reasonable

doubt there can be no verdict of

guilty of Murder, and you should

acquit of that charge. For as I

said, there can be no Murder without

malice. is eek i

Where, as here, it is clear petitioner

was tried and convicted for malice murder

and that crime was not the "same offense"

as the kidnapping with bodily injury for

which he was convicted in the first pro-

ceeding, the Double Jeopardy Clause does

not bar the malice murder conviction

regardless of whether malice murder and

felony murder are the "same offense" under

the Blockburger test. Petitioner's double

jeopardy argument is accordingly rejected.

II. INCOMPLETE TRANSCRIPT

The transcript in petitioner's murder

trial does not include the closing and

sentencing arguments of counsel or the

voir dire of the jury. It appears that

the entire trial was recorded by the court

reporter. The customary practice in that

court, however, was that voir dire and

closing arguments were not transcribed

@- 17 «

in the absence of a request by the State

or the defendant. Both of petitioner's

attorneys were familiar with that prac-

tice but neither they nor the State

requested that those portions of the trial

be transcribed. Trial counsel were also

informed by the trial judge that if they

had any objections to the arguments, the

objectionable portion of the argument

and the objection would be transcribed.

No objections were made. Thus, no part

of closing arguments was transcribed.

At the time of petitioner's initial

appeal to the Supreme Court of Georgia,

the trial judge submitted as part of the

record on appeal the detailed, seven-page

questionnaire required by Ga. Code Ann.

§ 27-2537(a) and described in Gregg v.

Georgia, 428 U.S. 153, 211-12, 96 S.Ct.

2909, 2942-43, 49 L.Ed.2d 859 (1976)

(White, J., concurring). That ques-

- 18 -

tionnaire provided a comprehensive

summary of the trial and a profile of the

defendant.

An affidavit of the trial judge was

received at the habeas corpus hearing in

state court. In that affidavit the trial

judge made the following statement.

In his closing argument, [the

district attorney] factually sum-

marized the evidence in the case.

He made no allusions to race nor

did he use any epithet in referring

to Stephens. I recall no statement

by [the district attorney] that

was inflammatory or that injected

passion or prejudice into the

trial of Stephens.

Petitioner has not alleged that

anything erroneous, inflammatory or

- 19 «

prejudicial occurred in the untranscribed

portion of the trial. As he stated in his

brief, there is nothing to indicate that

there was anything of special importance

in that part of the trial. His conten-

tion, simply stated, is that a death

sentence cannot constitutionally be

affirmed when the transcript before the

reviewing court does not contain the pro-

ceedings of the entire trial.

Petitioner relies principally on

Gardner v. Florida, 430 U.S. 349, 97 S.Ct.

1197, 51 L.Ed.2d 393 (1976). In Gardner,

the defendant was convicted of first

degree murder and the jury recommended

a life sentence. The trial judge did

not accept the advisory verdict of the

jury, but instead, on the basis of a

presentence report, imposed the death

penalty. The confidential portion of

the presentence report was shown neither

- 20 -

to counsel nor to the defendant, and neither

requested to see it. The judge did not

state on the record the substance of the

material contained in the report. The

report was also omitted from the record

on appeal, The plurality opinion of

Justice Stevens, joined by two other jus-

tices, found that this procedure violated

the Due Process Clause and vacated the

sentence.

[9,10] Gardner does not establish

the per se rule that petitioner attributes

to it. The decisive test is the one

suggested by the plurality's statement

that the procedure on appeal should be

"{ ] consistent with the basis upon which

the [state's] capital-sentencing procedure

was upheld." Id. at 360 n. ll, 97 S.Ct.

at 1205. This Court must examine Gregg

v. Georgia, 428 U.S. 153, 96 S.Ct. 2909,

= 21 «

49 L.Ed.2d 859, to determine the basis

upon which Georgia's capital-sentencing

procedure was upheld and thereby identify

the function the Georgia Supreme Court's

review is to play in that procedure. If

the record presented to the Georgia Supreme

Court was so deficient that it would be

impossible for that court to perform the

function required of it under Gregg, or

would create "a substantial risk" that the

penalty is being inflicted in an arbitrary

and capricious manner, id. at 188, 96 S.Ct.

at 2932, petitioner's sentence cannot be

permitted to stand. This analysis is

especially appropriate where, as here,

the case was tried and appealed before

the decision in Gregg.

In discussing the automatic appeal

of death-sentence cases to the Georgia

Supreme Court, the Gregg plurality iden-

tified the role of that court in

- 22 -

reviewing death sentences,

That court is required by statute to

review each sentence of death and

determine whether it was imposed

under the influence of passion or

prejudice, whether the evidence

supports the jury's finding of a

statutory aggravating circumstance,

and whether the sentence is dis-

proportionate compared to those

sentences imposed in similar cases.

Id. at 198, 96 S.Ct. at 2936.

Several considerations convince us

that the record on appeal to the Georgia

Supreme Court was adequate to permit that

court to make the determininations

required of it under Gregg. For the

reasons set out below, we hold that Gardner

is not controlling here and that petitioner's

- 23 -

sentence should not be overturned on this

ground. First, the report in Gardner was

Clearly the key element in the decision

to impose the death penalty, for it

contained "the factual basis for the judge's

rejection of the advisory verdict." 430

U.S. at 362, 97 S.Ct. at 1206. Without

it, it was impossible for the state supreme

court to determine whether the state was

"“administer[ing] its capital-sentencing

procedures with an even hand.” Id. at

361, 97 S.Ct. at 1206. In this case,

however, the bases for the imposition of

the death penalty are set forth in the

record, and the record is more than ade-

quate to permit the state court to deter-

mine whether the death penalty was imposed

with an even hand.

Second, the plurality in Gardner

was obviously distrubed by defense counsel's

- 24 -

lack of opportunity to comment on and

object to the portion or the report not

in the record, and to challenge the

accuracy or materiality of the information

it contained. Honest and robust debate

between adversaries is essential in

foreclosing the possibility, in both fact

and appearance, for the intrusion of

caprice, emotion, and other arbitrary

influences in the truth-seeking process.

In the absence of such debate, it may

be difficult to achieve accuracy and avoid

the appearance of arbitrariness. In the

present case, all proceedings took place

in open court and all counsel had a full

opportunity to comment on and challenge

those proceedings. The appearance of

arbitrariness is thus not a factor here

as it was in Gardner.

Third, unlike in Gardner, there is

affirmative evidence here that the con-

@ 28 -

viction and sentence were based on the

evidence presented and transcribed.

The State has come forward with affirma-

tive and uncontroverted proof that in the

untranscribed arguments the district

attorney merely factually summarized

the evidence in the case. In addition,

the jurors were twice instructed to base

their decision on the facts and inferences

presented in the evidence. The failure

of petitioner's attorneys to make any

objection to the argument must also be

seen as further evidence that there was

no injection of anything prejudicial to

petitioner and that the jury received

the case solely on the basis of the

evidence.

Fourth, the Georgia Supreme Court

had before it in this case the detailed

report of the trial judge on the defen-

dant and the trial. At least three jus-

- 26 -

tices in Gregg felt the presence of this

report was a significant factor in the

state supreme court's review function.

An important aspect of the new

Georgia legislative scheme, how-

ever, is its provision for appellate

review. Prompt review by the

Georgia Supreme Court is provided

for in every case in which the

death penalty is imposed. To

assist it in deciding whether

to sustain the death penalty,

the Georgia Supreme Court is sup-

plied, in every case, with a

report from the trial judge in

the form of a standard question-

naire. ... The questionnaire

contains, inter alia, six ques-

tions designed to disclose

whether race played a role in the

- 27 -

case and one question asking

the trial judge whether the

evidence forecloses "all doubt

respecting the defendant's

. gudit.*

Id. at 211-12, 96 S.Ct. at 2942-43 (opi-

nion of White, J., joined by Burger, C.

J. and Rehnquist, J.). No such report

was available to the state supreme court

in Gardner.

Fifth, as noted above, petitioner

has neither alleged nor offered any

evidence that he was actually prejudiced

by anything said in the untranscribed

portion of the trial or by the failure

to make the transcription. Both petitioner

and one of his trial attorneys were pre-

sent at the habeas corpus hearing in the

Superior Court and neither suggested any-

thing that was harmful, erroneous, inflam-

» 28 «

matory, or prejudicial. See Clayton v.

Blackburn, 578 F.2d 117 (5th Cir. 1978).

[11] The presence of these factors

persuades us that the record as a whole

adequately meets "the need for reliability

in the determination that death is the

appropriate punishment in [this] specific

case," Woodson v. North Carolina, 428 U.S.

280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d

944 (1976) (opinion of Stewart, Powell and

Stevens, JJ.), and that the capital-sen-

tencing procedures have been administered

with an even hand. See Gardner v. Florida,

430 U.S. at 361, 97 S.Ct. at 1206;

Proffitt v. Florida, 428 U.S. 242, 250-53,

96 S.Ct. 2960, 2965-67, 49 L.Ed.2d 913

(1976) (opinion of Stewart, Powell and

Stevens, JJ.). The state of the record

reviewed by the Georgia Supreme Court was

adequate to permit it to complete the

review functions required of that court

-29-

under Gregg and to ensure that there was

no substantial risk that the death sentence

was arbitrarily imposed. Accordingly, we

hold that in this case the failure to tran-

scribe counsel's arguments is not a consti-

tutional violation requiring petitioner's

sentence to be vacated.

Our holding should not be construed

to suggest that we condone the failure of

the trial court to transcribe the entire

proceedings in a death penalty case. We

note that the Supreme Court of Georgia

has directed that the argument of counsel

should henceforth be transcribed in all

cases in which the death penalty is

sought. Stephens v. Hopper, 241 Ga. at

600, 247 S.E.2d at 95.

[12] The question whether voir

dire was properly conducted was consi-

dered by the Supreme Court of Georgia on

= 30 -

direct appeal. Stephens v. State, 237

Ga. 259, 227 S.E,2d 261. That court

ordered the trial record to be supple-

mented. From the extensive notes he

made during the trial, the judge filed

a five-page supplement to the record

on the voir dire issue, and that supple-

ment was acknowledged by counsel. The

detailed supplement clearly presented

to the Supreme Court of Georgia the

opportunity to consider any possible error

or any injection of arbitrariness.

Petitioner shows no prejudice from the

failure to transcribe voir dire.

[13] The supplement also shows that

the only potential juror expressing con-

scientious objection to the death penalty

was struck by the State using one of its

peremptory challenges. There is thus no

Witherspoon issue in this appeal. See

- 31-

Witherspoon vy. Illinois, 391 U.S. 510,

88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

III. IMPROPER JURY

INSTRUCTION

Petitioner contends that, while the

jury was instructed in the sentencing

phase of the trial that it must find at

least one statutory aggravating circum-

stance before it could impose a death

sentence, it was not instructed that even

if it found such a circumstance it need

not impose death.

[14] When an appellate court reviews

the adequacy of an instruction to the jury,

it must view the charge as a whole. Cupp

v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct.

396, 400, 38 L.Ed.2d 368 (1973); United

States v. Brooks, 611 F.2d 614, 619

(Sth Cir. 1980). Only when the charge

- 32 -

taken in its entirety fails to fairly

present the issues to the jury will error

be found. United States v. Chandler, 586

F.2d 593, 606 (5th Cir. 1978), cert. denied,

440 U.S. 927, 99 S.Ct. 1262, 59 L.Ed.2d

483 (1979).

[15] In his charge to the jury, the

trial judge instructed them that they were

to consider all the evidence of the case,

including evidence of mitigation and

aggravation. He told the jury that unless

one of the statutory aggravating circum-

stances was found to be proven beyond a

reasonable doubt, they would not be

authorized to impose a death penalty. He

then specified which aggravating circum-

stances they could consider. He told them

that if they wished to recommend mercy,

they did not have to recite any mitigating

or aggravating circumstances they might

find. He concluded by instructing them

» 33 «

how to fill out the forms.

Considering the charge as a whole,

it is clear that the issue was fairly

presented to the jury. The clear impli-

cation of the charge is that the jury

could recommend mercy without stating

what mitigating or aggravating circum-

stances could be present and yet the jury

could still be free to impose life impri-

sonment. Petitioner's contention is

rejected.

IV. AGGRAVATING

CIRCUMSTANCES

The trial judge permitted the jury

to consider four statutory aggravating

circumstances: (1) the offense was com-

mitted by one who had escaped from lawful

custody, Ga. Code Ann. § 27-2534.1(b) (9);

(2) the offense was committed by one having

a prior conviction for a capital felony,

» 934 @

id. § 27-2534.1(b) (1); (3) the offense

was committed by one having a substantial

history of serious assaultive criminal

convictions, id.; or (4) the offense was

outrageously or wantonly vile, horrible

or inhuman, id. § 27-2534.1(b)(7). The

jury found the first three to be present

but not the fourth.

Following trial and before petitioner's

case was reviewed by the Supreme Court of

Georgia, that court declared aggravating

circumstance (3), commission by one having

a substantial history of serious assaul-

tive criminal convictions, to be uncon-

stitutionally vague. Arnold v. State,

236 Ga. 534, 224 S.E.2d 386 (1976).

After eliminating that circumstance from

consideration of petitioner's appeal, the

Georgia court in this case found the evi-

dence supported the jury's findings of

the other statutory aggravating circum-

= 38 -

stances and held that the sentence was

not impaired. Stephens v. State, 237 Ga.

In his state habeas corpus petition,

petitioner contended that aggravating

circumstance (2), commission by one having

a prior conviction for a capital felony,

was also invalid because he was under no

such conviction at the time the crime was

committed although he was admittedly under

conviction for a capital felony at the time

of his murder trial. The Supreme Court

of Georgia interpreted the statute, Ga.

Code Ann. § 27-2534.1(b) (1), as requiring

that the jury should consider his record

as of the time of sentencing. Accordingly,

petitioner's contention was rejected.

Stephens v. Hopper, 241 Ga. at 602-03, 247

S.E.2d at 96-97.

= 36 -

[16] On appeal to this Court,

petitioner argues that the presence of

unconstitutional aggravating circumstance

(3) before the jury and the questionable

interpretation of aggravating circumstance

(2) create such potential for the intru-

sion of arbitrary influences into his

sentence as to violate his constitu-

tional rights and require his sentence

to be vacated. The Supreme Court of Georgia

is the ultimate authority on the law of

Georgia and we are not permitted to ques-

tion its interpretation of that State's

statutes. Tennon v. Ricketts, 574 F.2d

at 1245. We must therefore treat circum-

stance (2) as it is interpreted by the

Georgia Supreme Court,

The question presented, then is

wehther the death penalty was invalid

under the Constitution because it was

» 37 «

imposed when one of the aggravating cir-

cumstances was later held to be unconsti-

tutional even though there were two other

aggravating circumstances, either of which

by itself would be legally sufficient to

permit the jury to impose the death penalty

and as to both of which there is no uncer-

tainty.

In Stromberg v. California, 283 U.S.

359, 367-68, 51 &.Ct. 532, 535, 75 L.Ed.

1117 (1931), the Supreme Court held that

if the jury has been instructed to consi-

der several grounds for conviction, one

of which proves to be unconstitutional,

and the reviewing court is thereafter

unable to determine from the record

whether the jury relied on the unconsti-

tutional ground, the verdict must be set

aside. Accord, Bachellar v. Maryland,

397 U.S. 564, 570-71, 90 S.Ct. 1312,

1315-16, 25 L.Ed.2d 570 (1970); Street

= 38 «

1354, 1362-63, 22 L.Ed.2d 572 (1969); Yates

v. United States, 354 U.S. 298, 311-12,

77 S.Ct. 1064, 1072-73, 1 L.Ed.2d 1356

(1957). This settled principle of law

applies with particular force in cases

in which the death penalty has been im-

posed. Furman v. Georgia, 408 U.S. 238,

92 S.Ct. 2726, 33 L.Ed.2d 346 (1972),

held that the death penalty may not be

imposed under sentencing procedures that

create a substantial risk that the penalty

will be inflicted in an arbitrary and

capricious manner. The Constitution

requires that the sentencer's discretion

be channeled by clear and objective stan-

dards that "make rationally reviewable

the process for imposing a sentence of

death." Woodson v. North Carolina, 428

U.S. at 303, 96 S.Ct. at 2990 (opinion

of Stewart, Powell and Stevens, JJ.).

- 39 -

It is impossible for a reviewing

court to determine satisfactorily that

the verdict in this case was not decisive-

ly affected by an unconstitutional statutory

aggravating circumstance. The jury had

the authority to return a life sentence

even if it found statutory aggravating

circumstances. It is possible that even

if the jurors believed that the other

aggravating circumstances were established,

they would not have recommended the death

penalty but for the decision that the

offense was committed by one having a

substantial history of serious assaultive

criminal convictions, an invalid ground.

The presence of the unconstitutionally

vague circumstance also made it possible

for the jury to consider several prior

convictions of petitioner which otherwise

would not have been before it. The

instruction on the invalid circumstance

- 40 -

may have directed the jury's attention to

those convictions, It cannot be determined

with the degree of certainty required in

capital cases that the evidence of those

convictions, together with the instruc-

tion, did not make a critical difference

in the jury's decision to impose the

death penalty.

{17] We hold that the jury's discre-

tion here was not sufficiently channeled,

see Godfrey v. Georgia, U.S. ’

100 S.Ct. 1759, 64 L.Ed.2d 398 (1980),

and that the process in which the death

penalty was imposed in this case was not

“rationally reviewable." Woodson v.

North Carolina, 428 U.S. at 303, 96 S.Ct.

at 2990. See also Gardner v. Florida,

430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393.

Petitioner's death sentence therefore

cannot stand.

V. OTHER CONSIDERATIONS

In the brief filed by amicus curiae,

NAACP Legal Defense and Educational Fund,

the Court's attention is invited to three

additional issues: (1) whether the trial

judge should have ordered a competency

hearing in light of petitioner's conduct

at trial; (2) whether petitioner was denied

effective assistance of counsel because

of counsel's inability to communicate

with him; and (3) whether petitioner's

uncounseled confession was knowing and

voluntary, in view of allegations that

it was given while appellant was under the

influence of drugs. These issues may

relate to petitioner's murder conviction,

but they were not considered by the district

court. On remand, that court should take

whatever action is appropriate with

respect to those issues.

= 42 «

*

We reverse the district court's denial

of habeas corpus relief insofar as it

leaves standing the petitioner's death

sentence, and the case is remanded for

further proceedings.

REVERSED AND REMANDED.

THOMAS A CLARK, Circuit Judge, con-

curring in part and dissenting in part:

I concur in the relief grnated and

all of the opinion except Part I which

holds that there is no double jeopardy.

It is my view that Stephens was placed

in jeopardy for the offense of killing

Asbell in Twiggs County under the holding

of Potts v. State, 241 Ga. 67, 243 S.E.2d

510 (Ga.Sup.Ct.1978). In that case the

court decided, under facts virtually

identical to those in this case, that Potts

could receive two death penalties, one in

Cobb County for the kidnapping with bodily

@ 43 -

injury of Priest and one in Forsyth County

for the murder of Priest. In refuting

Stephens' double jeopardy contention, the

Georgia Supreme Court relied specifically

on its holding in Potts. 4

If Stephens had been tried in Twiggs

County he could have received the death

sentence in that county as well as in

Bleckley County, where he was given the

death sentence which is the subject of

this appeal. The only difficulty Stephens

has in asserting the bar of his prior

conviction to the subsequent prosecution,

however, is in the venue provisions of

Georgia law, which purport to vest juris-

diction for criminal homicides in the

county where the cause of death was

inflicted. The majority concludes that

l. Stephens v. Hopper, 241 Ga. 596,

247 S.E.2d 92, at 95 (1978).

- 44 «-

these provisions, as construed by the

Georgia courts, divested the Twiggs

County court of jurisdiction over the

offense for which he was later tried, and

which Georgia law required to be tried

only in Bleckley County. I do not agree.

It is clear that Stephens could have

received the death penalty in Twiggs

County for the offense to which he there

plead guilty, the kidnapping-with-bodily-

injury-resulting-in-death of Roy Asbell.

Potts, supra, says so. It is equally

clear that Stephens could not have

received the death penalty for any

offense, however Georgia defines that

offense and wherever Georgia requires

that offense to be tried, absent proof

that the victim was killed in the commis-

sion of the crime. As I understand

Georgia law, that state does not now im-

pose the death penalty for any offense

not resulting in the death of the victim. ?

Since Georgia law does not recognize any

2. Stanley v. State, 240 Ga. 341, 241

S.E. rr 173, 175-80 (1977). Ifa

death penalty in Twiggs County sonia

be said to be based solely on kid-

napping with bodily injury not

resulting in death, I think the

penalty, as affirmed in Potts, would

be unconstitutional under Coker v.

Georgia, 433 U.S. 584, 97 5.Ct. 2861,

53 L.Ed.2d 982 (1977), and Eberheart

v. Georgia, 433 U.S. 917, 97 S.Ct.

2994, 54 L.Ed.2d 1104 (1977), the

latter of which set aside a death

penalty for kidnapping with bodily

injury as cruel and unusual punish-

ment. A reading of the lower

court opinion in Eberheart, 232 Ga.

247, 206 S.E.2d 12 (1974), does not

make clear that he was charged

with kidnapping with bodily injury,

although there was a kidnapping

and bodily injury. However,

Justice Undercofler wrote the

lower court opinion in Eberheart as

well as the opinion in Collins v.

State, 239 Ga. 400, 236 9

), where at 761, in referring

to Eberheart, he recited that that

earlier case had involved: "two

death sentences for rape and kid-

napping with bodily injury."

@ 46 -

jurisdictional limitations on a court's

power to punish as homicide a crime

Georgia law does not call homicide, I

do not feel any similar limitation on

my duty to inquire whether the offenses

are, within the meaning of the Constitu-

tion, the "same offense,"

If Stephens could have received the

death penalty under his Twiggs County

indictment, as Potts clearly held that

he could, it could only have been upon

proof of the killing of the victim.

Likewise, his subsequent prosecution for

murder, under any theory of either

malice or felony murder, would require

proof that the victim was killed. 3

3. In this respect it is immaterial

that Stephens recieved only a life

sentence for that part of the

kidnapping that occurred in Twiggs

County, a punishment that might

That death, by whatever name called, is

the greater, greatest, and ultimate offense.

And that single offense cannot be the basis

for several offenses that would permit

the state to seek a separate death penalty

for malice murder, felony murder, kid-

napping with bodily injury murder,ad

infinitum. Such reasoning tortures the

3. (Cont.)

constitutionally attach to what

happened in Twiggs County, taking

no account of the killing that

followed in Bleckley County. See

note 2, supra, The fact remains

that it was within the power of

the Twiggs County court to punish

for the Blackley killing, with a

sanction reserved exclusively for

killing. Jeopardy had attached,

therefore, for the Bleckley County

homicide when Stephens was brought

to answer for that act in Twiggs

County. The state needn't have

more than one opportunity to punish

for that killing, and the double

jeopardy guaranty should prevent

it.

» 48 -

meaning of "same offense" and the intent

of forbidding the placing of a person

twice in jeopardy for that same offense.

- 49 «

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

ALPHA OTIS O'DANIEL

STEPHENS,

Petitioner,

Vv. CIVIL ACTION NO.

79-30-MAC

SUPERINTENDENT

WALTER ZANT, Georgia

Diagnostic and

Classification

Center,

Respondent.

JUDGMENT

Pursuant to the Ruling of this Court

dated and filed May 11, 1979, and for

the reasons stated therein, the petition

for a writ of habeas corpus is denied.

This llth day of May, 1979.

WALTER F. DOYLE, Clerk

By: S/Helen F. Newberry

Helen F, Newberry

Filed 10:00 a.m., Deputy Clerk

May 1l, 1979

» 80 -

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

ALPHA OTIS O'DANIEL

STEPHENS,

Petitioner,

Vv. CIVIL ACTION NO.

79-30-MAC

SUPERINTENDENT

WALTER ZANT,

Georgia Diagnostic

& Classification

Center,

Respondent,

RULING ON PETITION FOR WRIT OF

HABEAS CORPUS

The petitioner Alpha Otis O'Daniel

Stephens, a state prisoner under the death

sentence for murder, seeks habeas corpus

relief pursuant to 28 U.S.C.A. § 2254.

Stephens was convicted and sentenced to

death by the Bleckley County Superior

Court and the verdict and sentence was

affirmed by the Georgia Supreme Court.

- 51 -

Stephens v. State, 237 Ga. 259, 227 S.E.2d

261 (1976), cert. denied 429 U.S. 986, 97

S.Ct. 508, 50 L.Ed.2d 599 (1976). A prior

state petition for habeas corpus was denied

by the Tattnall County Superior Court,

Stephens v. Hopper, No. 77-94 (Dec. 14,

1977), and this denial of relief was like-

wise affirmed by the Georgia Supreme Court.

Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d

92 (1978), cert. denied.

On February 8, 1979 this court stayed

the impending execution so that this peti-

tion might be heard and decided. The

petitioner alleges as grounds for relief

that (1) the murder conviction is violative

of the double jeopard clause of the Fifth

Amendment, (2) the closing arguments of

the district attorney which allegedly

contained prejudicial remarks was not

transcribed; and (3) the imposition of the

death penalty is violative of the peti-

- 52 -

tioner's Eighth and Fourteenth Amendment

rights, All these grounds have been pre-

sented to the state tribunals; consequently

exhaustion of state remedies is not an

issue.

The circumstance which lead to

petitioner's murder conviction began on

August 19, 1974 when Stephens escaped

from the Houston County jail where he

was being held on other escape charges.

He stole a car and went to Macon, Georgia

where he stole another car and committed

a burglary. On August 21, 1974 he went

to the residence of Charles Asbell in

Twiggs County and began burglarizing

the house. Among the items he took was

a .357 magnum pistol. As Stephens and

his ,accomplice were burglarizing the home,

Charles Asbell's father, Roy Asbell, drove

up and asked the two men what they were

doing. The petitioner, armed with the

- 53-

pistol, assaulted Asbell by hitting and

kicking him and took a large sum of money

from him. The petitioner forced Asbell

into his vehicle and drove him a short

distance across the county line into

Bleckley County where Stephens shot Asbell

twice in the head, killing him. The

petitioner drove Asbell's vehicle to

Savannah and the next day was apprehended

by Savannah police on other charges. He

later confessed to a number of burglaries

as well as the kidnapping and murder of

Roy Asbell.

On October 14, 1974 the petitioner

was indicted by the Twiggs County grand

jury for the armed robbery and kid-

napping-with-bodily-injury of Roy Asbell,

as well as various burglary charges and

the murder of one Louise Mercer. Among

the assaultive acts alleged in connection

= 54 «

with the kidnapping-with-bodily-harm

charge was that Stephens shot and killed

the victim, The petitioner pled guilty .

to all offenses and was sentenced to

three consecutive life sentences as well

as various other terms. In November,

Stephens was indicted by the Bleckley

County grand jury for the murder of Roy

Asbell. Following a plea of not guilty

he was tried, convicted and sentenced.

The death sentence was imposed after the

jury found that the murder was committed

by a person with a prior conviction for

a capital felony, by a person with a prior

history of serious assaultive criminal

convictions and by a person who had

escaped from the lawful custody of a

peace officer and place of lawful confine-

ment, Ga, Code Ann. § 27-2534.1(b). The

Georgia Supreme Court set aside the death

penalty on account of prior assaultive

convictions but otherwise affirmed the

conviction and death sentence. Stephens

v. State, supra.

I. FORMER JEOPARDY

The petitioner argues that his guilty

plea to kidnapping-with-bodily-harm (Ga.

Code Ann. § 26-1311) in Twiggs County is

a bar to prosecution for murder in Bleckley

County on the grounds that the kidnapping

and murder charges arose from the same

acts and the homicide of Asbell was one

of the acts of bodily harm in the kid-

napping indictment. The Georgia Supreme

Court rejected this argument reasoning

that there was no procedural bar to the

murder prosecution since Stephens could

not be tried in Twiggs County for a murder

that took place in Bleckley County. The

court also held that there was no substan-

tive bar to the prosecution because kid-

e 86 «

napping-with-bodily-injury and murder are

not included offenses and are established

by the proof of different facts, Stephens

v. Hopper, supra. This court defers to

the Georgia Supreme Court's decision inso-

far as it rests on a construction of state

law; however, this court must decide

the question measured against the Fifth

Amendment's double jeopardy prohibition.

The double jeopardy clause of the

Fifth Amendment provides that no person

shall “be subject for the same offense

to be twice put in jeopardy of life or

limb." This clause has been incorporated

into the due process clause of the Four-

teenth Amendment and constitutes a limita-

tion on the states’ power. Ashe v.

Swenson, 397 U.S. 436, 90 S,Ct. 1189, 25

L.Ed.2d 469 (1970). As explained by the

United States Supreme Court:

e 87 «

“, « » where the same act or

transaction constitutes a viola-

tion of two distinct statutory

provisions, the test to be applied

to determine whether there are

two offenses or only one, is

whether each provision requires

proof of an additional fact

which the other does not."

Blockburger v. United States, 284 U.S. 299,

304, 52 S.Ct. 180, 76 L.Ed.2d 306, 309

(1932). See also Brown v. Ohio, 432 U.S.

161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977),

United States v. Smith, 574 F.2d 308 (5th

Cir. 1978).

This court is convinced that the

double jeopardy prohibition has not been

violated. The kidnapping-with-bodily-

harm and the murder charge are offenses

defined by separate statutes with different

- 58 -

elements. In Georgia, kidnapping-with-

bodily-harm requires the prosecution to

show that the defendant abducted another

person without legal authority and held

the person against his will and in addi-

tion requires that the victim have

received bodily injury from the abduction.

Ga. Code Ann. § 26-1311. Murder, on the

other hand, is the unlawful taking of the

life of another with malice aforethought.

Ga. Code Ann. § 26-1101. Clearly then,

the two offenses require proof of different

facts and are not the same within the

meaning of the Fifth Amendment. The

petitioner, nevertheless, argues that

because the killing of Asbell was included

as one of the acts of bodily injury in

the kidnapping indictment jeopardy

attached with the petitioner's guilty

plea. This argument is without merit.

The double jeopardy clause requires the

@ §9 «

court to examine the elements of the

offenses and to determine what facts are

necessary to sustain a conviction. Homi-

cide is not a necessary element of kid-

napping-with-bodily-injury. Furthermore,

the kidnapping-with-bodily-injury charge

was adequately supported by the allegations

of beating, hitting, and kicking set forth

in the indictment.

II. ABSENCE OF TRANSCRIPT OF

DISTRICT ATTORNEY'S CLOSING

ARGUMENT

The petitioner alleges that the

district attorney made prejudicial remarks

during the closing argument and that the

court failed to have the argument tran-

scribed. He alleges that the court failed

to have the voir dire transcribed. At

the state habeas hearing the respondent

produced the affidavit of the trial judge

who stated that at the time of the trial

- 60 =

it was the practice of his circuit not

to transcribe voir dire or arguments of

counsel absent a request and that no

request was made by either of petitioner's

attorneys despite the fact both knew of

the rule. The trial judge also stated

that the district attorney "made no allu-

sions to race nor did he use any epithet

in referring to" the petitioner. He

recalled no prejudicial or inflammatory

statements.

The petitioner has failed to demon-

strate any error that would form the

basis for habeas relief.

III. THE DEATH PENALTY WAS NOT

IMPOSED CONTRARY TO THE

EIGHTH AND FOURTEENTH AMEND-

MENTS

The United States Supreme Court has

upheld Georgia's statutory scheme for the

imposition of the death sentence against

a constitutional attack under the Eighth

and Fourteenth Amendments. Gregg v. Georgia,

428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d

859 (1976). All the procedures set forth

in those statutes were observed in this

case. The jury found beyond a reasonable

doubt two statutory aggravating circum-

stances that the murder was committed

by a person with a prior record for a

conviction of a capital felony, Ga. Code

Ann. § 27-2534.1(b)(1), and by a person

who had escaped from lawful custody of

a police officer. Ga. Code Ann. § 27-

2534.1(b) (9). These findings are sup-

ported by the evidence and either finding

is grounds for the imposition of the death

sentence. On mandatory review to the

Georgia Supreme Court, Ga. Code Ann. §

27-3537, the court held that the sentence

was not the result of passion or caprice

nor was the sentence "excessive or dis-

» 62 <

proportionate to the penalty in similar

cases considering both the crime and

the defendant," This court must agree

with these conclusions.

Accordingly, the petition for a writ

of habeas corpus is hereby denied,

The stay of execution issued on

February 8, 1979 shall remain in force

and effect until such time as respondents

move for dissolution on account of

petitioner's failure to appeal or

affirmance after appeal.

SO ORDERED, this llth day of May,

1979.

S/Wilbur D. Owens, Jr.

WwW ur D. ens, Jr.

United States District

Judge

Filed at 10:00 a.m.,

May 1l, 1979,

= 63 «

ALPHA OTIS O'DANIEL STEPHENS,

Petitioner-Appellant,

Vv.

WALTER ZANT, SUPERINTENDENT,

Respondent~Appellee.

No. 79-2407.

United States Court of Appeals,

Fifth Circuit.

June 18, 1981.

Appeal from the United States Dis-

trict Court for the Middle District of

Georgia.

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion November 26, 1980, 5 Cir., 1980,

631, F.2d 397).

Before INGRAHAM, RONEY and THOMAS

A, CLARK, Circuit Judges.

PER CURIAM:

» 64 -

Upon consideration of the petition

for rehearing filed by the appellee, we

delete the following sentence that appears

in 631 F.2d 397 on page 406, column 2,

line 10:

The presence of the unconstitu-

tionally vague circumstance also

made it possible for the jury

to consider several prior con-

victions of petitioner which

otherwise would not have been

before it.

The two sentences immediately following

the above sentence at page 406 of the

slip opinion are modified to read as

follows:

The instruction on the invalid

circumstance may have unduly

directed the jury's attention

to his prior convictions, It

cannot be determined with the

= 65 =

degree of certainty required

in capital cases that the instruc-

tion did not make a critical

difference in the jury's deci-

sion to impose the death penalty.

The petition for rehearing is

DENIED. No member of this panel nor

Judge in regular active service on the

Court having requested that the Court

be polled on rehearing en banc, (Rule

35 Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 16) the peti-

tion for rehearing en banc is DENIED.

= 66 «