Petition — CHARLIE B. BOWEN v. WALTER D. D. ZANT (No. 81-5844)

10 t 5844 Dee. 1149 {

DEC 10 198)

Ores. — ‘ hess |

IN THE suns: ;

—— ä—ëäAũ4—ĩ

SUPREME COURT OF THE UNITED STATES

October Term, 1981

CHARLIE B. BOWEN,

Petitioner,

V.

WALTER F. ZANT, WARDEN,

Respondent.

On Writ of Certiorari

To the Superior Court of Butts County, Georgia

PETITION FOR WRIT OF CERTIORARI

TO THE SUPERIOR COURT OF BUTTS COUNTY, GEORGIA

Paul K. Kehir

18 Fourth Street, N.W.

Atlanta, Georgia 30308

404/892-0626

COUNSEL FOR PETITIONER

TABLE OF CONTENTS

QUESTI ONS PRESENTED * . * * * . * * * * * * * * * * * * . * * . *

e ũ ã FR rn „ 65

OPINIONS BELOW * * . * . * . * * . * * . * * * * * * * * * * *

, ˙ l—TI Ob 6&6 „ „„ „„ 8

STATUTORY AND CONSTITUTIONAL PROVISIONS. .........

. GP TUE e

HOW THE FEDERAL QUESTIONS WERE RAISED AND DECIDED BELOW. .. .

REASONS FOR GRANTING THE WRIT:

THE PETITIONER WAS INDICTED BY AN UNCONSTITUTIONALLY

COMPOSED GRAND JURY SINCE IT WAS DRAWN FROM A GRAND

JURY POOL WHICH WAS COMPOSED IN VIOLATION OF THE

CONSTITUTION OF THE UNITED STATES AND THE LAWS AND

CONSTITUTION OF THE STATE OF GEORGIA... .

THE PETITIONER WAS TRIED AT BOTH TRIALS BY UNCONSTITUTIONALLY

CHOSEN JURIES SINCE THEY WERE CHOSEN FROM TRAVERSE JURY POOLS

WHICH WERE COMPOSED IN VIOLATION OF THE CONSTITUTION OF THE

UNITED STATES AND IN VIOLATION OF THE LAWS AND CONSTITUTION

oy Ga Gee Ge Ges meee eee eect ee ee ° .

THE TRIAL COURT'S FAILURE TO GRANT THE PETITIONER'S MOTION

FOR FUNDS TO INVESTIGATE AND SHOW A HISTORY OF SYSTEMATIC

EXCLUSION OF COGNIZABLE GROUPS FROM JURY POOLS IN POLK

COUNTY, GEORGIA, VIOLATED THE PETITIONER'S RIGHT TO FULLY

PRESENT HIS CHALLENGE TO THE TRAVERSE JURY BEFORE HIS SECOND

TRIAL, RIGHT TO A FAIR TRIAL, DUE PROCESS AND EQUAL

PROTECTION OF LAW AND RIGHT TO A JURY COMPOSED OF A

REPRESENTATIVE CROSS SECTION OF THE COMMUNITY. .. .

CONCLUSION * * * „ „ * * * * „ * * * . * * * * * * * * . * * * .

AFF IDAVIT OF COUNSEL * „ * * „ . * * * * * * * * * „ * * * „ * *

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2.

QUESTIONS PRESENTED

Was the Petitioner indicted by a grand jury drawn from

a grand jury pool which was composed in violation of

the Constitution of the United States?

Was the Petitioner tried by a jury chosen from traverse

jury pools which were composed in violation of the Con-

stitution of the United States?

Did the trial court's failure to grant the Petitioner's

motion, prior to his second trial, which motion was for

funds to investigate and show a history of systematic

exclusion of cognizable groups from jury pools in Polk

County, violate the Petitioner's right to fully present

his challenge to the grand and traverse jury pools, his

right to a fair trial, 4ue process and equal protection

of law ans right to a jury composed of a representative

cross section of the community as guaranteed by the Fifth,

Sixth, and Fourteenth Amendments to the United States

Constitution?

TABLE OF AUTHORITIES

CASES

Bowen v. The State, 244 Ga. 495 (1979). . . «+ «© «+ «+ «#

Castaneda v. Partida, 430 U.S. 462 (19% /%ͤů 11

Rose v. Mitchell, 99 S. Ct. 2993 (1979) .

State v. Messer, Superior Court of Polk rare Criminal

Indictment No. 2072 ..+ + «© «© «= « . os

STATUTES

Fifth Amendment of the United States Constitution

Sixth Amentment of the United States Constitution

Fourteenth Amendment of the United States Constitution.

, ² & 6 „ 6 Oe Se ee 6

Ga. Code Annotated Section 5O0-127(1) . . «© «© «© «# «© «

ii

10

10

No. 8l-

IN THE

SUPREME COURT OF THE UNITED STATES

CHARLIE B. BOWEN,

Petitioner,

V.

WALTER T. ZANT, WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION CENTER,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPERIOR COURT OF 3UTTS COUNTY, GEORGIA

Petitioner prays that this Honorable Court issue a

Writ of Certiorari to review the judgments of the

Superior Court of Butts County, Georgia, entered

April 27, 1981, denying Peittioner'’s Motion for a

Writ of Habeas Corpus.

OPINIONS BELOW

The Opinion of the Superior Court of Butts County

is filed as Habeas Corpus File No. 4780 of that

Court and is set out in tha Appendix as Appendix

A. The Order of the Supreme Court of Georgia

denying Petitioner's Application for a Certificate

of Probable Cause is filed as Application No. 1685

of that Court and is set out in the Appendix as

Appendix B.

JURISDICTION

The final judgment of the Superior Court of Butts County

was entered on April 27, 1981. Petitioner's application to

the Supreme Court of Georgia for a Certificate of Probable

Cause was denied on September 8, 1981. The jurisdiction of

this Court is invoked pursuant to 28 USC 1257 (3) to review

teh denial of certain enumerated rights guaranteed Petitioner

under the Constitution of the United States.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. This case involves the Fifth Amendment to the Constitution

of the United States of America:

"No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the militia, when in

actual service in time of war or public danger; nor shall

any person be subject for the same offence to be twice

put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness aganst himself, nor

be deprived of life, liberty, or property, without due

process of law; noc shall private property be taken for

public use, without just compensation.”

2. This case also involves the Sixth Amendment to the Con-

stitution of the United States of America:

In all criminal prosecutions, the accused shall

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

impartial jury of the STate and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law. and to be in-

formed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have con-

pulsory process for obtaining witnesses in his favor, and

to have assistance of counsel for his defence.”

3. This case also involves the Fourteenth Amendment to the

Constitution of the United States of America, Section 1:

"All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State de-

prive any person of life, lieberty, or property, without

due process of law; nor deny to any person within it

jurisdiction the equal protection of the laws.”

4. This case also involves 18 U.S.C. §243, to wit:

"No citizen possessing all other qualifications

which are or may be prescribed by law shall be disqual-

ified for service as a grand or petit juror in any

court of the United States, or of any State on account

of race, color, or previous condition of servitude; and

whoever, being an officer or other person charged with

any duty in the selection or summoning of jurors, ex-

cludes or fails to summon any citizen for such cause,

shall be fined not more than $5,000.00."

5. This case also involves the following provisions of the

Code of Georgia:

"Any person imprisoned by virtue of a sentence in-

posed by a State court of record who asserts that in the

proceedings which resulted in his conviction there was

a substantial denial of his rights under the Constitu-

tion of the United States or of the State of Georgia or

the laws of the State of Georgia may institute a pro-

ceeding under this section. Except for objections re-

lating to the composition of a grand or traverse jury,

right conferred or secured by the constitution of the

United States shall not be deemed to have been waived

unless it is shown that there was an intentional relinquish-

ment or abandonment of a known right or privilege which

relinquishment or abandonment was participated in by the

party and was done voluntarily, knowingly, and intelli-

gently. The right to object to the composition of the

grand or traverse jury will be deemed waived under this

section, unless the person challenging the sentence shows

in the petition and satisfies th.» court that cause exists

for his being allowed to pursue the objection after the

conviction and sentence has otherwise become final.”

STATEMENT OF THE CASE

Procedural History --

The Petitioner was convicted of murder and rape in the

Superior Court of Polk County and on September 6, 1977, was

sentenced to death for the murder and life imprisonment for the

rape.

The conviction for murder and rape and the sentence for

rape were affirmed by the Georgia Supreme Court. The death

penalty for murder was vacated and the case remanded to the

Superior Court for retrial solely on the issue of punishment

for the murder. Bowen v. State, 241 Ga. 492, (1978).

On retrial on sentencing, the Petitioner was resentenced

to death on September 14, 1978.

The sentence wat affirmed by the Georgia Supreme Court.

Bowen v. State, 244 Ga. 495 (1979).

Certiorari was denied by the United States Supreme Court.

A petition for writ of habeas corpus accompanied by a

motion to proceed in forma pauperis and a motion for funds for

investijation and hearing expenses was subsequently filed on

September 3, 1980.

An evidentiary hearing was held on January 20, 1981, at

which time the Petitioner's motion for funds was denied.

Petitioner, an indigent, was therefore unable to procure

the services of investigators, subpoena witnesses and hire

experts.

The Petitioner's habeas was denied on April 27, 1981, by

the Superior Court of Butts County, Georgia (Appendix A.).

Petitioner's application for a Certificate of Probable

Cause from the Supreme Court of Georgia was denied by an

Order entered by that Court dated September 8, 1981 (Appendix B.).

Statement of Facts --

The Petitioner, Charlie B. Bowen, a black man with no

prior criminal record, was convicted and sentenced for the mur-

der and rape of a thirteen (13) year old child. Charlie Bowen's

factual involvement in her death was not disputed.

Charlie Bowen had been suffering from psychiatric problems

for a period of time prior to the offense. Mr. Bowen's de-

teriorating mental health was observed by his employer and the

people close to hin.

Immediately after the offense was committed, Charlie Bowen

became so overwhelmed with guilt and remorse for what he had

done, that he attempted to kill himself by drinking a bottle

of iodine.

Several hours later, realizing that he was not going to

die from this self-inflicted poisoning and realizing that he

was seriously mentally ill, Cherlie Bowen voluntarily admitted

himself to the psychiatric unit of the Northwest Georgia

Regional Hospital. It was there that he was arrested. Charlie

Bowen cooperated fully with the police.

Charlie Bowen was indicted by a grand jury grossly under-

representative of women and black people, drawn from a jury

pool grossly underrepresentative of women and black people.

Charlie Bowen's trial jury was drawn f rom a jury pool

grossly underrepresentative of women and black people. Only

2 of 48 persons on the jury panel were black, both were stricken

peremptorily by the prosecutor.

At trial, Charlie Bowen's defense was insanity. Although

both the State and defense psychiatrists testified that Mr.

Bowen was suffering from mental illness, only the psychiatrist

called by Mr. Bowen testified that Charlie Bowen was legally

insane (it should be noted that defense counsel had no input

in choosing either psychiatrist).

In mitigation, Charlie Bowen presented witnesses to

show that he had a good reputation and a pleasant non-violent

disposition; he maintained regular employment, was a superior

worker, got along well with others and was highly regarded:

generally he was a hard-working, law abiding, productive citizen.

The witnesses also showed the deterioration of Charlie Bowen's

mental health.

The all white jury convicted Charlie Bowen and sentenced

him to death.

On retrial on sentencing only, the jury was drawn from a

jury pool grossly underrepresentative of women and black people.

Only 4 of 48 persons on the jury panel were black. All four

of these persons were peremptorily stricken by the prosecutor.

The all white jury was composed of 9 men and 3 women in a

1.

2.

3.

county 54 per cent female. Charlie Bowen's court appointed

trial counsel filed a challenge to the Grand and traverse

juries and a motion for funds to investigate and show a history

of systematic exclusion of cognizable groups form jury pools

in Polk County. This motion was denied.

At the second trial, Charlic Bowen presented the samc

mitigating evidence presented at the first trial and additional

mitigating evidence including the fact that he has beer a mode)

prisoner since his arrest.

The all white jury again sentenced Charlie Powen to death.

HOW THE FEDERAL QUESTIONS

WERE RAISED AND DECIDED BELOW

Petitioner raised the claim that he was indicted by 2

Grand Jury drawn from a grand jury pool which was composed

in violation of the Constitution of the United States and the

laws and Constitution of the State of Georgia as Count Ten of

his motion for a writ of habeas corpus before the Superior

Court of Butts County. The Superior Court, Crumbley, J., ruled

that the Petitioner had not met his burden of showing cause for

actuel prejudice by a preponderance of the evidencc.

Petitioner raised the claim that he was tried by a jury

chosen from traverse jury pools which were composed in viola-

tion of the Constitution of the United States and the laws and

Constitution of the State of Georgia as Count Nine (sic)of his

motion for a writ of habeas corpus before the Superior Court of

Butts County. The Superior Court, Crumbley, J., ruled that

Petitioner's complaint was without merit.

Petitioner raised the claim that the trial court's failure

to grant the Petitioner's motion prior to his second trial for

funds to investigate and show a hisotry of systematic exclsuion

ot cognizable groups of jury pools in Polk County viclated the

Petitioner's right to fully present his challenge to the grand

and traverse jury pools, to a fair triai, due process and equal

protection of law and right to a jury composed of a representa~

7

tive cross-section of the community as guaranteed by the

Fifth, Sixth and Fourteenth Amendments to the United States

Constitution as Count Five, Motion for a Writ of Habeas

Corpus before the Superior Court of Butts County. The Superior

Court, Crumbley, J., ruled that the granting or denial of the

Petitioner's motion was within the sound discretion of the

trial court and that the Petitioner presented no evidence of an

abuse of this discretion.

REASONS WHY THE WRIT SHOULD BE GRANTED

1. THE PETITIONER WAS INDICTED BY AN UNCONSTITUTIONALLY COMPOSED

GRAND JURY SINCE IT WAS DRAWN FROM A GRAND JURY POOL WHICH

WAS COMPOSED IN VIOLATION OF THE CONSTITUTION OF THE UNITED

STATES AND THE LAWS AND CONSTITUTION OF THE STATE OF GEORGIA.

The following cognizable classes in Polk County were and are

systematically excluded from Polk County's Grand Jury pool:

la! There was an intentional, discriminatory and systematic

exclusion of young adults ages 18 to 30 on the grand jury pool

from which the jurors were selected, who heard evidence against

the Petitioner.

ls! There was an intentional, discriminatory, and systematic

exclusion of women from the grand jury pool from which the jurors

who heard evidence against the Petitioner were selected.

le! There was an intentional, discriminatory, and systematic

exclusion of blacks from the grand jury pool from which the jurors

were selected who heard evidence against the Petitioner.

lo! There was an intentional, discriminatory, and systematic

exclusion of blacks aged 18 to 30 from the grand jury pool from

which the jurors were selected who heard evidence against the

Petitioner.

At the habeas corpus hearing, the Petitioner presented the

testimony of a witness who was directly involved in the challenges

to the array of the grand jury and traverse jury in the case of

State v. Messer, Superior Court of Polk County, Criminal Indictment

No. 2072. As a result of that challenge, the indictment was

quashed, the jury commissioners either resigned or were relieved

of their duties, and new jury pools were drawn.

The witness who testified stated that her research disclosed

the following with regard to the 1975 and 1977 grand jury pools

in Polk County:

1975 GRAND JURY TOTAL JURORS: 543

Class Number tRep on Panel tRep in Population

Males 448 82.5 47.5

Females 95 17.0 52.5

Caucasian 488 89.8 84.3

Blacks 55 10.1 15.7

Age Groups

Under 30 31 6.5 23.9

30 = 64 385 80.2 76.1

65 and over 64 13.3 76.1

1977 GRAND JURY TOTAL JURORS: 576

Class Number Rep on Panel tRep in Population

Males 471 81.8 47.5

Pemales 103 17.8 52.5

Caucasian 526 91.3 84.3

Blacks 50 8.6 15.7

Age Groups

Under 30 24 4.6 23.9

30 - 64 413 80.3 76.1

65 and over 77 14.9 ----

The 1975 Polk County Grand Jury, as the above table demonstrates,

consisted of a gross underrepresentation of blacks and women. In

regard to women, we have a disparity between an approximately 53%

female population and an approximately 17% female representation on

the grand jury. We have a black disparity between approximately

16% in the population and approximately 10% represented on the

grand jury. The disparity with regard to age groups is similar.

The 1977 Polk County Grand Jury, as the table demonstrates,

also reflected a gross underrepresentation of blacks and women.

In regard to women, we have a disparity between approximately

53% in the population as compared to approximately 18% on the

grand jury. We have a black disparity between approximately 16%

in the population and approximately 8% representation on the

grand jury. Again, the disparity with regard to age groups is

similar.

The Petitioner therefore has established that a prima facie

case exists as defined in Castaneda v. Partida, 430 U.S. 482

(1977) and Rose v. Mitchell, 99 S.Ct. 2993 (1979).

The exclusion of the aforementioned identifiable classes is a

violation of the rights guaranteed the Petitioner by the Constitu-

tion of the State of Georgia, Art. I, Sec. I, Pars. II, III, V.

and XXV (Ga. Code Annotated §2-103, 2-105 and 2-125), and by

18 U.S.C. §243 and the Due Process and Equal Protection Clauses

of the Fourteenth Amendment of the United States Constitution.

2. THE PETITIONER WAS TRIED AT BOTH TRIALS BY UNCONSTITUTIONALLY

CHOSEN JURIES SINCE THEY WERE CHOSEN FROM TRAVERSE JURY POOLS

WHICH WERE COMPOSED IN VIOLATION OF THE CONSTITUTION OF THE

UNITED STATES AND IN VIOLATION OF THE LAWS AND CONSTITUTION

OF THE STATE OF GEORGIA.

Again, the witness who testified for the Petitioner at the

habeas corpus hearing stated that her research discolsed the

following with regard to the 1975 and 1977 traverse jury pools

in Polk County, Georgia.

10

1975 TRAVERSE JURY TOTAL JURORS: 1827

Class Number tRep on Panel tRep in Population

Males 1290 70.6 47.5

Females 533 29.2 52.5

Caucasian 1712 93.7 84.3

Blacks 115 6.2 15.7

Age Groups

Under 30 155 9.5 23.9

30 - 64 1262 77.4 76.1

65 and over 213 13.0 ----

1977 TRAVERSE JURY TOTAL JURORS: 2047

Class Number Rep on Panel Rep in Population

Males 1427 69.7 47.5

Females 612 29.8 52.5

Caucasian 1918 93.7 84.3

Blacks 125 6.1 18.7

Age Groups

Under 30 132 7.2 23.9

30 64 1440 78.3 76.1

65 and over 263 14.3 ----

The Petitioners court appointed trial counsel challenged this

array (1977) prior to his second trial.

The Petitioner's statistical evidence consisted of a 1970 U.S.

Department of Commerce census for Polk County, showing a population

of 29,656; 45.8% male, 54.2% female, 86.2% white and 13.7% black.

{It should be noted that the witness testifying at the habeas

corpus hearing utilized Census Bureau figures, hence, the

discrepancy.)

Petitioner's trial counsel conducted a survey of the 1977

traverse jury list. However, he was unable to classify 152 names

by gender or race. See Bowen v. State, 244 Ga. 499.

The trial court overruled the challenge on the ground that the

152 unclassifiable names could significantly change the black-white

11

and male-female percentages.

In its review, the Supreme Court of Georgia held:

„. „„the trial court was also authorized in overruling the

remaining two grounds of the appellant's jury challenge, because

the appellant failed to show that the disparity between the

percentages of blacks and women in the population and on the

traverse jury panel was ‘significant’. Under the appellant's

survey, 152 out of 2,029 names on the traverse jury panel were

unclassifiable. This constituted approximately 7.5% of the

traverse jury panel, a significant percentage. Consequently

we hold that the appellant failed to establish an impermissible

disparity between the percentages of blacks and women on the

traverse jury panel and the source of these jurors in the

population.” Bowen v. State, 244 Ga. 499, 500.

The statistics persented by the witness testifying for the

Petitioner at the habeas corpus hearing were the same figures

presented to the trial court in Messer, supra. It is readily

apparent that they support the initial findings made by the

Petitioner's trial counsel. The additional disclosure of the

sex and race of the previous iy 152 unclassified jurors resulted

in no change in the alleged disperity.

The Petitioner contends that the traverse jury list of Polk

County reveal a history and pattern of intentional, discriminatory

and systematic exclusion of blacks, women and individuals under

the age of 30.

The exclusion of the aforementioned identifiable classes is

a violation of the rights guaranteed the Petitioner by the

Constitution of the State of Georgia, Art. I, Sec. I, Pars. II,.

III, v., and XXV (Ga. Code Annotated §2-103, 2-105 and 2-125),

12

and by 18 U.S.C. §243 and the Due Process and Equal Protection

Clauses of the Fourteenth Amendment to the United States

Constitution.

3. THE TRIAL COURT'S FAILURE TO GRANT THE PETITIONER'S MOTION

FOR FUNDS TO INVESTIGATE AND SHOW A HISTORY OF SYSTEMATIC

EXCLUSION OF COGNIZABLE GROUPS FROM JURY POOLS IN POLK

COUNTY, GEORGIA, VIOLATED THE PETITIONER'S RIGHT TO FULLY

PRESENT HIS CHALLENGE TO THE TRAVERSE JURY BEFORE HIS

SECOND TRIAL, RIGHT TO A FAIR TRIAL, DUE PROCESS AND

EQUAL PROTECTION OF LAW AND RIGHT TO A JURY COMPOSED OF

A REPRESENTATIVE CROSS SECTION OF THE COMMUNITY.

As stated earlier, in a subsequent case in Polk County, with

a non-indigent defendant, State v. Messer, supra, evidence of

a history of systematic exclusion was investigated and presented.

The witness involved in this investigation testified for the

Petitioner at his habeas hearing and stated that it took her

approximately two (2) months, working full time, to complete

her survey on behalf of Mr. Messer. She was paid for her time

and effort.

The Petitioner, an indigent black man, had no funds to employ

anyone. His court appointed trial attorney requested funds to

present and develop his challenge and the same was denied by

the trial court. This denial violated his right to fully present

his challenge to the traverse jury prior to his second trial.

Therefore, it is respectfully submitted that this Court should

issue a Writ of Certiorari to the Superior Court of Butts County

and reverse the Petitioner's conviction for murder and rape and

vacate his sentence of death.

18 Fourth Street, N.W.

Atlanta, Georgia 30308

404/892-0626

13

2°

id Est

DEC 10 1981

81 5844 1

Cuore > + K

22 2

IN THE SUPERIOR COURT OF BUTTS COUNTY

STATE OF GEORGIA

CHARLIE BENSON BOWEN,

PETITIONER

HABEAS CORPUS

vs. a FILE NO. 4780

WALTER Z2AXT, '

SUPERINTENDENT,

GEORGIA DIAGNOSTIC AND

CLASSIFICATION CENTER,

RESPONDENT

ORDER

it appears that Counsel for Petitioner did

not receive a copy of the Court's final Order in

this Habeas proceeding and as a result was not

able to make timely application for a certificate

of probable cause. Further, it appears that

Petitioner's failure to receive a copy of the

Order is due to s problem with delivery of the

mails, not due to any fault of Petitioner, his

Counsel, or the Clerk of this Court. In view of

the pecullar nature of death penalty Habeas Corpus

proceedings, the Court hereby re-files the Order.

This 227. of April, 1981.

*

JUDGE SUPERIOR COURTS

FLINT JUDICIAL CIRCUIT

IN THE SUPERIOR COURT OF BUTTS COUNTY

STATT OF GEORGIA

CHARLIE BENSON BOWEN,

PETITIONER

HABEAS CORPUS

vs. FILE no. 4780

WALTER ZANT,

SUPERINTENDENT,

GEORGIA DIAGNOSTIC AND

CLASSIFICATION CENTER,

RESPONDENT

ORDER

This Habeas Corpus challenged the constitutionality

of Petitioner's restraint and the imposition of the

death penalty by the Superior Court of Polk County.

Bowen was convicted of Murder and Pape. He was

sentenced to death for Murder and life imprisonment

for Rape. His convictions and life sentence for Rape

were affirmed by the Supreme Court. The death sentence

was vacated and the case remanded to the Superior Court

for a new trial solely on the issve cf punishment for

Murder. Bowen v. State, 241 Ga. 492 (1978). On retrial

Petitioner was resententenced to death, and the Supreme Court

affirmed the death sentence. Bowen v.- State, 244 Ga.

495 (1979). Certiorari was denied by the Supreme

Court of the United States.

The Petition contains 16 numbered counts which

allege substantive claims for relief. The Court will

rule on those counts for relicf by paracraphs

corresponding numerically to the counts in the Petition.

The record in this habeas case consists of the

transcript of the proceedings before this Court on

January 20, 1981; the transcripts and records of both

of Petitioner's trials and challenge to the array in

Polk County Superior Court.

*

In Count 1, Petitioner alleges violation of his

constitutional rights by the impermissibly vague and

overbroad application of Ga. Code Ann. 827-2534. 1 50 (7)

as the sole aggravating circumstance found in Petitioner's

case.

The portion of the charge to the jury concerning

statutory aggravating circumstance(s) is set out in

Appendix I. (See Appendix I.)

Petitioner relies upon Godfrey v. Georgia, U.S.

„ 100 S.Ct. 1759, 64 L. Eke. 2d 398 (1980) in contending

the instant case involved the standardless and unchanneled

imposition of the death penalty by a basically uninstructed

jury. It is true that Godfrey requires that a jury charge

be tailored in its application of the $(b) (7) statutory

aggravating circumstance to avoid arbitrary and

capricious infliction of the death penalty, but Godfrey

is readily distinguishable.

First, the jury in Godfrey was given “no guidance

concerning the meaning of any of 8(b) (7) s terms” such

that the jury's interpretation could only by the subject

of “sheer speculation”. 64 L. Kd. 20 at 407. While the jury

instruction in this case defined “aggravated battery",

it contains no definition of torture. But “torture”

must be construed in pari materia with “aggravated

battery” so as to require evidence of serious physical

abuse of the victim before death. Blake v. State, 239 Ga.

292, 299 (1977). Torture occurs when the victim is

subjected to an aggravated battery. Hance v- State,

245 Ga. 856, 861 (1980). There was, in this case, ample

evidence from which the jury could conclude that the

victim was subjected to both an aggravated battery

and torture prior to death. The Court's charge, while

not as complete as it might have been, did not under the

facts of this case leave the jury without a standard.

The jury could rely on their own knowledge and experience

in deciding whether this victim suffered prior to her death.

The evidence supports the conclusion reached by the jury.

The victim was raped and received fourteen stab wounds.

Bowen v. State, 241 Ga. at 492-493. Godfrey v. Georgia

established that torture occurs when the victim is

subjected to serious physical abuse before death.

Hance v. State, supra; Baker ȴ. State, 246 Ga. 259

(1980). Serious sexual abuse may be found to

constitute serious physical abuse. House v. State,

232 Ga. 140 (1974); Hance v. State, supra; Collins v.

State, 246 Ga. 261 (1980). Thus, the evidence

supports the jury's finding of the (b) (7) aggravating

circumstance in Petitioner's case.

There is also no merit in Petitioner's argument

that the only instruction the jury received as to

torture was from the prosecution in his closing

remarks. (See T. 2d Trial 561). The effect upon

the jury, if any, was dispelled by the trial court's

instructions: "The law you take from the court as

given you in charge by the court... [r. 2d Trial 605).

See Thomas v. State, 240 Ga. 393, 402(7) (1977).

In summary, the allegations in Count 1 are found

to be without merit.

2.

In Count 2, Petitioner argues that the jury

instruction improperly shifted the burden of proof

as to Petitioner's intent relying on Sandstrom v.

Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 T. Ed. 2d 39

(1979). The jury instruction in question, from

Petitioner's first trial, reads as follows:

"The acts of a person of

sound mind and discretion

are presumed to be the

product of the person's

will but the presumption

may be rebutted. A person

of sound mind and discretion

is presumed to intend the

natural and probable

consequences of his act

but the presumption may be

rebutted. A person will not

be presumed to act with

criminal intention but the

tryor (sic) of facts, that

is you the jury, may find

such intention upon

consideration of the words,

conduct, demeanor, motive,

and all other circumstances

connected with the act

for which the accused is

prosecuted.”

(T.ist Trial 458).

Sandstrom is readily distinguished on the ground

that Sandstrom's jury “were not told that the presumption

could be rebutted...." 61 L. Ed. 20 at 46. The jury

instruction in the case at hand clearly indicates

that the presumption created was merely 4 permissive

one. Such permissive presumptions have been held valid.

Skrine v. State, 244 Ga. 520 (1978); Moses v. State. 245

Ga. 180 (1980).

The allegation in Count 2 is found to be without

merit.

3.

In Count 3, Petitioner argues that he was denied

effective assistance of counsel in violation of the Georgia

Constitution and the Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution.

At the habeas hearing the Court heard the testimony

of Mr. William J. Perry, Defense Counsel for Petitioner

at both trials and on appeal. (H.T. 81; 92). Mr. Perry

graduated from Emory University Law School in 1950.

(H.T. 80). He served in the Navy from 1951 until

1973, during which time he was in the J.A.G. Corps

for twenty years. (H.T. 80-81). Since 1973, Mr. Perry

has been in general practice in Rockmart, Georgia, handling

both criminal and civil cases. (H.T. 80-81). Although

Mr. Perry had never before defended @ murder case, he

had handled one capital case, & mutiny case, while in

the military. (H.T. 116).

Petitioner cites five instances in which counsel

was allegedly ineffective. The Court has examined the

evidence submitted and concluded the following were

permissible trial tactics:

(1) Pailure to file a challenge to the grand and

traverse juries prior to Petitioner's first trial.

Counsel testified that the idea of filing a challenge

dia not occur to him. (H.T. 89). However, he did

file a challenge to the jury prior to Petitioner's

second trial. Bowen v. State, supra at 498. Failure

to challenge arrays of grand and traverse juries alone

is not a ground of ineffective assistance or "cause"

within the meaning of Ga. Code Ann. 850-127(1).

Goodwin vy. Hopper, 243 Ga. 193(2) (1978); Birt vy. Hopper,

245 Ga. 221(2)(1980); Zant v.- Campbell, 245 Ga. 368 (2)

(1980). While counsel's failure to file a challenge

before the first trial may have been a mistake, *{s)uch

a mistake does not warrant & finding of ineffective

assistance of counsel.... The law does not require

perfection of counsel...." Durham v. State, 239 Ga.

697, 701 (1977); Zant v- Campbell, supra.

Counsel did file a jury challenge before the second

sentencing trial. Its denial was affirmed by the

Supreme Court. Bowen v- State, 244 Ga. at 498.

(2) Pailure to file any pretrial motions before

the first trial except for a Motion for Independent

Psychiatric Exam. Counsel testified that he filed a

Motion for Psychiatric Evaluation of Petitioner.

(H.T. 863). He went to Central State Hospital and talked

with Dr. Delatorre. (u. 7. 83). He also consulted

extensively with Dr. Bowling who had treated Petitioner

at Northwest Georgia Regional Hospital. (H.T. 83).

Counsel concluded that Petitioner's only defense was

insanity. (H.T. 84). Counsel filed a Motion for

Examination by a psychiatrist. (H.T. 84). Since

the report that ensved dealt only with Petitioner's

competency at the time of trial and not at the time

of the incident, Counsel made a new motion for an

independent psychiatric exam. (H.T. 84). The motion

was denied. (H.T. 84). Decisions on what trial

motions should be made are included in the realm of

strategies and tactical decisions which are the

exclusive province of the lawyer after consultation

—

with his client. Reid v. State, 235 Ga. 378 (1975).

Fortson v. State, 240 Ga. 5 (1977). That Petitioner's

current counsel disagree with trial counsel's decisions

does not require a finding that trial counsel's

representation amounted to ineffective assistance.

Berryhill v. Ricketts, 242 Ga. 447(3) (1978).

(3) Failure to file a Motion to Suppress

Petitioner's statements and evidence found therefrom.

Counsel testified that he learned Petitioner had been

questioned at Northwest Georgia Regional Hospital but

no records were made of that conversation. IK. T. 86;104).

Counsel did secure the information contained in a tape

of Petitioner's statements in e conversation with G.B.I.

agents at the Polk County Jail before Counsel was

appointed to the case. (H.T. 87). The transcript of

the tape was erroneous and was not introduced as

evidence because Counsel had notified the prosecution

7

he would object to its introduction. (H.T. 87). Counsel

stated that he did not file a Motion to Suppress because

he thought it would be overruled. (H.T. 88). He

decided that if Petitioner's confession were to be

admitted, then the tape would be best because it

demonstrated the halting manner of Petitioner's description

and showed that his thinking was muddled. (H.T. 88).

Counsel's decision appears to be a proper one and was

@ decision within his authority to make. Reid v. State,

supra. The Court cannot conclude that this failure to

move to suppress Petitioner's statements, freely and

voluntarily given, (T. lst Trial 148), constitute

ineffective assistance of counsel.

(4) Pailure to conduct an adequate voir dire

examination of jurors at either trial. Counsel

testified that his strategy was geared to a “country

county". (H.T. 90). He did not ask many voir dire

questions because in that county it generally is not

the thing to do”. (H.T. 90). He also knew most of the

jurors and felt that his questions and knowledce gave

him a good insight into the people. (H.T. 90). He also

asked few questions about prejudice because he did not

want to create any adverse sentiment. (H.T. 90-91).

What jurors to accept or strike being well within trial

counsel's discretion, Reid v. State, supra, the Court

does not hold that Counsel's voir dire examination amounted

to ineffective assistance.

(5) Pailure to present effectively his challenge

to the traverse jury in Petitioner's second trial in

that he failed to identify approximately 152 names

in the jury pool. (See Bowen v. State, 244 Ga. 495

(4) (1979). The witness who conducted the survey of

the traverse jury had testified that the 152

unclassifiables were either people “who had moved

or who had died", 244 Ga. at 499. At the habeas

hearing, Petitioner presented the testimony of Mrs.

Gay Astin who had conducted a survey of the same jury

pool for a subsequent case in Polk County in which

the jury challenge prevailed. State v. Messer,

Superior Court of Polk County, Criminal Action No. 2072.

Mrs. Astin was given a list of the 152 names by Mr.

Perry's secretary. (H.T. 34). Mrs. Astin claimed

to have identified the 152 names by finding older

cards” in “another drawer” and had been told about an

updating of the voter registration list (H.T. 30-31),

but Petitioner presented no probative evidence

establishing that these were the same 152 unclassifiables”

or whether these people were even in the jury box at the

‘time the jury challenge was done. Further, Mrs. Astin

testified that her work papers had been lost, (H.T. 56-57),

so there is no way to verify her information. The Court

concludes that Petitioner has not met his burden of

showing by a preponderance of the evidence that trial

counsel could have successfully presented the traverse

jury challenge. In addition, the issue of whether triel counsel

was successful constitutes the kind of hindsight which has

never provided the basis for ineffective assistance

claims. MacKenna v. Ellis, 280 F.Ed.592 (Sth Cir. 1960);

Pitts v. Glass, 231 Ga. 638 (1974).

The Sixth Amendment right to counsel means “*...not

errorless counse*. and not counsel judged ineffective by

hindsight, but c sel reasonably likely to render and

rendering effective assistance.” MacKenna v. Ellis,

supra; Pitts v. Glass, supra. Disagreements about

trial strategy and tactics do not require a finding of

ineffectiveness. Reid v. State, supra; Hawes v. State,

240 Ga. 327, 329-330 (1977).

Petitioner's trial counsel easily meets this test.

He was experienced in the trial of criminal cases.

He prepared for and advocated Petitioner's cause in a

reasonably effective manner, considering the difficulty

of the case. Counsel's testimony shows him to be an

intelligent and concerned defense lawyer. The effort

he put forth for Petitioner was certainly reasonably

effective within the meaning of the standard.

The allegations in Count 3 are found to be without

merit.

In Count 4, Petitioner complains of constitutional

deprivation due to the trial court's refusal to grant

Petitioner's pretrial motion for an independent psychiatric

exam. ö

The appointment of a psychiatrist, in the absence

of any special plea of insanity, is within the discretion

of the trial judge, as is the appointment of any expert

-10-

witness. Westbrook v. State, 242 Ga. 151 (1978);

Crenshaw v. State, 244 Ga. 430 (1979). Denial of the

Motion for the appointment of an expert will not be

reversed in the absence of an abuse of that discretion.

Patterson v. State, 239 Ga. 409 (1977); Westbrook v.

State, supra.

In the instant case, the trial court had already

ordered a psychiatric examination for Petitioner. (Record

5).

It was not error for the Court to deny the Motion

for a second exam. Crenshaw v. State, supra.

The allegation in Count 4 is found to be without

merit.

5.

In Count 5, Petitioner alleges that denial of his

motion for funds to investigate and show discrimination

in the selection of jury pools violated his constitutional

rights.

The granting or denial of a motion for appointment

of expert witnesses lies within the sound discretion

of the trial court. Patterson v. State, supra; Thomas

v. State, 240 Ga. 393(1)(1977). Petitioner has

presented no evidence of an abuse of this discretion

by the trial court.

The complaint in Count 5 is found to be without

merit.

6.

In Count 6, Petitioner argues that the imposition

of his death sentence constitutes cruel end unusual

punishment in violation of his Eighth and Fourteenth

Amendment rights because Petitioner was suffering from

mental disorders at the time of the offense.

The state-appointed psychiatrist concluded that

Petitioner knew the difference between right and wrong

at the time of the offense. (T.1st Trial 400-401)

Another psychiatrist who had examined Petitioner concluded

Petitioner was unable to distinguish right from wrong at

the time of the incident. T.lst Trial 363). Despite

the conflicting evidence on this point, the jury was

authorized in its role as fact finder to conclude that

Petitioner was sane at the time of the incident.

As to Petitoner'’s motion for funds for expert

witnesses, a habeas petitioner has no right to state

funds for expert witnesses, investigation, or legal

counsel. Pulliam v. Balkcom, 245 Ga. 99 (1980).

The allegations’ in Count © are found to be without

merit.

7.

Petitioner contends in Count 7 that he was denied

@ fair trial by the prosecutor's argument that raised

the possibility of Petitioner being paroled.

The Court has examined the statements of the

prosecutor which are set out in Appendix II. (See

Appendix II).

The prosecutor should refrain from making remarks

which would divert the jury from its duty to decide

the case on the evidence by making predictions of the

consequences of the jury's verdict. Prevatte v. State,

412

233 Ga. 929(6) (1975); Fleming v. State, 240 Ga. 142

(6) (1977). Where there has been found to be reversible

error, the prosecutor's remarks referred to Defendant's

right to appellate review with the possibility that

the jury's verdict could be set aside. Prevatte v.

State, supra; Fleming v. State, supra. The impermissible

effect was to encourage the jury to take less than full

responsibility for their task in deciding life and

Geath. Prevatte v. State, supra; Fleming v. State, supra.

The prosecutor's remarks in the instant case do

not amount to an improper’ shifting of the responsibility

of the sentencing decision. To the contrary, the

remarks point to the seriousness of what the jury was

being asked to do.

That the prosecutor suggested that anything less

than a death penalty made it possible for the Defendant

to return to society is within the bounds of permissible

argument in the sentencing phase of a death penalty case.

The complaint in Count 7 is found to be without

merit.

8.

In Count 8, Petitioner contends that his

constitutional rights were violated by the trial court's

response to the jury's question concerning parole.

When asked about a life sentence possibly ending

in a period as short as seven years, the trial court

responded, “You ere not to concern yourselves with any

punishment other than the two that 1 have given you.”

That is not a part of your deliberations or not a part

of your punishment, any punishment, other than the two

punishments which I have described to you. They are the

only thing that can enter your deliberations other than

the evidence which has been produced before you. I.

cannot instruct you concerning anything other than what

I have already instructed you as to the two punishments,

and anything outside of that as a punishment is for your

consideration.” (T. 2d Trial 612).

The trial court's refusal to comment on parole

maintained the neutrality required by Ga. Code Ann.

827-2206 and therefore was proper. Thomas v. State,

240 Ga. 393(6) (1977); Willis v. State, 243 Ga. 185

(6) (1979); Tucker v. State, 244 Ga. 721(11) (1979).

There is no merit in the allegation in Count 8.

9.

In Count 9, Petitioner contends that admission of

his statements and evidence found as a result violated

his Fifth, Eighth, and Fourteenth Amendment rights.

He complains that his statements were not voluntarily

given.

The trial court conducted a Jackson-Denno hearing

to determine the voluntariness of the statenents and

admitted them into evidence. (T.lst Trial 148).

Petitioner argues that the trial court ruled on

the admissibility of the statements before defense

Counsel had the chance to complete his cross-examination

of the sheriff concerning the statements. the burden

of showing voluntariness is on the State, and the

standard of proof necessary is preponderance of the

evidence. Pierce v. State, 235 Ga. 237 (1975);

Lee v. State, 239 Ga. 769 (1977). Once the State

makes a prima facie showing of voluntariness, the

statement is admitted and the issue of voluntariness

becomes a jury question. Moore v. State, 221 Ga.

636 (3) (1965); Edwards v. State, 236 Ga. 486 (1976);

Meyer v. State, 150 Ga. App. 613 (1979). <A reecing

of the transcript indicates the trial court found that

the State had carried its burden of a prima facie

showing of voluntariness.

"I think the testimony of the

sheriff makes clear that as

a preliminary matter I will

have to find that the evidence,

that is any statement, would

be admissible insofar as the

constitutional warning and

the voluntariness of the

admissions. His testimony

alone is sufficient and I

would say this even if you

had rebutting evidence.

I'm not ruling that that

evidence would not be

admissible at a later time

or possibly even now if you

had it here but I'm holding now

as a matter of fact that the

evidence of the sheriff is

sufficient to lay the

foundation for allowing

this in evidence at this

time. I am holding that it

does not meet the standard

required for admissibility

under the constitutional

warning and that it is

sufficient.

MR. PERRY: Then I shall

have time later to present

this evidence to be

considered by the court.

THE COURT: 1'11 certainly

hear from you concerning that

at what ever time you offer it.

MR. PERRY: I have no further

questions.

THE COURT: Do you have anything

further before the jury comes

back?

MR. PERRY: No sir.”

(T. lst Trial 148).

The transcript does not indicate that the Court

refused to allow Defendant to present evidence on the

issue. It appears that Defendant had nothing available

et the time. While the Court's remark that the State's

evidence would be sufficient regardless of what

Defendant might present is perhaps unfortunate, it

is harmless in view of the failure of Defendant to

offer any evidence on the voluntariness issue.

The trial court's determination was not erroneous.

In these circumstances, the determination in favor of

admissibility by the trial court is accepted. Johnson

v. State, 233 Ga. 58 (1974); Hance v. State, 245 Ga. 856

(1980).

The complaint in Count 9 is without merit.

10.

In Count 10, Petitioner contends that he was

indicted by an unconstitutionally composed grand jury.

In Georgia, a grand jury composition must be

challenged prior to indictment unless the Defendant had

no actual or constructive notice of the illegality;

failure to challenge is deemed e waiver. Jones v.

State, 234 Ga. 283 (1968); Young v. State, 232 Ga.

285 (1974). To bring a challenge in a habeas

proceeding, the petitioner must make a showing of actual

prejudice. Francis v. Henderson, 425 U.S. 536, 96 S. ct.

1708, 48 L. zd. 2 149 (1976).

In the instant case Petitioner has not met his

burden of showing cause or actual prejudice by a

preponderance of the evidence. The Court has ruled

in Paragraph 3(1) above that the failure of Petitioner's

counsel to challenge the jury does not constitute

ineffective assistance of counsel. Accordingly,

Petitioner has waived any right to challenge the grand

jury.

The allegation in Count 10 is found to be without

merit.

9. [Sic)

In Count 9 [sic), Petitioner contends that he was

convicted by an unconstitutionally composed traverse jury.

See Paragraph 3(5).

This complaint is without merit.

XA.

In Count 11, Petitioner contends that the action

of the prosecutor in striking all black persons from the

trial juries deprived him of his constitutional rights.

Petitioner's defense counsel, Mr. Perry, testified

at the habeas hearing that the prosecutor had a history

of systematically eliminating black persons from trial

juries. (H.T. 117). Mr. Perren, prosecutor in both

of Petitioner's trials, testified and clearly denied

this allegation. (H.T. 120). Petitioner presented

17

no other proof than Mr. Perry's testimony and cited

no authority in support of this contention. The use

of peremptory strikes by the prosecution to exclude

a class of people does not constitute a denial 2

of constitutional rights under any rule of law of which

the Court is aware.

The allegation in Count 11 is found to be without

merit.

12.

In Count 12, Petitioner alleges that the trial

court's charge on mitigating circumstances was defective.

In reviewing the trial court's refusal to give a

requested charge on mitigating circumstances, the

Supreme Court concluded that the trial court's

instructions on mitigating circumstances were in

conformity with other decisions. Bowen v. State,

244 Ga. 495 (2) (1979).

Petitioner also contends that the jury thought

its verdict was merely advisory. This is not true.

In the charge to the jury, the trial court expressly

stated: “If you recommend the imposition of the sentence

„ death the court will sentence the defendant to death.”

(T. 2d Trial 609).

The allegations in Count 12 are without merit.

13.

In Count 13, Petitioner alleges that the death

-18-

penalty is applied arbitrarily, capriciously and whimsically

in the State of Georgia.

There is no evidence to support this argument.

Count 13 is found to be without merit.

14.

In Count 14, Petitioner argues his death sentence

is being exacted pursuant to a pattern and practice of

Georgia prosecutors, courts, juries and Governors to

discriminate on grounds of race, sex, and poverty.

There is no evidence to support this argument.

Count 14 is without merit.

15.

In Count 15, Petitioner complains that the death

sentence is an excessive penalty.

There is no evidence to support this allegation.

Count 15 is without merit.

16.

Petitioner contends in Count 16 that he was convicted

by a jury unrepresentative and biased in favor of the

prosecution.

The Supreme Court rejected this “prosecution prone”

argument in Bumper v. North Carolina, 391 U.S. 543,

88 S.Ct. 1788, 20 L.Ed.24 797 (1968). See also Douthit

v. State, 239 Ga. 81, 87 (1977); Hewes v. State, 240

Ga. 327(5) (1977).

The allegation in Count 16 is found to be without merit.

-19-

WHEREFORE, 211 allegations in the Petition having

been found without merit, the Petition is denied.

This 20° aay of March, 1981.

JUDGE SUPERIOR COURTS

FLINT JUDICIAL CIRCUIT

APPENDIX I

“The law provides that when a person is convicted

of an offense that may be punished by death the sentence

of death shall not be imposed unless the jury's verdict

includes a finding beyond a reasonable doubt of at least

one statutory aggravating circumstance and a recommendation

that the death sentence be imposed. A reasonable doubt

means exactly what it says, it is doubt that is founded

upon reason. A reasonable doubt is one that may grow

out of the evidence or want of evidence. A doubt

reasonably and fairly entertained as opposed to a vague

conjectural or fanciful doubt.

When a statutory aggravating circumstance is found

beyond a reasonable doubt and a recommendation of death

is made the court shall sentence the defendant to death.

When a sentence of death is not recommended by the jury

the jury shall sentence the defendant to life imprisonment.

Unless you find one of the statutory aggravating circumstances

you cannot consider a Geeth sentence. The statutory

aggravating circumstances which the state contends exists

in this case are 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.

j Code Section 26-1305 defines aggravated battery.

"A person commits aggravated battery when he maliciously

causes bodily harm to another either by depriving bin

of a member of his body or by rendering @ member of his

body useless, or by seriously disfiguring his body or @

member thereof

i.

In arriving at your verdict in this case you will

consider the evidence as to the mitigating circumstances

which the defendant contends exists in this case

including evidence of good character or any other

mitigating circumstances you find from the evidence.

You will also consider the evidence as to the

statutory aggravated circumstances which the state

contends exists in the case. If you find beyond 4

reasonable doubt that the state has proved the existence

in this case of either one or more aggravating circumstances

as contended by the state and as given you in charge by

the court then you would be authorized to recommend

the imposition of a sentence of death but you would not

be required to do so. If you recommend the imposition

of the sentence of death the court will sentence the

defendant to death. If you should find beyond 4

reasonable doubt that the state has proved the

existence in this case of one or more aggravating

circumstances contended by the state and given you in

charge by the court you would also be authorized

to fix the punishment of the defendant at life

imprisonment. This recommendation you may make

for any reason that is satisfactory to you. If you

do not find beyond a reasonable doubt that the state

has proved the existence of any of the statutory

aggravating circumstances,that which the court has

charged you, you would not be authorized to consider

the penalty of death but fix punishment at life

imprisonment and the court will then be required

to sentence the defendant to life imprisonment.

(. 2d Trial 607-609).

ii.

APPENDIX II

he ought to let him go down there to Goodyear.

I guess, and go back down there to doffing and twisting,

go back to his wife, and go back to be a rehabilitated

man. If you want him to fine but I don't want him in

my society.

(1. 2d. Trial 564).

And now we come up here with this idea that here

is a man that even though he knew that he himself...

even though he was convicted in his own heart and he

desired to die and we are approached with the proposition

that he is subject to be rehabilitated and released

back into our society.

Yeah, I guess he can be rehabilitated. Hitler

cou) e have been. I believe in about six or eight months

if I'd had him chained to a wall and talked to him and

beat him on one side of the head for a while with a

stick telling him you believe this don't you then

beat im on the other side with a stick telling him you

believe that don't you I believe I could have rehabilitated

Hitler.

Yeah, it's conceivable that he could come back into

society. It's conceivable that he can go back to work at

Goodyear mills in the twister room. Yeah, it's conceivable

that he can go see Angie some more. Yeah, it's

conceivable that he can be let out to gamble, it's

conceivable that he can be let out to drink his

beer and smoke his marijuana, and it's conceivable

that he could pick up another little twelve year old girl,

if you want him to ell you've got to do is...

*

111.

Mr. Perry. . In going to object to this line or

{sic) argument, Your Honor, I think this is going

beyond the bounds of a fair argument and I suggest

that he be directed to cease from that.

The Court: I overrule your cbjection.

Mr. Perren: They say he can come back into

society. Some of them would welcome him with open

arms but I'm not. They can call me what they wish,

unchristian or whatever they want to. I'm not

willing to. I'm willing to abide by your determination

because it's a determination you must make.

(r. znd Trial 576-577).

iv.

a

1

15

:

cation No. 1685

Applicati ee, by i

SUPREME COURT OF GEORGIA

ATEANTA, September 8, 1981

The i. alle Supreme Court met pursiant te ad pourmment.

The following onter was passed:

CHARLIE B. BOWEN V. WALTER B. ZANT, WARDEN

* '

Upon consideration of the application for a certificate of

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

be hereby denied Jordan, C. J., Marshall, Clarke,

Smith and Gregory, JJ., concur. Hill, P.J., dissents.

SUPREME COURT OF THE STATE OF GEORGIA,

_ Cierx’s Orrice, ATLANTA,

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

of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto affixed

the day and year last above written.

Na B. Witteame,

4

‘