Petition — WAYNE L. KRIER v. GEORGIA (No. 81-6598)

‘

RECEIVED

APR 2 6 1962

Orrivc ur ine CLERK

SUPREME rrnaT We

J

IN THI

SUPREME COURT OF THE UNITED STATE

pr ern 198

81 6598

N

WAYNI KRIER etit ‘

‘ LA Re lent

PETITION I IOR

TH t SU} 9S

TROUD P S AU!

Stacy & Sander

Suite 24

246 Syca re Stres

Decatur, Georgia 3

(404) 373-4562

Counsel for Petitioner

Opinion below

Jurisdiction

Questions Presented. ...... 6... cece cere ener e erent enees f

Constitutional Provisions Involved... ]

De atemmeme BH Ce GOOD, 6 oc cc cscs cstctsctecsssecssevesees

Reasons for Granting the Writ. ee eon Ps a f

ms The Trial Court's Failure to Charge on

the Lesser Included Offense f

2 The Confession Obtained after Petitioner

Refused to Waive His Rights under !firanda

V. Arizona

The Jury's Impermissible Consideration of

Petitioner's Prior Conviction for Armed

Robbery

Conclusion rr ; 19

Appendix

be Opinion of the Georgia Supreme Court dated

February 23, 1952 Ap ;

2 New Orleans Police Department Arrest Register App. 5B

| New Orleans Police Department General Cas¢

Report. Ap (

4 Report of the Trial Judge Apt )

CITATIONS

™ ases

Beck v. Alabama, 447 U.S. 625 (1980). a 3 ep

Belton v. United States, 382 F.2d 150 (D.C. Cir 1967) 6

Brown v. State, 206 So.2d 377 (Fla. 1968). eee g

Driscoll v. United States, 356 F.2d (lst Cir. 1966)... g

Edwards v. Arizona, 451 U.S. 477 (1981). ......--eeeuees a>. 34. 33. 36

Furman v. Georgia, 408 U.S. 238. 2.0... cece cece cere reese 17

Gardner v. Florida, 430 U.S. 349 (1977). ......e+seeee: 11, 18

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

Carmona, 422 F.2d 95

eeeeeeveenveaeceeooeoeeseeeoeoeeeeeesee een eeneee®

Government of Virgin Islands v.

(3rd Cir. 1970

ee en eee, GOS OG. BOS CROGER. cc cccdvccccscccccsccecs 10, 1

Page

Hardy v. State, 245 Ga. 272, 264 S.E.2d 209 (1980)........... 9

a rn, OOo Walls SU COON s és ccvbncccccdcvccccdceeces 10

Keeble v. United States, 412 U.S. 205 (1972)................. ll

Larson v. United States, 296 F.2d 80 (10th Cir. 1961)........ 8

Linder v. State, 132 Ga. App. 624, 208 S.E.2d 630 (1974).....19

meememen ©. Meslaw, 4239 U.B. 9G CIGTS)... nw ccccccccceccccccccce 15

Miranda v. Arizona, 384 U.S. 436 (1966)............... 137 °K6 aT

People v. Powell, 208 P.2d 974 (1949)........... cc cccccuee, me Ae

Proffitt v. Florida, 228 U.S. 242 (1974)...........c.ceeee. 17

Sansone v. United States, 380 U.S. 343 (1965)................ 7

Sims v. State, 203 Ga. 668, 47 S.E.2d 682 (1948).............19

State v. Madison, 319 So.2d 912 (La. 1975)................... 8

Stephens v. Zant, 631 F.2d 397 (Sth Cir. 1980)

Stevenson v. United States, 162 U.S. 313 (1896)..... ro Ae

Swett v. State, 242 Ga. 228, 248 S.E.2d 629 (1978). eae ata? a

United States v. Comer, 421 F.2d 1145 (D.C. Cir. 1970).......8

United States v. Crutchfield, 547 F.2d 496 (9th Cir. 1977)...8

United States ex rel. Matthews v. Johnson, 503 F.2d 339,

Pe Ee BUNS ¢4acsesax ts bude senancs 8. 9

United States v. Harary, 457 F.2d 471 (2nd Cir. 1972)........8

United States v. Madden, 525 F.2d 972 (Sth Cir. 1976)........ g

United States v. Thompson, 490 F.2d 1218 (8th Cir. 1974)......%

Woodson v. North Carolina, 426 U.S. 280 (1974).. 17

MISCELLANEOUS :

Georgia Code Ann. §27-2534.1(b)(7)........ cc ce ee eee ik

=Te

+

/

IN THE

SUPREME COURT OF THE UNITED STATES

April Term, 1982

WAYNE LADD KRIER, Petitioner,

vs

STATE OF GEORGIA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE GEORGIA SUPREME COURT

Petitioner, Wayne Ladd Krier, respectfully prays that a Writ

of Certiorari issue to review the judgement and opinion of the

Georgia Supreme Court entered in this proceeding on February <3), 1982

OPINION BELOW

The opinion of the Georgia Supreme Court, Case q 378909,

reported at 249 Ga. 80, --5 E.2d--(1982), appears in Appendix

hereto

JURISDICTION

The judgment of the Georgia Supreme Court was entered or

February 23, 1982, affirming Petitioner's conviction on the charge

of murder and imposition of the ‘entence of death Petitioner

conviction and sentence having thereby become final, as has the

Opinion and Order of the Georgia Supreme Court, the jurisdiction

of this Court is invoked under 28 U.5.C. §1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitution of the United States provides

Amendment XIV: "...nor shall any state deprive any person

of life, liberty, or property, without due process of law,...

Amendment V: "No person...shall be compelled in any criminal

case to be a witness against himself..."

Amendment VI: "In all criminal prosecutions, the accused

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

jury...to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defense."

Amendment VIII "Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments in-

fliicted."

STATEMENT OF THE CASE

Petitioner was indicted by the September, 1979, Grand Jurv

of DeKalb County, Georgia, on the charge of murder

Pretrial Motions were heard the week of February 11, 1958

before the Honorable R. Keegan Federal, Jr

Trial of the case commenced on February 19, 1980, before

the Honorable R. Keegan Federal,

1980, the jury returned a verdict of puilty to the charge of

murder

On February 22, 1980, after further evidence and deliberation,

the jury returned a recommendation that the Petitioner be sen-

tenced to death

The date of execution was set for April 26, 1980

Motion for New Trial was filed on March 20, 1980. and amended

April 1, 1981.

Motion for New Trial was denied on May 12, 198]

Notice of Appeal to the Georgia Supreme Court was filed on

June 9, 1981.

The opinion and judgment of the Georgia Supreme Court affirn-

ing Petitioner's conviction and sentence of death was entered on

February 23, 1982.

STATEMENT OF THE FACTS

In August, 1979, Petitioner, Wayne Ladd Krier, escaped from

a penal institution in North Carolina where he had been serving

a term for armed robbery. At the time of his escape, Krier had

been in prison for approximately ten years and had been promoted

to the position of Trustee. He made his way to Atlanta, ana

using the name of Nick Michael Cordoba, obtained a jb at

Guthrie's Carnivals. (T. 1127).

The victim, Teresa Lavin, a 22-year-old part-time student

at Georgia State University, lived in the Chesterfield Apartments

along with Ms. Bartlett Carpenter, Ms. Carpenter's son, Brad, and

Mr. Mark Butcher

Several days prior to her death, Ms. Lavin was babvsittinp

for Brad Carpenter while Ms. Carpenter and “r. Butcher were out

j

of town She took Brad and a friend of Brad's to the carnival

While at the carnival, Ms. Lavin came up to Mr. Krier where he

was selling tickets for a ride She asked him if he had anv

marijuana He replied that he did not, but that he might be able

to locate some at a later time She then wrote her name and tele-

phone number on a ticket and gave it to him fr. Krier called

Ms. Lavin later that night to tell her that he had found some

marijuana. She told him that there was a party going on at her

apartment and that he should come over Mr. Krier declined the

invitation, so Ms. Lavin said that he should come over at 1!

o'clock the next morning When he arrived the next morning, she

answered the door in a nightgown, and told him that she forgot

he was coming over and to telephone her later because somebody

else was there. Mr. Krier left to go back to work

Several days later, Mr. Krier again called Ms. Lavin and

she told him to come on over, that she was cleaning her apart-

ment. Mr. Krier and another individual, Mr. Daniel Cody, went

over to Ms. Lavin's apartment complex in a car which Krier had

borrowed from a girlfriend. They checked in with the security

guard, who took Mr. Krier's name and the license tag number off

of the automobile. Mr. Krier and Mr. Cody were unable to find

a

Ms. Lavin's apartment, so they left, signing out with the

security guard as they exited. Mr. Krier then went and got

something to eat, after which he took two Quaalude tablets and

two hits of LSD. He called Ms. Lavin on the telephone again

and she told him that he had gone to the wrong apartment anc

that he should come over right then. Mr. Krier went back alone

to Ms. Lavin's apartment. This time the security guard allowed

him to go through the security gate, but did not sien him in or

out. (T. 1012-1016)

When Mr. Krier got to Ms. Lavin's apartment, she was vacuunt-

ing. She let him in, and they smoked some marijuana. He then

helped her clean her apartment for a while, anc then they smoked

some more marijuana While they were smoking, Mr. Krier reached

over and touched Ms. Lavin on her shoulder in order to pet her

attention When he did this, she turned around and glared at hin,

and then began hitting him and screaming obscenities at him for

no apparent reason Mr. Krier then slapped her so hard that it

spun her around and in response, she swunz the vacuum cleaner

tube at him Mr. Krier then took out a knife, and in a drur-

induced rage, slashed Ms. Lavin to death. He also hit Ms. Lavin

with the telephone receiver hard enough to break the receiver

Mr. Krier then fled the apartment and drove back to the carnival,

where he left his blood-stained pants and the knife in a carnival

truck. He then drove to Birmingham where he sold the car for

$95.00 and bought a bus ticket to New Orleans, where he staved

for two days before being arrested. (T. 166, 182, 188, 1244).

A warrant for the arrest of the accused was obtained several

days pryor to his arrest. (T. 56-57). Immediately after his

arrest, Mr. Krier was advised, by the New Orleans police, of his

Constitutional rights under Miranda v. Arizona, 384 U.S. 436 (1966).

It is unquestioned that immediately upon his arrest in New Orleans,

Mr. Krier refused to waive the rights accorded him under Miranda v.

Arizona, supra. This fact is made certain by Defense Exhibit

No. 1 (T. 1603) and Defense Exhibit No. 2 (T. 1604) D-l is a

copy of the New Orleans Police Arrest Register; D-2 is a copy of

the New Orleans Police General Case Report concerning Mr. Krier's

~ =

arrest. Both D-1l and D-2* contain explicit statements that

Appellant was informed of his Miranda rights and that he refused

to waive these rights.

During the pre-trial hearings, Mr. Krier testified that at

the time of his arrest he specifically requested to talk tw an

attorney but that he never talked to one (T. 211, 215) except

when he talked very briefly to a public defender about extradition

At this hearing, Mr. Krier was among about 20 prisoners with whor

a single public defender briefly conversed. When this public

defender learned that Mr. Krier intended to waive extradition,

he ended the brief conversation and told Mr. Krier that he had

nothing to do with the Georvia case. (T. 220) This conversation

took place in open court shortly before Mr. Krier waived extra-

dition back to Georgia (T. 220). However, before “Mr. Krier

ever spoke with the public defender, the DeKalb County police

approached Mr. Krier in jail in New Orleans and obtained a written

waiver of his Miranda rights (T. 200)

Also at the New Orleans extradition hearing, the DeKalb

police were instructed by the Judge not to question Mr. Krier

about the crime while on the wav back to Atlanta The DeKalt

County investigator testified at trial that he knew he was not

supposed to talk to Mr. Krier, “Because of the Miranda rights in

here. He had the right to an attorney.” (T. 203, 204) Upon

his arrival in DeKalb County, however, Mr. Krier was interrogate’

by the DeKalb County police and gave a series of statements and

confessions to the investigators, during which he admitted killing

Ms. Lavin.

At trial, Mr. Krier's statements to the DeKalb County police

were admitted into evidence, over his objecticn. Mr. Krier

requested the Trial Judge to instruct the jurv on the lesser

included offense of voluntary manslaughter, but this request

was refused by the Trial Judge Mr. Krier was convicted of

murder and sentenced to reath. The Supreme Court of Ceorgia

affirmed the conviction and the sentence of death.

*D-1 and D-2 are attached hereto as Appendix B and C.

QUESTIONS PRESENTFD

Be Whether, in a capital murder case, when the accused's

life is at stake, where there is some, slight evidence negating

malice and pointing to provocation of the accused bv the deceased,

the Trial Court can, consistent with due process, determine that

the quantum of evidence presented by the accused was insufficient

as a matter of law to warrant an instruction to the jury on the

lesser-included offense of voluntary manslaughter?

o Whether the Fifth, Sixth, and Fourteenth Amendment:

prohibit the police from further interrogating an accused who

has unequivocally refused to waive his constitutional right

under Miranda v. Arizona, 484 U.S. 436 (1966), unless the accused

himself initiates further communication with the police’

3 Whether a sentence of death may be constitutional

imposed where the sentencing jury was permitted t consider

evidence of the accused's prior convictions and sentence for

?

>

armed robbery without any limiting instructions on its use and

where the sole state statutory grounds for seeking the death

penalty was that the murder “was outrageously or wantonly vile,

horrible or inhuman in that it involved torture, depravity of

mind, or an aggravated battery to the victim"? Ca. Code Ann

§27-2534.1(b) (7)

REASONS FOR GRANTING THE WRIT

# The Trial Court's failure to charge on the lesser

included offense

At the close of the guilt/innocence phase of his trial,

the Petitioner, Wayne Krier, requested the Court to instruct the

jury as to the lesser included offense of voluntary manslaughter,

arguing that there was evidence that he had denied bearing any

malice towards the victim, and that the fatal slashing was the

result of provocation by the victim. (T. 1286). The evidence

at the trial was clear in that Mr. Krier denied bearing atv

malice toward the victim and denied that he had gone to her

apartment with any scheme or ever any thought of harming her,

much lese killing her. (T. 1138-1197, 1230-1239). The evidence

as to provocation and an impassioned killing, however, was

weaker. The entire evidence as to the issue of voluntary man-

slaughter was offered exclusively by Mr. Krier. Petitioner's

pre-trial statements to the police repeatedly make the point

that he reached over and touched Ms. Lavin on her shoulder and

that she turned and glared at him with a look of contempt or

disgust and then started hitting Mr. Krier for no apparent reason

(T. 166, 182, 188). Petitioner's pre-trial statements make the

point that he then slapped Ms. Lavin with his open hand, hard

enough to spin her around, but that she continued to rush at him

and to hit him with her fists. (T. 166, 182, 1888). It was only

after this altercation between Mr. Krier and Ms. Lavin that Mr

Krier pulled out the knife and slashed Ms. Lavin Murine the

sentencing phase of the trial, Mr. Krier told a slightly con-

tradictory story, stating that it wasn't until after he slapped

her with his open hand that she began to hit him with her fists

and with the vacuum cleaner tube (T. 1244)

The Georgia Supreme Court found that there was not sufficient

provocation to warrant a charge on voluntary manslaughter. The

Supreme Court did not say that there had been no provocation,

only that there had been no serious provocation. This raises

the question, whether the death penalty may be constitutionally

imposed when the Trial Court has withdrawn from the jurv's con-

sideration the issue of a lesser included offense on the proun’s

that the quantum of evidence on the issue of provocation is

insufficient, as a matter of law, to invoke the statute on

involuntary manslaughter.

There is no question that manslaughter is a lesser included

offense of the crime of murder. Stevenson v. United States,

162 U.S. 313 (1896). Therefore, the only consideration is of

the evidentiary predicate necessary to support a request for a

lesser included cffense instruction. Ordinarily, a lesser-included

offense instruction is only proper where there is "a disputed

factual element", i.e., where “there are disputed issues of fact

which would enable the jury rationally to find" that all elements

of the lesser offenses have been proved. Sansone v. United States,

380 U.S. 343 (1965).

«Pe

The Federal Circuit Courts of Appeals nave interpreted

Sansone to mean that “when the government has made out a compe) ling

case, uncontroverted on the evidence, on an element required for

the charged offense but not for the lesser included offense, there

is a duty on the defendant to come forward with some evidence on

that issue if he wishes to have the benefit of a lesser included

offense charge." Driscoll v. U.S., 356 F.2d 324, 327 (ist Cir

1966). In order to refuse a lesser included offense instruction,

two prerequisites seem to be vital "That there be no factual

dispute and that a finding contrary to the only evidence in the

issue would be irrational." Driscoll v. U.S., supra at 327.

See also, United States v. Crutchfield, 547 F.2d 496 (9th Cir

1977); United States v. Madden, 525 F.2d 972 (Sth Cir. 1976);

United States v. Thompson, 490 F.2d 1218 (8th Cir. 1974); United

States v. Harary, 457 F.2d 471 (2nd Cir. 1972); Government of

Virgin Islands v. Carmona, 422 F.2d 95 (3rd Cir 1970); United

States v. Comer, 421 F.2d 1149 (D.C. Cir. 1970); Belton v. United

States, 382 F.2d 150 (D.C. Cir. 1967); Larson v. United States,

296 F.2d 80 (10th Cir. 1961)

Most of the Federal Circuit Courts of Appeals have stated

that they would allow an instruction on a lesser included offense

only when there is enough evidence to provide a rational basis

for a verdict acquitting the defendant of the offense chareed

and convicting him of the lesser included offense. However,

some courts have said that any evidence, however weak, is enourh

to justify an instruction on the lesser included offense ance that

in a close case the Trial Court should generally give an instruction

if requested. United States v. Comer, 421 F.2d 1149, 1154 (D.C.

Cir. 1970); see also, United States ex rel. Matthews v. Johnson,

503 F.2d 339 (3rd Cir. b974).

The quantum of evidence that state courts describe as

necessary to justify a lesser included offense instruction varies

from state to state. In Louisiana and Florida, the Trial Court

must instruct on lesser included offenses even if there is no

evidence tending to show the defendant guilty only of the lesser

offsnse. See, State v. Madison, 319 So.2d 912 (La. 1975);

Brown v. State, 206 So.2d 377 (Fla. 1968). In Pennsylvania,

in a murder trial, a defendant is entitled, upon request, to

an instruction on a lesser included offense. United States ex

rel. Matthews v. Johnson, 503 F.2d 339. 346 (3rd. 1974).

California requires, upon request, an instruction on a lesser

included offense, because the jury may wish to soften the “harsh

application of the law". People v Powell, 208 P.2d 974, 981

(1949). The majority of jurisdictions, however, allow lesser

included offense instructions only when the evidence sustains

a rational belief in the defendant's guilt of a lesser crime

See, Beck v. Alabama, 447 U.S. 625, 636 (1980), n. 12.

Georgia appears to follow the majority of states In Georgia,

in order to warrant a charge in voluntary manslaughter, the evidence

must not only show an act of violent passion, but also some serious

provocation sufficient to excite such passion in a reasonable

person. Hardy v. State, 245 Ga. 272, 264 S.E.2d 209 (1980)

If there is any evidence, however slight, as to whether an offense

is murder or voluntary manslaughter, instructions as to the law

of both offenses should be given to the jury Swett v. State,

242 Ga. 228, 248 S.E. 2d 629 (1978) However, in Georgia, it

is a question of law for the courts to determine whether there

is slight evidence that the defendant acted as a result of sudden,

violent and irresistible passion resultine from serious provocation

Swett, supra In the case now before the Court, the Georgia

Supreme Court decided as a matter of law that there had been

"no serious provocation” sufficient to justify a charge on

voluntary manslaughter.

In a case where the accused's life is at stake, it is

constitutionally impremissible to allow the Trial Court to

determine as a matter of law that the evidence negating the

element of malice (i.e., the evidence bearing on the degree of

provocation) is insufficient to require a charge on voluntary

manslaughter. Proof of homicide necessarily involves proof of

malice. Malice in connection with the crime of murder means

the condition of a man's heart or mind at the time of the killing.

Because no one can look into the heart or mind of another with

any certainty, the only way to decide the issue is to infer it

~*

from all of the facts or circumstances surrounding the killing.

That inference is one of fact for a jury. Stevenson v. United

States, 162 U.S. 313, 320 (1895). By refusing to charee on a

lesser included offense of voluntary manslaughter, the trial

court denied petitioner his right to have every issue fairly

decided by a jury, beyond a reasonable doubt. In re Winship,

397 U.S. 358 (1970). The trial court may have believed that Mr

Krier’s evidence was wholly incredible and inadequate as a matter

of law and that it was clear that he was actuated by malice at

the time of the killing But as the United States Supreme Court

held in Stevenson v. United States, 162 U.S. 313 (1895), "...if

there be any evidence fairly tending to bear upon the issue of

manslaughter, it is the province of the jurv to determine from

all of the evidence what the condition of the mind was, and to say

whether the crime was murder or manslaughter." Supra at 323

It was assumed by this Court, when it upheld the constitu-

tionality of the Georgia death penalty statute in Grepe v. Georrvia,

428 U.S. 153 (1976) that the Trial Judge was required to charge

lesser included offenses when they were “supported by anv view

of the evidence Gregg, supra at 163. The Gregp opinion cite:

two Georgia cases in support of this proposition Sims v. State,

203 Ga. 668, 47 S.E.2d 862 (1948) and Linder v. State, 132 Ga.

App. 624, 625, 208 S.E.2d 630, 631 (1974) Both Sims and Linder

argue that it is for the jury to decide whether an offense is

murder or manslaughter, Sims at 864, Linder at 631, even where the

amount of provocation is not shown. Linder at 631 In part, this

is because the jury can choose to believe or disbelieve any part

of the accused's testimony, confessions or statements. Sims at 865.

Clearly, in the constitutional scheme envisioned by this Court

in Gregg, in a capital case, where the accused's life is at stake,

due process requires that the accused be accorded the procedural

safeguard of an instruction on a lesser included offense where

there is any evidence, however weak or contradictory, on the

lesser offense. This is particularly true where the evidence

clearly establishes that the accused is guilty of a serious,

violent offense but because of the accused's own testimony

-10-

leaves some doubt with respect to the issue of malice (an

element that if not proved beyond a reasonable doubt would not

justify conviction of a capital offense). Then, the failure

to give the jury the option of convicting on a lesser included

offense of voluntary manslaughter enhances the risk of conviction

of the capital offense of murder. See, Beck v. Alabama, 447 U.S.

625 (1979); Keeble v. United States, 412 U.S. 205 (1972).

"Such a risk cannot be tolerated in a case where the defendant's

life is at stake. As we have often stated, there is a significant

constitutional difference between the death penalty and lesser

punishments...." Beck v. Alabama, 447 U.S. 625, 637 (1979); see,

Gardener v. Florida, 430 U.S. 349 (1977). As this Court said in

Beck v. Alabama, "...if the unavailability of a lesser included

offense instruction enhances the risk of an unwarranted conviction,

the State is constitutionally prohibited from withdrawine that

option from the jury in a capital case. Beck, at 638.

Beck was scrutinizing a unique Alabama statute that nro-

hibited the trial court from instructing the jurv in a capital

case as to a non-capital, lesser included offense. The Court

held that that section of the statute was unconstitutional and

violative of due process. While Georgia has no comparable

statutory prohibition, the reasoning of Beck applies to this

case. Where a defendant is on trial for his life on a charee

of murder and there is some slight evidence tending to leave

some doubt with respect to the element of malice, it violates

due process under the Fifth, Eighth, and Fourteenth Amendments

to the United States Constitution for the Trial Court fo fail to

instruct the jury on a lesser included offense of voluntary

manslaughter.

The danger in refusing the charge on voluntary manslaughter

becomes obvious when one reads the Court's instructions to the

jury on the issue of malice. The Trial Court instructed the

jury during a homicide, "Malice shall then be implied, unless

there is evidence showing considerable provocation for the commission

of the act." (T. 1309-1310). But the Trial Court did not instruct

the jury that if they found such »rovocation to exist that they

able

could then consider the offense of voluntary manslaughter The

jury was left with no option other than to acquit or convict,

where it was obvious that Mr. Krier had caused the death of Ms.

Lavin. This is precisely the situation condemned by the Supreme

Court in Beck and Keeble

This cause should be taken for review so that this Court

can determine whether, in a capital case, where the accused’

life is at stake. the trial court can constitutionally determine,

consistent with the constitutional mandates of due process, that

the quantum of evidence presented by the accused was insufficient

as a matter of law to warrant a jury instruction on the

included offense of voluntary manslaughter

d The confession obtained after Petitioner refused to

waive his rights under Miranda v. Arizona

When Mr. Krier was arrested in New Orleans, he was advised

of his Miranda rights and the police reports of the New Orlean

Police Department clearly state that he refused to waive his

Miranda rights (T. 1603, 1604) Mr. Krier testified during

his arrest he specifically

~

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pretrial hearings that short

requested to talk to an attorney before answering questions

cz. Bebe aan The New Orleans authorities did not continue

questioning Mr. Krier he day after Mr. Krier's arrest,

Investigator Rowell of the DeKalb County, Georeia, Police

Department reinformed Mr. Krier of his Miranda rights and secured

a written waiver of these rights (T. 135) The next morning Mr

Krier was taken before a judge for an extradition hearing At

this hearing, Mr. Krier was among about 20 prisoners with whon

a single public defender briefly conversed. When this public

defender learned that Krier intended to waive extradition, he

ended the brief conversation and told Krier that he had nothing

to do with the Georgia case. (T. 220). The Judge instructed

Detective Rowell that he was not to question the defendant during

the trip back to Georgia, and Detective Rowell testified at trial

that he understood the Judge to mean that he could not talk with

the defendant because of the defendant's Miranda rights and

o12-

specifically the fact that the defendant had the right to an

attorney. (T. 203, 204). Upon their return to DeKalb County,

Georgia, Detective Rowell readvised the Defendant of

his

Miranda rights and began a lengthy interrogation during which

the defendant repeatedly incriminated himself.

record is it alleged that Mr. Krier ever

initiated

cation, exchange or conversation with the police.

The decision of the Georgia Supreme

a ,

above facts in this case conflicts with the

Court in Edwards v. Arizona, 451 U.S. 477

Arizona, 384 U.S. 436 (1966) In Edwards

this Court held that when an accused has

Court

(1981) an

Nowhere

a n Vv

id

decisions

Vv. Arizona,

invoked h

is

have counsel present during custodial interrogation,

waiver of that right cannvot be establishe

I 3 7 nolic :

1e responded to further police-initiated

even if he had been advised of his riehts

held in Edwards that once an accused has

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for counsel, he is not subject to

attéia - 4 — ss . - god eat 1 at

police until counsel has been made availab

. herve

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, i;

stodiai

T

expressed

r

interrog

accused himself initiates further communication wi

Edwards v. Arizona, supra at 1885-86

The Georgia Supreme Court held that

supra, did not apply in the instant case

Edwards on three grounds First, Georgia

Supreme

out that “it is not undisputed that Appellant made

counsel while in custody of New Orleans au

A, p. 2) Second, the Georgia Court went

assuming assertion of the Defendant's rights,

thoritie

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authorities reasonably understood that no request for counsel

had been made. Third, the Georgia Supreme

Court held that there

was no doubt that the defendant's confessions were obtainec only

after the “intentional relinquishment or abandonment of a known

right or privilege."

-]3-

Assuming for the purpose of argument that the Georgia

Supreme Court is correct in stating that Mr. Krier did not

properly assert his right to counsel, it is still unchallenged

that Mr. Krier unequivocally refused to waive his Miranda rights

immediately upon his arrest. (T. 1603, 1604, see Appendix B

and C). Two important questions are raised by Mr. Krier's

refusal to waive his Miranda rights

(1) Whether a refusal to waive one's rights under

Miranda is equivalent to an assertion of those

rights?

(2) Whether the rule of Edwards should apply to a

situation where one generally exercises his right:

under Miranda (i.e., the right to remain silent)

rather than makes a specific request for counsel?

The answer to both of these questions must be in the

affirmative.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966),

makes it clear that if the individual indicates “in any manner

at any time prior to or during questioning, that he wishes to

remain silent, the interrogation must cease At this point,

he has shown that he intends to exercise his Fifth Amendment

privilege; any statement taken after the person invokes his

privilege cannot be other than the product of compulsion, subtle

or otherwise." Miranda, supra, at 473-474. (Emphasis Added)

The “in any manner’ language used by the Court in Miranda makes

it clear that the refusal to relinquish one's Miranda rights

is equivalent to an invocation of one's Fifth Amendment privilege

In the case before this Court, the only conclusion is that

Mr. Krier's refusal to waive his Miranda rights is an affirmative

assertion of those rights and that any statement taken subse-

quently by the police is the product of coercion and therefore

inadmissable at the trial of the case. This conclusion should

be dispositive of the case except that the Georgia Supreme Court

argued that Mr. Krier's behavior subsequent to his arrest amounts

to a voluntary and knowing waiver of his Miranda rights.

-lb-

However, as the Court in Edwards, supra, wrote, absent

further interrogation "there would have been no infringement

of the right that Edwards invoked and there would be no

occasion to determine whether there had been a valid waiver.

Edwards, supra at 1885. The rule announced in Edwards avoids

the arduous decisions that must be made in determining whether

or not a valid waiver has occurred. This brings us to the

second question.

The rule in Edwards was limited to cases where the individual

had clearly asserted his right to counsel under the Fifth Amend-

ment and Miranda v. Arizona, supra Miranda, however, is not

primarily a right to counsel case but rather is focused on the

Fifth Amendment right to remain silent. The right to counsel

under Miranda is not the primary right being asserted, rather it

is a protective right indispensable to the assertion of the

individual's primary Fifth Amendment right to remain silent

That is why, under the scheme of Miranda, a person in custody

who is to be subjected to interrogation must first be informed

that he has the right to remain silent Miranda, supra at 467-

468. It is only after a person is told of his right to remain

silent and that anything he says can and will be used against

him that he must be informed of his right to counsel Even

though the assertion of the right of counsel is a significant

event such that interrogation must cease until an attorney is

present. it is still a subsidiary right supportive or protective

of the greater Fifth Amendment right to remain silent.

Even within the Miranda opinion it is recognized that

despite the critical aspect of the right to counsel, i. is the

right to remain silent that is the most important right being

protected under the Fifth Amendment. For example, Miranda,

supra, decrees that when an individual indicates in any manner

at any time that he wishes to remain silent, the interrogation

must cease. Miranda, supra at 473-474. Nowhere does Miranda

indicate that questioning on the same subject matter can be

resumed by the police. [However, Michigan v. Mosley, 423 U.S. 96

«ER

(1975), does permit the police to initiate further interrogation

of an accused after he has asserted his right to remain silent,

but only about crimes other than the one the accused desired to

remain silent about.] This is because the right to remain silent

is an absolute right to cut off questioning which must be

scrupulously honored by the police. However, with respect to

an individual's assertion of his right of counsel, Miranda holds

that the interrogation must cease only until an attorney is

present, thereby providing the police with a means of continuing

the interrogation. Miranda, supra at 474

Accordingly, where additional safeguards are necessary

when the accused asserts his subsidiary or protective right

to counsel, those same safeguards must be extended to protect

the primary right to main silent Where an individual clearly

refuses to waive his Miranda rights thereby asserting his right

to remain silent, a valid waiver of that right cannot be established

by showing only that he responded to further police-initiated

custodial interrogation even if he has been re-advised of his

rights. Further, when an individual expresses his desire to

remain silent, he is not subject to further interrogation on the

original subject matter by the police unless the accused himself

initiates further communications

It is clear that in view of the safeguards provided in

Miranda v. Arizona, supra, and Edwards v. Arizona, supra, the

— ee

confessions made by Mr. Krier while in custody in Georgia were

inadmissible at trial. If it is assumed, as it was by the

Supreme Court of Georgia, that the defendant asserted his right

to counsel, this Court's decision under Edwards prohibited

further interrogation of Mr. Krier until he obtained the

assistance of counsel. If it is assumed that Mr. Krier's

refusal to waive his Miranda rights amounted only to an assertion

of his right to remain silent, the ruling of this Court in

Miranda mandates that the police could only continue inter-

rogation after communication initiated by Mr. Krier or after

ay

Mr. Krier obtained the assistance of counsel. Thus, the

decision of the Supreme Court of Georgia must be reversed.

3. The jury's impermissible consideration of Petitioner's

prior conviction for armed robbery.

In Furman v. Georgia, 408 ''.S. 238, the Court held that the

penalty of death may not be imposed under sentencine procedures

that create a substantial risk that the punishment will be

inflicted in an arbitrary and capricious manner Greve v

Georgia, 428 U.S. 153 (1976), reaffirmed this holdine "Where

discretion is afforded a sentencing bodv on a matter prave

as the determination of whether a human life should? be taken or

spared, that discretion must be suitably directed and limited

as to minimize the risk of wholl uarbitrarv and capri u action

Id at 189, (Opinion of Stewart, Powell and Stever

means that if a State wishes to authorize capital munisment, it

has a constitutional responsibility to “channel! the entencer'’

discretion bv ‘clear and objective standards’ that provide

‘specific and detailed euidance,' and that ‘make rationa

reviewable the process for imposine a sentence of deat!

Godfrey v. Georgia, 100 S.Ct 1759 ¢€1980), citing Greee v. Georcia,

supra, 428 U.S. at 198, Proffitt v. Florida, 428 ".S. 242, 253

(1974), and Woodson v. North Carolina, 478 I'.S. 289, 393 (197%)

’

In the case now before this Court, Petitioner filed a pre

trial Motion in Limine requesting the Court to prohibit the

State from introducing evidence of Petitioner's prior conviction

for the offense of armed robbery This motion was denied (7

258-261). Because of the Trial Court's ruling, Petitioner was

forced to alter his trial stratervy and introduce evidence of his

prior armed robbery conviction and escape from prison. (T. 1225-

1226, 1341-1354). At the close of the sentencing phase of the

trial, the State introduced and the Trial Court admitted certified

copies of Petitioner's prior convict. a. for armed robbery and

sentence of 27 to 29 years. (T. 1314-1315). The jury was piven

_\ *

no limiting instructions on how it could apply Petitioner's

prior conviction and sentence during its sentencing deliberations

The sole ground upon which the Trial Court instructed the

jury that the death penalty could be imposed was that the "offense

of murder was outrageously or wantonly vile, horrible or inhuman

in that it involved torture, depravity of mind or an agrravated

battery to the victim." (T. 1489). Georgia Code Annotated

627-2534.1(b) (7) The Court did not instruct the jury that it

could not use the Petitioner's prior conviction and escape ir

determining whether or not this statutory aerravatinge circumstances

existed, thereby creating the danger that the jury did, in fact,

use Petitioner's prior conviction and escape in finding the

agepravating circumstance, even though it would be a wh

irrelevant consideration The questions asked by the juror

before they rendered a decision on the sentence indicate that

they were considering very strongly the fact that Petitioner ha

a prior conviction and had escaped from prison (T. 1504: p. ¢€

of Report of the Trial Judge, attached hereto as Appendix D)

Because there were no limiting instructions by the Tria!

Court on the use of Petitioner's prior conviction and escape, it

cannot be determined with the degree of certainty required ir

capital cases, that the evidence of the prior conviction did not

make a critical difference in the jury's decision to impose the

death penalty. See, Stephens v. Zant, 631 F.2d 397 (Sth Cir

1980). Because the jury's discretion was not sufficiently

channeled, see, Godfrey v. Georgia, supra, the process in whict

the death penalty was imposed in this case was not "rationally

reviewable," Woodson v. North Carolina, supra, and intended to

diminish the reliability of the sentencing determination. See,

Beck v. Alabama, 447 U.S. 625, 638 (1980); Gardner v. Florida,

430 U.S. 349 (1977). Because the jury was not suitably limited

in the use it could make of Petitioner's prior conviction and

escape, the risk of an unwarranted death sentence was enhanced

and, therefore, Petitioner's death sentence cannot stand.

-18-

CONCLUSION

The affirmance of Petitioner's conviction by the Georgia

Oo

Supreme Court squarely contravenes the decision in several

consider all lesser included offenses within the charge f

murder. bv ignoring Mr. Krier's claim t a lawyer and the

assertion of his right inderc Miranda and allowing the jur

t cor ider irrelevant factor LT it determinat n r tne

sentence Mr. Krier was t receive For these reason it i

respecti illv requested that thi ( irt grant er rari

eo ~ aa

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See rns for Peritioner

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-19-

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