Opposition — Daniel Joseph Baker v. Walter D. Zant, Warden, Georgia Diagnostic and Classification Center

“xP

() NO. 81-6657 RECEIVED

JUN 10 1982

ORIGINAL OFFICE OF THE CLERK

SUPREME COURT, U.S,

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

DANIEL JOSEPH BAKER,

Petitioner,

Vv.

WALTER D. ZANT,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPERIOR COURT OF BUTTS COUNTY

STATE OF GEORGIA

BRIEF FOR THE RESPONDENT IN OPPOSITION

NICHOLAS G. DUMICH

Assistant Attorney General

Counsel of Record for the

Respondent

Please serve:

MICHAEL J. BOWERS

NICHOLAS G. DUMICH Attorney General

132 State Judicial Bldg.

40 Capitol Square, S. W. ROBERT S. STUBBS II

Atlanta, Georgia 30334 Executive Assistant

(404) 656-3499 Attorney General

MARION 0. GORDON

Senior Assistant

Attorney General

JOHN C. WALDEN

Senior Assistant

Attorney General

QUESTIONS PRESENTED

l.

Whether or not comments or arguments by the State

Prosecutor operated to deprive Petitioner of a fundamentally

fair trial on either the issues of guilt/innocence or

sentencing?

Be

Whether or not Petitioner received effective assistance

of counsel?

3.

Whether or not, under the facts of this case, Petitioner's

death penalty is properly supported in part by the jury's

finding of a statutory aggravating circumstance under Ga.

Code Ann. § 27-2534.1(b) (2)?

4.

Whether or not the trial court properly acted to permit

the jury foreman to correct the written sentencing verdict

when it was shown that the written verdict did not truly

reflect the jury's intentions?

5.

Whether or not the failure of the trial court to instruct

the jury on the specific terminology within Ga. Code Ann. §

27-2534.1(b) (7), and the prosecutor's closing arguments

during the sentencing phase of Petitoner's trial, operated to

deprive Petitioner of due process in light of the trial court's

instructions as a whole, the overwhelming evidence supporting

said aggravating circumstance and in light of the detailed

review by the Georgia Supreme Court on appeal?

Whether or not the trial judge's comments or his

statements to the jury operated to improperly and unconstitutionally

prejudice Petitioner?

7.

Whether or not Petitioner's death sentence should be

vacated assuming arguendo this Court invalidates only one

of the two statutory aggravating circumstances supporting

said sentence?

8.

Whether or not under the facts of this case, Petitioner's

death sentence constitues cruel and unuseal punishment?

9.

Whether or not the trial court's instructions relating

to sentencing, and specifically relating to mitigation, were

sufficient to insure that Petitioner's due process rights were

not violated?

ii

—

TABLE OF CONTENTS

.

QUESTIONS PRES ENTED . . . . . . . . . . . . . . .

STATEMENT OF THE CASE Fe eae a ee La a,

STATEMENT OF THE ee <<. 6-86. & 20.4. 2-2 * 4

REASONS FOR NOT GRANTING THE WRIT

I. PETITIONER WAS NOT DEPRIVED OF

A FUNDAMENTALLY FAIR TRIAL EITHER

DURING THE GUILT/INNOCENCE PHASE

OR DURING THE SENTENCING PHASE OF

HIS CRIMINAL PROSECUTION FOR

ARMED ROBBERY AND MURDER. - © © © © © *

Il. THE STATE HABEAS CORPUS COURT'S

FINDING THAT PETITIONER RECEIVED

EFFECTIVE ASSISTANCE OF COUNSEL

WAS SUPPORTED BY SUBSTANTIAL

EVIDENCE PRESENTEND AT THE STATE

HABEAS PROCEEDING .-+-*+*+* ** * * °

III. THE GEORGIA SUPREME COURT PROPERLY

PERFORMED ITS REQUIRED DUTY TO

REVIEW PETITIONER'S DEATH PFNALTY

IMPOSED UNDER GEORGIA'S CAPITAL

PUNISHMENT STATUTORY PROCEDURE,

AND PROPERLY AFFIRMED THE JURY'S

FINDING IN THE INSTANT CASE THAT

THE EVIDENCE SHOWED SUFFICIENT

STATUTORY AGGRAVATING CIRCUMSTANCES

UNDER GA. CODE ANN. § 27-2534.1 (b)

(2) WHICH CONTRIBUTED TO THE IM-

POSITION OF THE DEATH PENALTY

AGAINST THE PETITIONER. - -+ + * * * * °

Iv. THE TRIAL COURT PROPERLY PERMITTED

THE JURY TO CORRECT ITS SENTENCING

VERDICT IN PETITIONER'S CASE. - + + + *

Vv. THE SUPREME COURT OF GEORGIA

PROPERLY AFFIRMED PETITIONER'S

DEATH SENTENCE UNDER GA. CODE

ANN. § 27-2534.1(b)(7)- - = = es ee * *

VI. THE TRIAL COURT MADE NO

PREJUDICIAL, IMPROPER COMMENTS

TO THE JURY . . . . . . . . . . . . . .

iii

Table of Contents Cont.

VII. EVEN IF THIS COURT SHOULD FIND THAT

ONE OF THE AGGRAVATING CIRCUMSTANCES

SUPPORTING PETITIONER'S DEATH

PENALTY IS INVALID, HIS DEATH

SENTENCE SHOULD NOT BE VACATED

BECAUSE OF THE EXISTENCE OF AN

ADDITIONAL AGGRAVATING CIRCUMSTANCE . .

VIII. IN LIGHT OF THE HEINOUS AND DEPRAVED

NATURE OF THE MURDER IN THIS CASE,

THE POTENTIAL MITIGATING FACTORS RAISED

AT TRIAL BY PETITIONER DO NOT SUPPORT

A FINDING THAT HIS DEATH PENALTY

CONSTITUES CRUEL AND UNUSUAL PUNISHMENT

IX. THE TRIAL COURT'S INSTRUCTIONS TO

THE JURY DURING THE SENTENCING PHASE

OF PETITIONER"S TRIAL RELATING TO

THE JURY'S CONSIDERATION OF MITIGATING

AND AGGRAVATING CIRCUMSTANCES WERE

GUNUEGEMMGe wc ec eee eee ee ae?

CONCLUS I ON . . . * . . . > *. . . * . . * . . . . .

CERTIFICATE OF SERVICE ..-+++e*eeee * * © *

iv

TABLE OF AUTHORITIES

Cases cited:

Allen v. State, 187 Ga. 178, 182, 200 S.E.2d

Alverez v. Estelle, 531 F.2d 1319, 1323

(5th ~ im 1976). .* . . . . . .* . . . * . . .

Bailey v. State, 153 Ga. 413, 414(4), 112

-E. (1922). . . . . . * . . . . . . . .

Baker v. Georgia, 446 U.S. 961 (1980). ....

Baker v. Georgia, 450 U.S. 936 (1981). ....

Baker v. State, 243 Ga. 710, 257 S.E.2d

192 (1979) . ll . . . . . . . . . . . . . . .

Baker v. State, 246 Ga. 259, 272 S.E.2d

él (1580)

Bowden v. State, 239 Ga. 821, 829, 238

S.E.2d 905 (1977), cert. den., 435 U.S.

937 (1978) . . . . . . * . . . . . . . . . .

Burger v. State, 245 Ga. 458, 462, 265

S.E.2d 796 (1980), cert. den., 446 U.S.

988 (1980) * * . * * . . . * . . . . . . . .

Cape v. State, 246 Ga. 520, 526, 272 S.E.2d

87 (1980), cert. den., 449 U.S. 1134 (1981)

Chenault v. State, 234 Ga. 216(7), 215 S.E.2¢

223 (1975) . . . . . . . . . . . . . . . . .

Clark v. Blackburn, 619 F.2d 431 (5th Cir.

1980). . * * *. . . . * * * * * . .* * . * * .

Cobb v. State, 244 Ga. 344, 356-57, 260

S.E.2d 60 (1979) . . . . . . . . . . . *- * .

Cobb v. Wainwright, 609 F.2d 754 (Sth Cir.

1980), cert. den., 447 U.S. 907 (1980) . . .

Coker v. Georgia, 433 U.S. 584 (1977). ....

Coker v. State, 234 Ga. 555, 573, 216 S.E.2d

Collier v. State, 244 Ga. 553, 569, 261 S.E.2d

364 (1979), cert. den., 445 U.S. 946 (1980).

Davis v. State, 241 Ga. 376, 384, 247 S.E.2d

45 (1978), cert. den., 429 U.S. 122 (1978) .

17

1,23,24

24

28

38

17

22

24

36, 38

24

Cases cited cont.

Donnelly v. DeChristoforo, 416 U.S. 637

Dudley v. State, 148 Ga. App. 560(3)

751 S.E. 2d S15 (1978) .* . * . . . . . . .

Eddings v. Ohio, 102 S.Ct. 869 (1982)...

Gilreath v. State, 247 Ga. 814, 836, 279

S.E.2d 650 (1981) . . . . . . . . . . . -

Ginsberg v. United States, 257 F.2d 950

(5th Cule 1958) . . * . . . . . *. . * .

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

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

Hance v. State, 245 Ga. 856, 268 S.E.2d

339, cert. den., U.S. _, 101 S.Ct.

796 (1980) . * * . * * . * *. .* .* * * . * *

Jarrell v. Zant, 248 Ga. 492, 493, 284

S.E.2d 17 (1981). . . . . . . . . . . . .

Jackson v. Houston, 200 Ga. 399, 400, 375

§.8.2€ 399 (1946) . «© © eee ec e & @ 2

Jones v. Excelle, 622 F.2d 124 (1980)...

Jurek vy. Texas, 428 U.S. 262 (1976)... -

Lee v. Hopper, 499 F.2d 456 (Sth Cir. 1974)

Lovett v. State of Florida, 627 F.2d 706

(5th "~~ OP 1980) . = . . . . . . . . . . .

Nelson v. Estelle, 642 F.2d 902, 906

(5th sn OR 1981) . .* * . . . . . . . * . .

Peek v. State, 239 Ga. 422, 238 S.E.2d

12 (1977), cert. den., 439 U.S. 882

(1978) . * a * * . . . . . . . * . . . *

Philbrook v. Glodgett, 421 U.S. 707 (1975).

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

1980), rehng. den and modified, 648 F.2d

446 (5th Cir. 1981), cert. granted, 50

U.S.L.W. 3244 (1981) . . . . - . . . . . .

Stevens v. State, 245 Ga. 583, 586, 266 S.E.

2d 194 (1980), cert. den., _U.S.__,

101 S.Gee 251 (1980) . . * * . . . * . . .

vi

Page (s)

34

28

9

1,23,28,29, 36,37

24,37

28

36

26

22

38

22

22

22

23

25

33

28

Cases cited cont.

Strickland v

755 S.E.2d

Tucker v.

United States v. Dorr, 636 F.2d

p rv. State, 244 Ga. 721, 261 S.E.2d

635 (1979), cert. den., 445 U.S. 972

(1980) :

Sta

Q

te,

953) . . . . .

“YOI (Sth Cir. 1981) ....-.

United States v. Johnson, 615 F

1980) . « «

United States v. Nooks,

1971), cert. den.,

945

1243

(Sth Cale

(Sth Cir.

(1971).

Young Vv.

Washington v. Watkins, 655 F.2d 1346

U.S.

934

United States

Ricketts, 242 Ga. 559,

"(Sth Cir. 1981) . «. © © © o

562,

“360 S.E.2d 404 (1978), cert. den., 442

(1979) . . . . . . . . .

Zant v. Stephens, 31 Cr.L.R. 3035

~1982)

Statutes

Ga.

Ga .

Ga.

cited:

Ann.

» Ann.

Ann.

§ 2254 . «ee »

§ 27-2534.1(b) (2)

§ 27-2534.1 (b) (7)

vii

209 Ga. 675(2),

117,

*.2d 1124

446 F.2d 1283

404 U.S.

Ve Rodriquez, 585 F.2d

(5th Cir. 1978). « « « «

(May 3,

Page (s)

17

38

33

6

1,23,24,25

1,27,28,29, 30

ean

PART ONE

STATEMENT OF THE CASE

Petitioner, Daniel Joseph Baker, was indicted along with

co-defendant Ricky Lee Massey by the March Term, 1978, Gwinnett

County, Georgia Grand Jury for the murder and armed robbery

of Dennis Beatenbo. Following a jury trial in which the Petitioner

was separately tried from his co-defendant, Petitioner was found

guilty on both counts and was sentenced to death pursuant to

the murder conviction and received a sentence of life imprisonment

for armed robbery. The jury found two statutory aggravating

circumstances authorizing the imposition of Petitioner's

death penalty, those being (a) the murder was outrageousiy and

wantonly vile, horrible and inhuman in that it involved torture

to the victim or depravity of mind on the part of the defendant

[see Ga. Code Ann. § 27-2534.1(b)(7)}, and (b) the offense

of murder was committed while the Petitioner had been engaged

in the commission of an additional felony, to wit: the armed

robbery of Dennis Beatenbo, (see, Ga. Code Ann. § 27-2534.1(b) (2)).

Petitioner's case was automatically reviewed on appeal

by the Supreme Court of Georgia, which affirmed his convictions

and sentences. Baker v. State, 243 Ga. 710, 257 S.E.2d 192

(1979). Thereafter, on May .27, 1980, this Court granted Petitioner's

application for a writ of certiorari, and vacated Petitioner's

death penalty, remanding his case for further review by the Georgia

Supreme Court in light of this Court's decision in Godfrey v.

Georgia, 446 U.S. 420 (1980). Baker v. Georgia, 446 U.S. 961

(1980).

Upon remand, the Supreme Court of Georgia again reaffirmed

Petitioner's death sentence. Baker v. State, 246 Ga. 259, 272

S.E,2d 61 (1980), and this Court thereafter denied Mr. Baker's

second petition for a writ of certiorari. Baker v. Georgia, 450

U.S. 936 (1981).

On April 2, 1981 the Superior Court of Gwinnett County

rescheduled Petitioner's execution date for April 16, 1981.

Petitioner then filed a request for a stay of execution and

a petition for a writ of habeas corpus in the Superior Court

of Butts County, Georgia. A hearing was held on the state

habeas corpus application on July 14, 1981, and on October 14,

1981 said superior court issued an order denying state habeas

relief. (See Appendix D to the Petitioner). The Georgia Supreme

Court denied Petitioner's application for a certificate of

probable cause to appeal on December 3, 1981. (See Appendix E

to the Petition). Thereafter, Petitioner filed this third

petition for a writ of certiorari.

PART TWO

STATEMENT OF THE FACTS

As noted in the previous section, Petitioner was indicted

along with co-defendant Rick Massey for the May 5, 1978 murder

and armed robbery of Dennis Beatenbo. The evidence shows that

during the evening on the aforesaid date, Petitioner and a friend,

Rick Massey, had been drinking while driving around the Norcross,

Georgia community area. Seeing Dennis Beatenbo walking along

the road, Massey and the Petitioner stopped and asked him if

he needed a ride. (T. 149-150). In exchange for this ride

Beatenbo offered Petitioner and Massey some liquor which was

contained in a bottle located in Beatenbo's automobile that hac

been parked elsewhere. (T. 70, 150, 261). Ina statement

-2-

to the police, the Petitioner related that when Beatenbo left

Massey's car to retrieve the liquor, Massey suggested that

thay “roll” him. (T. 150). Beatenbo returned and the three

men then went for a drive while continuing to consume the liquor.

Eventually they drove to an isolated spot at a nearby lake.

(T. 150). Thereafter, Beatenbo began to feel nauseated. While

Massey opened the back door so that Beatenbo could get out of

the car, the Petitioner placed a newly purchased .25 caliber

pistol in his belt. (T. 151).

In his confession to the police, Petitioner related that

as Beatenbo was lying on the back seat with his head hanging

over, Petitioner smashed Beatenbo in the head with the liquor

bottle, causing the bottle to break. Beatenbo then raised up

and fell out of the other side of the car, lying with his back

on the ground. (T. 151, 251). The Petitioner then took the

victim's wallet and watch while Massey observed. (T. 151).

In Petitione: s own words, “I reached in by belt with my

right hand and pulled out my pistol and the guy was still lying

on his back. I pointed the gun at the man and pulled the

trigger, I don't know how many times I shot him, but I could

hear him moaning and trying to say something.” (T. 151).

The Petitioner and Massey then split the $22.90 found in the

victim's wallet, and drove to Petitioner's trailer. (T. 152).

Dennis Beatenbo's body was discovered the next morning. (T. 78).

During the trial, the State Medical Examiner testified

that the victim had suffered a crushing blow to his face

which broke his nose and damaged his eye and facial tissues.

He further testified that the victim had received four gunshot

wounds, three of which were the result of the pistol being

pressed firmly against the victim's body and fired directly

@3-

inte his chest. One bullet was also maliciously fired into

the victim's scrotum area; however, Dr. Dove theorized that

this shot was fired after the victim had died. (T. 97-102).

Another State's witness, Bobby Barnes, testified that on Friday,

May 5, 1978, the Petitioner had admitted that he killed a man

in a robbery by hitting him in the face with a bottle, then

shooting him. (T. 82-83). Barnes also testified that he

had seen the Petitioner with the gun while at the Petitioner's

trailer. (T. 84). After Petitioner's arrest, he informed the

police where to find the pistol which was used in the murder,

and his co-defendant Massey, led the police to Beatenbo's

watch which had been discarded. (T. 132, 162). During the

course of police questioning, Baker stated that Massey had never

suggested killing Beatenbo, but suggested only t*at they rob

him. It was soley Baker's idea to kill the victim, and when

asked why he had done it he answered, “Just to watch him die.”

(T. 158, 168).

Petitioner was convicted of the murder and following the

punishment phase of the trial, the jury found that the

death penalty was justified based on two aggravating circumstances,

those being: (1) the murder was committed while the Petitioner

was engaged in the armed robbery of the victim; and (2) the

murder was outrageously and wantonly vile, horrible and inhuman

in that it involved torture to the victim or depravity of mind

on the part of the Petitioner. (T. 309-310).

Additional facts may be recited in the f ‘lowing portion

of this Biref when necessary to more fully explain Respondent's

argument.

ee

PART THREE

REASONS FOR NOT GRANTING THE WRIT

I. PETITIONER WAS NOT DEPRIVED OF A FUN-

DAMENTALLY FAIR TRIAL EITHER DURING

THE GUILT/INNOCENCE PHASE OR DURING

THE SENTENCING PHASE OF HIS CRIMINAL

PROSECUTION FOR ARMED ROBBERY AND

MURDER.

Petitioner's first argument at tacks the actions of the

state prosecutor at Petitioner's trie contending that as

a result of said prosecutor's comment. .»4 actions, Petitioner

was unduly prejudiced and deprived of : * trial in violation

of his Fifth, Eighth and Fourteenth Amen nen” rights to the

United States Constitution. A review of tire *stire trial

transcript, however, amply demonstrates tha. ‘115 allegation

is unmeritorious.

In support of this assertion, Petitioner f° argues that

during the closing argument, the state prosecuto oneously

tendered his own, personal opinion as to the defe © ‘s

guilt. The state habeas court made a finding that hile the

prosecutor had expressed a personal belief as to the “etitioner’s

guilt during the guilt/innocence phase of the tria., eaid

comment was harmless in light of the fact that Petitioner did

not contest his guilt. (See Appendix D of the Petition, p. 9a-

l0a). Moreover, the state's evidence against the Petitioner

was overwhelming, and included his admission of guilt to a private

citizen who testified at his trial (T. 82), and which also

included his voluntary confession to the police. (T. 148-152).

Here, Petitioner cites one sentence, taken out of context,

to support his position that the state prosecutor imposed his

personal opinion as to the Petitioner's guilt upon the jury.

A review of the record shows that immediately before and

immediately after the challenged statement, the prosecutor

reminded the jury that the state was required to prove guilt

beyond a reasonable doubt. The prosecutor stated:

Witnesses, State is required to prove the

guilt beyond a reasonable doubt. No need

in bringing in all the witnesses and every

possible witness, every Tom, Dick and Harry

that is of some insignificant consequence.

I don’t believe there is any question in

this case, not only beyond a reasonable

doubt, but beyond any doubt in this case

that this Defendant committed the murder

and armed robbery of Dennis Beatenbo.

The law says we are required to prove it

beyond a reasonable doubt. in this case I

submit to you under the evidence, is beyond

all doubt. No doubt that he committed the

offenses. (T. 184-185).

Of course, before improper jury argument may be a basis

for federal habeas corpus relief under 28 U.S.C. § 2254,

the argument must be so prejudicial that the applicant's state

trial was rendered fundamentally unfair. Donnelly v. DeChristoforo,

416 U.S. 637 (1974); Alverez v. Estelle, 531 F.2d 1319, 1323

(Sth Cir. 1976). It is well established that in reviewing

prosecutorial actions for possible prejudice, each case must

be considered on its particular facts. The prosecutor's

comments must not be considered in isolation from the remainder

of the trial. The comments must be evaluated in the context of

the trial as a whole. Cobb v. Wainwright, 609 F.2d 754 (5th

Cir. 1980), cert. den., 447 U.S. 907 (1980).

Counsel's arguments should not contain his own comments

Or opinions about the merits of the case or as to his personal

opinion on the defendant's guilt. United States v. Rodriquez,

585 F.2d 1234, 1243 (5th Cir. 1978). However, a prosecutor's

expression of personal belief may, in some cases be tolerated,

if it is based solely upon the evidence introduced and the

jury is not led to believe that other evidence, unavailable

to them, justifies the belief. Id., at p. 1243. In assessing

the potential prejudicial impact of any improper comments

relating to personal belief on the guilt of the accused, the

comments must be considered in light of the strength of the

totality of the evidence against the defendant. Id., at p. 1244,

accord, United States v. Dorr, 636 F.2d 117, 121 (5th Cir.

1981); Berger v. United States, 295 U.S. 78, 89 (1935).

Here, a review of the prosecutor's comments reflects

that, in actuality, he was referring to the overwhelming

amount of evidence produced by the state which eliminated all

question beyond a reasonable doubt of the defendant's guilt.

Moreover, even if this Court should find that the prosecutor's

comments were some reflection of his personal opinion, in light

of the overwhelming accumulation of evidence which went unrebutted

at trial, the aforesaid comments by the state prosecutor, would,

at most, have been harmless error.

Secondly, Petitioner asserts that the prosecutor suggested

to the jury that it had not heard all of the evidence. He cites

page 181 of the prosecutor's arguments and quotes the statement,

“Obviously I did not tell you everything, ..." Again, the

statement cited by the Petitioner is taken out of context. In

the immediately preceding paragraph, the prosecutor referred

to his opening statements to the jury wherein he stated the

state would prove that Petitioner committed the offenses of

armed robbery and murder, and the circumstances of the crimes.

When the prosecutor stated, “Obviously I did not tell you

everything, but as the evidence came earlier it won't take

as long.", the prosecutor was referring to his opening

statement to the jury.

Petitioner also refers to the comment on page 184 where

the prosecutor stated:

Witnesses, State is required to prove the

guilt beyond a reasonable doubt. No need

in bringing in all the witnesses and every

possible witness, every Tom, Dick and Harry

that is of some insignificant consequence."

(T. 184).

As the state prosecutor testified at the state habeas

proceeding, this reference to not calling every possible,

insignificant witness was made simply because the names of

numerous other people were mentioned during the testimony

at trial and the state prosecutor was simply saying that

although he had the burden to prove guilt beyond a reasonable

doubt, there was no burden upon him to bring in every witness

of insignificant consequence. (HC. 42-43). The prosecutor

obviously was not intending to infer to the jury that there

was even more evidence which they could have, but which they

dia not present to show Petitioner's guilt. At most the

comments could be interpreted as indicating that there may

have been some additional witnesses, but these witnesses

would have been insignificant to the case. This did not

prejudice the Petitioner, and in no way deprived him of a

fundamentally fair trial.

Likewise, the comments of the state prosecutor during

the sentencing phase of the trial did not amount to suggestions

that the jury did not hear all of the evidence which may have

been unfavorable to the Petitioner. The state ;j-rosecutor's

comment during closing argument of the sentencing phase of

the trial as reflected on page 273 of the transcript was simply

a comment upon why the state had not presented witnesses

@uring the sentencing phase. This was because the state

had no idea what sort of evidence the defendant would tender.

The prosecutor's comments were not attempts to insinuate

that the witnesses’ credibility could have been attacked through

the testimony of uncalled state witnesses. The case of Ginsberg

v. United States, 257 F.2d 950 (5th Cir. 1958), cited by

Petitioner, is distinguishable from the instant case, because

the prosecutor there specifically stated,

Now with respect to character witnesses Mr. Fowler

had stated that Mr. Worton [the prosecutor]

didn't produce anybody who would say that he

is a bad man. .. I could probably have fifty

people in here who would show that he isn't a

good character. I'm not trying Mr. Ginsberg's

character. . .. Id., at p. 954.

Here, the prosecutor made no such comments that he had

numerous witnesses who could probably have rebutted Petitioner's

character witnesses, but he was simply implying that he had

no opportunity to present any rebuttal witnesses since he had

no idea as to what the defense witnesses were going to say.

In any case, this one comment by the prosecutor again is

simply insignificant when compared to the evidence produced

at the entire trial, and did not deprive Petitioner of a

fundamentally fair sentencing proceeding or due process of

law.

Petitioner's third allegation of prosecutorial misconduct

asserts that he was prejudiced as a result of the state prosecutor's

comments which referred to facts outside of the record and

the result of the prosecutor's misstating evidence. As his first

example he cites the prosecutor's statements on page 273 of

the trial transcript, wherein the prosecutor stated,

What about Dennis Beatenbo? He's got a family,

sisters and brothers, a mama and a daddy here.

He worked in the construction work, and, you know,

he worked there for the last eight years. Tough

life. Full of life. Enjoyed life. (T. 273).

First of all, Petitioner misstates that the prosecutor

argued “that the victim had a fine family and was a good worker .. .*

(Petitioner's Brief, p. 14). Petitioner misstates that there

was no evidence in the record to support the aforesaid statements

by the prosecutor. For example, witness John D. Smith did

testify that Dennis Beatenbo had been employed for the

previous eight years as a construction worker installing pipes

-10-

on a pipe line. (T. 68). Witness Dean Bain also testified

that he had known and worked with Dennis Beatenbo, and had

been drinking with him at a locai Holiday Inn from 6:00 p.m.

un’ ‘l approximately 12:00 a.m. on the day before the murder.

(T. 75-76) .

Certainly, it could also be inferred that Dennis Beatenbo

had a family, a mother and a father. The prosecutor's further

statements that he had sisters and brothers simply do not

rise to any constitutional deprivation. Furthermore, contrary

to the Petitioner's contentions, the prosecutor did not make

any comments at all pertaining to the good qualities of the

victim's family.

Although Petitioner asserts that the prosecutor erroneously

expressed his own opinion during the guilt/innocence phase of

the closing argument, when he stated that the Petitioner

wanted to see if his gun would kill a human being and that the

Petitioner appeared to be proud of the murder, it is clear from

a review of the record that these statements were obvious

inferences which could have been drawn from the evidence. For

example, following the murder Petitioner freely admitted to

witness Bobby Barnes how he had killed Dennis Beatenbo by

hitting him in the face with a bottle and shooting him. Petitioner

also told Barnes that he had taken $22.00 from the victim. (T.

82-83). In his confession to Officer Phillip Whitley, Petitioner

told how he had shot the victim, “Just to watch him die." (T.

168).

Although Petitioner asserts that the prosecutor made

references to his own family life, comparing it to that of

the Petitioner, a review of the record shows that such references

were quite brief, and only by the wildest stretch of the

imagination can it be concluded that they were in any way

prejudicial. For example, Petitioner refers to the prosecutor's

comments on page 272 of the trial transcript. There the

prosecutor stated,

To be sure, the Defendant probably was not

raised the way you and I were raised, and I

use the word raised instead of reared because

when mama and daddy run the store down there

they raised the kids. (T. 272).

If anything, the aforesaid comment by the prosecutor

was beneficial to the Petitioner, because the prosecutor

inferred to the jury that it was obvious that the Petitioner

did not have a normal family life. The further comments

by the prosecutor were so trivial so as to not merit any

additiona) comment herein. Likewise, the comments on page

276 of the trial transcript wherein the state prosecutor

mace miniscule references to his own family did not overstep

the bounds of proper prosecutorial argument. A review of the

transcript shows that the prosecutor stated,

All of his grownup life he had the benefits

of what I would call maybe not the best

mama, but what is the best mama in the

world? I think I had the best one. I'm

sure Ms. Baker did the best she could

and gave him everything she could. But

you heard him. He said I was just -- well,

you know, it first came out Ms. Baker, well,

he had a little problem, a little scuffle or

little thing, you know, 1 had to bring out,

@-12-

you know, he beat his daddy up so bad

it broke his jaw and sent him to the

. hospita.,. (T. 276-227) .

Likewise, the prosecutor's slight misstatement that

the Petitioner had dragged the body a short distance really

could not have had any bearing on the jury's ultimate sentence

determination, when the evidence overwhelmingly showed that

the Petitioner maliciously smashed a whiskey bottle into the

face of the victim, and while the victim was lying helpless

on the ground placed a revolver directly against his chest

and fired three times, and thereafter fired an additional

time into the victim's scrotum,

Petitioner also contends that the prosecutor improperly

injected his personal knowledge about a disputed matter into

evidence. A review of the transcript again, shows that

this criticism of the state prosecutor is unwarranted and

unsupported by the record.

On direct examination, the victim's mother testified

that she learned about her son's participation in the murder

while she was home alone. She insinuated that someone had

simply called her and coldly told her that her son had shot

someone in the head and killed him, that the victim was drunk

and her son was sober, and that her son “blew the head cff or

shot him in the face..." On cross-examination, the prosecutor

simply elicited the truth about how he had called her, had

told her he had some bad news to give her, that he had attempted

to get in touch with some of her relatives because he knew

she wes alone, and that he had called neighbors to come be with

her. Petitioner's assertions that the prosecutor was attempting

-13-

to infer to a jury that he was a fair, reasonable and sensitive

man and that he “apparently suggested to the jury that such

.

a considerate man would not request the death penalty unless it

was necessary,” is simply unfounded speculation.

Likewise, Petitioner erroneously states that the

prosecutor induced a government witness to express a prejudicial

opinion. A review of the record shows that to the contrary,

the prosecutor attempted to stop the witness from making

any prejudicial statements. Prior to the testimony of Dr.

Donald Dove, the Medical Examiner, the defense moved the

court to prohibit witness Dove from testifying, as he had

done in a previous trial, that the fourth shot to the victim's

scrotom was not meant to inflict death, but was only meant

to inflict pain, and was fired in an effort to determine

whether or not there was still life in the body. (T. 92-93).

The trial court agreed with the defense that testimony as

to the defendant's intent should be left out; however, the

court agreed with the district attorney that the doctor

could testify that the type of wound was not the type of

wound that would inflict death.

The questioning of Dr. Dove, in no way substantiates

Petitioner's contention that the prosecutor elicited any

improper testimony. Petitioner does not cite the actual

testimony of Dr. Dove. The following transpired:

Q. [District Attorney Huff]: Okay. Now, if

the evidence and testimony in this case showed

that he had been knocked out and rendered un-

conscious and was lying prone, do you have an

opinion from your autopsy report ~~ from your

-14-

autopsy then how the gunshot would have

entered through the scrotum and up in there?

A. {Witness Dr. Dove): Well, I'm certain

that the gun was just placed in this position

and fired in this position. Of course, it

was not meant to --

Q. You can't do -- you can't go into that --

— =

A. Okay.

MR. PELHAM. {Defense Counsel]: Your Honor --

THE WITNESS: This of course was not an

effort to kill the individual, it's not the

type wound that would kill him.

MR. PELHAM: Your Honor --

THE COURT: I will strike that it was not

an attempt, but he can say -- he can say

what type wound it was.

MR. PELHAM: Yes, sir, I think he had already

said that, I believe.

THE COURT: The jury will disregard the

conclusion that what effort was made, but

may consider what type wound the doctor

said it was. (T. 99).

Thus, the aforesaid testimony shows that the district

attorney was simply attempting to elicit how the fourth

shot was fired, and he further attempted to stop the witness

from testifying as to any opinion pertaining to the intent

-15-

of the defendant when he fired that fourth shot. This is

also substantiated by District Attorney Huff's testimony

at ,the state habeas hearing. When asked what he was attempting

to elicit from the witness with his questioning, he stated:

I was attempting to elicit from the doctor

his opinion that the gun would have had

to have been brought down, between the legs

and fired to go up into the body, since he

was lying on the prone, rather than standing

up over him and shooting through the scrotum.

In other words, this bullet did not traverse

the body from above downward, it traversed

the body parallel with the ground which laying

-- I was merely asking him what position would

the gun have had to have been in for the

projectile to have entered the scrotum and

gone and trajected the victim's body in that

manner. (HC. 52).

Thereafter, the prosecutor specifically and unequivocally

stated he was not attempting to elicit any testimony pertaining

to the state of mind of the Petitioner when the shot was fired.

(HC. 53).

Petitioner also asserts that the prosecutor improperly

related to the jury his personal opinion as to aggravating

circumstances and “other matters" which were to be decided

by the jury.

a aa

A review of the alleged improper comments in the context

of the entire record shows that they were either reasonable

inferences from the evidence, were supported by the evidence,

or were proper arguments to the jury urging them to impose

capital punishment.

Under Georgia law it is permissible for a prosecutor

to argue for the death penalty, and to offer plausible reasons

for his position. Chenault v. State, 234 Ga. 216 (7), 215

S.E.2d 223 (1975); Strickland v. State, 209 Ga. 675 (2),

S.E. 709 (1938). Additionally, a prosecutor may urge that

the jury impose strict punishment. Chenault, supra; Bailey v.

State, 153 Ga. 423, 414 (4), 112 S.E. 453 (1922); Coker v. State,

234 Ga. 555, 573, 216 S.E.2d 782 (1975), sentence rev'd on

other grounds sub nom, Coker v. Georgia, 433 U.S. 584 (1977).

Here, the district attorney's arguments were simply attempts

to persuade the jury that there were sufficient circumstances

which authorized capital punishment in this case.

Petitioner's assertions that the prosecutor improperly

utilized inflammatory language by labeling defendant as

"one mean man,” or that he referred to alleged prejudicial

terms such as “pumped him full of bullets” or “blowing him

away” are unmeritorious since the comments were fully supported

by the evidence. Moreover, there was no objection to the

terminology used, ani it was not so prejudicial as to deprive

Petitioner of a fundamentally fair sentencing hearing.

Petitioner asserts that the prosecutor improperly made

a "deterrence argument” by urging the jury to render the

-17-

consciousness of the community based on alleged irrelevant

matters, does not truly reflect the prosecutor's statement. In

fact, he stated, “Your verdict should and ought to seek and do

nothing more than render the conscious {[sic) of this community

as to what the appropriate penalty is for this defendant for

this crime." Thus, the prosecutor was urging the jury not to

base its decision upon wholly irrelevant considerations as

Petitioner suggests, but he was urging the jury to focus upon

this defendant and the circumstances of this crime. Petitioner's

references to an article written by the prosecuting attorney

in September of 1975 or 1976, several years before the Petitioner's

trial, is completely irrelevant and immaterial to this case.

In conclusion, Respondent submits that since Petitioner's

arguments, that he was unconstitutionally prejudiced by the

district attorney's comments in this case, are unsupported by

the record, and since the record, in fact, shows that Petitioner

was not deprived of a fundamentally fair trial on either the

guilt/innocence issue or in the sentencing proceeding, this

Court should refuse to grant certiorari to review Petitioner's

first issue.

ee ee

Il. THE STATE HABEAS CORPUS COURT'S FINDING

THAT PETITIONER RECEIVED EFFECTIVE

. ASSISTANCE OF COUNSEL WAS SUPPORTED

BY SUBSTANTIAL EVIDENCE PRESENTED AT

THE STATE HABEAS PROCEEDING.

Under Petitioner's second argument he sets forth nine

areas wherein he claims he received ineffective assistance

of counsel. A review of the record of Petitioner's trial,

and review of testimony at the state habeas proceeding, shows

that the state habeas court properly found that Petitioner

failed to carry his burden of proof on this issue.

Petitioner initially asserts that trial counsel failed

to file proper pretrial motions such as a challenge to the

grand and traverse jury pools in Gwinnett County, Georgia

and further failed to file a motion for change of venue.

Pertaining to the failure of Petitioner's trial attorney

to file a motion for change of venue, at the state habeas

hearing Petitioner was able to introduce only two very short

newspaper articles which referred,in part, to Petitioner's

indictment and trial. Neither article was prejudicial to the

Petitioner. (HC. 155-156). Additionally, there was testimony

at the state habeas proceeding from the district attorney

who stated that the pretrial publicity in Petitioner's case

was minimal in relation to normal homicides which had occurred

in Gwinnett County, Georgia. In the words of the district

attorney, ". .. there just wasn't anything unusual about

the case that generated any widespread publicity on the case."

(Hc. 46).

-19-

Petitioner's trial attorney testified at the state

habeas proceeding that he saw no basis to attack the grand

or,traverse jury pools. Both he and the district attorney

testified that a previous challenge to the Gwinnett County

jury pools had been made by a criminal defense orgainzation

shortly before Petitioner's trial, and upon investigation,

the challenge was finally dropped. (HC. 47, 66, 82). Additionally,

Petitioner presented no evidence at the state habeas proceeding

to support his contention that the Gwinnett County jury pool

was unconstitutionally composed in any respect.

Petitioner also raises several contentions of ineffective

assistance of counsel during trial. These criticisms relate

to the way counsel conducted his jury voir dire, counsel's

failure to object to certain evidence, counsel's fai.ure

to present no evidence during the guilt/innocence phase of

Petitioner's trial, counsel's summations to the jury during

both the guilt/innocence phase and the sentencing phase of

the trial, counsel's failure to move for funds for expert witnesses

and counsel's alleged failure to invoke the rule of sequestration.

All of these issues pertaining to counsel's actions at

trial relate to trial tactics and the manner in which Petitioner's

particular attorney decided to conduct his case. Petitioner's

contention that the jury voir dire and summation arguments were

cursory or ineffectual, are simply the opinion of Petitioner's

present attorneys. Counsel presented no evidence in Petitioner's

defense during the guilt/innocence phase of the trial, because

he had no evidence to present although he engaged in a detailed

investigation of the case. (HC. 86-87). Moreover, Petitioner

|

’

'

never denied his guilt in the cese, and he concurred in

the decision of the trial attorney not to testify or present

evidence in an attempt to show his innocence. (HC. 68, 81).

Since the evidence was so overwhelming in favor of the state,

the defense counsel determined that Petitioner would lose

credibility and sympathy with the jury by attempting to assert

that he had not committed the crime. Defense Attorney Pelham

was most concerned about the sentencing phase of the trial,

since it was virtually assured that Petitioner would be found

guilty. He also geared his closing arguments, even du-ing the

guilt/innocence phase of the trial, to an attempt at alleviating

the potential outrage which the jury might show against his

client because of the facts.

Although Petitioner asserts that defense counsel did not

invoke the rule of sequestration of witnesses, the record shows

that he was specifically asked by the court if he requested

said rule to be invoked, and defense counsel indicated that

he did. (T. 61). Simply because defense counsel failed to object

to one of the early witnesses who inadvertently violated the

rule, does not show ineffectiveness. This is especially true

when the witness who violated the rule was only the second

witness who was called, and who could have only heard some

prior testimony pertaining to where the victim had been prior

to the murder. Moreover, even if the witness had violated

the rule of sequestration his testimony was still admissible

under Georgia law. Dudley v. State, 148 Ga. App. 560(3), 251

S.E.2d 815 (1978).

The standard for effective assistance of counsel under

the Sixth Amendment of the United States Constitution appears

-21-

to be now well established. A criminal defendant is entitled

to representation by an attorney reasonably likely to render

and rendering reasonably effective assistance. Nelson v. Estelle,

642 F.2d 903, 906 (5th Cir. 1981); Jones v. Estelle, 622 F.2d 124

(1980). Of course, the standard does not require errorless counsel,

nor counsel judged ineffective by hindsight. United States v~

Johnson, 615 F.2d 1125 (Sth Cir. 1980); Clark v. Blackburn, 619

F.2d 431 (5th Cir. 1980). The totality of the circumstances

surrounding the trial, and the entire record must be considered

in examining the performance of counsel. See, e.g-, Lovett v.

State of Florida, 627 F.2d 706 (Sth Cir. 1980); Lee v. Hopper,

499 F.2d 456 (Sth Cir. 1974). “It is within this framework

of the totality of circumstances, that we judge the ‘fundamental

fairness' of the trial, and ultimately counsel's ineffectiveness.”

Nelson v. Estelle, supra at p. 906.

Here a review of the entire record and Attorney Pelham's

testimony at the state habeas hearing, amply demonstrates

that Petitioner received effective assistance of counsel in

accordance with the federal standards. Thus, certiorari

should not be granted to review the second issue which Petitioner

raises.

III. THE GEORGIA SUPREME COURT PROPERLY

PERFORMED ITS REQUIRED DUTY TO REVIEW

. PETITIONER'S DEATH PENALTY IMPOSED UNDER

GEORGIA'S CAPITAL PUNISHMENT STATUTORY

PROCEDURE, AND PROPERLY AFFIRMED THE

JURY'S FINDING IN THE INSTANT CASE THAT

THE EVIDENCE SHOWED SUFFICIENT STATUTORY

AGGRAVATING CIRCUMSTANCES UNDER GA.

CODE ANN. § 27-2534.1(b) (2) WHICH CONTRIBUTED

TO THE IMPOSITION OF THE DEATH PENALTY

AGAINST THE PETITIONER.

Petitioner's third argument in support of his petition

contends that since the death penalty may no longer be imposed

for the offense of armed robbery in Georgia [ColJins v. State,

239 Ga. 400, 404, 236 S.E.2d 759 (1977)], it is no ionger

a capital felony, and therefore, may not be utilized under

Ga. Code Ann. § 27-2534.1(b) (2) as a statutory aggravating

circumstance supporting the imposition of the death penalty. This

precise issue was raised in Petitioner's first petition for

a writ of certiorari before this Court; however, this Court

obviously rejected this argument, vacating the sentence and

remanding instead for review in light of this Court's ruling

in Godfrey v. Georgia, 446 U.S. 420 (1980). See Baker v. Georgia,

446 U.S. 961 (1980) [Petition No. 79-5567]. Petitioner has

tendered no new arguments which would justify this Court's

reviewing this issue at this time.

In Peek v. State, 239 Ga. 422, 238 S.E.2d 12 (1977),

cert. den., 439 U.S. 882 (1978), the Georgia Supreme Court

a

specifically addressed the aforesaid issue. This issue presented

a guestion of statutory interpretation to the state court,

and it concluded as follows:

We construe ‘capital felony’ as that term

is used in § 27-2534.1(b)(2) in a generic

sense to include those felonies which were

capital crimes in Georgia at the time

this section of our death penalty statute

was enacted. Id., at p. 432.

The Georgia Supreme Court has continued to consistently

hold that armed robbery is a capital felony for the purpose

of finding aggravating circumstances. See Bowden v. State,

239 Ga. 821, 829, 238 S.E.2d 905 (1977), cert. den., 435 U.S.

937 (1978); Davis v. State, 241 Ga. 376, 384, 247 S.E.2d 45

(1978), cert. den., 429 U.S. 122 (1978); Young v. Ricketts,

242 Ga. 559, 562, 250 S.E.2d 404 (1978), cert. den., 442 U.S.

934 (1979); Baker v. State, 243 Ga. 710, 711, 257 S.E.2d 192

(1979), sentence vacated on other grounds, Baker v. Georgia,

446 U.S. 961 (1980); Cobb v. State, 244 Ga. 344, 356-357,

260 S.E.2d 60 (1979).

Armed robbery was an aggravating circumstance supporting

the death penalty in Gregg v. Georgia, 428 U.S. 153, .161 (1976),

and in the case of Coker v. Georgia, 433 U.S. 584 (1977).

This Court recognized without disapproval that under Georgia

law armed robbery is considered a capital felony for the

purpose of applying the aggravating circumstance provision of

the Georgia Code. Id., at p. 599, n. 15.

~24-

In holding that armed robbery may be considered a

capital felony for the purposes of Code § 27-2534.1(b) (2),

the Georgia Supreme Court has correctly applied the basic

premise that the objective of a court in construing statutory

construction is to ascertain the intent of the Legislature

and to give effect to that legislative will. Philbrook v.

Glodgett, 421 U.S. 707 (1975).

Thus, for the aforesaid reasons, Petitioner's contentions

under Section III in support of his application for a writ

of certiorari, should be found to be unmeritorious.

IV. THE TRIAL COURT PROPERLY PERMITTED

THE JURY TO CORRECT ITS SENTENCING

VERDICT IN PETITIONER'S CASE.

Under Petitioner's fourth argument he asserts that because

the jury initially drafted an insufficient verdict pertaining

to Ga. Code Ann. § 27-2534.1(b) (2), that aggravating circumstance

could not support Petitioner's death penalty.

A review of the record shows that upon reaching its verdict

during sentencing pertaining to the (b)(2) aggravating circumstance

the jury recommended death and found that, “The offense of

murder was committed while the offender to incident the armed

robbery of Dennis Beaterbaugh.” (T. 309). At that time the

jury also made a finding under the (b) (7) aggravating circumstance.

The trial judge immediately questioned the jury foreman

as to the form of its verdict on the (b) (2) aggravating circumstiunce.

The foreman indicated that he had intended, in his writing, to

-25-

—_—2- 2

state that the murder had been committed while the Petitioner

had been enaged in an armed robbery. The court allowed the

verrection to be made. (T. 309-310).

Under Ga. Code Ann. § 110-105, “Verdicts shall have a

reasonable intendment, and shall receive a reasonable construction,

and shall not be avoided except by necessity.” See Jackson v.

Houston, 200 Ga. 399, 400, 375 S.E.2d 399 (1946). If the meaning

of a verdict is clear, the misuse of words or errors in spelling

or grammar will not invalidate it. Id. Jury verdicts should

be construed with reference to the indictment, the court's

instructions, and the entire record to arrive at the intention

of the jury, and all intendments should be made to sustain the

verdict. United States v. Nooks, 446 F.2d 1283 (Sth Cir. 1971),

cert. den., 404 U.S. 945 (1971).

It is clear here that the trial court merely permitted

the foreman to correct the verdict which he had erroneously

drafted. Under such circumstances, this Court need not grant

the petition for a writ of certiorari to review Petitioner's

fourth issue.

-26-

Ee. eee

V. THE SUPREME COURT OF GEORGIA PROPERLY

AFFIRMED PETITIONER'S DEATH SENTENCE

é UNDER GA. CODE ANN. § 27~2534.1(b) (7).

Under Petitioner's fifth argument, he contends that

certiorari shouid be granted to review Petitioner's death

sentence which is based in part upon a jury finding that

statutory aggravating circumstances existed under Ga. Code

Ann. § 27-2534.1(b)(7). Petitioner asserts that the trial

court erroneously failed to instruct on the terminology of

the (b) (7) aggravating circumstance, and additionally asserts

that because of the trial court's alleged failure to render

proper instructions and as a result of the prosecutor's

arguments to the jury there is as trong likelihood that the

death penalty in this case was based upon an inappropriate

consideration of post-mortem abuse of the victim.

As has previously been noted, following the sentencing

portion of Petitioner's trial, the jury returned a death

penalty verdict based in part upon its finding that the murder

in this case was “outrageously and wantonly vile, horrible

and inhuman in that it involved torture to the victim or

depravity of mind on the part of the Defendant.” (T. 309).

See Ga. Code Ann. § 27-2534.1(b)(7). At trial, the trial

judge instructed the jury that before it was authorized to

recommend the death penalty, it was necessary for the jury -

to find the existence of a statutory aggravating circumstance

beyond a reasonable doubt. (T. 303, 304, 305, 306). The

court instructed or the statutory definition of the (b) (7)

aggravating circumstance (T. 304), and specifically instructed

@37~

that if an aggravating circumstance was not found, or if an

aggravating circumstance was found and the jury chose to

recommend a life sentence, then it would be incumbent upon

the court to sentence the defendant to life imprisonment.

(T. 305-306). It is clear from the record that the trial court

did not specifically define the terminology within Ga. Code

Ann. § 27-2534.1(b)(7).

In other cases, the Georgia Supreme Court has recognized

that with the exception of the term “aggravated battery," the

remainder of the terminology contained under (b)(7) require

no explication. Gilreath v. State, 247 Ga. 814, 836, 279 S.E.2d

650 (1981); Stevens v. State, 245 Ga. 583, 586, 266 S.E.2d 194

(1980), cert. den., U.S. _, 101 S.Ct. 251 (1980); Burger v.

State, 245 Ga. 458, 462, 265 S.E.2d 796 (1980), cert. den.,

446 U.S. 988 (1980). This holding by the Georgia Supreme Court

was correct. Recently, in Hance v. State, 245 Ga. 856, 268 S.E.2d

339 (1980), cert. den., _U.S. » 101 S.Ct. 796 (1980), the

Georgia Supreme Court engaged in a detailed analysis of the

(b) (7) ageravating circumstance. In regards to the first portion

of the statutory aggravating circumstance, the court stated:

The phrases ‘outrageously or wantonly vile,

horrible or inhuman’ are words of common

understanding, have essentially the same

meaning, and are included in the statute

to distinguish ordinary murders for which

the penalty of death is not appropriate,

from those murders for which the death

penalty may be imposed. Citing, Godfrey v.

Georgia, 446 U.S. 420 (1980). Hance, supra at

p. 861.

-28-

Goutrey v. Georgia, supra, specifically dealt with the

application of Ga. Code Ann. § 27-2534.1(b)(7) in that case.

The,jury in Godfrey recommended a death sentence based upon

only a partial finding under (b)(7) that the murder of the

victim had been “outrageously or wantonly vile, horrible and

inhuman." It was in this regard that the Court held that

there was nothing in these few words, standing alone, that

implied any inherent restraint upon the arbitrary and capricious

infliction of the death sentence. This Court specifically

reviewed the remainder of the (b)(7) aggravating circumstance

which required either an aggravated battery to the victim, torture

to the victim, or depravity of mind on the part of the defendant,

and found all three lacking.

In the instant case, the jury made findings under both

portions of the (b)(7) aggravating circumstance, and as opposed

to Godfrey,the wording of the jury's finding in this case is

sufficiently definite to insure against any arbitrariness or

any capricious infliction of the death sentence, and the record

as reviewed by the Georgia Supreme Court, demonstrated ample

evidence to support the jury's finding that the victim suffered

from torture and that the Petitioner had demontrated his depravity

of mind beyond all doubt. In light of the aforesaid instructions

to the jury, in light of the detailed review by the Georgia

Supreme Court which insured said instructions were not applied

arbitrarily or capriciously to the facts of this case, in light

of the overwhelming evidence demonstrating aggravating circumstances

under (b)(7}, and in light of the simplicity of terms utilized

therein, it is clear that Petitioner could not have been harmed

by the absence of an explanation to the jury of the individual

meaning of the terms in Code § 27-2534.1(b)(7). This Court

should also take notice that although the term "aggravated

battery” was not explained to the jury, the jury did not make

a finding on this portion of the (b)(7) aggravating circumstance.

Although Petitioner asserts that there is a strong likelihood

that Petitioner's death penalty was based, at least in part, on

an inappropriate consideration of post-mortem abuse of the victim,

Petitioner's argument is based chiefly upon a portion of the

district attorney's argument to the jury which is taken out of

centext. It appears that in making his remarks to the jury, the

district attorney was referring to the entire circumstances

surrounding the shooting.

In Petitioner's confession to the police he related in

detail how he had smashed a whiskey bottle over the head of the

victim. He further admitted,

I reached in my belt with my right hand and

pulied out my pistol and the guy was still

lying on his back. I pointed the gun at the

man and I pulled the trigger. I don't know

how many times I shot him, but I could hear

him moaning and t:ying to say something. ..

(T. 151). (Emphasis added).

Gwinnett County Medical Examiner, Dr. Dove, performed the

autopsy on the victim and testified that Dennis Beatenbo had

received a crushing blow to his face which had broken his nose

and had extensively damaged the tissue around both eyes. There

was also a bruise on the victim's forearm which was classified

as a defensive type wound. (T. 102).

Furthermore, Dr. Dove testified that the victim suffered

from three separate chest wounds from a gun which had been

placed against his body and fired. At least two of these

wounds could have inflicted pain and anguish upon the victim.

In summary, upon viewing all of the evidence, it is

apparent that a reasonable, rational juror could have concluded

that Dennis Beatenbo had been struck violently across the face

and shot at least twice in the chest before a third shot killed

him. A reasonable juror could also have concluded that this

attack resulted in anogizing pain to the victim before he died.

Respondent submits that the aforesaid also demonstrates

Petitioner's depravity of mind beyond all reasonable doubt.

The aforecited acts surrounding the murder show a cold-blooded,

brutal attack upon a helpless victim. The jury's finding of

depravity of mind can best be supported simply by a review of

those facts and by referring to a statement made by the Petitioner

in answer to the question as to why he killed the victim.

Petitioner answered simply, “Just to watch him die.” (T. 168).

In conclusion, since the prosecutor's remarks did not

deprive Petitioner of a fundamentally fair sentencing proceeding,

and since the failure to define the individual terminology of

(b) (7) did not harm Petitioner, in light of the overwhelming evidence

Supporting same and in light of the Georgia Supreme Court's

review, this Court should decline to grant the writ to review

Petitioner's fifth argument.

-3l-

VI. THE TRIAL COURT MADE NO PREJUDICIAL,

IMPROPER COMMENTS TO THE JURY.

Under Petitioner's sixth argument, he asserts that the

trial court committed prejudicial error my making improper

statements to the jury, allegedly insinuating surprise that

the defendant had presented no evidence, and allegedly insinuating

to the jury that they may not have heard all of the evidence.

As the state habeas court concluded, these allegations are

strained interpretations of the comments made by the trial

court. For example, when Petitioner states that the court

expressed surprise when the court asked, "The defendant has

no evidence?"(T. 180), Petitioner is merely speculating.

There is no indication from the cold record that the court

in any way expressed anything beyond posing the mere question

to determine what procedural steps the defendart wished to

follow. Other statements made by the trial court, cited in

Petitioner's brief, were merely explanations to the jury as to

why they were asked to leave the courtroom. As the state habeas

court noted, these statements would tend to minimize confusion

and enlighten the jurors who may have well been wondering if,

in fact, they had not heard all of the evidence while they were

excused from the courtroom. (See Petitioner's Appendix D).

Since the state habeas court properly found that the trial

judge's comments, as cited in Petitioner's brief, did not violate

any of Petitioner's rights, this Court should refuse to grant

certiorari to review Petitioner's sixth argument.

~-33-

VII. EVEN IF THIS COURT SHOULD FIND THAT

ONE OF THE AGGRAVATING CIRCUMSTANCES

. SUPPORTING PETITIONER'S DEATH PENALTY

IS INVALID, HIS DEATH SENTENCE SHOULD

NOT BE VACAT™D BECAUSE OF THE EXISTENCE

OF AN ADDITIONAL AGGRAVATING CIRCUMSTANCE.

Under Petitioner's seventh argument, he asserts that should

this Court declare one of his statutory aggravating circumstances

supporting his death penalty to be invalid, then pursuant to

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

modified, 648 F.2d 446 (5th Cir. 1981), cert. granted, 50 U.S.

L.W. 3244 (1981),!/ his death penalty should be vacated. Of course,

arguments raised in Stephens are not relevant to this case, unless

this Court finds that one of the statutory aggravating circumstances

supporting Petitioner's death penalty is invalid. Assuming

arguendo that situation arises, it appears that Stephens would

he controlling; however, since there is no constitutional] infirmity

with either of the statutory aggravating circumstances supporting

Petitioner's death penalty, Respondent submits that Stephens

would have no bearing on this case. Thus, Petitioner's seventh

argument presents no valid reason for granting the writ of

certiorari in this case.

1/ On May 3, 1982, this Court issued an order certifying a quest on

back to the Georgia Supreme Court pertaining to the issue raised

on appeal; however, this Court retained jurisdiction. Zant v.

Stephens, 31 Cr.L.R. 3035 (May 3, 1982).

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VIII. IN LIGHT OF THE HEINOUS AND DEPRAVED

NATURE OF THE MURDER IN THIS CASE,

THE POTENTIAL MITIGATING FACTORS RAISED

AT TRIAL BY PETITIONER DO NOT SUPPORT

A FINDING THAT HIS DEATH PENALTY

CONSTITUES CRUEL AND UNUSUAL PUNISHMENT.

Under Petitioner's eighth argument, he asserts that his

death penalty constitues cruel and unusual punishment in light

of an absence of a prior criminal record, in light of his age

at the time of the crime, and in light of his alleged intoxication

during the incident. In support of his contentions, Petitioner

cites Eddings v. Oklahoma, _U.S.__, 102 S.Ct. 869 (1982).

Of course, in Eddings this Court did not reach the issue as

to whether or not the Eighth Amendment forbid the execution of

a youthful offender who was sixteen at the time of the offense.

Id., at p. 874, fn. 5. In Eddings this Court vacated the death

penalty and remanded so that the trial court could have an

opportunity to consider all relevant mitigating evidence and

weigh it against the evidence of aggravating circumstances in

light of the Eddings’ opinion. Id., at p. 877.

Eddings is clearly distinguishable from the instant case,

where the trial judge specifically instructed the jury that in

arriving at their verdict, they were authorized to consider

any mitigating evidence presented during the case. (T. 305).

The trial court instructed the jury that even if it found statutory

aggravating circumstances it still could provide for a life

sentence for any reason it cared to do so. (T. 306).

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There is no indication in this case, that the jury did

not follow the trial court's instructions. As is noted in

Petitioner's brief, Petitioner was nineteen years old at the

time the crime was committed. Petitioner was old enough to

purchase a pistol, viciously engage in a surprise attack upon

victim Dennis Beatenbo, and maliciously murder him by firing

point blank into Dennis Beatenbo's chest as he lie helpless

and wounded on the ground. None of the factors listed by

Petitioner can, in any way, mitigate his actions. Thus,

this Court should decline to review the issues raised by

his eighth argument.

IX. THE TRIAL COURT'S INSTRUCTIONS TO THE

JURY DURING THE SENTENCING PHASE OF

PETITIONER'S TRIAL RELATING TO THE

JURY'S CONSIDERATION OF MITIGATING

AND AGGRAVATING CIRCUMSTANCES WERE

SUFFICIENT.

Under Petitione™'’s ninth argument, he asserts that during

the punishment phase of his trial, the trial court failed to

give sufficient jury instructions on mitigating circumstances,

and failed to charge that mitigating circumstances could outweigh

the aggravating circumstances and thus require the sentencer to

impose a verdict of life imprisonment rather than death.

As was previously noted, the trial judge did instruct

the jury that before they were authorized to impose the death

penalty, it was incumbent upon the state to demonstrate the

existence of aggravating circumstances beyond a reasonable doubt.

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Moreover, the trial court specifically charged the jury that

even if it found the existence of aggravating circumstances,

it could still impose a life sentence. The court went on to

Say:

The sentence to be imposed in this case

is a matter entirely within your discretion.

And you may provide for a life sentence for

this accused for any reason that is satisfactory

to you, or you -- or without any reason, if

you care to do so.

The law vests the exclusive rights or right

to the Jury to make or withhold a recommendation

of a death sentence. (T. 306).

Although Petitioner appears to contend that the jury should

have been instructed on the balancing of aggravating circumstances

and mitigating circumstances, such a balancing is not required

under the Georgia statute, and as the trial judge correctly

stated, the jury may recommend a life sentence even though the

aggravating circumstances far outweigh the mitigating circumstances

or even though there are no mitigating circumstances. See

Collier v. State, 244 Ga. 553, 569, 261 S.E.2d 364 (1979), cert. den.,

445 U.S. 946 (1980); Jarrell v. Zant, 248 Ga. 492, 493, 284

S.E.21 17 (1981).

Of course, this Court has expounded upon the requirement

that the sentencer's discretion be guided in death penalty cases.

In analyzing this requirement, the test to be applied, as enunciated

in Godfrey v. Georgia, 446 U.S. 420 (1980) is:

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*(Wjhere discretion is afforded a sentencing

body on a matter so grave as the determination

. of whether a human life should be taken or

spared, that discretion must be suitably directed

and limited so as to minimize the risk of

wholly arbitrary and capricious action." Citing

Gregg v. Georgia, 428 U.S. 153, 159 (1976).

A capital sentencing scheme must, in short,

provide a ‘meaningful basis for distinguishing

the few cases in which [the penalty] is imposed

from the many in which it is not." Id., at 188,

96 S.Ct. at 2932 [cases omitted].

This means that... a state... must

channel the sentencer's discretion by ‘clear

and objective standards‘ and ‘specific and

detailed guidance,' and that ‘makes rationally

reviewable the process for imposing a sentence

of death. [Citations and footnotes omitted].

When the trial court’s instructions in this case are

considered in their totality, including the references to

the requirement that the jury must find beyond a reasonable

doubt at least one of the statutory aggravating circumstances,

the jury's discretion has been sufficiently directed and limited

SO as to minimize the risk of an arbitrary or capricious decision.

Although Petitioner asserts that the term mitigating cir-

cumstances should have been defined for the jury, Respondent

submits that because of the simplicity of the term such a

specific definition was not constitutionally required. The Georgia

-37<-

Supreme Court has consistently held that mitigating circumstances

need not be singled out for the jury. See Collier v. State,

2446Ga. 553, 261 S.E.2d 364 (1979), cert. den., 445 U.S. 946

(1980); Tucker v. State, 244 Ga. 721, 261 S.E.2d 635 (1979),

cert. den., 445 U.S. 972 (1980); Cape v. State, 246 Ga. 520,

526, 272 S.E.2d 487 (1980), cert. den., 449 U.S. 1134 (1981).

It is not required that any certain litany of words be

utilized in appraising the jury that it should consider mitigating

circumstances. In Jurek v. Texas, 428 U.S. 262 (1976), the

Texas jury never heard the phrase “mitigating circumstances”

nor did it ever receive a definition of same.

As the Georgia Supreme Court has correctly noted, the

delineation of some factors by the trial court, which could

have constituted mitigating circumstances, may have tended to

overemphasize those factors, thus invading the jury's inherent

prerogative to consider anything as mitigating. Collier v. State,

244 Ga. at p. 568-569. This danger is real as is’ evidenced

by the recent decision in Washington v. Watkins, 655 F.2d 1346

(Sth Cir. 1981), where the Court found reversible error during

the sentencing phase of the defendant's trial, when the trial

court had instructed the jury that in making its determination

on sentencing, the jury could consider two specific mitigating

circumstances. Although the trial court had referred to the

word “only” when instructing the jury that it could consider

certain specific aggravating circumstances, and the Court omitted

the word “only” when instructing on mitigating circumstances;

nevertheless, notwithstanding the clarity of the trial court's

wording, the Court of Appeals found that a reasonable juror still

may have interpreted the instructions as indicating that the jury

-38-

was limited to the two specific mitigating factors. This

case underlines Respondent's argument and the Georgia Supreme

Court's concern, that if specific mitigating factors are outlined,

death penalty petitioners will be quick to argue that the court's

enunciation of same may limit the jury's discretion in considering

other matters in addition to the examples given. In conclusion,

since the instructions, when taken as a whole, sufficiently

guided the jury's discretion and informed them that they could

consider mitigating factors in making their determination upon

sentencing, and that they could impose a life sentence for any

reason, even if they found aggravating circumstances, Respondent

respectfully submits that this Court should decline Petitioner's

request to review the argument set out in his ninth contention.

CONCLUSION

For all of the above and foregoing reasons, Respondent

e

respectfully requests this Court to deny Petitioner's request

for a writ of certiorari.

en "2

—Cuchileo ° oS

Assistant Attorney General

Counsel of Record for the Respondent

MICHAEL J. BOWERS

Attorney General

ROBERT S. STUBBS II

Executive Assistant

Attorney General

Sénior Assistant

Attorney General

enior Assistant

Attorney General

Please serve:

NICHOLAS G. DUMICH

132 State Judicial Bldg.

40 Capitol Square, S. W.

Atlanta, Georgia 30334

(404) 656-3499

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