Opposition — Gates v. Zant

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ne At rney Genera for the Stat« eOrgia, respectfu J

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reques na lls F seny the petitioc for writ of rtiorari

tale Tas 4 y Qe > *> as . > he CS se .

icn sé Ss rev + 1e rdcer } 1 Superior 5urt of sjutts

CO ~* _— raia lieanvine Dati & 4 sy * - ~ses = f . .

invy, 2B! ying 1tione! eviction rawri )

habeas corpus. rnis roer is contained in Appendix B of the

I

TABLE OF AUTHORITIES

CASES

CoKxer

Gates

PART ONE

STATEMENT OF THE CASE

Johnny Lee Gates, th

County during November, 19

murder of Katrina G. Wright

Appellant was found guilty

for the murder and twenty

(R. 31-34). Motion for New

Appeal was filed April 19,

Court affirmed the convicti

e Petitioner, was indicted in Muscogee

- Following a jury trial,

ull counts and sentenced to death

years each for rape and armed robbery.

2s denied and a Notice of

1979. R. 48). The Georgia Supreme

ns and sentence including the death

sentence in Gates v. State, 244 Ga. 586 (1979) Certiorari was

jenied March 1? 980 by th rt i ates v. Georgia, U.S

(1980) (No 1-5959 he etrir er thereafter filed a peti-

tion for writ of habeas corpus which was denied on January 16,

1981. Thereafter the Georgia Supreme surt denied the Petitioner'

timely aipplicati mn fOr pr ‘ : ippeal!l

Ms. Katrina Wright, a ‘ : woman, moved t tr it

states with her ! ba , ‘ t pr r to her murde T 249)

sregory Wright, a serviceman i the rmy, had been stationed at

Fort Benning only twelve days befor the crimes occurred. (T. 240,

241).

At approximately 1: P.M. on the afternoon of Tuesday,

November 30, 1976, Petitioner went ¢t the apartment of Katrina

and Gregory Wright at 7030 Broadway, Fountain Court Apartments.

(?. 242, 309, 399). Petitioner posed as an employee from the

gas company in order to scan the apartment for a robbery. (iF. Jee

400). As a coincidence, Kat

earlier for service and know

rina had called the gas company

ingly let Appellant into her apartment.

[e. Beers Katrina gave Petitioner a can of oil to fix the fan on

the heater. (T. 400). Petitioner pretended to oil the heater

then informed Katrina he was

there to rob her. (T. 400).

Petitioner admitted in a confession that he gagged and

tied up Katrina’s hands and face with neckties and bathrobe belt

(T. 400). Petitioner then raped Katrina and robbed her of

$500.00 cash. (T. 400). Petitioner stated that he carried a

gun. (T. 399, 400). After the rape and robbery, Petitioner

Started to leave and Katrina said she would identify hin. (T. 400

Petitioner became frichtened. Petitioner stated, “I was walking

past her, so I shot her in the right side of the head.” (T. 400

Petitioner ran out of the apartment and returned the .32 caliber

pistol t¢t his friend, James Taylor. (T. 399, 401). Petitioner

admitted that ‘ a t rom Taylor in order t

robberies 499

Gregory Wright arrived home at 1:24 P.M. and found his

wife lying on the floor with a gunshot wound in her head. (T. 246,

253). Black neckties were tied around Katrina‘s mouth, her face

and nose, and her eyes. (T. 246). Katrina was lying face up

with her hands tied behind her back very tightly with a belt.

(T. 246, 247, 252). Blood surrounded the victim's head. (T. 246,

247). The contents of Katrina's purse had been poured out

and her panties were hanging on a cord. (T. 246, 247, 253). The

sheets were pulled from the mattress and $480.00 of cash, which

had been hidden in the mattress,’ was missing. (T. 245, 247).

Wright ran to a nearby pay telephone and called the police.

(T. 247, 248).

Officers George Keller, Peter Quasda and Carolyn Hall

of the Columbus Police Department, responded to the call. They

also observed Katrina bound with neckties and a bullet wound

in her head. (T. 256-262, 272-279). Some areas were dusted

for fingerprints, however none significant were found at that

time. (T. 260, 264, 266).

o3}- |

On January 30, 1977, Petitioner confessed to the killing

of another girl and was then questioned about Katrina. (T. 377,

338). Petitioner made an oral and written statement as t the

robbery, rape and murder of Kat: T. 338-344, 394, 39

Officers Ronald Lynn and C. E. Hillhouse interviewed Petitioner.

(T. 392, 399, 400). Lynn and Hillhouse testified that Petitione

was given his Miranda rights before he signed a waiver and con-

fession. (T. 342, 386, 393).

On the afternoon of January 31, Petitioner was taken back

to the scene of the crime, where he explained to officers his

actions in the crimes. 7. 333- SA3)« Petitioner was aca

advised of his rights and the confession was videotaped

Officer Ronald Lowrance. That same afternoon Officer Eddie

Florence found Petitioner's fingerprints located on the ver

of the heater in a closet at the Wright's apartment. (T. 436-

438, 454, 460). The fingerprints were still remaining as a

result of the oil from the fingerprints crystalizing on the

heater. Tr. 456). The court ruled Petitioner's written ar

Videotaped statements to be admissible. The statements were mace

freely and voluntarily with complete understanding by Petitioner.

(T. 379-383).

On the witness stand, Petitioner stated that he was threa

and refused an attorney. (T. 369, 371, 374). Officers Hillhous

and Lynn testified that no threats or promises were made and tha

Petitioner did not request an attorney. (T. 376, 377, 397). Pe

tioner said in his statement that Katrina offered him sex inste:

of money and that she gave Petitioner money when he pulled out

his gun. (T. 400). Petitioner stated Katrina gave him $200.00

from the stereo player. (T. 400). Gregory testified that all «

the cash was hidden under the bed. (T. 255).

>

ened

Donald L. Hudgins, a tenant in Fountain Court Apartments

?

testified that at approximately 12:09 noo: n the day of the

murder, Petitioner came ¢t \ls door, sing as a gas mpany

mp loyes 1 309-311 Petitioner did not enter Hudgins’

partment, but , ¥ 4 WwW * ‘ > . » " ‘ ar +

Py. Jal Hudgins iter entif ti bs poll ne

uD. T 2 = 16 , 3 Petiti ney start > ‘ 7 Hi 7

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that Hudcgi was tne : ne Apt befor wing to the

Wright ‘s apartment , 5

‘ MiKi oUuMma, ’ ‘ i r >» Katri " ori . >

autopsy I i2 29 r. ~ sei i that tile sp

was : . 1 . . i i; : ’ ‘

SsexUa s . ‘Ss A ’ sr ¢ 4 " ia

t ns | . ; > t : | : ’ wy s 1 °

uurse. 299, )

: w bry : . . ‘ " . ¥ "

:utops t t , 284 webt j

shot wou i the ri t t w! t t bra t

(T. 285) . c e' ‘ ; tr ~ re | 4

REASONSFOR NOT GRANTING THE WRIT

THE

NOT

SENTENCE IN

Thi s C

PETITIONER'S

VIOLATED

surt

CONSTITUTIONAL RIGHTS WERE

BY THE IMPOSITION OF THE DEATH

THE INSTANT CA

has

upheld the

death penalty statute. Gregg v. Georgia, 428 U.S. 153 (19/6).

It is undisputed that the jury found three aggravating circum-

stances in the instant ise. Thes¢« agagravating circumstances

were (1) that the offenss« f murder was ymmi t te while the

offender was engaged in the commission of another capital

felony, to-wit irmed bbery y the offense of murder

was mmi tte whi the tft ler was ¢« aged in the cons

of another apita f« , to-wit rape and | that th

offense of murder was trage pAy r wantonly le, horrible

Or inhuma 1 that iat i ed depra ty cf mind to the ti

(T. 614).

The Georgia ipreme rt f i that the trial court

erroneously applied the aggravati ircumstances of “depravity

ff mind ¢t the ictim” but pheilid the death sentence as the

jury had found the ther tw remainin sogravating circumstances.

The trial court during the sentencing phase of the trial

had instructed the jury in part ‘as follows:

"Now, ladies and gentlemen, you may con-

sider ne or all three of those aggravating

Circumstances if you find beyond a

reasonable doubt do exist.”

> hey

In the instant petition, the Petitioner relies upon the

case of Strombera v. California, 83 U.S. 359 (1931). The Peti-

tioner’s argument under Stromberaq is that if a ury has been

instructed to consider several possible ground for a verd t

ind ne f these« rr j ire ! tuti il, the verdict

should be et aSice if the find) tne jury ild have be«

based upon the ur nstitut il a titutional grounds

be used in that the factual patterns are distinct. In the instar

case, there were instructions t the jury that the finding of

me agagravatingcir imsta e was sufficient for the infliction t

the iea Pena + ; . . _ the record below how

that nee the first aggravating irc tance wa found by the

jury, the jury was entitled ¢t ré nend the death penalty.

Further, it iS apparent that ¢t i ision fF thi

erroneous aggravating ircumstar ila not have harmed the

Petitioner at all. Indeed, it i lear that by |! ising

the victim, the trial rt in eff t ude it 1 ft Lt

for the F t recommend the deat naity.

Therefore, given the indisoutec existence of two aggravatlr

Circumstances found by the jury to exist beyond a reasonable

:

jeath penalty is unconstitutional are without merit

THE PETITIONER'S C

58.

RIGHTS WERE NOT DE

REQUIREMENTS UNDER

ANN .

§$38-B801(d) R

TENDER OF WIT

FEES

WITH

Under the

an individual

testimony of his own witnesses in a

constituti al provision is limited

pr eedi s, and ther ' specifi

requirement for mpu | procs

ceedings. It has lon and nsist

that habeas corpus is not a criminal]!

225 Ga 529 (1969); Krist sl owe

Further, the Petit er had

sliternative methods of pr evi

aS Oral testimony, and sworn affida

constitutional right t iue process

Also, it is apparent from the

has not shown that he was in any wa

of Ga. Code Ann. § 38-801(d)

Theref e, the Petitioner's a

without merit

ONSTITUTIONAL

VIED BY THE

CODE

MILEAGE

S SUBPOENA.

the United States

lsory proces to obt

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t] been recoaunized

proceeding. Ker

» 230 Ga. 336 ry) (1

under Georacia

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the

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petition that the |!

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Johnny

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Atlanta,

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For

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Please se

DAVIS

State

Capito

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oO grant the pe

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rve:

HEWITT

Judicial Blda

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Georgia 10334

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CONC LU

foregoin

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Vw iVUN

j reasons, this Court should

for writ of certiorari filed by

we t illy sub itted,

MICHAEL J. BOWERS

Attorney Genera]

SERT S. STUBBS, II

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MARI )N ‘ . ,ORD VO

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Respondent

Court of t¢t

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depositing

with prope

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CERTIFICATE

lam Davis Hewitt, At

ind a Member of

Imited Stat« here

of the Supreme

served i true and

Ronnie K.

4179 Memoria)

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