Petition — EURUS K. WATERS v. GEORGIA (No. 81-5947)
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“RECEIVED
8] -5947 DEC 24 1981
Orrice we tne LicRK
No. Fy 5947
IN THE
SUPEME COURT OF THE UNITED STATES
October Term, 1981
EVRUS ELLY “VATERS,
Petitioner,
e¥.<
STATE OF GEORGIA,
Respondenc.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF GEORGIA
URSULA BENTELE
SUPREME coer one 4
eS
*165 West Eni Aveaue
New York, New York
10023
ATTORNEY FOR PETITIONER
ee
f QUESTIONS PRESENTED
l. Whether the denial of petitioner's Sixth Amendment
right to the assistance of counsel at the committal hearing,
a critical stage of criminal proceedings in Georgia, requires
reversal of his conviction of a capital offense.
2. Whether petitioner was denied his right to a fair
trial and impartial jury by the court's refusal to grant a
change of venue after law enforcement officials publicized
petitioner's confession to the killing of a prominent and
popular member of a small community.
3. Whether petitioner's death sentence, imposed upon
a finding of invalid aggravating circumstances, must be va-
cated.
4. Whether thetrial court's failureadequately to instruct
the jury concerning its sentencing responsibilities, especially
as to the nature and significance of mitigating circumstances, —
renders petitioner's death sentence cruel and unusual punish-
ment, imposed in violation of due process.
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| 5. Whether the death penalty constitutes cruel and
i unusual punishment as applied to a mentally ill defendant who
became completely distraught when he learned he might have
“hurt someone.”
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TABLE OF CONTENTS
Constitutional and Statutory Provisions
DEED Wi dubedb Ee o bebe bso dés hee na..
NY WP eC ee
How the Federal Questions “Vere Raised
IS OPCS Oe See
I.
[I.
Itt.
IV.
PETITIONER'S SIXTH AMENDMENT RIGHT
TO THE ASSISTANCE OF COUNSEL AT THE
COMMITTAL HEARING, A CRITICAL STAGE
OF THE CRIMINAL PROCEEDINGS IN GEORGIA .
REQUIRES REVERSAL OF HIS CONVICTION OF
fe Cet Ns os 06 ce cg usteaurdceecs<«
THE COURTS BELOW VIOLATED PETITIONER'S
RIGHTS TO A FAIR TRIAL AND AN IMPARTIAL
JURY BY REFUSING TO GRANT A CHANGE OF
VENUE AFTER LAW ENFORCEMENT OFFICIALS
PUBLICIZED PETITIONER'S CONFESSION TO
THE KILLING OF A PROMINENT AND POPULAR
MEMBER OF A SMALL COMMUNITY..............
SINCE THE JURY CONSIDERED AND FOUND
AGGRAVATING CIRCUMSTANCES THAT HAVE
BEEN DECLARED INVALID, PETITIONER'S
DEATH SENTENCE CANNOT BE PERMITTED
Se Naw Rb tin nb whe phWeidataikias dew ccc
THE TRIAL COURT'S FAILURE ADEQUATELY
TO INSTRUCT PETITIONER'S JURY CONCERN-
ING ITS SENTENCING RESPONSIBILITIES
UNDER GA. CODE ANN. 8$27-2534.1(b) --
ESPECIALLY AS TO THE NATURE AND SIGNI-
FICANCE OF MITIGATING CIRCUMSTANCES --
RENDERS PETITIONER'S DEATH SENTENCE
CRUEL AND UNUSUAL PUNISHMENT, IMPOSED
IN VIOLATION OF DUE PROCESS OF LA’...
THE DEATH PENALTY CONSTITUTES CRUEL AND
UNUSUAL PUNISHMENT AS APPLIED TO A !MEN-
TALLY ILL DEFENDANT WHO BECAME COMPLETELY
DISTRAUGHT WHEN HE LEARNED HE MIGHT HAVc
“HURT SOMEONE."........ TTS LS. Pee
Appendix A, Opinion of the Georgia Supreme Court
Appendix 8, Georgia Statutory Provisions
Involved
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29 |
T. OF
Cases
Brewer v. Williams, 430 U.S. 387
GRRE ED ccccccccccccccceesccssccccececcccces
Chenault v. Stynch comhe , 581 F. 2d
SOS CIGD GES. EPPS) ccccccccvescccccsccceses
Coker v. Georgia, 433 U.S. 584
GEPPED Sacccncccccccacsccoecsteccccecececes
Coleman v. Alabama, 399 U.S. 1
GRUUOD ccccdcccncccesecccseecesecccccccsees
Coleman v. State, 237 Ga. 84,
SEO BB. BO GEL CAGIG) cn cccccccceccccceses
alth v. Casper, 375 A. 2d
Commonwe
See es ts Gls BC UD cc vescbcctccesecs
Duncan v. Louisiana, 391 U.S. 145
CUPS. Co bccccccevesoocesonccsccosbeccecoss
Estelle v. Smith, 101 S. Ce. 1866
GREE. Seceecseccccccscsesdocececeecssasecs
Furman v. Georgia, 403 U.S. 238
TE ie ha i aint elie o Leia as onkie wis a 6
Gibson v. State, 236 Ga. 874 226 5S.E.
« FF, . Seavey enn thn ex bean
rh | v. Georgia, 428 U.S. 153
)
GRPTED ccccccderctccccesecéaacsccsesececese
GROOD Cencvenscnvcesccccescvessesctessesee
NE. trie watbvtsis Vednsdnkhs cadévedecéunee -o cbabas
Juelich v. Uhited Stares, 214 F. 2d 990
St SE PN > de oncvccedibacocwcacadestéocvésabess
Maine v. Superior Court of Mendocino
County,
68 Cal.2d 375, 66 Cal. Potr. 724, 432 P.?¢ 372 (1962) ....15,
Moore v. State, 249 Ga. 7, 243 S.F.2d 1
Nebraska "ress
RR SE ee ek eee Pe) ay Noe
ll
16
14
1?
oe
Cases Page
le v. Samels, 49 N.Y.2d 218
ne Dao dodedectevciesaate ll
Powell v. Alabama, 287 U.S. 45
0 EEE aS a er ere ee ll, 16
Roberts v. Louisiana, 428 U.S. 325
Pee. Secee RE RR RS RE ree Poe rere 21
Roberts v. Louisiana, 431 '.S. 633
i iE”: 2... duacevetGuceescss tue cocceuet 24
Sheppard v. Mawell, 384 U.S. 333
ED Soo oR ieee he aan Ceddahacdueeostauees 06% 14, 15
Shinholster v. State, 150 Ga. App. 221,
Pt Mn | cvchds cccdenacéescocaptusess 16
Spivey v. Zant,
(sl. opin., Noverber oe “ory Ls A SEES WT eee! 25
State v. Hightower, 236 Ga. 58, 222 S.E.2d 333
ET Wt Landen dann Sbeepeadedetesetaeeebe 12
State v. Houston, 2% Ga. 721, 218 S.E.2d 13
i toh Bio. gun aebheteencenneess 12
State v. Shawan, 77 N.M. 354, 423 P.2d 39
MS Se a, ce ee errr ee t)
Stephens v. Zant, 631 F.2d 397
(Sth Cir. 1980), cert. granted, October 5, 1981 . 20, 21
Street v. New York, 394 U.S. 576
ST icin. dno cunaiebeces 6beebads b0cdessee céeeeset 20
Stromberg v. California, 283 U.S. 359
Tt ode « onguh sUGeeeAta tes 60 esaendeeseseete dee 29
United States v. Bonanno, 177 F.Supp. 19%, rev'd on
other grounds sub nom. (hited States v. Buffalino,
285 F.2d GOB (2d Cir. 1969) ...... ccc cece cece recess 18
United States v. Mohabir, 624 F.2d 1140
ET I ee ee essen ses bosneen 13
No. 8l-
IN ‘THE
SUPREME COURT OF THE UNITED STATES
October Term, 1981
EURUS KELLY WATERS,
Petitioner,
-V.-
STATE OF GEORGIA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF GEORGIA
Petitioner prays that a writ of certiorari issue to
review the judgment of the Supreme Court of Georgia entered
on October 8, 1981.
CITATION TO OPINION BELOW
The opinion of the Supreme Court of Georgia is yaper tes
at __— Ga. ___, 283 S.E.2¢ 239 (1981) and is set out in
Appendis A hereto.
JURISDICTION |
The judgment of the Supreme Court of Georgia was |
entered on October 8, 1981 and is set out in Appendix A hereto.
A timely petition for rehearing was denied on October 27, 1921.)
Jurisdiction of this Court is invoked under 28 U.S.C. 612573),
petitioner asserting deprivation of rights secured by the :
3 Constitution of the United States.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
This case involves the Eighth Amendment to the Consti-
tution of the United States, which provides in relevant part: |
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“Excessive bail shall not be red,
fines crue
a War oe
.
—-——-
the Fifth Amendment to the United States Constitution, which
provides in relevant part:
"No person ... shall be compelled in
any criminal case to be a witness
inst himself, nor be deprived of
life, liberty, or property, without
due process of law ...,
the Sixth Amendment to the United States Constitution, which
orovides:
“In all criminal prosecutions, the
accused shall enjoy the right to a
speedy and public trial, by an im-
ere re of the State and di-
strict rein the crime shall have
been committed, which district shall
have been previously ascertained by
law, and to be informed of the nature
and cause of the accusation; to be
confronted with the witnesses against
him; to have compulsory process for
obtaining witnesses in his favor, and
to have the Assistance of Counsel for
his defence.”
and the Fourteenth Amendment ot the Constitution of the Uniced
States, which provides in relevant part:
“(Nlor shall any State deprive any
cerson of life, liberty or pro-
perty, without due process of law ..
|
This case also involves provisions of the Code of Georgia,
the text of which are set out in Appendix B hereto. j
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STATEMENT OF THE CASE
This is a vetition for a writ of certiorari to review
the judgment of the Supreme Court of Georgia, entered on
October §, 1981, affirming petitioner's conviction of two
counts of murder and sentence to death by a Glynn County jury
on January 24, 1981. Petitioner, Eurus Kelly Waters, was
sentenced to die upon his conviction of the shooting death of
two women on Jekyll Island, off the coast of Georgia.
The two women, Kathryn Ann Culpepper and Anita Lynetce |
Paseur, had been fishing in the New Marina area on April 25,199".
pe
At about 4 p.m. they returned to Ms. Culpepper's car, where
they were accosted by petitioner. (T. 636-37*) Ms. Culpepper,
who survived the shooting but died five days later, described
her attacker as a “sickly, weakly acting person.”. (T. 644)
Petitioner forced the women, at gunpoint, about 190 yards inrco
the woods, where he made them handcuff each other together, had
oral sex with Ms. Culpepper, and then, when they assertedly
lurched towards him, shot them, Ms. Paseur in the head, killing
her instantly, and Ms. Culpepper in the chest. Ms. Culpepper
was able to return to her car and report the crime; she die
five days later from complications following surgery
(T. 637, 643).
Petitioner Kelly Waters became extremely emotional anc
upset when his wife, Helen Waters, told him a few davs after
the killings that *e appeared to fit the description of the
man being sought in connection with the Jekyll Island murders.
(T. LL19-L121). Petitioner asked her to call his sister, Judy
Petty. Ms. Petty, a registered nurse at %runswick Memoria!
Hospital, described her brother's condition that evening:
He was in a shave that I have never
seen him in before...1 guess despair
is the best word I can use to describe
ic...Pe was just trembling all over
and the tears were streaming down his
face...Ve said, “Baby, sister, I
think I may have hurt somebodv.”...
He was just in the very pits of
despair, and he said, “I've got to
know. I've got to know what happened.”
(T. 10896-1938) 7
Petitioner cried uncontrollably most of the rest of the
evening. and said he wanted to die if he hac done the “illirg
(T. 1965, 1121).
Petitioner's family spent the next several davs trying to
find out what might have happened. Petitioner had been
diagnosed in 1978 as a schizovhrenic, paranoid-type. who
ls preceded by “T” refer to the transcriot of che trial,
Numera
held January 19-24, 1941.
—————
required coninuous treatment with potent anti-psychotic medi-
cation to sustain a normal level of functioning (T. 951-2,
1027-1031). Petitioner had attended the Waycross Mental
Health Clinic as an outpatient from 1978 until March, 1980,
receiving his medication and supportive therapy, and his
sisters took him to the clinic the morning following his dis-
covery that he might have “hurt somebody"(T. 914-917,923, medi-
cal records). The nurse gave him a long-term tranquilizer
(T. 923-924).
Petitioner had stopped taking his anti-psychotic medi-
cation one to three weeks before the shooting (T. 788, 1181).
He was also drinking during the week of the shootings
(T. 785-786, 1152).
Dr. Miguel Bosch, director of the forensic unit at
Georgia State Hospital, who examined petitoner in connection
with this case pursuant to court order, described the possible
effects of ceasing medication, particularly when combined witch
drinking:
The reaction that he may have is
mot good at all. It's going to
get worse. What is going to haopen
to him is not good at all, you're
talking about near, 4 person near
to the papeeete he didn’c take
his ¢c and drinks alcohol,
it is possible to have 4 severe
reaction to ic. (Tf. 982).
Petitioner's sister, Judy Petty, sought help from an
acquaintance, Police Officer Ed Dixon, in trying to establish
whether her brother could have committed the crime. After
several attempts she finally reached him on May 3, and asked
him to pick up petitioner's gun so that it could be tested for
comparison with the bullets used in the killings (T. 719-722).
The comparison was not conclusive (T. 740-745).
——--— =—_—
ee
On May 5. 1980, special agent Scott Curley, in charge of
the investigation, came to petitioner's home with Detective
Wofford. Petitioner accompanied the officers to the State
Patrol Station, where petitioner, after being given the Miranda
warnings, said that he did not remember much about the week of
the murders, since he was in a “blackout period.” (T. 755-777).
He admitted that he had a gun (which had already been surren- |
dered to the police). holster and ammunition, and agreed to
return to his house to give the officers the clothing he had
worn on the day the killings took place. His wife turned over
his holster and ammunition. (T. 779-781). Petitioner was ‘or-
mally arrested at 4:15 p.m. on that Monday, May 5, 1989 and was
placed in custody at Hinesville Liberty Jail. (T. 782).
Two days later, petitioner was brought before Magistrate
Grimes for his committal hearing. held from 1% to ll a.m. on
pa May 7, 1960. Petitioner was not represented by counsel at chis
hearing, and after being committed on the murder charges. peti- °*
tioner was returned to jail, where he was again questioned. in
the absence of an attorney, by the detectives (T. 733). Ar this
time he made a full confession (T. 785-791, 795-798). Detective
rT. ——
Curley said he had reiterated the Miranda warnings to vetitioner.
who agreed to answer questions but refused to sign a waiver of
counsel form or sign his statement (T. 895-996). The officer
decided not to use a tape recorder because be thought peririoner
would have been reluctant to talk with a recorder present
. (T. 805).
* Present counsel has been unable to secure 4 transcript or
abstract of proceedings of this hearing. despite the efforts of
trial counsel to obtain it. Magistrate Crimes is now decersec.
When counsel was assigned to represent petitioner about a
week later, he made a motion to suppress the admission.
Petitioner testified at the Jackson-Denno hearing that he
asked for a lawver on May 7; the detectives said they were
trying to get one and continued with their questioning.
(H. 25-26, 27). Petitioner also stated that he was on 29° me.
of Mellaril at the time of the interrogation (H. 28).
THE MOTION FOR A CHANGT OF VENUE
Counsel moved for a changed venue. The killings occurred
on Jekyll Island, a small communicy in Glynn County containing
690 homes. At a hearing on the venue motion, counsel intro-
duced 48 articles that had appeared in newspapers with local
circulation in Glynn County (Y. 7-8, 19, 33-35). On April 726.
April 28 and May 1, 198%, the Brunswict News published
ing sketches of a man resembling petitioner. The Glynn County
Board of Commissioners offered a $1999 reward for information
line. reported petitioner's arrest. mn may 9 and May 14, the
District Attorney. reported that petitioner had confesse¢. On
“ wl
*
.
*
.
FF. ™—S——SE—eEe———e———————S
June 6. 1980, the paper carried an advertisement. placed by the
—
family of Ms. Culpepper. expressing appreciation for the
community's support in their ordeal (Nefense Exhibirs 32-34).
i Numerals preceded by “#" refer to the minutes of the Jackson-
) Nenno hearing. held December 16, 198°.
\** Numerals preceded by “V" refer to the minutes of the change of
venue hearing, held December 2, 1989.
5 ae we wi,
’ - at - ) ) eee
)
articles describing an intensive manhunt for the killer, includ-
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same newspaper. using information obtained from the Glynn County
leading to the arrest and conviction of persons responsible for |
the killings. On Mav 6, the Brunswic’ “lews. under a bold head- |
———
—"
—
The State took unusual security precautions at trial
(T. 63-69), including the detention of petitioner in a jail
outside Glynn County (T.66).
As the verdict and sentence were about to be announced,
the »residing judge cautioned spectators against emotional out-
bursts (T. 1291, 1368-69). Nevertheless, as reported in the
Atlanta Constitution and the Brunswick News of January 26, 1981,
Kathryn Culpepper’s husband dived across a railing at petitioner
and had to be restrained by some of the numerous county pdolice-
men and state troopers guarding the courtroom.
THE COURT'S CHARGE
.
Petitioner was convicted of two counts of murder
(T. 1291). |
The court's charge to the jury at the penalty phase con- |
prises eight and one half pages of the transcript (T. 1356- |
1365). The bulk of the instructions concerned the various |
statutory aggravating circumstances, defining various terms |
used in the aggravating circumstances alleged to be presen:, |
and emphasizing that the jury must write out their recommen-
dation of the death penalty and the statutory factors on |
which they relied (T. 1356-1361). The court stated that are-
ravating circumstances must be proven beyond a reasonable doube
but did not instruct the jury that they had to be unanimous
reyarding which aggravating circumstances applied (T. 1357-
1358).
The charge concerning the possibility of a life sentence
consisted, in its entirety, of the following four paragrao’s:
The other punishment which you may
it
|
as to each Count in this
"We, the Jury, find that the
Defendant should be sentenced
to life imprisonment on each
Count." And the effect of this
sentence would be that the Court
would sentence this accused to
life imprisonment on each count...
Now, Members of the Jury, vou
stould, you should consider all
evidence submitted in the trial
of this case in arriving at your
verdict as to the sentences to be
sed. This would include anv
evidence of mitigating circum-
stances received by you in this
case.
Even if you find beyond a reason-
able doubt that the State has
proved the existence of an aggrava-
ting circumstance or ye
circumstances in this case whi
would justify the imposition of a
death sentence, vou are not required
to recommend that the accused be put
to death. You would be authorized
under these circumstances to recom-
! mend the death penalty, but you are
\ not required to do so Th. sentence
to be imposed in this case is 4
matter entirely within vour discre-
| tion and you may provide for a life
sentence for the fendant for any
| reason that is satisfactory to you
4 without any reason if you care to
° so.
The law vests the exclusive right
| with the Jury to either make or with-
hold a recommendation for the death
sentence. (T. 1361-1363).
The court added that if the jury failed to find at least one |
of the aggravating circumstances, they could not impose death
(T. 1363) The judge then reiterated, twice more that che law»
;
required written designation of the aggravating circumstances
| if the jury recommended the death penalty (T. 1363-64)
}
The jury recommended the death penalty and found that
ee a
following aggravating circumstances:
/
| the murder of Ms. Paseur (Count one) was committed under the
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}
}
(1) The offense of murder was committed while the
offender was engaged in the commission of another capital
felony, to-wit: Kidnapping with bodily injury to Kathryn Ann
Culpepper. (2) The offense of murder was committed while the
offender was engaged in the commission of another capital
felony, the murder of Kathryn Ann Culpepper, a human being.
(3) The offense of murder was committed while the offender was
engaged in the commission of another capital felony, the
aggravated sodomy of Kathryn Ann Culpepper. As *o Count Two, |
the murder of Kathryn Culpepper, the jury found the same weoudl
vating circumstances, substituting the name Anita Lynette |
Paseur for Culpepper's name in the first two circumstances
(T. 1369-70). The jury did not find, although they were
instructed on the grounds, that the murders were committed
during the course of a robbery, nor that they were euutemeeucil
|
and wantonly vile, horrible and inhuman in that they involved)
|
torture and depravity of mind. (T. 1358-60, 1369-70).
On ‘‘rect appeal, the Supreme Court of Georgia held that |
the third aggravating circumstance as to each count could not |
be sustained, since the aggravated sodomy statute never pro- |
vided for the death penalty (Sl. op. at p. 22-23). The court
also set aside the aggravating circumstance, under Count two,
that Ms. Culpepper’s murder was committed during the murder
of Ms. Paseur, on the theory that the two such aggravating
circumstances were mutually sopvorting (Sl. op. at p. 22).
eee ee.
HOW THE FEDERAL QUESTIONS WERE RAISED AND
DECIDED BELOW
1. A motion for a change of venue was made, and
denied,in the trial court. The Supreme Court of Georgia con-
sidered and rejected petitioner's argument that the denial of
a change of venue deprived him of a fair trial. (Sl. op. pp.
10-12). |
2. Petitioner challenged the admissibility of his
post-committal hearing confession in the trial court. Peti- |
tioner did not specifically raise the Sixth Amendment argument;
petitioner respectfully submits that in a death case, such a
fundamental deprivation constitutes plain error that should be
reviewable by this Court.
3. The Supreme Court of Georgia set aside three of the
aggravating circumstances found by the jury, but determined
that the failure of these circumstances did not taint the pro-
ceedings so as to invalidate the death sentence. (Sl. on. ar.
pp. 22-24). It also held that “(u)pon review of the entire
transcript and record of this case, this court concludes that
the sentences of death were not imposed under the influence of
passion, prejudice, or any other arbitrary factor.” (Sl. op.
at p. 24).
4. The Supreme Court of Georgia held the charge suf fi-
cient in its reference to mitigating circumstances (Sl. op at
p. 24).
5. The Supreme Court of Georgia concluded chat the
death sentences were not excessive or disproportionate, taking
into consideration both the crime and the defendant (Sl. on. at
pp. 25-26).
10
REASON FOR GRANTING THE WRIT
DENIAL OF PETITIONER'S SIXTH AMEND-
MENT RIGHT TO THE ASSISTANCE OF
COUNSEL AT THE COMMITTAL HEARING,
A CRITICAL STAGE OF THE CRIMINAL
PROCEEDINGS IN GEORGIA, REQUIRES
REVERSAL OF HIS CONVICTION OF A
CAPITAL OFFENSE.
Petitioner, charged with two counts of murder, was taken
before a magistrate for a hearing to determine whether there
was probable cause to bind him over to the grand jury. (H. L3-/
15; Ga. Code. Ann §27-407.) Petitioner, who had been arrested :
two days earlier, was not represented by counsel at this pro-
ceeding. In a capital case, the absence of counsel at this
critical stage of the criminal proceedings vitiates any sub-
sequent conviction, even without a showing of prejudice. See
Hamilton v. Alabama, 368 U.S. 52 (1961). Petitioner was, how- |
ever, prejudiced by the State's failure to assign an attorney
to him at the hearing. After he had been committed by the ma-
|
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vistrate, petitioner was returned to jail, where, upon interro-|
gation in the absence of counsel, he made a full confession |
which was entered into evidence at his trial. Petitioner sub-
been formally initiated in a capital case should not be weivable|
mits that the right to counsel once criminal proceedings have
im the absence of an attorney. See Estelle v. Smith, U.S.
__. LOL S. Ct. 1866, 1876, (1981); Powell v. Alabama, 237
U.S. 45, 57 (1932); see also People v. Samuels, 49 N.Y. 2d
218 (1980). However, even if waiver is permitted without che
“guiding hand of counsel,” the State here fell far short of
its burden of establishing “an intentional relin ouishment or
abandonment of a known right or privilere.” Jounson v. Zerbst
304 U.S. 458, 464 (1938).
The committal hearing in Georgia has been held by the
state's highest court to be a critical stage of the criminal
proceedings, entitling the defendant to the assistance of |
State v. Houston, 234 Ga. 721, 218 S.E. 2d 13 (1975);
see also Coleman v. Alabama, 399 U.S. 1 (1970). Indeed, the
statute providing for such a hearing contains numerous indi-
' cations of its adversarial nature. Both the prosecutor and the
defendant are to be given time to prepare the case, “and in no
event shall the defendant be forced to trial without the aid
of counsel, if there be a reasonable probabilicy of his securing
| counsel without too great delay..." Ga. Code Ann. 627-403. ~
| court has the power to compel the attendance of witnesses (Ga.
Code Ann. 627-404) and a defendant has the right to testify (Ga
Code Ann. 627-405). An abstract of the evidence is required
to be made whenever the charge is a felony. Ga. Code Ann.
627-406.
NN
The critical importance of this initial, but in scope far~
ranging, evidentiary hearing is potentially at least as great
as a defendant's arraignment on a capital charge. Under the :
authority of Hamilton v. Alabama, 368 U.S. 52 (1961) and White
v. Maryland, 373 U.S. 59 (1963), the absence of counsel at such |
of prejudice.
|
: a preliminary hearing violates due process even without a showing
:
Petitioner here was harmed by the failure to assign counsel
| at the committal hearing. Beyond the somewhat intangible preju-
dice of a lost opportunity to examine the state's witnesses,
petitioner's confession on the afternoon after the hearing would
in all likelihood not have taken place had he been represented
by counsel. The Supreme Court of Georgia irself has recognized
that such admissions could render the absence of counsel a= a
committal hearing reversible error. See State v. Hightower,
236 Ga. 58, 222 S.E. 2d 333 (1976).
Finally, even if petitioner could have waived his right
to an attorney at the committal hearing, the State has failed
utterly to how that he made such a knowing waiver. The State's
sole evidence on the issue consisted of Detective Curley's
assertions that he advised petitioner of his Miranda rights,
and that petitioner agreed to talk. Petitioner refused to sign
a waiver of counsel form. He was taking powerful anti-psvchoti
medication. Petitioner asserted at the Jackson-Denno hearing
that he had requested an attorney on the day of the committal
hearing. Under all these circumstances, the State has failed
to meet the strict standard for establishing a waiver of the
right to counsel at this critical stage of npretrial proceedings.
Brewer v. Williams, 430 U.S. 387, 404 (1977); see also United
States v. Mohabir, 624 F. 2d 1140 (2d Cir. 1980).
7
ee ee ee
II
-THE COURTS BELOW VIOLATED PETITIONER'S
RIGHT TO A FAIR TRIAL AND AN IMPARTIAL
JURY BY REFUSING TO GRANT A CHANGE OF
VENUE AFTER LAW ENFORCEMENT OFFICIALS
PUBLICIZED PETITIONER'S CONFESSION TO
THE KILLING OF A PROMINENT AND POPULAR
MEMBER OF A SHALL COMMUNITY.
The court should grant certiorari to determine whether
the Georgia court's refusal to grant petitioner a change of
venue violated due process.
The Fourteenth Amendment mandates trial by an impartial
jury in any state criminal proceeding which, were it be tried
in federal court, would come within the Sixth Amendment iury
é,
trial guarantee. Duncan v. Louisiana, 391 U.S. 145, 149
(1968). Where prejudicial pretrial publicity prevents the
selection of an impartial jury, denial of a change of venue
violates due process. Juelich v. United States, 214 F. 2d 950,
956 (Sth Cir. 1954). Even in the absence of a venue motion,
prejudicial publicity may constitute an independent due procesd
_—_ 4
violation. Sheppard v. Maxwell, 384 U.S. 333, 363 (1966).
Moreover, since prior restraints upon press coverage ‘are the
least tolerable infringement on First Amendment rights,”
Nebraska Press Association v. Stuart, 427 U.S. 539, 559, (1976)
change of venue will often be the only constitutional route to
a fair trial. Id at 563, 564.
Despite the importance of change of venue to due process
guarantees, the Georgia courts have severely limited its avail-
ability. See Coleman v. State, 237 Ga. 84,90, 225 S.E. 2d
9il (1976). In the instant case, three vf these limitations
violated due process. 1) the application of a standard of re-
view which allows reversal only upon a showing thet the trial
court abused its discretion,2) the requirement, pursuant to
Georgia statute, that movant demonstrate actual prejudice and
3) the failure, at both the trial and appellate level, to con-
er facts strongly mepertos of ioner's motion.
a = te « . a)
Nonna Wy et hes nee Nek OS ASS og News
on ek as, uP ip > y 46 of :
a vt > c
ry
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The Georgia Supreme Court applied the Georgia rule that
a denial of motion for a change of venue will be disturbed on
| appeal only upon a showing that the trial court abused its
discretion. Waters v. State, Ga. ,___, citing Coleman v.
State, supra 237 Ga. at 90. This Court's opinion in Sheppard,
v. Maxwell, 384 U.S. 333 (1966) clearly implies that due procesg
| cannot be satisfied by such a cursory review, for:
'
|
(g)iven the pervasiveness of modern
communications and the difficulty of
geo prejudicial publicity from
the minds of jurors, the trial courts
| should take otvong measures to ensure
s
that the balance never weighed
against the accused. And appellate
tribunals have the duty to make an
|
|
'
independent evaluation of the cir-
cumstances. (emphasis added). id
act °
While no motion for change of venue was raised in Sheppard ir-
i self, the California Supreme Court has directly applied
{ Sheppard's reasoning to a change of venue case. Maine v.
1 Superior Court of Mendocino County, 68 Cal. 2d 375, 382, 6
| Cal. Rptr. 724,638 P. 2d 372 (1968). Granting wric of mandate
to compel change of venue, the court held that
appellate courts must, when their aid is
y properiy invoked, satisfy themselves de
i novo on all the exhibits and affidavits
| that every defendant obtains a fair and
1 impartial trial. Id. at 382.
The Georvgia Supreme Court undertook no independent evaluarion
of the circumstances. It considered none of the evidence >re-
sented at the hearing on change of venue, confining itsei’,
instead to the jurors’ responses on voir dire. The court
apparently assumed that voir dire is "an accurate barometer of
public sentiment" {American Bar Association, Mininum Standards
| for Criminal Justice, Standards Relating to Fair Trial and
\ Free Press, Commentary to Standard 8-3-3, Vol. 8, p.40) (1980),
despite that fact that this assumption has been questioned. |
|
: Id at 40. Where the defendant's life is at stake, the Court |
has been particularly sensitive to irsure that every proce-
dural safeguard has been observed-
-_
—_
Se ee
eee ey eS Me
Powell v. Alahara, 287 U.S. 45, 71 (1932). Therefore, the
Georgia Supreme Court's failure to undertake de novo review
of denial of 4 change of venue, in a capital case, violated
petitioner's Fourteenth Amendment right to trial by an in-
partial jury. The Court should grant certiorari to consider
whether to reverse and remand to the Georgia Supreme Court for
application of the constitutionally appropriate standard of
review.
Moreover, the Georgia law places an unfair burden on a
defendant moving for change of venue. Under Georgia law, de- |
fendant must prove prejudice by clear and convincing evidence. |
Change of venue may be granted only where the trial court is
satisfied that a fair trial cannot be had. Ga. Code Ann. |
627-1201. Therefore, Georgia law requires a showing of actual |
prejudice to a degree which renders a fair trial not mere'y
improbable, but impossible. Shinholster v. State, 150 Ss. Apo.
221, 221, 257 S.E. 2d 342 (1979). The vast majority of juris-—
dictions, and the trend of enlightened opinion, reject this scandar
A.B.A. Minimum Standards, supra Standard 8-3.3. In most juris- *
dictions, movant is required to demonstrate reasonable lLike!i- |
hood of prejudice and nw showing of actual prejudice is re-
quired. *
See generally. 33 A. L.R. 3 17 (197%) ane cases cited therein arc |
=
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Therefore, the Court should grant certiorari to consicer whet
a defendant, particularly an indigent defendant, can be consti-
tutionally required to demonstrate actual prejudice by clear
convincing evidence such that a fair trial cannot be had.
Under whatever standard, the Georgia courts failed to
consider several factors pertinent to the assessment >of change
of venue. These factors have been summarized as follows:
1) the extent of pre-trial publicity 2) the nature of the pre-
tiral publicity 3) the nature of the community which was subject
to the pre-trial publicity and where the trial was scheduled to
take place 4) the source or sources of the pre-trial publiciry,
including the possibility of prosecutorial misconduct, in
creating an atmosphere of hostility toward the accused.
Commonwealth v. Casper, 375 A. 2d 737, 743 (Pa. Super. Cr. 1977).
In the instant case, consideration of all faccors supports the |
conclusion that, in the absence of a change of venue, a fair
trial could not be had.
The publicity complainec of included newspaper articles
in three separate newspapers circulated in the community, and
several broadcasts on a popular radio show. (V. 8, 19, 35,
45-61). Second, the publicity included a re, rt of defendanc's
confession. (Brunswick News May 9, 1980) (Ex. D-25). It has :
been held that whenever a confession is featured in news media
coverage of a prosecution, change of venue should be granted
where requested. Oliver v. State, 250 S$. 2d 888, 390
(Fla. 1971). Third, the trial cccurred in a community of 18,
$57 residents. One of the victims was a popular and pro-
minent resident of the community, whose death, several days
after the shooting, became the focus of a laudable outpouring
of community warmth and sympathy. (Brunswick News June 6, 1980)
“(P) ervasive civic involvement in the fate of the victim, |
particularly when the events all transpire in a relatively smal
community, is a strong indication that venue should be changed.
.
Maine, supra 68 Cal. 2d 375 at 385, mn. 10. Fourth, the Glynn
County District Attorney provided the report of defendant's
confession to the news media. (T.23). If prejudicial publiciry
emanates from the police or prosecution, and not from an inde-
pendent source, “the government can hardly complain of incon-
venience (caused by change of venue) if it was responsible for
the dissemination of the damaging material.” United States v.
Bonanno, 177 F. Supp. 106,122, reversed on other grounds sub.
nom. United States v. Buffalino, 285 F. 2d 408 (2d Cir. 1960).
That at least some elements in the community felt hostility to |
—=——. _ -_s
the defendant is amply demonstrated by the unusual security
! preceutions taken at the trial (T.63-69), including the deten-
tion of defendant in a place outside Glynn County (T.66), as
well as by the cautionary instructions issued by the trial op
when the verdict and sentence were about to be announced (T.
f 1291,1368). Finally the Georgia Supreme Court failed to con-
, sider the magnitude of the crime charged, murder, and the seve-
i rity of the penalty, death, as bearing on the Likelihood of
| partiality. See Maine, supra 68 Cal. 2¢ 375 at 385. Therefor
the Court should grant certiorari to consider whether where
i defendant's confession is disseminated to a small community .
by the prosecution, and where the offense charged is the murder
of a popular and prominent member of that community, denial of |
'
| a motion for change of venue violates due process. |
| Both of the courts below placed too great weight on the
' one factor they did consider, the jurors’ responses on voir dire.
The Georgia Supreme Court stressed the small number of jurors
confessing to prejudice and the fact that all these were even-
f tually excluded by peremtory challenge. The unreliability of
voir dire responses was noted in State v. Shawan, 77 N.M. 354,
358, 423 P. 24 39 (1967). To expect a juror to confess pre-
judice is not always a reliable practice, since even a pre-
judiced juror could be completely honest in denying prejudice.
“All looks yellow to the jaundiced eye." Id at 358.
18 | |
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Particularly in the context of the proper standard of
review, petitioner's failure to use one of his peremptory
challenges cannot constitute ground for holding a change of
venue unwarranted. For,
(e)xperience shows that ... (defense
counsel is geeeee in an unnecessarily
awkward position: unless .e exhausts
all his peremptory challenges he can-
not claim on al, in the absence of
a specific s of prejudice, that
the jury was act Lapectial. Yet, con-
vinced that he must go to trial because
his motion for a venue change was at
first denied and in all likelihood will
not cen fail = ay ae
ory c » sensing chat the
jurors he has qneniasé may be compara-
tively less biased than other who may
be seated were his peremptory challenges
—. Maine, suora 65 Cal. 2d 375
at ,
Therefore, despite petitioner's failure to use all his chal-
lenges or renew motion for change of venue after voir dire,
denial of his initial motion violated due process.
---— —— -
_— —_—
Ill
SINCE THE JURY CONSIDERED AND FOUND
AGGRAVATING CIRCUMSTANCES THAT HAVE
BEEN DECLARED INVALID, PETITIONER'S
DEATH SENTENCE CANNOT BE PERMITTED
TO STAND.
The jury was led to believe that the aggravated sodomy
committed on one of the victims constituted an aggravating
circumstance that would justify imposition of the death penalty.
As the Supreme Court of Georgia correctly held, however, aggra-
vated sodomy is inno sense a capital offense, therefore a
killing committed during the course of an aggravated sodomy |
cannot be punished by death. Since it is impossible to deter- |
mine whether or jo what extent the jury relied on this invalid |
aggravating circumstance in arriving at its decision to re-
commend the death penalty, the sentence must be set aside.
See Stromberg v. California, 283 U.S. 359 (1931); Street v.
New York, 394 U.S. 576 (1969).
The Supreme Court of Georgia erred when it upheld peti-.
| tioner’s death sentence based on the other aggravating cir-
cumstances found by the jury. See Stephens v. Zant. 631 F. 2d
: 397 (Sth Cir. 1980), cert. gwanted U.S. _, October 5,
1981. The mere fact that a valid statutory aggravating cir-
: cumstance may have been present did not require the jury «oc
: recommend the death penalty. In theory, the jury considered
y both aggravating and mitigating circumstances (but see Point
| IW below regarding the likelihood that this jury made such an
inquiry) before coming to its determination that petitioner
| should die. Even if the jury was unanimous in finding all che
i aggravating circumstances (which it was not cold tobe re-
quired), different members of the jury may ave used different |
factors in making the decision to impose death. Certainly
no reviewing court can declare, with the degree of certainry
omen pane cases under Pn ROE - that the
-
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invalid aggravating circumstance played no role in the decision
to recommend a death sentence. See Woodson v. North Carolina,
428 U.S. 280, 303 (opinion of Stewart, Powell and Stevens, JJ.)
(1976); Stephens v. Zant, supra, 631 F. 2d at 406.
Affirmance of petitione: s» death sentences on the basis
that a valid aggravating circumstance remained violates the
principle announced by this Court that mandatory death sentence
are impermissible under the Eighth Amendment. Woodson v. North
Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 423 U.S.
325 (1976). The reviewing court's cavalier dismissal of the
fact that the jury was told it could consider an invalid factor
in deciding to impose death can only be justified if the pre-
sence of an aggravating circumstance requires imposition of a
death sentence; it is totally inconsistent with the ,otion
that the jury must balance aggravating and mitigating circun-
stances, retaining at all times the option to recommend life
imprisonment. The presence of an invalid aggravating circun-
stance injected into the jury's deliberations the kind of an
“arbitrary factor” expressly condemned by the Georgia statute
in compliance with this Court's ruling in Furman v. Georgia, |
628 U.S. 153, 206.
Iv
THE TRIAL COURT'S FAILURE ADEQUATELY
TO INSTRUCT PETITIONER'S JURY CONCERN-
ING ITS SENTENCING RESPONSIRILITIES
UNDER GA. CODE ANN. § 27-2534.1(b) --
ESPECIALLY AS TO THE NATURE AND SIGNI-
FICANCE OF MITIGATING CIRCUMSTANCES --
RENDERS PETITIONER'S DEATH SENTENCE
CRUEL AND UNUSUAL PUNISHMENT, IMPOSED
IN VIOLATION OF DUE PROCESS OF LAW
The court should grant certiorari to consider whether:
the mere mention of the words “mitigating circumstances” can,
without more, fulfill a trial court's constitutional duty to
guide a jury in its exercise of sentencing discretion in a
capital case.
A death penalty statute permitting a jury to decide,
arbitrarily and without legislative guidance, whether a
defendant is to live or die violates the Fighth and Fourteenth
Amendments to the Constitution. Furman v. Ceorgia, 498 U.S.
153, 238, 314 (1972) (White J., concurring). In Gregg v.
Georgia, 428 U.S. 153 (1976) the Court held Georgia's present
statute constitutional partly because “in the assessment of the
appropriate sentence to be imposed the judge ‘s ... require...
—— -—
to include in his instructions to the jurv ‘any mitigating
circumstances’ ". Id. that a proper charge should include
specific circumstances to be considered in mitigation:
These procedures require the jurv to
consider the circumstances of the crime
and the criminal before it recommends a
sentence...the jury's attention is fo-
cused on the characteristics of the
poate who committed the crime: Does he
ave a record of prior convictions for
cow we eee le
:
capital offenses? Are there any facts
i! about this defendant that mitigate
i against capital ounishment (e.g. his
youth, the extent of his co-operation
with the police, his emotional state at
i the time of the crime). As a result,
while some jurv discretion still exists,
‘the discretion to be exercised is con-
; trolled by clear and objective standards
, H so as to produce non-discriminatory
] application.’ Id. at 197-98.
:
Although Georgia's death penalty statute, “a. Core Ann.
§27-2503 and 2534.1 contains detailed lists of ageravating
circumstances, the Court apparently trusted the Georgia courts
to include specific mitigating circumstances in their charges.
Indeed, the Court suggested several examples. As to petitioner,
Gregg's promise of guided jury discretion has been betrayed.
The trial court's sentencing instructions violated
Furman and Gregg in three respects. First, the instructions
did not define "mitigating circumstances" for the jury. Some
members of a jury “who had never before made a sentencing de-
cision", Gregs, supra, 428 U.S. at 190, might not have under-
stood the meaning of the wont “mitigating”. Moreover, the
ee ee eee
court's failure to define mitigation stands in stark contrast
with its explicit and extensive deninitions of all aggravating
circumstances charged. The court gave no examples of miti-
gating circumstances. Nor did it inform the jury of its duty
| to undertake a “particularized consideration of relevant as- |
pects of the character and record of each convicted defendant."
| Woodson v. North Carolina, 428 U.S. 280, 302,303 (Stewart,
'
Powell, Stevens, JJ.) (1976). The subject was simply not
H covered.
‘| e
Second, the trial court failed to includs in its in-
structions to the jury several mitigating factors actually
i present. For example, the State's own psychiatrist testified |
that petitioner ‘ad been suffering for Seynra)] years from para-
noid-schizophrenia. He was only able to function while under
medication -- medication which he did not take on che day of
the killings. While this evidence may not have sufficed to
meet Georgia's icNaghton test for insanity, it did establish
diminished mental capacity. Diminished mental capacity is
widely recognized as a mitigating factor in capital cases. A
substantial majority of American jurisdictions retaining the
death penalty specify that the sentencer must give mitigating |
consideration to evidence of the defendant's mental or emotional
distrubance. See Liebman and Shepard, Guiding Capital |
Sen Disc + |
2 1 :
~~ oe ‘Sa tea uly ae Sil
oy 2 ae eS Poe SEE ; - t 3 : > Pe i
bP eae ee aes abe - = feeiaa ie he eR ee
aes
Mental Disorder as a Mitigating Factor, 66 Geo. L. J. 757,
794 n. 158 (1978). The trial court should have informed the
jury in terms as strong as those used in connection with the
aggravating circumstances that petitioner's state of mind and
mental history could militate against imposition of the death
penalty.
Additionally, uncontested evidence of petitioner's prior
character and record might well have convinced a jury, properl
informed as to the pertinence of that background, that peti- |
tioner did not deserve to die. Petitioner, 36 years old, had
no prior convictions. His only prior contact with the law con-|
sisted of two suicide attempts and a stint as county jailer. |
He was employed at the time of his arrest, and had labored as |
a preacher of the gospel. The circumstances of his life might
well have suggested to the jury that his actions were a tra-
gically inexplicable deviation from of lifetime of obedience
to the law and service to society, unlikely to be repeated.
Therefore the court erred in failing to charge defendant's
character and record as a mitigating circumstance.
Moreover, unrefuted evidence demonstrated that, on the
day of the killings, petitioner had withdrawn from his medi-
cation and had been dirinking heavily. In Harry Roberts v.
Louisiana, 431 U.S. 633,637 (1977) (per curiam) the Supreme
Court specifically mentioned “the influence of drugs” as an
example of a mitigating circumstance which a capital jury should
consider. The Gregg Court itself mentioned the defendant's
emotional state at the time of the crime as a mitigating
factor. Greyg, supra, 428 U.S. 153 at 198. The trial court
erred in failing to charge emotional state as a mitigating cir-
cumstance.
oe
The Greyg Court also mentioned the extent of a defendant's
cooperation with the police as mitigating. Id. Petitioner
went beyond cooperation: his fear that he “may have hurt some-
body” led him to insist that che police investigate his
possible involvement fully. Again, the trial court erred in
failing to charge cooperation as mitigating.
Third, the trial court's instructions were deficient in
failing to provide the jury with guidance on che proper re-
lation between aggravating and mitigating factors. See Coker
v. Georgia, 433 U.S. 584,589 (1977). The jury was simply told
that it should consider "all evidence submitted” and that all |
evidence “would include any evidence of mitigating circum- |
stances". The jury had no means of knowing that it had a duty |
to weigh mitigation against aggravation. A jury of people who |
had never before made a sentencing decision may well have con- |
cluded that mitigating circumstances could only be considered
if they found no aggravating circumstances.
As the Court of Appeals for the Lith Circuit has recently
reaffirmed:
...-Lockett and Bell, ... mandate that the
i "udge clearly instruct the jury about
witigating circumstances and the option
to recommend against death. Chenault
| v. peymchconbe . S581 F. 2d 444,008
c r rr
In oy of Lockett, Gregg, and Chenault,
we hold that The Zignf ane Fourtééntn
( Amendments require that when a jury is
charged with the decision whether to in-
pose the death penalty, the = must
| receive clear instructions not
i only do not preclude poe Pree tim of
X aitigeting factors, Lockett, but which
it also " le} and focuts] the jury's
objective consideration of the parti-
cularized circumstances of the individual
offense and the individual offender... ,"
gensat 2959-1 428 U.S. at 274, 96 S.
t. at m most cases, this will
mean that the judge must clearly and ex-
plicitly instruct the jury about miti-
gating circumstances and the ion to
recommend against death; in to do
so, the judge will normally cell che jury
what a mitigating circumstance is one
what its function is in the jury's
deliberations. stant
— F-4¢ __ ($1. Be
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Therefore, the Court should grant certiorari to consider
whether a trial court can possibly fulfill its constirutional
duty clearly to instruct a sentencing jury about mitigating
circumstances by the mere mention of such circumstances, with-
out definition, examples, or explanation of the role mitigation
must play in deciding whether a defendant is to live or die.
— ee eee
{
_
THE DEATH PENALTY CONSTITUTES CRUEL AND
UNUSUAL PUNISHMENT AS APPLIED TO A MEN-
TALLY ILL DEFENDANT WHO BECAME COMPLETELY
DISTRAUGHT WHEN HE LEARNED HE MIGHT HAVE
It is difficult to imagine that a jury, uninflu-
enced by the passions aroused in a small community that had
lost two respected citizens (see Point II above) and instructed
on the proper weight to be given to mitigating circumstances
(see Point IV above), would have seen fit to impose the death
penalty in this case. The genuineness, severity and long
history of petitioner's mental illness was uncontradicted.
Regardless of the particular psychiatric label that might be
attached to the disorder, it was clear that petitioner could
ication. Without the drug, he was likely to become very
nervous and Jepressed, and in extreme cases even go into what
function “normally” only when kept on potent antipsychotic “
|
he characterized as “black out" periods. |
As movingly described by several witnesses, Keily
Waters broke down and cried uncontrollably when he began to
suspect that he might have been involved in these killings. to
one suggested that his reaction was feigned-even the state's |
doctors, who testified that he passed the M'Naghten tesr,
agreed that petitioner was at all times honest in his responses.
Petitioner apparently did “black out” che entire episode, an
episode that took place while he was off medication and after
he had consumed a considerable quantity of alcohol. Surely
petitioner's mental state at the time of the killings, and
his deep despair after discovering what he had done, con-
stitute powerful mitigating circumstances milivating against
|
a Jeath sentence. |
|
'
Nor are these facts about petitioner's psvchiatric back-
ground outweighed by the aggravating circumstances found bv
the jury and urheld by the Supreme Court of Georgia. The
Statutory aggravating circumstances revolved around the fact
that each killing took place during the course of the kid-
napping with bodily injury (i.e. death) of the other victin.
The jury rejected as an aggravatine circumstance the notion
that the killings were “outrageously and wantonly vile,
horrible and inhuman in that [thev] involved torture and de-
pravity of mind.” Particularly since the kidnapping was
limited to a forced walk of one hundred yards, it seers
apparent that the jury could rely on the almost automatic
aggravating circumstance presented bv anv double homicide. To |
the extent that the jury relied on the aggravated sodomy, the
death sentence suffers from an additional infirmity, as demon- |
strated in Point III above.
'
In comparing this death sentence to other “similar” |
cases, the Supreme Court of Ceorgia chose cases involving men
who sexually assaulted and then killed women, often in parri-
'
'
cularly gruesome ways. ‘Since none of the cases involved a |
|
Fnumeration of Error #13 in the Supreme Court of Georgia areued
that insufficient evidence was presented to establish a tid-
napping.
For example, in “ibson v. State, 236 Ga. 374, 226 S.F. 24 4}
(1 /6) the defendant raped a woman (either before or after
death) and shot her in front of her four vear old child; in
Moore v. State, 249 Ga. 897, 243 S.©. 24 1 (1978) the defencant
and his accomplice robbed a store, abducted the 12 vear ol/
salesgirl, raped her tien stot “er in the face to prevent er
features from being identified; and in Yestbrook v. Strate, 24
Ga. 151, 2469 §.©. 24 524 (1978), the deFendart and “is accor-
plice raped an elderly widow, forced her to “rive to her ban*
to withdraw monev, abducted her and a neigtbor to whom she
called for help, tied and gagzed ther in the woods and bea’
them to death with a two by four piece of lumber.
ES
28
—-
defendant with a documented history of mental illness, the
Supreme Court of Georgia, like the jury, apparently considered
this mitigating factor irrelevant to the sentencing decision.
The cases are "similar" only to the extent that they ignore
entirely the individual characteristics and background of the
offender. It is respectfully submitted that the death
sentence imposed on petitioner constitutes cruel and unusual
punishment in violation of the Fighth Amendment to the United
States Constitution.
CONCLUSION
For the above-stated reasons, vetitioner
prays that a writ of certiorari be ¢ranted.
Respectfully submitted,
URSULA BENTELE
165 West End Avenue
; New York, New York 19923
ATTORNEY FOR PE’ ITIONER
Dated: December 24, 1981
ee 7s TO Pt ‘“ir7
VM WRS; cre rs
: LESION WITHA Oe
In the Supreme Court of Georgia
Decided. OCT ~& 198)
37629. WATERS v. THE STATE
GREGORY, J.
Appellant, Eurus Kelly Waters, was indicted May 13,
1980 for the murders of Anita Lynette Paseur and Kathryn
pom Calpenper. He was found guilty of both murders and
| sentenced to death. Waters’ defense was insanity, the
evidence is undisputed that Waters Filled Ms. Deseur and
Ms. Culpepper.
- At 6:33 P. M. om Friday, April 25, 1980, EMT's
(Emergency Medical Technicians) with the Jekyll Island Fire
j Department received a call reporting a shooting at a
' Phillips 66 station on Jekyll Island. When they arrived at
the station, Kathryn Culpepper was sitting in a red AMC
Gremlin automobile. She had a gunshot entry wound in her
| chest and an exit wound in the area of her left kidney. A
| pair of handcuffs was fastened to her left wrist. As she
| was being placed into the ambulance, she asked one of the
; EMT's to get her purse out of the car; however, he was
unable to locate it.
; A state trooper who had also responded to the call
| asked Ma. Culpepper wha: had happened. She told him that |
i she and = girlfriend had been fishing, a white male
had pulled a gun on them, made them march into the woods, —
handcuffed them, sexually assaulted her, and then shot both
of them. She thought the other woman was dead. )
a
eae E = sere —
a sed wo. OO or
7
The body of the other woman,Anita Paseur, was found
approximately two miles south of the Phillips 66 station in
|
:
what is known as the New Marina area of Jekyll Island. She
was lying on her back, clothed from the waist up, with her |
bathing suit bottom and shorts pulled down to her ankles.
She had a bullet wound in the upper left part of her chest.
A later autopsy showed that Ms. Paseur's death resulted from
the gunshot wound. A .38 caliber bullet was removed from
her during the autopsy. A GBI agent, using « metal detector
|
:
at the crime scene, found another .38 caliber bullet under
| some leaves about 10 feet from where Ms. Paseur had been
found. c
GBI agent Scott Curley talked to Ms. Culpepper in the
| hospitel. He obtained a description of the killer, his car.
, his gun and holster, and Ms. Culpepper's missing pocketbook.
| Agent Curley then posted a lookout for a whice male in his
late thirties, of average height, with light brown hair and
light blue eyes, having a country accent, and wearing a
light blue shirt, dark blue pants and bleck shoes; for an
older model white, 4-door Pontiac or Buick automobile with a
=
ee Sm
Georgia tag; for a .38 or .357 police-type revolver; for a
black leather holster; and for a burgundy colored, John
| Romain shoulder bag containing personal items belonging to
Kathryn Culpepper died April 30. The cause of her
' death was excessive fluid around the heart and the peri-
| candien, caused by the tseuna Gizectly benceth ber hesrt. in
the liver and pancreas, which in turn was caused by the
bullet wound. '
“it
Eurus Kelly Waters was a cab driver in Waycross. tie
worked half a day Wednesday, April 23 and Thursday, April
24. He did not work at all on Friday.
Dorothy Googe was lying by herself on the beach at
Jekyll Island early Friday afternoon. A fully dressed man,
| wearing long, dark pants, @ blue shirt, and black shoes,
walked by her toward the picnic area. He returned twice
during the next few minutes to show her some shells he had
| collected. The second time, Ms. Googe told him she d‘dn't
want any company. When he approached her a third time, she
' gold him she had to go down to where her husband and son
were and she left. The man spoke with a country accent.
Ms. Googe later identified Waters, by means of a photo-
graphic lineup, as the man on the beach.
Between 4:30 and 5:00 P. M. Friday, Brantley County
Deputy Sheriff Jerry Rowell was travelling vest on Highway
84. As he came over the top of the Satilla River Bridge, he
had to slow down to 20 miles per hour behind a white 4-door
} 1974 Chevrolet. After following the car for a while, Deputy
Rowell, suspecting the driver was intoxicated, stopped the
il car. When the driver opened his door, Rowell saw a Motorola
| police-type radio on the transmission hump and asked the
| @river if he worked for @ timber company. The driver told
; him no, he was 4 part-time cab driver in Waycross. Deputy.
| Rowell decided the driver was not intoxicated and let him |
: j proceed. He later identified Waters, by means of a photo-
) | graphic lineup, as the driver of the car.
"gm the afternoon of Thursday, May 1, 1980, Ms.
Culpepper's burgundy colored, John Romain shoulder bag,
containing various credit cards but no cash, was found on
—— ——
-3-
: the west bank of the Satilla river just under the Satilla
River Bridge i/ The Satilla River Bridge is 33.2 miles
from the New Marina area of Jekyll Island.
Waters told his wife, Helen, when he got home the
evening of the 25th that he was late because he had got
stuck in the swamp. He went back to work Saturday. Next
| Tuesday, April 29, Helen Waters read an article in the paper
| about the murders om Jekyll Island. The article gave a
description of the suspect. She turned to her husband and
| said, “Kelly, this murder, these things that's happened on
| Jekyll Island, this description fits you.” Waters looked at
| her for a few seconds and then said, “call Judy.” When Judy
, Petty, Waters’ sister, arrivec, Waters started crying and
paid, “Sister, I think I may have killed some people. If I
shave done this thing, I want to die.” He continued crying
| for most of the rest of the evening. Ms. Waters got her
husband's gun, which was fully loaded, out of the bedroom
| dresser and hid it under the sink. A few minutes later,
another of Waters’ sisters, Georgia Rainey, end her husband
arrived. Mr. Rainey got the gun out and smelled it to see
| if it had been fired. He couldn't smell anything. He un-
4 loaded the gun and Ms. Waters hid the bullets under the
| television and put the gun back under the sink. After some
: discussion, the family decided not to call the police at
parva Ms. Petty would try to get in touch with a
friend of hers, Ed Dixon, a Glynn County policeman, and ask
. him what to do.
“ Waters and his wife spent Tuesday night with Judy Petty
in Brunswick. The next morning, the three of them went.
pee
to the mental health clinic in Waycross that had been _
treating Waters since 1978. He was given a shot of
Prolixin Decanoate, a long term major soaneestiens.”
Waters told his family that he wasn't sure where he was
Friday but he thought he had got stuck in the swamp and
had broken a shovel trying to dig his car out. They went
to see if they could find the place. Waters drove toa
place showing signs that an automobile had been stuck.
Nearby was a broken shovel handle. Waters spent Wednesday
might at home.
Ms. Petty finally reached Ed Dixon Saturday, May 3.
Sunday afternoon, Waters’ pistol was given to Dixon, who
truned it over to GBI agent Curley. / Mondey afternoon
Agent Curley and Detective Wofford went to the Waters’
. Tesidence in Waycross and asked Waters to accompany them to
the State Patrol station in Waycross, two or three miles
from Waters’ house. There, after advising Waters of his
rights, Agent Curley interrogated him. Waters said he
couldn't really remember what he had done Friday afternoon
but thought he may have got stuck in « swamp. He remembered
that he had been wearing a light blue shirt, dark blue
trousers and black boots. He admitted owning the ij
caliber pistol that had been given to Agent Curley. He
admitted owning a black leather holster and a pair of
handcuffs, but he couldn't remember where the cuffs were.
He agreed to go back to the house to allow Agent Curley to
By By Aydt Aye op dy yy Fe
term meant at least two weeks and maybe three or four.
7
look at the clothes, the holster and the ammunition for the
gun.
-
They went back to Waters’ house. Helen Waters got
| the ammunition and the holster and gave them to Agent
Curley. Waters retrieved a light blue shirt and dark blue
pants that he identified as being the ones worn by him on
April 25th. At 4:15 P. M., Monday, May 5, 1980, Waters
was placed under arrest.
On Wednesday, May 7, 1980, Agent Curley again
_ Guestioned Waters. Curley told Waters he had been seen on
Jekyll Island about 1:00 P. M. April 25th. Waters res-
ponded that he had been drinking that week. Agent Curley
told Waters he thought Waters had done the killings.
Waters looked down and then said, “All right. I'll tell
you what I remember. I remember being on the beach that
| Friday. I remember shooting those two women. I saw them
fishing, and I pulled my gun on them and sexually assaulted
them. I remembered last night what happened “ He went on
to sey that he saw the two women fishing and watched them
, a while. As they were getting ready to leave, he walked
up to them, pulled his gun out of ae hip pocket and made
them accompany hia into the woods. He gave the older
woman (Ms. Culpepper) the handcuffs and ordered her to
handcuff herself to the younger woman (Ms. Paseur). He
admitted having oral sex with the older cia He said
he shot the two women because after he | ee with
the oldest one, they flinched toward him.” He sai¢ he
the
Taa"geane with hin or he oula chsot chen. ~
oo an oe ae Gmasinee. oe Am. § 26-2002
ite both anal orel sex. Waters
| lltanes sodomy 18 facie
ee
—-_— —
oe _- -— -—<- —— ——— a
;
did not touch the younger woman except to tear her clothes
off after he shot her. He said that as he left, he got a
pocketbook out of their car. took seven dollars out of it,
and threw the rest off the Satilla River bridge on the way
home. He remembered being stopped by a deputy right after
he threw the pocketbook away. When he got home he sprayed
his gun with degreaser, reloaded it, and put it up.
. Agent Curley showed Waters an aerial photograph of the
New Marina area of Jekyll Island. Waters marked on the
photograph where he had parked his car and where the women
had been fishing. He drew a line indicating his path from
the place of abduction to the place where the sex act and
killings had caken re The last area he indicated was
; precisely where the body of Ms. Paseur had been found.
Roger Parian of the State Crime Lab examined the
bullets and the gun. Five of the six bullets given to
Agent Curley by Ms. Waters were Federal brand, .38 caliber
Plus P semi-wadcutter hollow point cartridges. The other
was a Federal brand, .38 Plus P round-nose lead cartridge.
The bullet removed from the body of Ms. Paseur and the
bullet found at the murder scene were .38 caliber semi-
wadcutter hollow point lead bullets, probably Federal brand.
The two death bullets had six lands and grooves with «
right-hand twist and were probably fired from a Taurus or .
Rossi brand revolver. Test bullets fired from Waters’
Taurus revolver showed similar lands and grooves but had
microscopic striations distinctly different from those on |
the two death bullets. A subsequent examination of the
barrel of Waters’ gun with a stereo microscope revealed
randomly placed nicks and gouges throughout the barrel,
|
‘possibly causéd by the insertion of s hard object such ss 4
screwdriver into the barrel.
.
om
ath Ove
t
Waters’ testimony during the trial was basically
consistent with hisconfession. Additionally, he testified
that he had twice tried to commit suicide. In 1964 he shot
himself in the stomach with a .22 caliber rifle. In 1966 he
drank a mixture of rubbing alcohol and white linamenct. He
testified that he had been on medication for some time and
that if he didn't take the medicine for three or four days,
. he would get very upset and emotional. He testified that
he had not taken his medicine for several days prior to
the killings.
Dr. Wiley Lewis began treating Waters in 1978 for an
unspecified mental illness whose symptoms included agi-
tation, anxiety, and restlessness. As a part of the
treatment, Waters began taking Thorazine. Dr. Lewis
testified that the last time he saw Waters, in July, 1979,
Waters knew the difference between right and wrong.
On October 30, 1978, Waters went to the mental health
elinic in Waveross. The psychiatric nurse who saw him
recommended he continue taking his Thorazine and return
November 8, 1978 for an evaluation by Dr. Lorenze
_ Lecumberri. Dr. Lecumberri, a psychiatrist employed by the
' State of Georgia at the Georgia Regional Hospital in
_ Savannah, examined Waters and diagnosed schizophrenia,
; paranoid type. He took Waters off Thorazine and put him on
Mellaril. Dr. \ecumberri testified that Mellaril improves
_ thought, decreases activity and controls anger and hosti-
lity. Dr. Lecumberri last saw Waters November 26, 1979, at
which time Waters was not psychotic, was in good contact
with reality, and knew the difference between right and
“cm
/
Waters returned approximately every four weeks to the
| mental health clinic for medication monitoring until March
19, 1979. He did not return thereafter until April 30, when
as previously stated, he was given an injection of Prolixin
Decanoate.
After Waters was arrested, he was examined by Dr.
| Miguel Bosch, a psychiatrist in charge of the forensic
psychiatric service at the Georgia Regional Hospital in
| Savannah, and Jerry Bowman, a psychologist for the forensic
services program at the same hospital. Dr. Bosch concurred
in the previous diagnosis of paranoid schizophrenia.
However, he found Waters to be well oriented as to time,
place, person, and situation. waters’ speech was coherent,
relevant, and logical, and his thought processes showed no
confusion or disorganization. He was not actively psychotic
at the time of the examination nor, in Dr. Bosch's opinion,
at the time he killed the two women on Jeky.1 Island. It
was Dr. Bosch's opinion that on April 25, 19€0,Waters was
able to judge right from wrong and was not acting under the
influence of a delusional compulsion. Ms. Bowman testi-
fied that she was unable to form an opinion as to whether
Waters knew or did not know right from wrong on April 25,
1980.
Waters was sent to Central State Hospitsl in Milledge-
ville for additiomal evaluation. He was examined by Dr.
Hosea M. Delatorre, the medical director of the forensic
sérvices division at the hospital, and Dr. Gerald Lower, the
chief psychologist of the forensic services division.
Dr. Delatorre did not concur in the diagnosis of |
schizophrenia; his diagnosis was anxiety neurosis. He
" .
é
testified that a person who feels anxious reacts differ-
ently than normal people, exaggerates his actions, and
perhaps penenee violent at times, but is always in good
contact with reality. In his opinion, Waters knew the
difference between right and wrong at the time of the
examination. Dr. Lower concluded that Waters knew the
difference between right and wrong at the time of the
offense.
Several lay witnesses, including Ben Rainey, Water's
brother-in-law, and Bobby Gene Strickland, a long time
friend of Waters, testified that Waters knew the difference
between right and wrong.
THE GUILT-INNOCENCE PHASE
(1) Defendant claims the trial court erred in denying
his motion for change of venue. When a defendant moves for
a change of venue, a trial judge must “hear evidence by
affidavit or oral testimony in support of or against the
motion; and if, from the evidence submitted, the court shall
be satisfied that an impartial jury cannot be obtained to
try the case, the judge shall transfer ic..." Code Arn.
§ 27-1201. Defendant's motion came on for a hearing
December 2, 1980. Defendant presented testimony from
representatives of the Florida Times Union, the Savannah
Morning News and the Savannah Evening Press, the Brunswick
News, and radio station WMOG. Thirtyfive exhibits, con-
sisting of articles from the newspapers and transcripts of
radio broadcasts, were introduced into evidence. These
accounts, most of which had apparently occurred several
months prior to the hearing, were largely factual in
-10-
——— =
| aoe
9/ :
mature. § Compare Murphy v. Florida, 421 U. S. 794 (95 SC
2031, 44 LE2d 589) (1975). The State offered testimony from
various witnesses, including several defense attorneys, that
Waters could get a fair trial in Glynn County.
“The decision to grant a change of venue lies within
the discretion of the trial court, and its discretion will
mot be disturbed absent an abuse of that discretion...The
test adopted by this court in determining whether or not a
change of venue should be granted is whether the jurors
summoned to try the case have formed fixed opinions as to
guilt or innocence from unfavorable pre-trial publicity.”
Patterson v State, 239 Ga. 409, 418 (238 SE2d 2) (1977).
Accord, Messer v State, 247 Ga. %16(4) (276 SE2d 15) (1961);
Jordan v. State, 247 Ga. 328(5) (276 SE2d 224) (1981).
This case was tried January 19 through January 24,
1981. Seventy prospective jurors were examined. Most of
them had heard at least something about the killings on
Jekyll Island and the subsequent search for the killer.
However, only twenty entertained any opinion at all as to
dGefendant’s guilt; only sixteen were challenged by defendart
for prejudice resulting from pre-trial publicity; and only
ten were excused by the trial court because they had stated
they would not be able to put aside any prejudice arising
out of the pre-trial publicity and render a verdict based
upon the evidence. Only 22.9 per cent of the veniremen
ts themselves were no clu the
| record on appeal. However, testimony concerning them,
| contained in the record, is sufficient to support the
_ f above assertions.
se? ee Six jurors were disqualified because of their con-
ientious objections to the death penalty. One Or was
ied of his service on the grand jury that
had indicted Waters. Two others were st , because of
bebe -&
> o_~ee +
p mPa
?
were challenged by the defendant for prejudice resulting
from pre-trial publicity and only 14.3 per cent were
excused because they had fixed opinions of defendant's guilt
as a result of pre-trial publicity. Either percentage would
corroborate the absence of prejudicial community bias and we
conclude the trial court did not abuse his discretion in
denying defendant's motion for change of venue. Messer v.
State, supra.
(2) Defendant claims the trial court erred in refusing
to disqualify five potential jurors because the answers they
gave during voir dire showed them to be prejudiced as a
result of pre-trial natasten
All of the five jurors admitted they had formed a
belief as to defendant's guilt based on newspaper articles
or radio newscasts. None had either seen the crime com-
mitted or heard any evidence under oath. One said initially
that the defendant would have to put up evidence to overcome
her belief of his guile. However, they all said they
could put aside any preconceived notions they might have and
decide the case based on the evidence presented and the law
as charged to them by the court. Four of them, including
’ the one who initially indicated the defendant would have to
‘ > , 131 Ga. . 2) (206
1 Be Sts Bape, Hse 18 an sy
put up evidence, were informed of and indicated agreement
with the defendant's presumption cf innocence and the burden
Il7 As statec previously, detencant unsuccessiully
Challenged six jurors for prejudice result from pre-
trial publicity. Defendant does not appeal from the trial
court's ruling as to the last of those six, probably
because the jury, including two alternates, was entirely
selected before this sixth juror was reached.
--12- "
, ~— —e -
——_
33/
of proof resting on the State.” =
“when a prospective juror has formed an opinion based
on hearsay (as opposed to being based on his having seen the
crime committed or having heard the testimony under oath),
to disqualify such individual as a juror on the ground that
he has formed an opinion on the guilt or innocence of a
defendant, the opinion must be so fixed and definite that it
would not be changed by the evidence or charge of the court
upon the trial of the case." Tennon v. State, 235 Ga. 594
595-96 (220 SE2d 914) (1975), Accord, Taylor v State, 243
Ga. 222 (253 SE2d 191) (1979).
“Our strict rules as to juror disqualification for
favor are offset by the large number of peremptory strikes
allowed a defendant in most felony cases, 20 strikes for the
defendant, 10 for the prosecution.” Jordan v State, supra,
247 Ga. at 340.
The trial court did not err in refusing to grant
defendant's challenges for cause.
(3) During voir dire, defendant's counsel asked one
of the prospective jurors: “If the State's evidence shows
that Mr. Waters did the shooting, and if he himself said he
did the shooting, would you be willing to listen to any
other evidence about how it could have happened? [the
juror: If he states...}] Say he wasn't in his right mind
when he shot them, woulc you listen to that?" The State's
objection to the question was sustained by the trial court.
Defendant contends the trial court erred in so ruling.
t ‘defendant's presumption of
innocence and the ee le of proof . Seas on the State were
de See division (3) of th eye opinion, res Sig i eye
—— <r ee
Code Ann. § 59-705 outlines the permissible scope of
voir dire. Jordan v. State, supra 247 Ga. at 339. Voir
dire sheslé atlow both parties an opportunity to ascertain
the ability of the prospective jurors to decide the case on
‘tes merits, with objectivity and freedom from bias and
prior inclination. Whitlock v. State, 230 Ga. 700 (198
SE2d 865) (1973). However, no question should require a
response from a juror which might amount to a prejudgment
of the case. Jones v. Parrott, 111 Ga. App. 750(2) (143
SE2d 393) (1965). Since the distinction between questions
° which ask jurors how they would decide issues of a case if
and when such issues are presente: and questions which
merely inquire whether jurors can start the case without
bias or prior inclination is not always crystal clear, the
“control of the voir dire examination is vested in the
sound legal discretion of the trial judge and will not be
interfered with by this court unless the record clearly
shows an abuse of that discretion.” Lamb v. State, 241 Ga.
10, 12 (243 SE2¢ 59) (1978).
Hypothetical voir dire questions are not per se
improper, Atlanta Joint Terminals v. Knight, 98 Ga. App.
482(4) (106 SE2d 417) (1958), but a trial judge should be
cautious in allowing counsel to propound questions which
ask the juror to assume that certain facts will be proven.
Such questions tend to improperly influence jurors. See,
generally, 9° ALR2d 7, Anno: Jury Voir Dire-Hypothetical
_ Question.
ee | The question propounded was ambiguous and confusing.
Defendant's counsel now contends he was merely trying to
2 are whether the juror would refuse to consider an
Re.
ee sie He * “-l4e 3 | 6 en
—— ete me —_— — } ——_——— —_— edu
insanity defense regardless of the evidence or the charge
of the court. However, the trial court, while sustaining
the objection to the question as asked, informed counsel
that he would be allowed to ask the juror if she would
consider an insanity defense in light of the charge of the
court, provided counsel did not attempt to predict what the
evidence would show. Counsel chose not to ask the question
in the manner suggested by the trial court. The juror did
later state that she could decide the case based on the
evidence presented and the law as charged by the court.
We find no abuse of discretion and no merit to this enumer -
ation of error.
(4) Defendant claims the trial court improperly sus-
tained the State's objection to the following hypothetical
question asked of Dr. Wiley Lewis, a medical doctor engaged
im general practice in Waycross: “If the patient, Kelly
Waters, on April 25, 1980, went up to two womer. whom he'd
never seen before in a remote area of Jekyll Island, Georgia,
caused them to be handcuffed together, caused them to lie
down, caused one of them to undress from the weist down,
committed oral sex with one of them, with that one, and then
upon their flinching shot both of them with a .38 caliber
revolver, what would be your opinion as to his mental
condition?”
«The State's objection was that the defendant was asking
the witness to draw a conclusion based on facts with which
the witness was not personally familiar. However, a witness
whé has qualified as a practicing physician is qualified to
She was
and did not mot serve on the jury
—-
testify as an expert witness on ‘the question of sanity.
Williams v. Trust Company of Ga., 180 Ga. 73(2) (178 SE 295)
(1934); Petty v. Folson, 229 Ga. 477 (192 SE2d 246) (1972).
The opinion of an expert “may be given on the facts as
proved by other witnesses." Code Ann. § 38-1719. The
question should have been allowed, and the trial court erred
in sustaining the State's objection.
Later in the trial, the court told defendant's counsel
that, after further consideration, he was not sure the
question was improper and if counsel wanted to recall the
witness and repeat the question the court would allow him to
do so. Defendant was, in fact. allowed to ask virtually
identical hypothetical questions of two other doctors. Dr.
Lecumberri was unable to answer the question. Dr. Bosch
responded that the question had two answers: the person knew
what he was doing, or the person did not know what he was
doing; either would be consistent with the hypothetical
facts. After neither of these two witnesses could answer
the hypothetical questions, defendant elected not to recall
Dr. Lewis.
In view of defendant's failure to re-ask the question
when provided an opportunity to do so, we find this enumer-
ation of error to be without meric.
(5) Defendant contends the trial court improperly
sustained the State's objection to a question propounded to
Bobby Gene Strickland, a co-worker and friend of defendant
for seven or eight years: "Now, the kind of fellow that
you knew Kelly Waters to be, and from the length of time
that you had known him, would you say that, in your opinion,
| .
if he had kept the same facultiés about him that you knew
him to have and retained the same personality you knew him
to have, do you think he was the kind of man that could
have shot two women?”
Strickland had already testified that Waters had always
acted normal to him; Strickland noticed nothing unusual
about his behavior. Strickland testified Waters didn't
¢rink much, never got into trouble; he was a well-behaved,
accommodating, somewhat timid person. He subsequently
testified that Waters was sane and knew the difference
between right and wrong.
Defendant contends the question asked for an opinion
as to his mental competence and th.t the court erred in
sustaining the objection to the question because it kept
the witness from expressing an opinion on a crucial point
of Waters’ defense of insanity. The State concedes a lay
witness may ordinarily give his opinion as to the state of
mind or mental condition of another, see, Dix v. State,
238 Ga. 209(2) (239 SE2d 47) (1977) and Jarrarc v. State,
206 Ga. 112 (2,3,4,5) (55 SE2d 706) (1949), but argues a
lay witness may mot answer a hypothetical question incor-
porating facts not testified to by the witness. See,
Callahan v State, 209 Ga. 211(2) (71 SE2d 86) (1952). al
We cannot agree that the question was improper because
it incorporated facts not testified to by the witness.
However, we do not agree with the defendant that the trial
court erred in sustaining the State's objection to the
pos
———_
—— —_—_—— «+
Strickland could not give 4n opinion as to defendant's
sanity at the time of the offense; he wasn't there, and a
lay witness must testify from personal observation. He
could, and did, testify that Waters was sane and acted
normal prior to the murders. This, of course, was circum-
stantial evidence that Waters was sane at the time of the
offense. It is apparent that the question was designed to
show indirectly what could not be shown directly: that
Waters was insane at the time of the offense. Defendant
wished to show inferentially that since he was ordinarily
not the kind of mam that would shoot two women, he must
have been insane when he did in fact shoot two women. The
question did, therefore, as defendant contends, relate to
his defense of insanity.
The question, essentially, was: “Was the Kelly Waters
you knew the kind of man that could have shot two women?”
The question calls for an opinion of the defendant's
character. Character is circumstantial evidence of conduct
and state of mind. McCormick on Evidence, Ch. 17, § 188
(24 Ed. 1972). A person is more likely to act in accord
with his character than contrary to it. Green, Ga. Law of
Evidence, § 65, p. 160. Thus a defendant may present
evidence of his good character as a substantive fact
indicative of his imnocence. It may, by itself, create a
reasonable doubt as to his guilt. Seymour vy. State, 102 Ga.
803, 805 (30 SE 263) (1897).
However, the rule in Georgia is that good character
may be proved only by testimony of a witness as to the
‘Teputation of tne person whose cherecter is in iseve.
—e oe!
Powell v. State; 102 ga. 9 (29 SE 309) (1897); Wilson y—
State, 190 Ga. 824(3) (10 SE2¢ 86) (1940). Subject to
minor exceptions, the opinion of a witness as to character
based on personal observation is not an approved way of
introducing evidence of character. Agnor's Georgia
Evidence, § 10-4, p. 166. Therefore, the trial court did
mot err in disallowing defendant's question calling for
such an opinion.
(6) The trial court did not err in refusing to give
defendent's request to charge on insanity. “The failure to
give requested instructions in the exact language requested,
where the charge given substantially covers the same
principles, is not grounds for reversal." Kelly v. State.
241 Ga. 190(4) (243 SE2d 857) (178).
(7) The trial court did not err in charging the jury
on flight as evidence of guilt. That Waters did not remain
at the scene of the offense is circumstantial evidence of
his guile and of his knowledge of his guilt. This is
particularly true when coupled with his efforts to conceal
evidence (throwing the purse into the river and spraying
the gun with degreaser).
(8) The evidence presented at trial has been set out
previously in great detail. The evidence supports the two
guilty verdicts and the necessarily included finding by the
jury that Waters was sane.
THE SENTENCING PHASE
After finding Waters guilty on both counts, the jury
found three aggravating circumstances as to each murder.
As to Count One of the Indictment (the murder of Anita
~- ‘Paseur), the jury found the murder was committed during the
‘ *
a4 he
?
commission of the capital felonies of kidnapping with
bodily injury of Kathryn Culpepper, the murder of Kathryn
Culpepper, and the aggravated sodomy of Kathryn Culpepper.
As to Count Two of the Indictment (the murder of Kathryn
Culpepper), the jury found the murder was committed during
the commission of the capital felonies of kidnapping with
bodily injury of Anita Paseur, the murder of Anita Paseur,
and the aggravated sodomy of Kathryn atten The
jury recommended the punishment of death as to each count.
(9) Defendant contends the trial court should not
have charged kidnapping to the jury during the sentencing
phase of the trial because there was no evidence to show a
kidnapping occurred, in that there was no “abduction” or
“stealing away.”
“A person commits kidnapping when he abducts or steals
away any person without lawful authority or warrant and
holds such person against his will.” Code Arn. § 26-1311.
The undisputed evidence showed that Waters forced two
women at gunpoint to march 100 yards from their car to a
woods. The evidence thus shows a kidnapping did occur.
See Brown v. State, 132 Ga. App. 399(2) (208 SE2d 183)
(1974); Carroll v. State, 143 Ga. App. 230 (237 SE2d 703)
(1977); Rubiano v. State, 147 Ga. App. 142(2) (248 SE2d 207)
(1978).
(10) The trial court did not err in failing to charge
whether or not aggravated sodomy can constitute bodily
injury, with respect to the aggravating circumstance of
vidnapping with bodily injury, in the absence of a request
for such a charge by the defendant or the jury. That Code
Ann. § 26-1311 does not define “bodily injury” does not
render that pertion of the statute punishing kidnapping
with bodily injury unconstitutionally vague. Peek vy.
‘State, 239 Ga. 422(4) (238 SE2¢ 12) (1977). A bodily
injury includes amy injury to the body. Since both victims
of the kidnappings were killed, they received injuries to
their bodies. The failure of the court to instruct the
jury that an aggravated sodomy can constitute a bodily
injury within the meaning of the kidnapping statute,
Presnell v. State, 243 Ga. 131(1) (252 SE2d 625) (1979),
could only have been beneficial to the defendant.
(11) Defendant contends aggravating circumstance
number one of Count Two (alleging the aurder of Kathryn
Culpepper was committed while the offender was engaged in
the commission of another capital felony, kidnapping with
bodily injury to Anita Lynette Paseur) is not supported by
the evidence. He says the only bodily injury received by
Ms. Paseur was the gunshot wound that killed her and that
her murder cannot constitute the bodily injury component
of her kidnapping because aggravating circumstance number
three of Count Two alleges that the murder of Ms. Culpepper
was committed while the offender was engaged in the
comaission of another capital felony, the murder of Anita
Paseur. Therefore, says defendant, one murder is used to
support two aggravating circumstances. This contention is
incorrect. Kidmapping with bodily injury and murder are
‘two separate crimes, that is, one is not included in the
lother, even if the homicide is the bodily injury of the
’
-21-
kidnapping. Potts v. State. 241’Ga. 67 (11) (243 SE2d 510)
(1978); Stephens v. Hopper, 241 Ga. 596(1) (247 SE2d 92)
(1978); High v. State, 247 Ga. 289 (12) (276 SE2d 5) (1981);
Brown v. State, 247 Ga. 298(9) (275 SE2d 52) (1981).
Since there is no bar to using the fatal injury to Ms.
Paseur as the bodily injury component of the capital felony
of kidnapping with bodily injury, even though the same
fatal injury supports the capital felony of murder, it
follows that aggravating circumstance number one of Count
Two was supported by the evidence.
(12) The imposition of the death penalty for the
murder of Kathryn Culpepper is supported by the aggravating
circumstance that her murder was committed during the
murder of Anita Paseur. The deat. penalty for the murder
of Anita Paseur is supported by the aggravating circumstance
that her murder was cocmitted during the murder of Kathryn
Culpepper. The two aggravating circumstances are therefore
mutually supporting within the meaning of Grejg v. State,
233 Ga. 117 (210 SE2d 659) (1974). Compare Peek v. State,
supra, 239 Ga. at 429; Strickland v. State, 247 Ga. 219 (23)
(275 SE2¢ 29) (1981). Ome aggravating circumscance must be
set aside. We arbitrarily eliminate the aggravating cir-
cumstance supporting the death penalty for the murder of
Kathryn Culpepper, that the murder was committed during the
murder of Anita Pageur.
(13) Two other aggravating circumstances, that the
murders of Ms. Culpepper and Ms. Paseur were committed
during the commission of another capital felony, the aggra-
vated sodomy of Ms. Culpepper, must also be set aside.
pate Ann. § 26-2002 (Ga. L. 1968, pp. 1249, 1299) provides
that a “person convicted of ageravated sodomy shall be x
punished by imprisonment for life or by imprisonment for not
less than one nor more than 20 years." While “capital
felony” as that term is used in Code Ann. § 27-2534.1(b)(2)
includes felonies which were capital crimes in Georgia at
the time this section of our death penalty statute was
enacted in 1973, ewen as to those offenses for which the
death penalty may, as a result of judicial construction, no
longer be imposed, Peek v. State, supra, the present
aggravated sodomy statute has never provided for the death
penalty. Code Ann. § 26-2002 provides for a naxinun of life
imprisonment. Thus, aggravated sodomy is not a “capital
felony” in any sense of that term. Since it is not other-
wise listed in § 27-2534.1(b)(2), it may not be used as a
(b)(2) aggravating circumstance to support a death penalty.
—“(14) There rezain the following aggravating circum-
stances: As to Count One of the indictment (the murder of
Anita Paseur), the murder was committed during the com-
mission of two other capital felonies: Kidnapping with
bodily injury of Kathryn Culpepper; murder of Kathryn
Culpepper. As to Count Two of the Indictment (the murder of
Kathryn Culpepper), the murder was committed during the
commission of another capital telony: xidnapping with bodily
injury of Anita Paseur.
SENTENCE REVIEW
The death penalties imposed in this case must be
reviewed by this court under the standard set forth in
Code Ann. § 27-2537(c)(1-3). Thus, we must determine
whether the sentence of death was imposed under the influ-
ence of passion, prejudice, or any other arbitrary factor;
ss“.
wvtas sSfaies
ah ae —s ml i Pa
- —— —————— A ee — “-—< —
whether the evidence supports the jury's finding of the
statutory aggravating circumstances; and whether the sen-
tence of death is excessive or disproportionate to the
penalty imposed in similar cases considering both the crime
and the defendant.
15. Upon review of the entire transcript and record in
this case, this court concludes that the sentences of death
were not imposed under the influence of passion, prejudice,
or any other arbitrary factor.
16. The evidence supports a finding of the aggravating
circumstances, as set forth in division 14, by a
rational trier of fact beyond a reasonable douot. Jackson v.
Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Although for reasons noted in divisions 12 and 13, we
have set aside three aggravating circumstances found by the
jury, the failure of one or more aggravating c.rcumstance
does not taint the proceeding so as to invalidate the other
aggravating circumstances found by the jury in the sentence
of death based thereon. Burger v. Stare, 247 Ga. 698 (
SE2¢ ) (1981).
17. We have reviewed the trial court's charge to the
jury and find it is not subject to the defects dealt with in
Hawes v. State, 240 Ga. 327(9) (240 SE2d 833) (1977),and
Fleming v. State, 240 Ga. 142(7) (240 SE2d 37) (1977). Here
the charge included application of mitigating circumstances
and informed the jury they could recommend life sentences
even if they found the existence of a statutory aggravating
circumstance.
. -246-
(18) In reviewing the death penalty in this case, we
have considered the cases appealed to this court since
January 1, 1970, in which death or life sentences were
imposed and find that similar cases listed in the appendix
attached hereto support the affirmance of the death pen-
alties in this case.
Defendant contends the death penalties should be set
aside because the murders occurred at a time when he was
under no medication, was drinking alcohol and was alone at a
remote fishing spot with a pistol and handcuffs and
encountered two women. Defendant contends that some
emotional force was acting upon him that was sufficient
to dethrone his reason and silence his inhibitions. He
cont nds that for the good of society he ought to be
allowed to live so that his particular personality can be
studied. We disagree. The evidence clearly shows that
Waters was not incapacitated or unable to fo:m the
requisite criminal intent. Aside from the medical testimony
as to his competence, we note that Waters came to the
beach with his pistol and a pair of handcuffs a:d approached
at least one other woman before he kidnapped and murdered
the victims in this case. He fled the scene imnediately
after the murders, discarded the pocketbook he stole and
took the time after he got home to clean and reload his
gun. “Juries have given the death penalty in cases in
re is aiso ev te someone
barre! of the gun in a way that would ra
ballistics comparison. Waters was at one time a jailer
for the city of Waycross.
which the defendant had no prior criminal record and where
evidence of use of alcohol or drugs was offered in miti-
gation.” Tucker v. State, 244 Ga. 721 (13) (2€1 SE2d 635)
(1979). See also Strickland v. State, 247 Ga. 219 (
SE2d ) (1981); Bowen v. State, 244 Ga. 495 (260 SE2d 855)
(1979); House v. State, 232 Ga. 140 (205 SE2d 217) (1974);
ohnson v. State, 226 Ga. 511 (175 SE2d 840) (1970).
We conclude that defenuant’s sentences of death are
mot excessive or disproportionate to the penalty imposed
in similar cases, taking into consideration both the crime
and the defendant.
Judgment affirmed. Jordan, C.J., Marsha , Clarke and
—
Smith, JJ., concur. Hill, P. J., concurs i: -he judgment
only as to Divisions 11 and 14.
j +26-
= — ee meee .
37629. WATERS v. THE STATE.
APPENDIX
Jarrell v. State, 234 Ga. 410 (216 SE2d 258)
(1975); Gibson v. State, 236 Ga. 874 (225 SE2d 63)
(1976); Moore v. State, 240 Ga. 807 (243 SE2d 1) (1978);
Westbrook v. State, 242 Ga. 151 (249 SE2d 524) (1978);
Johnson v. State, 242 Ga. 649 (250 SE2d 394) (1978);
Collins v. State, 243 Ga. 29] (253 SE2d 729) (1979);
Brooks v. State, 244 Ga. 574 (261 SE2d 379) (1979);
Gates v. State, 244 Ga. 587 (261 SE2d 349) (1979);
Justus v. State, 247 Ga. 276 ( SE2d ) (1981);
Blankenship v. State, 247 Ga. 587 ( SE2d » (19861).
APPENDIX B
This case involves the following provisions of the
Code of Georgia:
Ga. Code Ann. $26-702
Mental capacity; insanity
A person shall not be found guilty of a crime, if
at the time of the act, omission, or negligence consti-
tuting the crime, such person did not have mental capacity
to distinguish between ee and wrong in relation to
such act, omission or negligence.
Ga. Code Ann. §26-1101
Murder
| (a) A person commits murder when he unlawfully
| and with malice aforethought, either express or implied, |
i causes the death of another human being. Express malice |
i is that deliberate intention unlawfully to take away the |
r life of a fellow creature, which is manifested by ex-
ternal circumstances capable of proof. Malice shall be |
implied where no considerable provocation appears, and
where all che circumstances of the killing show an
abandoned and malignant heart....
| * “ o
ished by death or by imprisonment for life.
Ga. Code Ann. 826-1311
|
) (c) A person convicted of murder shall be pun- |
'
Kidnapping
' (a) A person commits kidnapping when he abducts
or steals away any person without lawful authority or
warrant and holds such person against his will.
* of ve
(>) A person over the age of 17 commits kid-
napping when he forcibly, maliciously, or fraudulently
leads, takes, or carries Bit or decoys or entices away,
any child under the age of 15 years against the will of
the child's parents or other person having lawful
custody.
A person convicted of kidnapping shal: be pun-
ished by imprisonment for not less ¢t one nor more
than 20 ange Provided that a person convicted of kid-
napping for ransom shall be punished by life imprison-
ment or by death; and Provided, further, that if the
* ‘ person kidnapped shall have received bodily injury, the
a, convicted shall be punished by life imprisonment
or death.
———— ee ee _
Sodomy; aggravated sodomy
A person commits sodomy when he performs or sub- |
mits to any sexual act involving the sex organs of one
person and the mouth or anus of another. A person com-
mits aggravated sodomy when he commits sodomy with force
and age st the will of the other person. A person con-
victed of sodomy shall be punished by imprisonment tor nor
less than one nor more than 20 years. A person convicte
of ravated sodomy shall be ounished by imprisonment
for life or by imprisonment for not less than one nor
more than 20 years.
(4 ury verdict and sentence
where, upon a trial by jury, a person Is convicted of
an offense which may be punishable by death, a sentence
of death shall not be imposed unless the jury verdict
includes a finding of at least one statutory aggravating
circumstance and a recommendation that such sentence be
imposed. Where a statutory quqvevstins circumstances is |
found and a recommendation of death is made, the court
shall sentence the defendant to death. Where a sentence
H of death is not recommended by the jury, the court shall |
i sentence the defendant to imprisonment as provided by
' law. Unless the jury trying the case makes a findin:
of at least one statutory aggravating circumstances anc
recommends the death sentence in its verdict, the coure |
shall not sentence the defendant to death, provided that
\ no such finding of statutory aggravating circumstance z
\ shall necessary in offenses of treason or aircraft hi-
jacking. The provisions of this section shall not affect)
a sentence when the case is tried without a jury or when
the judge accepts a plea of guilty.
SEE = ee ee
3 ;
Ga. Code Ann §27-401
Who may hold courts of inquiry
1 Any judse of the superior or county court, or
ustice of the peace, or city or town officer, who may
ex-officio justice of the peace, may hold a court of
inquiry to examine into an accusation against a person
| legally arrested and brought before him. The time and
Y place of such inquiry shall be determined by him.
. 7-4
=.
A reasonable time shall be =~ to the siieaiil
or prosecutor for the preparation of his case, and in
no event shall the defendant be forced to trial without
the aid of counsel, if there be a reasonable probability
of his securing counsel without too great delay. Where
the cause is postponed to a future day at the instance
of either party, or by the court, it shall not be
necessary to commit the defendant to jail pendin, the
hearing; but he shall have the right to give bail for |
appearance at the aoerens before said court of inquiry,
if the offense is bailable under the authority of said
court.
Ga. Code Ann. 627-404
Attendance of witnesses
A court of inquiry shall have power to compe!
the attendance of all witnesses resident within the
county, after notice of 24 hours, and to this end may
order their arrest.
Ga. Code Ann. $27-405
Evidence; testimony of defendant
|
The court shall hear all legal evidence sub-
| mitted by either party. If the prisoner wishes to
testify and announces in open court before any court of
pong od Bey intention to do so, he may so testify in his)
own lf. If he so elects, he shall be sworn as any |
other witness and may be examined and cross-examined as |
' any other witness, except that no evidence of general
; bad character or prior convictions shall be admissible
unless and until the defendant shall have first put his
character in issue. The failure of a defendant to
\ testify shall create no presumption against him, and no
comment shall be made because of such failure.
Abstract of evidence in felony cases
| If the c be of a felony, the court shall
ae : cause an abstract of all the evidence to be made and
4)
returned as above.
Ga. Code Ann. 827-407
Rule of decision; commitment of accused
The duty of che court of inquiry is simply to
determine whether there is sufficient reason to suspect
the guilt of the accused, to require him to appear and
answer before the court competent to try him; end when-
ever such probable cause exists, it is the duty of the
court to commit. = court, other than a superior court
or state court, to ich any charge of a violation of
section 26-2901 or section 26-2903 is referred for the
determination required by this section shall thereafter |
have and exercise only the jurisdiction of a court of
inquiry with respect to said charge and with respect to
any other criminal violation arising from the transaction
on which said charge was based and shall not thereafter
bec tent to try the accused for said charge or for al
any other criminal violation arising from the transactio
on which said charge was based, irrespective of the jur-
ay that the court otherwise would have under any
other law.
Ga. Code Ann. $27-1101
County where crime was committed; exception
All criminal cases shall be tried in the county |
where the crime was committed, except cases in the su-
perior courts where tie judge is satisfied that an in-
poretos jury cannot be obtained in such county. When
becomes thus satisfied, he may change the venue for
| the trial.
|
——
Ga. Code Ann. 627-1291
When and how venue changed
i The defendant in any criminal case wherein tril
by jury is provided may move, by petition in writing. for
e of venue, whenever, in his judgment, «nm im-
partial jury cannot be obtained in che county where she |
crime is alleged to have been committed. Upon the motion
it shall not be necessary to examine all persons in the
county liable to serve on juries, but the judge shal!
hear evidence by affidavit or oral testimony in support |
of or against the motion; and if, from the evidence sub- |
mitted, the court shall be satisfied that an impartial
jury cannot be obtained to try the case, the judge shall
, transfer it to any county that may be agreed upon by the
peg attorney and the defendant or his counse!,
in the county agreed upon. If a county is
thus agreed upon, the judge shall select such county
in his judgment, will afford a and impartia! i
Be Say See Caibe ane Sane SS: SSeenee coedee 1
»*
of violence mn 1 1 to be committed on said
accused, if carried back, or allowed to remain in the
county where the crime is alleged to have been committed.
If a motion by petition shall made by the accused for
a change of venue, said judze shall hear the same at such
time and place as he may direct; and if the evidence sub-
mitted shall reasonably show that there is probability or
danger of violence, then it shall be mandatory on said
judge toc e the venue to such other county as, in his
judgement, will reasonably avoid violence.
Ga. Code Ann. $27-2503
Presentence hearings in felony cases
| (a) Except in cases in which the death penalty
may be imposed, upon the return of a verdict of “guilty”
by the jury in oy felony case, the judge shall dismiss
the jury and shall conduct a presentence hearing at which
the only issue shall be the determination of punishment tq
be sed. In such hearing the judge shall hear addi-
tional evidence in extenuation, mitigation, and aggra-
vation of punishment, including the record of any prior
criminal convictions and pleas of guilty or pleas of nolo
contendere of the defendant, or the absence of any prior |
conviction and pleas: Provided, however, that oniy such
evidence in aggravation as the State has made known to
the defendant prior to his trial shal! be admissible. The
judge shall also hear argument by the defendant or ‘is
counsel and the prosecuting attorney, as provided by law, |
}
|
regarding the punishment to be imposed. The prosecuting
attorney shall open and the defendant shall conclude the
argument. In cases in which the death penalty may be
mene the judge when sitting without a jury shall
follow the additional procedure provided in section
27-2534-1. Upon the conclusion of the evidenc* and argu- |
ments the — shall impose the sentence or shal! recess |
the trial for the purpose of taking the sentence to be '
imposed under advisement. The judge shall fix a senterce)
within the limits prescribed by law. If che trial court
i is reversed on appeal because of error only in the pre-
f sentence hearing, the new trial which may be ordered shall
apply only tot issue of punishmenc. ;
ee
, (b) Im all cases in which the death penalty may
i be imposed and which are tried by a jury, upon a return
of a verdict of guilty be the jury, the court shall resume
the trial and conduct a wr hearing before the
jury. Such hearing shall be conducted in the same manner,
as presentence hearings conducted before the judge as
i provided in subsection (a) of this section. Upon the
{ conclusion of the evidence and arguments, the judge shall
give the jury appropriate instructions, and the jury shall
{ retire to determine whether any micigat or aggravari
circumstances, as defined in section 27-2534-1, exist an
: i whether to recommend mercy for the defendant. Upon the
findings of the jury, the judge shall fix a sentence with-
Po in the Limits prescribed by law.
Ga. Code Ann. §27-2534.1
Mitigating and aggravating circumstances; death penalty
(a) The death penalty may be imposed for the
offenses of aircraft hijacking or treason, in any case.
(b) Im all cases of other offenses for which
the death penalty may be authorized, the judge shall
consider, or he shall include in his instructions tc the
jury for it to consider, any mitigating circumstances
or aggravating circumstances otherwise authorized by law
and any of the following statutory aggravating circum-
stances which may be supported by the evidence: .. ;
(2 The offense of murder, rape, armed robbery,
or kidnapping was committed while the offender was en-
gaged in the commission of another caniral felonv. or
| Pgp my battery, or the offense of murder was committed
le the offender was engaged in the commission of bur-
glary or arson in the first degree .....
(% The offense of murder, rape, armed robbery,
or kidnapping was outrageously or wantonly vile, horrible)
or inhuman in that it involved torture, depravity of
mind, or an aggravated battery to the victim.
Ga. Code Ann. §27-2537
(a) Whenever the death penalty is imposed, and |
upon the j t becoming final in the trial court, the |
sentence shall be reviewed on the record by the Supreme |
Court of Georgia. The clerk of the trial court, within
10 days after receiying the transcript, shall transmit
the entire record and transcript to the Supreme Court of |
Georgia together with a notice prepared by the clerk and
\ @ report prepared by the trial judge. The notice shal!
set forth the title and docket n r of the case, the |
mame of the defendant and the name and adiress of his !
attorney, a narrative statement of the judgment, the
offense, and the punishment prescribed. The report shall)
be in the form of a standard questionnaire prepared and |
supplied by the Supreme Court of Georgia. |
(b) The Supreme Co:.rt of Georgia shall consider _
the punishment as well as any errors enumerated by way of
appeal.
(c) With regard to the sentence, the court shall)
determine: :
(1) Whether che sentence of death was imposed
under the influence of passion, prejudice, or any other
arbitrary factor, and
(2) Whether, in cases other tan treason or otal
eraft hijacking, the evidence support: the jury's or
e ed RN i cae
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