# Petition — EURUS K. WATERS v. GEORGIA (No. 81-5947) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0308%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 ## Text > “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¥.» fio 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 th 7 / 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: | ' ' “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 i ' | 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- | | ! 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 ' ' } } (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- | | | 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 + a+ 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 | = = oe ee = —— - . d ’ LF v . 4 , ta ’ , a - ~_ ‘ » 3 . ¥ # . oa 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 | | » « a a + - r . ~ x . a ~ Porn —_— - » - > Am SS ate. oe ow Pe | ee ee ~. bo | | ) ~ = 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 - . i4 ~~ 4 ‘y 2 - », Se _ ae >, J . > \ - - be J 4 ' ? ‘oe Say. ‘e- n ’ or. et =" + . ‘ mi ¢ ral Y ts x a ar. 5 ant ieee , 7 r - P. ee ee 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 4 ae Ve j a eo ee 7 wae ’ : : ¥ ee Se = |e ae Hae ge es eS = eae a. OS 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 _- -— -— 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 —— ) 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 = —.. 3 > ¥ {THIS PAGE INTENTIONALLY LEFT BLANK} e 7. ‘ —— ‘ ’ ~~ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0308%3A1. Public record. Not legal advice.