Petition — JOHNNIE L. JOHNSON v. WALTER D. ZANT (No. 82-5877)

EIVED

‘DEC 14 1982

Su, we 40d wach

| SUPREMT Fae He

no. 82, 5877

In THE

SUPREME COURT OF THE UNITED STATES

S aeeiammameeimeneeill

October Term, 1982

Seana

JOHNNIE L. JOHNSON,

Petitioner,

v6.

WALTEK D. ZANT, Warden,

Georgia Diagnostic and

Classification Center,

Respondent.

On Writ of Certiorari

To the Supreme Court of Georgia

PETITION FOK WRIT OF CERTIORARI

ALICE C. STEWART

Attorney for Petitioner

aed duniper gia 30309" :

lanta orgia

(404) 88

sik)

QUESTIONS PRESENTED.

1. Whether death is an unconstitutionally excessive and

disproportionate penalty under the Eighth and Fourteenth

Amendments for one who neither took life, attempted to take life,

nor intendsd to take life?

2. Whether petitioner's degree of participation in the

murder was given inadequate consideration and inadequate weight by

the Georgia courts, thereby violating his rights under the Eighth

and FPourteenth Amendments?

3. Whether the sentencer was precluded from properly

focusing on and considering petitioner's own conduct in violation

of the Eighth and Fourteenth Amendments?

ii

TABLE OF CONTENTS

QUBSTIONS PRESENTED . . 6 es ee tee eo eee ee owed

ARGUMENT . ® ° s = * * * * - * * * = t ¥ * . * « . °

‘

TABLE OF AUTHORITIES ie * * * * * * * * * * * + * *- * iii

OPINIONS BELOW eo 24 6 &© © © ©. 6 ee hUuNMhCUeCUOUmUU Um UMS Ue CP i

JURISDICTION es 6 © © © © © © 8 © © © &e ehUhrMmhUr ThUc TmhUh Mh hm 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED * £ 68 © © © © 68 6 8 Oe RO Um. CS 2

STATEMENT OF THE CASE 6 * 8: @ @ 8 0 ee @ He ee He TS 2

, REASONS FOR GRANTING THE WRIT *s © © 6 © @© © ©. © 8 6 ;

Introductory Statement... 6 6 ee ee ee ee

Il. THE GEORGIA COURTS APPLIED AN {NCORRECT STANDARD

Ill.

A.

B.

IN DETERMINING THAT PETITIONZHK'S PRESENCE AND

APTER THE PACT AIDING AND APETTING Ahk THE

PROPER FOCUS FOR IMPOSING Tic DEATH SENTENCE... . 6

The Georgia Supreme Court has not made

precise, consistent factfindings,

supported by the record, on Johnson's

degree of participation .« «+ ++«+e+e#+s+e-s 6

The death sentence cannot be imposed solely

on ai@ing and phetting . - + ++*eee ee # # 10

THE SENTENCER WAS PRECLUDEC PROM PROPEKLY FOCUSING

ON AND CONSIDERING JOHNSUN'S OWN CONDUCT IN '

VIOLATION OF THE EIGHTH AND POURTCENTH

AMENDMENTS * * * * * * * * * * «* * * * * * * * * * * i2

A.

The jury in both Enmund and Johnson were

Instructed on several theories of liability

but no findings were required or made... . .12

The sentencing jury was precluded from

considering mitigating factors and particular

circumstances of the cGefendant . ... ++ «+ + 45

IV. THE EXECUTION OF JOHNSON WOULD CONSTITUTE EXCESSIVE

AND DISPROPOKTIONATS PUNISHMENT, PARTICULAKLY IN VIEW

CF THE TRIGGEKMAN'S SUNTENGE. «© 6 8 ee 6 we 8 8 17

vy * CONCLUSION * * * * * * * * * * * * * * * * * * bl * * i 9

6

APPENDIX A. State court opinions below.

APPENDIX 8. Excerpts from the record.

APPENDIX C. Opinions on codefendant.

APPENDIX D. Statutory provisions involved.

iii

TABLE OF AUTHORITIES

Cases:

Coker v. Georgia

433 U.8. 584 (1977). so © @ © © & © © © F

Eberhart v. Georgia

433 U.8. 917 (1977). * * * * * * * * * *

Eddings v. Oklahoma

~ 102 §.Ct. 869 (1982) * * * * * * *« * © *#

Enmund v. State

399 So. ed 1362 (Pla. 1981). *» © ¢ * *

Enmund v. Florida

102 Ss. ct. * * * * * * * * * * * * * * *

Godfrey v. Georgia

4aG U.8- 420 (1980). é * * * * * * * * *

Gregg v. Georgia .

428 U.S. 153 (1976). ee, ee

Hall v. State

28) Ga. 252, 244 S.E.2d 833 (1978) . + -

Hannah v. State

125 Ga. App. 596, 188 S.E.2d 401 (1972).

Hill v. State

237 Ga. 794 229 S.E. 24 737 (1976). - + -

Johnson v. State

242 Ga. 649, 250 $.E.2d 394 (1978) . «+

Johnson v. Zant

249 Ga. 812, oe S.E.2d ee (1962). * © 6 6

Lockett v. Ohio

a3e8 v.38. 586 (1978). * * s + © © © @& 8

~~ v. Zant

61 F.2d 446 * * * * * * * * * * * * * *

Sprouse v. State

*

*

9, 10, 14, 16, 18

wa 0 © ew 36

*

*

*

*

*

*

*

*

*

*

*

oe ue 88

o « epassim

« « «passim

« « AT, 19

» 6 o T, 48

sense es 28

se 6» 08s

own 0 48

» « «passin

+ « passim

» 9, 43, 36

os be 286

242 Ga. 831, 252 S.E.24 173 (1979). eet to 8 8 9 8 47

* * * * 8, 19

Sprouse v. State

a 8S.E. we oe No. 38822 (Ga. Oct. atx 1982).

Ward v. State,

239 Ga. 205, 236 S.B.2d 365 (1977) . + + -

Statutes:

Fla. Stat. Ann. § 782.04 s 6 uO eS 8 eR ee

Ga. Code Ann. § 26-801 . . - 2+ s+ ee se eos

{Code of Ga. Ann. $16-2-20) |

. Ga. Code Ann. + 26-1161 (Supp. 1980) . 6 6 8

_ (Code of Ga. Ann. §16-5-1]

Ga. Code Ann. § 26-2503. ‘2 2+ ee ee eS Ue

[Code of Ga. Ann. §16-10-50]

*

*

*

Ga. Code Ann. § 27-2534.1 (b)(2) (Supp. 1980).

[Code of Ga. Ann. $17-10~-30(b)])

*

* * * * * * ois

*

*

* * * * l2

s «035 41

* * * * 2

* Ld * * 14

* * * 2, 3

28 0.8.C. $1257(3). * * * * * * * * * * . * * * * * ° * * * * ;

Note: Citations in the text of this petition are to

Ga. Code Ann., which was the official code of

Georgia at the time of Johnson's trial and at the

time the Supreme Court's recent opinion in his case.

HO. ossee

IN THE

SUPREME COURT OF THE UNITED STATES

—

October Term, 1982

Se ROR: REI RI

JOHNNIE L. JOHNSON,

Petitioner,

vs.

WALTER D. ZANT, Warden,

Georgia "Diagnostic and

Classification Center,

Kespondent.

PETITION POR A WRIT OF CENTIONART

TO THE SUPREME COURT OF QEONGIA

*

Petitioner, Johnnie L. Johnson, prays that a writ of

certiorari issue to review the judgment and opinion of the Supreme

Court of Georgia.

OPINIONS BELOW.

The opinion of the Supreme Court of Georgia, affirming the

trial court's denial of Johnson's petition for a writ of habeas

corpus, is reported at Johnson v. Zant, 249 Ga. 812 (1982). The

trial court's order denying habeas corpus relief is not reported.

The opinion of the Supreme Court of Georgia on direct appeal

affirming petitioner’ s convictions and death. sentence is reported

at Johnson v. State, 242 Ga. 649, 250 S.E.2d 394 (1978).

Petitioner also filed an extraordinary motion for “extraordinary

relief", the denial of which was affirmed by the Supreme Court of

Georgia at_Johnson v. State, 246 Ga. 474 (1980). These opinions

are reprocuced in the Appefdix A to this petition. -

! JURISDICTION.

The judgment of the Supreme Court o1 Georgia was entered on

September 10, 1982. This ewe wae filed within 90 days of

‘that date. | : |

Petitioner asserted below and asserts here a at cention ot

rights secured by the Constitution of the United States. Juris-

" rdapptaced of this court is Aavoked pursuant: to Lid Ves. 1257(3)+ :

CONSTITUTIONAL AND STATUOhYS PROVISIONS INVOLVED.

This case involves the Eighth Amendment to the Constitution

of the United States, which provides:

Excessive bail shall not be required nor excesive fines

imposed, nor cruel and unusual punishments inflicted ....

and the Fourteenth Amendment to the Constitution of the United

States, which provides, in pertinent part:

Nor shall any State deprive any person of life, liberty, or

property without due process of law.

This case also involves the following provisions of the

statutes of the State of Georgia, which are set forth in Appendix

C to this brief: Ga. Code Ann. §§ 26-201 ,26~801,26-1101, and

27~2534.1(b)(7).

STATEMENT OF TIE CASK.

This is a death penalty case. In the judgment appealed from,

the Supreme Court of Ucorgia granted petitioner's application for

certificate of probable cause to review the trial court's decision,

but affirmed the trial court's order denying habeas corpus relief.

In 1974, Johnson was convicted by a jury of the offenses of

murder, rape, Simple kidnapping, @id aggravated assault. He

received a sentence of death for the murder. The only statutory

aggravating circumstance to support the sentence is Ga. Code Ann.

$27-2534(b)(7), that the murder was “wantonly vile, outrageous,

horrible or inhuman."

During the guilt phase of the trial, the surviving victim

unequivocally stated that she never saw the murder weapon in

Johnson's hand; in fact, she placed it in the hands of Johnson's

co-defendant Sprouse. She also testified that there was no

exchange of words or encouragement by Johnson regarding use of the

gun. The evidence shows that there was no plan to murder and no

way that Johnson could have anticipated that death would result

from the kidnapping and rape scheme; the shooting which actually

took place was sudde and spontaneous. — :

oe

Johnson's jury was charged on standard “aider and abettor"

language from Ga. Code Ann, §26-801, including instructions that

if Johnson was to be found responsible for the murder, he must

have participated through "felonious design"; the jury was also

charged on intentional homicide and felony murder. DuPing

deliberations, the jury repeatedly (three times) requested to hear

the testimony and charges as to responsibility of parties to a

crime. However, the jury made no specific findings as to whether

petitioner killed, attempted to kill, or intended to kill.

During the sentencing phase, Johnson's triel counsel did not

present any evidence in mitigation of punishment, although

relevant mitigating circumstances would include the relative

culpability for the murder, leck of any prior record, no history

of violent crimes or behavior, his age(20), and character.

The jury was not specifically instructed on what to consider as

mitigating evidence or the option to recommend mercy if they

should find aggravating circumstances. The issue of the jury's

unguided discretion was first raised in the state habeas petition.

The habeas court found that these instructions, read in their

entirety, could have been more "“{lluminating.” (Order of Habeas

Court $E), although the Georgia Supreme Court found adversely to

petitioner on this issue, Johnson v. Zant, 249 Ga. 812(2) (1982).

Co-indictee Sprouse (the triggerman, who was tried

separately) was convicted of murder, kidnapping with bodily

injury, and two counts of aggravated assault; the aggravating

eirecumstances found by the del included both Ga. Code Ann.

§25-2534(b)(2) (committed in the course of another felony) and

(b)(7)- His sentences were reversed in 1979 by the Georgia

Supreme Court because of improper instructions on the aggravating

circumstances, and again because of the trial vocnbatrs exclusion

‘eertain testimony during re-sentencing in 1982.

This disproportionality issue was first raised on motion

* wha.

for new trial and in the enumeration of errors to the Georgia

Supreme Court on direct appeal. Again, it was raised on motion for

rehearing fellowing affirmance of the death sentence. The issue of

relative culpability of a nontriggerman was not expressly ruled on

by the Georgia Supreme Court until Johnson v. Zant, 249 Ga. 812(5).

REASONS POR GRANTING THE WRIT

In this death case, the Supreme Court of Georgia granted

petitioner's certificate of probable cause to appeal from the

trial court's order denying hiw habeas corpus relief. In

affirming denial of the petition for habeas corpus, the Supreme

Court of Georgia decided a federal question in conflict with

applicable decisions of this Court. Specifically, the Supreme

Court of Georgia concluded that it is meither arbitrary, excessive

nor disproportionate to impose a death sentence on one who does

not fatally wield the murder weapon if the non-triggerman is

present. active and participating in the commission of crimes, anc

aiding in leaving the scene.

Petitioner urges that the holding of Enmund v. Florida, 102

S.Ct. 3368 (July 2, 1982), is applicable to the facts of tuis

case; that the Supreme Court of Ocurgia celica upon petitioncr's

"presence" and “active participation” to reject Enmund's holding

and therefore applied an incorrect standard. There was no clear

finding by the trier of fact as to whether petitioner killed,

intended, or attempted to kill. The factrinder was precluded from

making and did not make individual considerations in mitigation,

such as relative culpabil4ty, in determining sentence. The Supreme

Court of Georgia, in its review, did not consider the sentence

disproportionate to “similar” cases even though the triggerman,

codefendant Sprouse, has no valid sentence of death.

ARGUMENT

THE GEORGIA COURTS PAILED TO CIVE ADEQUATE CONSIDERATION AND

WEIGHT TO PETITIONER'S CULPABILITY AS REQUIRED

BY THE EIGHTH AND POURTEENTH AMENDMENTS

hel ~5~

I. INTRODUCTORY STATEMENT.

The Georgia Supreme Court rejected petitioner's argument that

his death sentence was excessive and disproportionate as well as

arbitrary in violation of the Eighth and Fourteenth Amendments to

the U.S. Constitution in Johnson v. Zant, 249 Ga. 812, 816(5)

(1982). In deciding that Enmund v. Plorida, 102 S.Ct. 3368 (July

2, 1982), was not applicable to Johnson's case, the Georgia

Supreme Court found that “Johnson was not only present but active

and participating throughout commission of the erises ef which he

ig convicted," and that the facts in Johnsons's case are

“substantially dissimilar." 249 Ga. 812, at 816-7. Nowhere in the

record, however, is there any finding made by the trier of fact as

to whether Johnson killed, attempted to kill, or intended to kill.

The basic premise in Enmund in that the death sentence is

unconstitutionally disproportionate under the Gth and 14th

Amendments for a nontriggerman who “neither took life, attempted

to take life, nor intended to take life.” Enmund v. Florida, 102

S. Ct. at 3371-2, 3374, f- 15, 3376, 3379). The second part of the

Court's holding is that the focus must be on the individual's

culpability, because his culpability to differents from that of a

codefendant triggerman where he did not “kill or intend to kill."

Id., 3372, 3377; O'Connorc, J., dissenting, 3383-91.

The Florida trial court found evidence in the record to

conclusion that Earl Enmund was an active participant in

support a

the general transaction from which death resulted. Id. 3371, f. 2;

dissent, 3391, f.40.

@ supportable inference of Enmund's participation only in his

The Florida Supreme Court, however, found

.

staying in the getaway car to help the robbers escape during the

commission of the armed robbery. Id. 3371, f. 2. The dissent also

notes that Enmund located the appropriate victins three weeks

the crime, Id. 3379-80, f. 5, 3393, f- 40, Enmund v. State,

before

399 So. 24 at 1365; and that he actively participated in

concealing the murder weapon, Id. 3380, f. 6. As to the planning

«-

Pe

of the armed robbery, it was the prosecution's theory that iEnmund

in fact “had set it all up,"_Id. 3380, f. 7+

The Enmund decision, in presenting an analysis of the facts,

repeatedly emphasizes the "Kill or intend to kill" formulation,

and it is this factor, rather than presence at the scene of the

crime or assisting in the escape, which is relevant to the

constitutional formulation, Id. 3371, f- 2. Although Enmund knew

@ gun would be used in the perpetration of other crimes, he did

not anticipate lethal force being used in armed robberies. There

was no plan to murder. Enmun did not participate in any decision

to shoot the victims, and there is no way Enmund could have

prevented the shooting from taking place when his codefendants

decided to use the guns. Enmund v. Florida, 399 So.2d at 1369.

The critical elements of the analysis are applicable to

Johnson's situation. Johnnie Johnson was a party in the general

transaction from which homicide resulted but for which there was

no calculation or design to take life. Johnson also knew that 4

gun was being used in furtherance of the kidnapping and rape. Like

Enmund, there was no plan to murder, and no more foreseeability of

death from the kidnapping and rape scheme than in Enmund's plot

for robbing his victims by gunpoint. Johnson did not participate

in any decision to shoot the victims, and the final, ultimate

decision to murder the victims was made solely by Johnson's

codefendant Jerry Sprouse. The shooting violence which actually

occurred was sudden and unexpected.

Il. THE GEORGIA COURTS APPLY AN INCORRECT STANDARD IN

DETEKMINING THAT PETITIONER'S PRESENCE AND AFTER THE FACT AIDING

AWD ABETTING ARE THE PROPEK FOCUS FOR IMPOSING

THE DEATH SENTENCE.

A. The Georgia Court has not made precise, consistent

factfindings, supported by the record.

The Supreme Court eoncluded in the judgment below that it is

neither arbitrary, exeensive, nor disproportionate to impose a

death sentence on one who does not fatally wield the murder weapon

under circumstances where the nontriggerman is “present, active

* «7+

and participating in the commission ef crimes” and aiding in

leaving the scene. Johnson v. Zant, 249 Ga. 812, 817 (1982).

Scrupulous reliability in factfinding should be found in a

state factual determination, yet there are @ number of crucial

inconsistencies in the factfinding based on Johnson's record.

Lockett v. Ohio, 438 U.S. 586 (1978), requires that the degree of

participation in a homicide be considered in determining the

there must be "some limit to the method by

less immediately

proper punishment;

which the States assess punisiment for actions

connected to the deliberate taking of human life." Id. 438 U.S. at

616.

Johnson was involved in the general transaction from which

homicide resulted. But the record makes very clear that there was

no calculation or design by Johnson to take life, nor was there

any way he could have anticipated death would result from the

kidnapping and rape scheme.

The requirement that there be “accurate sentencing

information [as] an indispensable prerequisite to & reasoned

determination" of punishment, Greggs Vv: Georgia, 428 U.S. 153, at

190 (1976), cannot be ignorea here. The sentencer ant, more than

ostensibly, the Georgia appellate courts (to avoid arbitrary and

capricious results) are required to make a reliable inquiry and

considered finding as to the extent of culpability and why, even

if the record does not reflect the petitioner had a conscious

purpose to bring about death of the victim, he is nonetheless

being executed for his role in the crime. Yet this has not been

done in petitioner's sone: |

It is perhaps most helpful to look at the testimony presented

by and most helpful to the state -- the account of events given by

the surviving victim, Mary Lynn Harrod. For example, while the

Georgia Supreme Court finds that Johnson “intended to employ

lethal force to effectuate the kidnap in rape, " Id. at 817,

Yarred's testimony does not support such a conclusion.

_ Ǥ-

First, the unequivocal testimony of Harrod is that she never

saw the murder weapon in Johnson's hand. She did not see the gun

when she and her friend were smoking grass at the high school:

the first time she saw it was in Sprouse's hand as he approached

the women's car and told the women to accompany him (R. p.51)/?

She placed it in Sprouse's hand from that time on: when

Sprouse got in the back seat of Johnson's car with her; throughout

the ride to the woods (K., p. 57); when Sprouse told the women to

put their heads down (R., pp. 74, 78); as the women's hands were

tied (R., p. 57); when Sprouse told Suzanne Edenfield to gag

Harrod and she tried unsuccessfully to gag Suzanne (R. p.75)./*

It was still in Sprouse's hand when the car stopped in the woods

and during Sprouse's attempted rape of her in the car (R. p.78).

Nor did Harrod see Johnson with the gun when he and Suzanne

left and returned from the woods, when Suzanne got back in the

car, when Sprouse told both women to get out of the car, or when

Sprouse told them to stand on the side of the road (R. pp. 78-9).

Johnson did not have the gun while Sprouse was directing Johnson

to turn the car around (R. p. 79). The evidence amply authorizes 4

finding that Johnson never had the gun in his hand (KR. pp. 74-5;

77-9; 103).

At the point precisely before the sheeting. Harrod has never

been able to remember who had the gun. But, she has never stated

that she saw it in Johnson's hand. Her testimony has not deviated

from the time of Johnson's trial in 1975 until Sprouse's resentenc-

ing in March 1982./3 The evidence amply authorizes a finding

that Johnson never had the gun in his hand (R. pp.74-5; 77-9; 103).

. he On direct appeal, the Georgia Supreme Court finds that

pees! se appeared with the gun and forced the girls into the car

at gunpoint," 242 Ga. at 650, while on review of the habeas

proceeding, 249 Ga. at 817, the court finds: nponnsen and Sprouse

_— them into Johnson's car at gunpoint" [emphasis iT.

e On direct appeal, 242 Ga. at 65v, the opinion states

that both "Johnson and S$ se bound and gagged the girls"; but

it was only Weoraecn who unsuccessfully tri to gag the irls"

accerding to the review of the habeas sone 249 Ga. at 617.

‘3 In the recent decision of _Sprou State, Georgia

Supreme Court Case No. 38822,(dec: i; i982}, Harrod's

ed October

cara lagdat™ is ‘that neha A wey the gun ape easy -

«Y-

Second, there was no exchange of words or coriversation

between Johnson and Sprouse regarding use of the gun. There was,

in fact, very little conversation at all: Harrod said there was

no conversation during the ride, except "they asked where was

Highway 8C" (R., p. 54). The women asked where they were going;

Sprouse replied that the “big man" wanted to talk to them (R. p.

102. )There was no conversation between anyone when the car stopped

in the woods (K. p.58). Sprouse was still in the back seat and

still had the gun when Johnsen and Suzanne returned to the car.

Sprouse then came to the back seat and told the two women to get

out of the car and stand by the side of the road (HK. p-61). Then,

Harrod heard Sprouse direct Johnson turn the car around (RK. pp-

62-3; 79; 115.) There was no conversation between Johnson and

Sprouse before the shooting. Harrod stated that nothing was said

that showed Sprouse, prior to the shooting, threatened the two

women, cursed, or showed any emotion or anger (Sprouse T. p. 210,

222-4). The shooting violence that actually occurred was sudden.

Third, there was no encouragement by Johnson at any time for

Sprouse to use the gun; in fact, Johnson had no way of

anticipating that Sprouse would actually fire the gun. In the

split seconds between Johnson's turning the car around at

Sprouse's directions, his getting out of the car (by her version)

with Sprouse ten feet away from the women and the rapid succession

of shots that immediately follovzed, there was virtually nothing

Johnson could have done to prevent the shooting.

In sum, the surviving victim's account shows no collusion,

collaberation, or plan, ahd no conversation indicating in any way

that Johnson had an intent to murder the victims or that he could

anticipate Sprouse's sue of deadly force. The opinion below

imputes Sprouse’s actions to Johnson without any specific finding

of intent to murder er to facilitate a murder.

The end result is to ignore the individual consideration

required by Coker, Enmyad, and_Lockett: “Rape may be highly

Ae

wife

reprehensible, but it is less than the extreme offense of murder."

Coker, 433 U.S. 58%, at 592 ( (1977). In Eberhart, the death

sentence could not be given for simple kidnapping and an egregious

rape (which involved serious injuries to the victim; see facts at

Eberhart v. State, 232 Ga. 247 (1974)). Eberhart v= Georgia, 433

U.S. 917 (1977).

By definition, the crime of rape does not include death or

serious injury to the person, and as Coker states:

"it is difficult to accept the notion, and we do not, that

the rapist, with or witout angravating ci rcumermces : should

be punished more heavily than the deliberate er as long

as the rapist himself does not take the life of the victim."

Coker, 97 S.Ct. at 2870 [emphasis added)

In contrast, the Georgia Supreme Court concludes that Johnson’s'

"active participation” in the kidnapping and rape defeats the

argument that his sentence is excessive and disproportionate.

Johnson v. Zant, 249 Ga. 812, 817 (1982).

Moreover, the Georgia Supreme Court finds Johnson's

assistance in making a fast getaway after the murder (turning the

ear around) shows complicity and active participation in the

murder. Id. 249 Ga. at 817. This does not make Enmund’s holding

inapplicable. Enmund drove the getaway car; he actively

participated in concealing the murder weapons (which were never

recovered) and in harboring his wounded codefendants. Enmund v.

State, 399 So.2d at 1362. There war evidence that (a) Enmund had

participated in a robhery and (b) helped dispose of the murder

weapons after the robbery and shooting, and helped harbor the

codefendants at his house. But neither Johnson's nor Enmund's

after-the-fact aiding and abetting were the proper focus of their

culpability for the murder itself. The main point is that

Johnson's participation in a rape and his ofter-the-fact aiding

and abetting is not enough to sustain a death sentence under

Enmund's holding. 3 |

. Death sentence cannot solely be premis:

' oe wadding and avetting.” =

ria

found liable for first degree murder and for the death penalty

also through Florida's accessorial liability rules. id. 102 S.Ct.

at 3371, Enmund v. State, 399 So.2d at 1370. In affirming Enmund's

conviction and sentence of death, the Florida Supreme Court

explained that “in Florida, as in a majority of jurisdictions, the

felony murder rule and the law of principals combine to make a

felon generally responsible for the lethal acts of his co-felon."

Id. 102 S.Ct. at 3382.

The focus of the inquiry to be made in accordance with

Enmund, that is, whether the death sentence is authorized for one

who did not “intend to kill or actually kill", is applicable to

those instances where a state statute makes the nontriggerman

"generally responsible”,e.g., equally responsible, with no

specific findings as to intent. Id. at 3384.

Under Georgia law, anyone who aids and abets or procures in

the commission of a crime is guilty of the crime, whether or not

he is present when the crime is committed. Ga. Code Ann. §26-#01

(Acts 1968, pp. 1249, 1279) (emphasis added). Georgia has

abolished the terminology but not the common law scope of

liability regarding "principals" and "accessories" in favor of

“party to a crime" which includes »-rincipals in the first degree,

principals in the second degree, and accessories before the fact.

Thus, anyone who is “concerned with the commission of a crime" is

liable and may be punished for that crime, regardless of their

presence or absence from the scene. (Committee Notes to Ga. Code

Ann. 26-801, pp. 108-9, citing Perkins, Criminal Law, 570, 575

(1957)). A Georgia oourt tus noted that “while such a result is

difficult to defend as a moral principle, its legal pedigree is

well established." Hannah v. State, 125 Ga. App. 596, at 598, 168

8.E.24 401 (1972).

Section B of Ga. Code Ann. §$26-801 sets out the categories of

parties: including (1) one who directly commits the crime (former

TS cigertnage in the first dongree); (3) one who sosentsonen

«-l2-

and abets in the commission of a crime (principal in the second . |

degree who does not need to be actuaily or constructively present :

during the commission of the crime; (4) one who intentionally )

advises, encourages, hires, counsels or procures another to commit

a crime (accessory before the fact who does not need to be absent :

during the commission of the crime. (See Committee Notes, supra.) :

Under Florida's scheme, the evidence had to at least |

authorize a finding that Earl Enmund was constrectively present

aiding and abetting. His jury was charged with first and second

degree liability: "first degree liability requires that while in

the perpetration of the crime of robbery, the (1) defendent is

actually present and (2) actively aiding and abetting the robbery;

second degree liability requires that while the defendant is not

physically present at the time of the crime, he did procure,

counsel, command or aid." Florida Statutes § 782.04 (3)(1973)

femphasis added). Id., 102 S.Ct. 3380, 3382 f. 16.

Enmund was liable as a principal “constructively adiding and

abetting and thus guilty of first degree murder.” Id., 102 S.Ct.

3372, citing Enmund v.State, 399 So.2d at 1370. Under these

statutes, however, whether or not a defendant is present, the

non-homkiie Gefendant may be found equally guilty with the actual

perpetrator of first degree murder. Id. 102 at 3372.

III. THE SENTENCER WAS PRECLUDED FHOM PROPERLY FOCUSING ON

AND CONSIDERING JOHNSON'S OWN CONDUCT IN VIOLATION OF THE EIGHTH

AND POURTEENTH AMENDMENTS

A. The jury in both Enmund and Johnson were instructed on several

theories of liability but no findings were required or made.

»

The jury in Johnson's case was instructed on several theories

of liability, including aiding and abetting in an intentional

homicide, malice murder, and felony murder (See Appendix B). The

jury evidently was confused by the guilt phase charge, as they

- asked several times for clarifications on portions of the

testimony concerning Johnnie's culpability and degree of

: on 2; 256-7; 258-9). ee

| participation (R., 24

=] 3o

language three separate times by their own request (R., 247;

261-2, 263), and as part of that instruction, the jury was told.

that if Johnson was to be found responsible for the murder, he

must participate through “felonious design," e.g. by the

kidnapping and rape scheme. The jury was also charged on express

and implied malice murder which included an explanation that an

abandoned and malignant hear is “commonly evidenced by a lethal

weapon and brutal use of the same" (K., p. 243). The jury under

the latter theory would need to impute malice from Sprouse's

lethal use of the weapon.

Of course, it is not clear which theory the jury applied

since no findings as to whether Johnson himself “killed, intended

to kill, or attempted to kill" are in the record. What Lockett

requires is that the "focus be on his [the defendant's

culpability], and not on the person who committed the robbery and

shot the victims, for we insist on ‘individualized considerations

as a constitutional requirement in imposing the death sentence."

Lockett v. Ohio, 438 U.S. 586, 605 (1978). Enmund's insistence on

“a finding that the defendant had any intention of participating

in or facilitating a murder” or that he “killed or attempted to

kill," is based on the constitutional necessity of determining the

individual culpability and conduct of a nonhomicidal felon. Enmund

v. Florida, 102 S.Ct. at 3377, 3381.

Insofar as Johnson's instructions were concerned, the jury,

in order to convict Johnson, needed to find nothing more than that

Sprouse shot the victim and that Johnson “aid(ed) or abet(ted)”

Sprouse in that crime , oes by disposing of clothes and the

murder weapon.(R., p. 246) Or, the jury might have found that

Sprouse shct the victim, but that Johnson was “presen(t during)

and participat(ed) in the general transaction in which the

‘homicide (was) committed, and , participated through & hate

design: with the person Ksiling,* ie. a scheme to ‘rape. In ‘either

: case, Johnson is elites in terms. of doe own ‘eonduct” or "his

ee

culpability” of no more than clther covering up a homicide, or

participating in a@ rape, and is not himself guilty of taking a

life or intending that it be taken.

Absent a finding that Johnnie Johnson took life or intended

to take life, then Johnson, in terms of "his own conduct" or “his

culpability” is at most a rapist (for whom the death sentence is

an excessive penalty), and is not a murderer (for which, by

itself, the death penalty would be proportionate). Id. at 3371;

Coker v. Georgia, 433 U.S. 584.

Johnson's participation in the kidnapping/rape scheme and in

after-the-fact aiding and abetting is not enough to sustain a

death sentence, contrary to the Georgia Supreme Court's holding in

Johnson v. Zant, 249 Ga. at 817. Enmund, of course, had been the

one to locate the victims three weeks before the armed robbery; he

Grove the getaway cur; he actively participated in concealing the

murder weapons (which were never recovered) and in harboring his

wounded codefendants. Enmund v. State, 399 So.2d at 1362. There

was evidence that (a) Enmund had participated in a robbery and (b)

‘nelped dispose of the murder weapons after the robbery and

shooting, and helped harbor the edeetinbants at his house.

In Georgia law, an accessory after the fact is a separate

substantive offense punishable under Ga. Code Ann. $26-2503. The

common law elements included (1) a commission of a felony by

another; (2) assistance to another in an effort to avoid the

consequences of the crime; (3) knowledge of the perpetrator's

guilt (Committee Notes on Parties, Subsection B, pp. 107-8,

citing Perkins, Criminal ‘Law, p. 578 (1957), and former Code Ann.

26-4601). Also, Code Ann. 26~-2503(b) makes it a crime to actually

conceal or destroy evidence.

The jury in Johnson's case was not charged on the law of

_ ~aecessory after the fact. Neither Johnson's nor Enmund's

after-the-fact aiding snd abetting were the Proper focus of

‘Since no evidence was presented by Johnson's

~15-

culpability for the murder itself. Moreover, both juries were

instructed on several theories, including intentional homicide.

Johnson's participation in a rape and his efter-the-fact aiding

and abetting is not enough to sustain a death sentence under

Enmund's holding. | |

In sum, if the jury could or might, have convicted the

defendant based on findings that are insufficient to support a

constitutional death sentence, the sentence must fall, even though

it is possible the jury made the requisite finding. What Enmund

requires is that the finder of fact be directed to make -- and

that it does make -- a clear finding that the defendant either

killed or intended to kill. That did not happen in Johnson.

2. The sentencing jury was precluded from considering mitigating

factors and particular circumstances of the offense.

The Enmund majority singled out nine state murder statutes as

likely to generate disproportionate death sentences under the

analysis of Enmund. Id. at 3372, f. 3. Georgia's murder statute,

Ga. Code aAnn., is one of those. That is, Georgia is one of nine

states where a defendant can be executed for an unintended felony

murder if sufficient aggravating circumstances are present to

outweigh mitigatins circumstances. Id. at 3394. However, not even

a deliberate murderer can get the death sentence in Georgia unless

aggravating circumstances are found. In the instant case, the only

findings the jury had to make to support the murder conviction

were that of the kidnapping and rape scheme or Johnson's

after-the-fact aiding and abetting the murder, neither of which

alone is sufficient to support a constitutional death sentence.

But the Johnson jury did not have before them the mitigating

evidence to consider Johnson's own conduct and culpability.

al counsel in

| mitigation, his jury did not have before them the relevant factors

— mueh as his -youth(21), lack of history of ‘violence, respectable

-lb-

@ vague reference to the particulars of Johnson's character or

particular circumstances as was done in_Eddings v. Oklahoma, 1v2

$.Ct.869 (1982). The most obvious omission was not presenting

Johnson's lack of a prior record of convictions, whieh could well

have been considered by the jury in determining Johnson's

predisposition to commit a violent crime in this instance.

The only “example” given in the sentencing charge of a

possible mitigating circumstance was contained in a statement that

counsel were permitted to present additional evidence in

"“extenuation, aggravation or mitigation," including a prior

conviction record, pleas of guilty, or the absence thereof (R.

265). The jury was not clearly instructed on how to weigh

aggravating and mitigating circumstances.

As the only “example” of a possible mitigating

circumstance, of course the mitigation charge does not fit within

the mandate of Lockett v. Ohio, 438 U.S. 586, at 604, 607 (1978),

requiring that the sentencer consider “any of the circumstances of

the offense” as an “independently mitigating factor." Nor does

it meet the requirements set out in Coker v. Georgia, 433 U.S.

584, 589-90 (1977), explaining that aggravating circumstances will

not justify a death sentence in a case such as Johnson's, where

the penalty is disproportionate to the offense. The issue of

concern is whether the jury reasonably may have believed it could

not consider any factors other than a prior record or lack thereof

(and of course, they ai6 net even have the lack of prior record

before them).

The habeas trial court found that the instructions on

mitigation could have been more "{lluminating,” (Appendix B,

— of Habeas ~— Sets March asne? but coneladed that the

Aedes oe AG GE ome eh URE cl ace Ne ER re ee, 5. SHEAR Re i a Sa sie acer ar eS Ieee A el aa ae

. «l7+-

adequate, 249 Ga. 812, 814(2) (1982), but they did not reach the

question of whether a reasonable juror would have understood that

relative culpability was a mitigating factor.

IV. THE EXECUTION OF JOHNSON WOULD CONSTITUTE EXVESSIVE AND

DISPROPORTIONATE PUNISHMENT i

The disproportionality and arbitrariness of the imposition of

a death sentence in this case becomes most apparent when

considered with the facts now before this Court: Johnson is not

the triggerman, yet he is hel: under a sentence of death. There

is only one aggravating circumstance supporting the death

sentence, that of (b)(7). His codefendant Sprouse received two

death sentences, one for aurder and one for kidnapping with bodily

injury, but his sentences were vacated by the Georgia Supreme

Court on grounds that the jury failed to specify in writing the

aggravating circumstances. Sprouse v. State, 242 Ga. 831 (1979).

Upon resentencing, Sprouse again received the death sentence,

which was reversed by the Georgia Supreme Court. because of

improper exclusion of evidence. Sprouse Vv. State, Georgia Supreme

Court Case No. 38822 (decided October 27, 1982). The disparity

in reviewing and affirming a sentence of death for the less

culpable defendant while the triggerman has no. valid death

sentence is obvious. As the Georgia Supreme Court itself has

pointed out, the evidence presented by the state in each of the |

cases was nearly identical. Sprouse v. State, 242 Ga. 831, 252

$.E.24 173 (1979).

In Godfrey v. Georgia, 4k6 U.S. 420, 428 (1980), this Court

held that "if a State wishes to authorize capital punishment it

has the constitutional responsbility to tailor and apply its laws

in a manner that avoids the arbitrary and capricious imposition of

"the death penalty"{emphasis added]. However, this case amply

‘illustrates that che death penalty is in rect. administered and .

: applied arbitrarily and capriciously in the State of Georgia.

The Suprene court of the United ocaeee | woe he Georgia

a i ctl ROR a tha RAL NSY EN tia alls aaa inate RRR. hv Aha ser i Oi ts 2. co Nl oR NS ch ola. ah UY

-1 He

capital punishment statutes on their face only with the assumption

that the procedures mandated by the statutes would essure that

sentences of death are not wantonly or freakishly imposed. Gregg

v. Georgia, 428 U.S. 153 (1976). Such a result would Clearly occur

here ir Johnson were to be executed even though there has been no

finding by the sentencer of his intention to participate in or

facilitate a murder or that he killed or attempted to kill as

required by Enmund v. Florida, 102 S.Ct. at 3377, 3381.

The Georgia Supreme Court has failed to follow its own

precedent in affirming Johnson's death sentence. In Hill v.

State, 237 Ga. 794, the evidence was uncertain as to who was the

triggerman, and the evidence tended to show that the triggerman

Nevertheless, appellant was sentenced to death and

‘was not Hill.

the sentence was affirmed. Affirmance of the sentence was based

on the theory that Hill was the prime mover. The sentence cf

death was commuted to life by the Georgia Bosrd of Pardons and

Paroles. In Hall v. State, 244 S.E.2d 833 (1978), the Georgia

Supreme Court reversed a death sentence for an accomplice because

of its dieoroportionality to a life sentence received by the

triggerman pursuant to @ plea bargain. The evidence was clear

that the codefendant had inflicted the fatal wevad. Likewise, in

Ward v. State, 239 Ua. 205, 236 S.E.2d 365 (1977), the Georgia

Supreme Court found the death penalty disproportionate to the

penmlty imposed in similar cases, considering both the crime and

the defendant, Ga. Code 4nn. §27-2537 (c)(3), particularly in that

instance where the identical facts were involved and one of the

codefendants received a life sentence.

The sentence is also disproportionate because of the mandates

of Coker v. Georgia, 433 U.S. 584 (1977). What Enmund does stand

for is that a non-homicidal felon, for exmple a robber or rapist,

may not constitutionally be sentenced to die unless his own

conduct reveals some action or mental state beyond that of any

robber or Segre As to the non-homicidal kenge the fact thet —

aaa. rr ereee oer

FING ee ee ToaN * i. ds " meneneree Sree ge

‘ vat

o1 Qu

identical risks fortuitously result in death in one case, but not

in another, is not sufficient to impose the death sentence in one

kind of felony and not another. There was no greater danger of

death resulting from what Coker did (including eetne venicle

theft, kidnapping, and escape), than what Johnson did (kidnapping

and escape) -~ but death to one of the victims occurred in

Johnson's case. Executing Johuson in the absence of a jury's

finding of some action or intention on the defendant's part

directed a taking life would be most arbitrary and excessive.

There is simply “no principled way to distinguish this case, in

which the death penalty was imposed, from the many cases in which

it is not," Godfrey v. Georgia, 446 U.S. at 433, but most notably

in the case of Sprouse v. State, supra, for Sprouse has no valid

sentence of death.

¥V. CONCLUSION

This Court should grant Johnson's petition for writ of

certiorari to review the judgment of the Supreme Court of Georgia;

insofar as it leaves the sentence of death undisturbed, it should

be reversed.

Kespectfully submitted,

o_O

ALICE C. STEWAKT

Attorney for Petitioner

967 Juniper Street, N.E. |

Atlanta, Georgia 30309

(404) 881-1700

No. *=e 6 * &

| IN THE

SUPHEME COURT OF THE UNITED STATES

October Term, 1982 .

JOHNNIE L. JOHNSON,

Petitioner,

vs.

WALTER D. ZANT, Warden,

Georgia Diagnostic and

Classification Center,

Respondent.

CERTIFICATE OF SERVICE

I hereby certify that I have this day served all parties to

be served by depositing in the U.S. Mail with first class postage

prepaid a copy of the Petition for Writ of Certiorari ajcressed to:

Susan V. Boleyn, Assistant Attorney General

132 State Judicial Building, 40 Capitol Square, S.wW.,

Atlanta, Georgia 30334

An entry of appearance is attached hereto as Exhibit 7 ie

This 10th day of December, 1982. _

sa a POT ee ee ee ee i. 9 MET A cae i ae

x Se a at es a ae Se Pg gee ee eo % ree icine sicae se a -

z a eae a6 . wo ‘. ps sail ibis Ta LI Serer ee