# Petition — In re Nakagawa

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 811

## Text

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

No. Sli- 81 68 5 4

FREDDIE DAVIS, Petitioner,
Vv.

STATE OF GEORGIA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

William J. Marett, Jr.
Larry D. Woods

Woods, Bryan, Woods § Watson

A Professional Law Association
121 17th Avenue South
Nashville, TN 37203

(615) 259-4366

Counsel for Petitioner

TABLE OF CONTENTS

TABLE OF AUTHORIT i ES. 22. ee & ee ee eee ke ee eS Te: ee ee Oe |] ©
ORDER BETO, giv c he ei ee Rs ak a ee i ie oe en ee
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOKED.....

QUESTIONS PRESEN Ee ck ccunceuunx -_* + * © es eee ee 8 ES SD Oe oe SS

STATEMENT OF THE CRE. oi wk ek ow ee 6a oe OO ka

REASONS FOR GRANTING THE EE ok we he wee kes
ARGUMENT

l. THE ADDITION OF NEW ACCUSATIONS OF
AGGRAVATING CIRCUMSTANCES AT THE SECOND
SENTENCING TRIAL SUBJECTS PETITIONER TO
DOUBLE JEOPARUY «ook cee w ew nm eens a

tl. THE INCLUSION OF THE NEW ACCUSATION OF
AGGRAVATING CIRCUMSTANCES 30 TAINTS
THE SECOND SENTENCING JURY'S VERDICT AS
TQ REQUIRE THE DEATH SENTENCE TO BE
Ea on oh ok a es we ek

Lil. THE SUPREME COURT OF GEORGIA ACTED
IMPROPERLY WHEN IT ACTED AS A SENTENCING
BODY AND REIMPOSED PETITIONER’S DEATH
SENTENCE AFTER REMAND WITHOUT ALLOWING
PETITIONER TO BE HEARD OR SUBMITTING ‘HE
ISSUE TO A JURY FOR HEARING... . wc cen ccs

IV. THE DENIAL BY THE SUPREME COURT OF
GEORGIA OF PETITIONER’S REQUEST TO BE
HEARD AND IN NOT RESUBMITTING THE ISSUE
TO A JURY FOR A SENTENCING HEARING
INVALIDATES GEORGIA'S AUTOMATIC SENTENCE
REVIEW WE I eB oa 2 ee tke eee eT eee

V. THE JURY INSTRUCTIONS GIVEN AT THE SECOND
SENTENCING TRIAL FAILED TO PROVIDE THE
JURY WITH CONSTITUTIONAL GUIDELINES FOR
ITS DELIBERATIONS AS THEY WERE INCOMPLETE
VAGUE AND OVERBROAD. og occ eee aus

VI. THE USE IN EVIDENCE OF THREE STATEMENTS
BY PETITIONER WAS IMPROPER WHEN MIRANDA
WARNINGS WERE NOT GIVEN UNTIL AFTER THE
SECOND STATEMENT AND THE WARNINGS WERE
Eos UG eC es ne Oe

VII. TRIAL COUNSEL FAILED TO PROVIDE PETI-
TIQHER WITH EFFECTIVE ASSISTANCE.........

Vill. RON, gg ow be ee eee eens eas

CERTIFICATE OF SERVICE. . 0.10 ccc w ences sce ew cewena uns

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TABLE OF AUTHORITIES

CASES PAGE

Andres v. United sates. S35 U.S. 746, GES. Ct.
* 3 * i. ee Te ee
Beck v. aes £47 U.S. 625, '60 S. Ct. 2382,
* es | ee ee en 9
Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1252,

7$
é pg Pe ee ee 3 |

2 «i * ~

ton v. Missouri, 451 U.S. 450, 101 3. Ce.
m , 7 eo. ee i er s, 10, 11

Caiton vy. Utah, 150 U.S. 85, 9 &. Ct. 435,
oe L.Ed. eo. ep ee ea

*>%

Chinarella v. United States, 445 U.S. i22,
. , tice, GS L.ed.ca 348 Ba se i ee |»

Davis v. seork 2: 446 U.S. 961, 100 5. Ct. 29354,
6d L.Ed. cc bs CI kc We hb he we ee a ew eee i, 7, &

Davis ¥. george: 45st U.S. 921i, Il Ss. Ct. 70ee,
695 L.Ed. 2 OR re ese re ee Fg a Se hy 7

*

©

Davis v. State, 240 Ga. 763. 243 S.E.2d 12 (1976)...... 5, 6, 6

Davis v. State, 246 Ga. 425, 7271 S. E.id Bie (i96G)..... 7, &

Eddings v. Oklahoma, Us... , 02 S. Ct.
369, TY L.bd.cu | (198 POET er rr a ec Pe ae 9, 1k, 14

Fitzgerald v. Estelle, 23

curaan ‘. Georgia, u68 U.S. 238, 92 S. Ct. 2726,
Re We i 972). ee ee
Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197
51 L.Ed.Zd 393 (1977) (plurality gee res ae ea

»
-

Godfrey v. Georgia, 446 0.5. 420, 100 S. Ct. 1759. a
6 * oe 9 BO ke ko een
Godfrey v. State, 248 Ga. 616, 284 S.Ed.2d 422 (1981).. 8, 10, 11

4, 8, 9, i2.

regs v. georgia. 428 U.S. 153, 96 S. Ct. 2909,
DU, See ee 16, 19

McGautha vy. California, 402 U.S. 185, 91 5. Ct.

’ * * BG akc ies
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
” * ee 4, 9, 20

Spivey v. Zant, F.2d Me. 0-1243........2

~ 4h

CASES (Cont.) PAGE

Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct.
7578, 49 L.Ed. id OR, ggg ke ek a a ee ee ees 8g,

Zant v. Stephens, No. $1-89, May 3, §982, SU L.W. 4472.... 9. IZ, 16

AUTHORITIES PAGE
Sixth Amendment to the United States Constitution......... 4e Sy 2-

»*

Eighth Amendment to the United States Constitution........ 22

Fourtheenth Amendment to the United States Constitution... 4, 9, 22

Pp my et

aé U.S.C. $ vt ee ~
Ga. Code Ann. * rao ey iat | LE re

b ea

Ga. Code Ann. 5 Bee EG aT CL Nica oe 8 oe ne ene cee wesnee 15

IN THE
SUPREME COURT OF THE UNITED STATES

October Term 1981

FREDDIE DAVIS,

Petitioner,
¥.
STATE OF GEORGIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI
0 THE SUPREME COURT OF GEORGIA

Petitioner, Freddie F. Davis, respectfully prays that
a Writ of Certiorari issue to review the judgment of the Supreme
Court of Georgia denying his application for certificate of
probable cause to appeal the denial of his petition for writ of

habeas corpus.

ORDER BELOW

The order of the Supreme Court of Georgia denying
petitioner’s application for certificate of probable cause to
appeal the denial of petitioner's petition for writ of habeas

corpus is not reported. A capy of said order and the order

denying the petitioner's motion for rehearing is provided in the

appendix. This case was previous ly remanded to the Georgia Supreme

Court for seconsi@eration ts light of Godfrey v. Georgia. Davis
66 6L.Ed.2d 819

v. Georgia, 446 U.S. 961, 100 S. Ct, 2934,

(1980). On remand the Georgia Supreme Court reaffirmed the death
sentences and a second petition for certiorari was denied. Davis
v. Georgia, 451 U.S. 921 , 101 S. Ct. 2000, 69 L.Ed.2d 415
(1981).

This Court's jurisdiction is invoked under 28 U.S.C.
$ 1257(3). The order of the Supreme Court of Georgia was entered
on March 24, 1982 and a motion for rehearing was denied on

April 8, 1982. This petition is timely filed.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOKED

AMENDMENT V, UNITED STATES CONSTITUTION:

. . » nor shall any person be subject for the
same offense to be twice put in jeopardy of
life or limb...

AMENDMENT VI, UNITED STATES CONSTITUTION:

In all criminal prosecutions, the accused shall
‘ . have the Assistance of Coursel for his
defense.

AMENDMENT VIII, UNITED STATES CONSTITUTION:

Excessive bail shall not be required, nor
excessive fines imposed nor cruel and unusual
punishments inflicted.

AMENDMENT XIV, UNITED STATES CONSTITUTION:

. . . No State shall make or enforce any law
which shall abridge the privileges or immunities
of citizens of the United States; nor shall any
State deprive any person of life, liberty, or
property, without due process of law, nor deny
to any person within its jurisdiction the equal
pretection of the laws.

GEORGIA CODE ANNOTATED SECTION 27-2534.1:

nae In All cases of other offenses for which
the death penalty may be authorized, the judge
shall consider, or he shall include in his
instructions to the jury for it to consider, any
mitigating circumstances or aggravating circum-
stances otherwise authorized by law and any of
the following statutory aggravating circumstances
which may be supported by the evidence: .. .
The offense of murder, rape, armed robbery, or
kidnapping was committed while the offender was
engaged in the commission of another capital
felony . . . The offense of murder, rape, armed
robbery, or kidnapping was outrageousty or
wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind, or an
aggravated baivery to the victim . . . The
statutory instructions as determined by the
trial judge to be warranted by the evidence
shall be given in charge and in writing to the
jury for its deliberation. The jury, if its
verdict be a recommendation of death, shall
designate in writing, signed by the foreman of
the jury, the aggravating circumstance or
circumstances which it found beyond a reasonable

@oust . . ss

QUESTIONS PRESENTED

1. Whether petitioner was twice put in jeopardy by
the state's allegation of new “aggravating circumstances" at a
new sentencing trial after appellate reversal of the original
sentence of death.

¢. Whether the statutory “aggravating circumstance"
upon which the jury relied in deciding upon death is so overbroad

and vague that petitioner's sentence based upon this statutory

provision was unconstitutional in light of Godfrey v. Georgia, 446
U.S. 420, 100 S. Ct. 1759, 64 L.Ed.2d 398 (1980).

3. Whether the Georgia Supreme Court has failed to
follow the appellate review process which this Court assumed in
Gregg, 428 U.S. 153, 96 S. Ce. 2909, 49 L.Ed.2d 859 (1976), to
be necessary to the constitutionality of the Georgia statutory
scheme .

4. Whether the use in evidence of three statements
made by petitioner was proper when the warnings required by

Mirends v. Avizone, 384 U.S. 635 , S&S. Ct. _1602 ,

RRO INCE Ne

16 L.Ed.2d 694 (1966), were not given until after the second
statement; were incomplete; and when the prosecution fails to show
comprehension as well as relinquishment.

5. Whether the petitioner's trial counsel's represen-
tation was so inadequate and ineffective as to deprive petitioner
of the "reasonably effective” assistance of counsel guaranteed
by the Sixth and Fourteenth Amendments.

6. Whether the death penalty may be constitutionally
imposed on the basis of jury instructions that: (a) fail to
instruct the jury to focus on the characteristics of the defendant
as well as the nature of the crime, (b) fail to explain the term
"mitigating," or to direct the jury's attention to specific
mitigating circumstances present in the case and (c) do not

guide the jury to weigh mitigating circumstances against aggra-

vating circumstances.

STATEMENT OF THE CASE

The charge for which petitioner was arrested, tried,
and convicted and sentenced to death was that he acted in concert
with Eddie Spraggins to rape and murder Frances Coe. The Supreme
Court of Georgia affirmed the murder conviction and rape convic-
tion in 1978 but vacated and reversed the imposition of the
sentence of death as a result of inadequate jury instructions.

At petitioner's first sentencing trial, the state
alleged enly the “aggravating circumstance” of “commission of an

>

additional capital felony, to wit, the rape of Frances Coe"” and

on that basis, the jury recommended a death verdict. After

240 Ga. 763, 243 S.E.2d 12 (1978), at the new sentencing trial,
the state added the allegation of “aggravating circumstances”
that the offense was “outrageous, wantonly vile, inhuman and
involved torture and depravity of mind . . . and aggravated
battery .. - Adding this second allegation involved no new
evidence and in fact resulted in the use of the same witnesses
and same testimony as at the first trial. No reason of any kind
appears in the record for the addition of this new, second alle-
gation of "aggravating circumstances” at the resentencing trial.

The jury instructions on sentencing and the death
penalty? gave no examples of "mitigating;" did not attempt to
define or explain the “outrageous, wantonly vile . . ." instruction;
asked the jury only to "recommend," and contained the other defects |

discussed infra.

Ipetitioner received a life sentence for the rape
conviction.

m4
“Page 283 of transcript of first trial in 1977. (Here-
inafter referred to as "Tr.")

Spage 363 of transcript of resentencing trial in 1978.
(Hereinafter referred to as "2d Tr.")

404 Tr. pp. 353-362.

During presentation of the evidence, the investigating
police officer was allowed to testify concerning three state-
ments given by the petitioner. The first statement was given
at home--petitioner was not a suspect supposedly--and no warnings
of constitutional rights were given.” The second statement was
taken at the police station” when obviously the police did not
believe the first statement. No warnings of constitutional
rights were given the defendant until after he made this second
statement.” In this statement, petitioner admits going to the
home of the deceased with the co-defendant Spraggins knowing
that a robbery was planned; admits an assault on the deceased
by Spraggins; admits knowledge of sexual assault; and gives the
police knowledge of physical evidence which is used at the trial.®
Constitutional warnings were. given before the third statement
where petitioner admitted hilling the deceased but these warnings

were incomplete.”

All three of the statements by petitioner were used in
evidence against petitioner at the resentencing trial. /
Based on the above, the réséitéaicing jury "“Fecommended”
death and petitioner was sentenced to death. ?!
The Supreme Court of Georgia affirmed the death sentence.

Davis v. State, 240 Ga. 763, 243 S.E.2d 12 (1978).

A timely petition for certiorari was filed with the
Supreme Court of the United States and this petition was granted.

On May 27, 1980, the Supreme Court of the United States reversed

‘*

52d Tr. p. 147.

"2d Tr. p. 188.

724 Tr. pp. 149, 142.

824 Tr. pp. 149-150.

"24 Tr. p. 152.
1034 Tr. pp. 142, 147, 149-152.
1154 Tr. pp. 363-364.

petitioner's death sentence and remanded the case in light of

Godfrey v. Georgia, 446 U.S. 420, 100 S, Ct. 1759, 64 L.Ed.2d 398

(1980); Davis v. Georgia, 446 U.S. 961, 100 S. Ct. 2934, 64

L.Ed.2d 939 (1980).
Petitioner's motion for a full briefing and oral argu-

ment in the Supreme Court of Georgia was denied. Thereafter,

petitioner's death sentence was reimposed by the Supreme Court

of Georgia ip an opinion filed September 74, 1980. Davis v. State,
246 Ga. 423, 271 S.E.2d 828 (1980). Again, a timely petition for
writ of certiorari was filed with the Supreme Court of the United

States and said petition was denied. Davis v. Georgia, 451

U.S. 921 , 101 S. Ce. 2000, 69 L.Ed.2d 413 (1981).

On July 22, 1981, petitioner's original trial court
reimposed a new execution date for the death sentence for
August 3. 1981. On July 30, 1981, petitioner filed a petition for
a writ of habeas corpus in the Superior Court of Butts County,
Georgia and requested a stay of execution pending a hearing on
his petition. The Superior Court of Butts County, the Honorable
Alex Crumbley, granted petitioner's request for sta¥ on July 38,
1981.

An evidentiary hearing was held before the Honorable
Alex Crumbley on October 1, 1981. In an order dated February 5,
1982 and filed on February 8, 1982, petitioner's petition for
writ of habeas corpus was denied by the Superior Court of Butts
County. Petitioner filed a timely application for certificate
of probable cause to appeal in the Supreme Court of Georgia which
was denied on March 24, 1982. Petitioner then filed a motion
for a hearing which was denied on April 8, 1982. The Georgia
Supreme Court granted petitioner's motion to stay the remittitur
for ninety (90) days from April 8, 1982.

No other or prior habeas corpus proceedings have been

filed on behalf of petiticner.

REASONS FOR GRANTING THE WRIT

Petitioner submits this court should grant a writ of
certiorari to enable this court to review the numerous, substan-
tial constitutional deprivations associated with petitioner's

trial and sentencing proceedings.

The recent decision of Bullington v. Missouri, 451
U.S. 430 , 101 S. Ct. 1852, 68 L.Ed.2d 270 (1981), brings the
sentencing phase of a bifurcated trial within the meaning of
the double jeopardy clause. The Georgia Supreme Court, however,

in Godfrey v. State, 248 Ga. 616 , 284 S.E.2d 422 (1981), has

mene

hd

interpreted the Bullington reversal ef the death penalty as “not

based on double jeopardy . . ., but on the fact that the death
sentence was disproportionate to the life sentence previously
imposed.” Id. p. 425. This inconsistency in interpretation,
particularly in view of the fact that at petitioner's second
sentencing trial, new aggravating circumstances were introduced,
presents this court with an area of law desperately needing resolu-
tion; prior to the imposition of the “unique and irretrievable”™

penalty of death. Woodson v. North Carolina, 428 U.S. 280 at 281,

oS Ss. cr. 275, © Led. ou.

This court has previously vacated petitioner's death

sentence in light of its ruling in Godfrey v. Georgia, 446 U.S.

420, 100 S. Ct. 1759, 64 L.Ed.2d 398 (1980); Davis v. Georgia,

446 U.S. 961, 100 5. Ct. 2934, 64 L.Ed.2d 819 (1980).
The Georgia Supreme Court reimposed the death sentence thereafter
by simply holding that the jury was "authorized" to impose the

death sentence. Davis v. State, 246 Ga. 432, 271 S.E.2d 828

(1980). The Georgia Supreme Court has therefore acted incon-

Sistently with this court's decisions of Gregg v. Georgia, 428

U.S. 153, 96 S. Ct. 2909. 49 L.id.2d 859 (1976) and Godfrey v.

Georgia, supra, in that the Georgia Supreme Court improperly

acted as a sentencing body where the Georgia scheme places that

responsibility in the trial court and invalidated the automatic

sentence review focused on by this court in Gregg. See, Stephens,
No. 81-89, May 3, 1982, 50 L.W. 4472, where a question was
certified to the Georgia Supreme Court concerning the automatic
review under Georgia law. Certiorari should be granted to resolve
the inconsistencies between this court's mandates of constitutional
safeguards in capital cases and their actual application and

administration by the Georgia courts.

Eddings v. Oklahoma, _ U.S. _____» 2 5S. Ct. 565,
7t ~=6CLLEd.2d = =—E (1982), requires the definition of and the

ncaa mie

consideration of all relevant mitigating evidence and the weighing
of mitigating evidence against evidence of aggravating circum-
stances in all capital cases. the instructions on mitigation
approved in these decisions of the Georgia Supreme Court and in
this case as wel! do not meet the requirements set forth in
Eddings. Certiorari should be granted to resolve the inconsistency
between this court's rulings on mitigating evidence and the
practice of the Georgia courts.

Finally, this case presents the court with important
questions concerning the use of statements obtained by interro-

gation without proof of compliance with Miranda v. Arizona, 384

U5. 436, $. Ce. 02, 6 L.Ed.20 694 (1966) ant

the "reasonably effective” assistance of counsel standard set
forth by the Sixth and Fourteenth Amendments.

Petitioner submits that because of the presence of
‘substantial, unreviewed error, and because of the further develop-
ment of capital sentencing law, he stands sentenced today on the
basis of unreliable trial dnd appellate proceedings which resulted
in an unwarranted conviction and death sentence. This court
cannot tolerate such a result, for reliability must be the hall-

mark of any capital procecding. Beck v. Alabama, 447 U.S. 625,

100 =. Ct. e38f , 65 _L.Ed.2d 592 (1980).

“~

I. THE ADDITION OF NEW ACCUSATIONS OF
AGGRAVATING CIRCUMSTANCES AT THE SECOND
SENTENCING TRIAL SUBJECTS PETITIONER TO
DOUBLE JEOPARDY.

Under the Bullington v. Missouri, 451 U.S. 4350 »

101 S. Ct. 1852, 69 L.Ed.2d 270 (1981), rationale, double jeopardy
protections are applicable at the sentencing phase as well as at

the trial phase. In Bullington, this court expressly provided

that “the protection afforded by the double jeopardy clause to
one acquitted by a jury is also available to him, with respect

to the death penalty, at his retrial.” Bullington, page S. Ct. 1862.

The Georgia Supreme Court in Godfrey v. State, 248 Ga. 616 ,

283 S.E.2d 422 (1981) stated that “we do not agree that the
failure to submit aggravating circumstances which are raised by
the evidence is an impl: rected verdict of acquittal on these
aggravating circumstances. (Godtrey, page S.E.2d 426. In so
holding, the Georgia Supreme Court is in direct contradiction

with this court's holding in Bullington.

Petitioner submits the rationale in Godfrey is erroneous
in that it mistakenly states that the reversal in Bullington was
"not based on double jeopardy, however, but on the fact that the

death sentence was disproportioned to the life sentence previously

imposed.” Godfrey, page S.E.id 423. Bullington, page S. Ct. 1860,
provides that if a reversal is based on a ground other than the
sufficiency of the evidence, it is proper to use the same aggra-
vating circumstances on retrial. However, petitioner faced at his
second sentencing trial an additional aggravating circumstance
which was not found by the first sentencing trial. The first
sentencing trial was the state's “one fair opportunity to offer
whatever proof it could assemble” and the fact that the jury did
not find the existence of the second aggravating circumstance is,
contrary to the Georgia Supreme Court's Godfrey decision, an

implied acquittal of that aggravating circumstance. Such an

é

acquittal goes to the sufficiency of the evidence and, under the

Bullington rationale, submission to the jury of the new aggra-

vating circumstance at the second sentencing trial puts the
petitioner in jeopardy for an offense which he has already been
acquitted.

As a result of the inconsistency between the Georgia

Supreme Court's Godfrey decision and this court's Bullington

decision and as a result of the habeas corpus trial court's
reliance on Godfrey in denying petitioner's writ for habeas corpus,

this court should grant petitioner a writ of certiorari.

Il. THE INCLUSION OF THE NEW ACCUSATION
OF AGGRAVATING CIRCUMSTANCES SO TAINTS
THE SECOND SENTENCING JURY'S VERDICT
AS TO REQUIRE THE DEATH SENTENCE TO BE
VACATED.

As noted previously, the addition of a second aggra-
vating circumstance at petitioner's second sentencing trial
based upon the same evidence and the same witnesses as presented
at the first trial constitutes a violation of petitioner's
protection against d.uble jeopardy. As such, the inclusion of
the new aggravating circumstance so taints the verdict as to
require the vacation of the death sentence.

The decision to impose the death sentence has been
treated with particular scrutiny by the appellate courts. [.g.

Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2776, 33.

ses asa SenC er:

L.Ed.2d 346 (1972); Grege v. Georgia, 428 U.S. 155, 96 5. ct.

2909, 49 L.Ed.2d 859 (1976). The ultimate question regarding a
death sentence is whether the jury which handed down the sentence
was sufficiently guided in its deliberations to comply with the
constitutional standards set forth in Furman.

This court's recent decision in Zant v. Stephens, No,

81-89 (May 3, 1982), 50 L.W. 4472, certified the following question
to the Georgia Supreme Court: "What are the premises of state law
that support the conclusion that the death sentence in this case

is not impaired by the invalidity of one of the statutory aggraveting

The answer to

om

circumstances found by the jury? L.W., page 4474,
be provided by the Georgia Supreme Court will determine for the
court whether the Georgia capital sentencing system "would avoid
the arbitrary and capricious imposition of the death penalty and
would otherwise pass constitutional muster.”

Petitioner contends that the addition of the second
aggravating circumetanen winlotne Ananhle deanardy Therefore,

the question for this court is whether the death sentence imposed

by a jury whose deliberations were impaired by the unconstitutional

imposition of the second aggravating circumstance, so taints
the jury's imposition of the death penalty as to require the

death sentence to be vacated. This court should grant a writ of

certicrari to ensure that before a death sentence is imposed it
was returned under the "deliberate, channeled guidelines required

to eliminate constitutionally defective arbitrariness.” Gregg,

supra.

t1I. THE SUPREME COURT OF GEORGIA ACTED
IMPROPERLY WHEN IT ACTED AS A SENTENCING
BODY AND REIMPOSED PETITIONER'S DEATH
SENTENCE AFTER REMAND WITHOUT ALLOWING
PETITIONER TO BE HEARD OR SUBMITTING THE
ISSUE TO A JURY FOR HEARING.

With respect to petitioner's first petition for a writ
of certiorari, the Court remanded his case “for further consid-

eration in light of Godfrey v. Georgia," but did not instruct the

Georgia Supreme Court to put the matter before a newly convened
sentencing jury. Mr. Justice Marshall's concurrence in Godfrey
did suggest that a trial jury should be called:

{I)t is not enough for a reviewing court to
apply a narrowing construction to otherwise
ambiguous statutory language. The jury must
be instructed on the proper, narrow construc-
tion of the statute. The Court's cases make
clear that it is the sentencer's discretion
that must be channeled and guided by clear,
objective, and specific standards.

Godfrey v. Georgia, supra, 446 0.5. 420, 100 S. Cr. 1759, 64

L.Ed.2d 398,411 (emphasis in original).

On remand in this case, the Georgia Supreme Court, sua
sponte decided against convening a new sentencing jury and further
refused to take briefs or oral argument on any matter regarding
petitioner's case, despite petitioner's request for briefing and
oral argument. Simply holding that petitioner's "jury was

authorized to find, . . . that the appellant's murder of the

Victim was outrageously or wantonly vile, horrible or inhuman."
{emphasis added) The Georgia Supreme Court reimposed the death
sentence.

That disposition of the remand was improper, however,
Since it effectively deprived petitioner of a trial by a jury
that was guided in the meaning of subsection (b)(7) of the

Georgia statute. That subsection permits the jury to recommend

a death sentence if they find that the murder was aggravated in

that it was:

outrageously and wantonly vile, horrible and
inhuman in that it involved torture, depravity
of mind on the part of the defendant, or an
aggravated battery to the victim.

It is “impossible tor (the Georgia Supreme Court) to say whether

- SO exercised its discretion,” Godfrey v.

Qa particular jury ..
2, and applied a constitutionally

Georgia, supra, L.Ed.2d at 412,

limited interpretation to (b)(7). Nothing in the sentencing

instructions given petitioner's jury:

implie{d) any inherent restraint on the
arbitrary and capricious infliction of the
death sentence. A person of ordinary sensi-
bility could fairly characterize almost
every murder as “outrageously or wantonly
Vile, horrible or inhuman.” Such a view
may, in fact, have been one to which the
members of the jury in this case subscribed,

This Court has repeatedly held that no criminal

sentence may be based merely on appellate speculation that a jury,

faced with two alternative theories, one of which is unconstitu-

tional, might have acted on a constitutional basis. See,

bi see ee
+ oe me

90 «6S. 6Ct.

,

63 L.Ed.2d 348 (1980). This principle has been observed

108
in death cases, where the Court has insisted that all "doubts

. »« » Should be resolved in favor of the accused.” Andres v.

he

United States,
L.Ed. 1055 __
., to. SS, 32
the jury which sentenced the petitioner did so on

(1948); accord, Calton v. Utah, 130 U.S. 83, 86-87

L.Ed. 870 (1889). Without

assurance that

the basis of a statute carefully fashioned to prevent arbitrary

and capricious decisions, the petitioner's sentence to death

should not have been reimposed.

IV. THE DENIAL BY THE SUPREME COURT OF
GLORGIA OF PETITIONER'S REQUEST TO BE
HEARD AND '™S NOT RESUBMITTING THE
ISSUE TO A JURY FOR A SENTENCING
HEARING INVALIDATES GEORGIA'S AUTO-
MATIC SENTENCE REVIEW.

In upholding Georgia's death penalty statute, in Gregg,
supra, this court focused on the automatic appeal to the Georgia
Supreme Court as an important additional safeguard against the
arbitrary and capricious imposition of the death penalty. 428
U.S. at 198, 204-206, However, this court in the recent case of

cant Vv. Stephens, supra, has raised serious questions as to its

own reliance on the Georgia Supreme Court's automatic review
process. Petitioner submits that the Georgia Supreme Court's
review in his case did not and could not insure that jury discre-
tion was controlled by clear and objective standards so as to
eliminate the risk of arbitrary and capricious actions.

The Georgis Supreme Court is required under the sentencing
review statute to consider whether the sentence was imposed under
the influence of passion or prejudice. Georgia Code Annotated
$8 27-2537(¢)(1}). In one conclusory statement, without the basis

for its conclusion, the Georgia Supreme Court dismissed this

Davis ¥. State, 240 Ga. 423, 271 S.E.2d 828 (1980).

possibility.

As the court noted in its recurring on opinion “we recognize that
the constitutionality of the Georgia death sentences ultimately
would depend on the Georgia Supreme Court construing the statute
and reviewing the capital sentences consistently with this concern.”
L.W., page 443.

It is apparent from the summary nature of the Georgia
Supreme Court's opinion in this case that the automatic review
afforded a defendant under this statute provides only an illusion
of protection against arbitrary and capricieus imposition of the
death penalty. See the dissenting opinions of Mr. Justice Marshall

joined by Mr. Justice Brennan in Zant y. Stephens, supra. As a

result, certiorari should be granted to consider whether this
court's reliance on the Georgia Supreme Court's application of

the Georgia automatic review process is misplaced,

V. THE JURY INSTRUCTIONS GIVEN AT THE SECOND
SENTENCING TRIAL FAILED TO PROVIDE THE
JURY WITH CONSTITUTIONAL GUIDELINES FOR
ITS DELIBERATIONS AS THEY WERE INCOMPLETE,
VAGUE AND OVERBROAD,

The jury instructions given at the second sentencing
trial failed to provide the jury with constitutional guidelines

for its deliberations as they were incomplete, vague and overbroad.

The Eddings v. Oklahoma, u.s. i» S82 5. Ct. Bos.

Aeon 390

7 L.td.2d 1 (1982) decision requires that state courts
must consider all relevant mitigating evidence and weigh it against
the evidence of the aggravating circumstances. In petitioner's
second sentencing trial, the instructions leading to the death
verdict against petitioner do not clearly express the need to
weigh the petitioner's particular characteristics, as well as

the specific circumstances of the crime. Further, the only

attempt at any explanation by the trial court to guide and direct
the jury on the meaning and definition of the term “mitigating”
was as follows:

Mitigating circumstances are those circun-

stances which do not constitute a justification

or excuse for the crime, but which may be

considered as extenuating or reducing the moral

culpability or blame.

In addition, this court's decisions--and a fair reading
of the Constitution--call for more than a definition of "miti-
gating." They require that particular mitigating factors relevan?
in light of the record such as age and others, be called to the
jury's attention as examples of what they could weigh against
the aggravating circumstances which the court called to the jury's

attention. (See also, the recent Fifth Circuit decision of

Spivey v. Zant, F.2d » No. 80-7243, where failure to

$0 instruct the jury rendered the jury instructions constitutionally

inadequate. )

ae

In Gregg, the court assumed that such factors would be
specifically called to the sentencing authority's attention.
Under a fair reading of the constitutional requirements in death
cases they clearly should be. In view of Eddings this court should
grant certiorari in order to review the Georgia court's admini-

stration of evidence of mitigating circumstances.

*

se

VI. THE USE IN EVIDENCE OF THREE STATEMENTS
BY PETITIONER WAS IMPROPER WHEN MIRANDA
WARNINGS WERE NOT GIVEN UNTIL AFTER THE
SECOND STATEMENT AND THE WARNINGS WERE
INADEQUATE.

Miranda v. Arizona, 384 U.S. 436, 6 GS. Ct. i602 ,

es ni ee sng ats

lo L.Ed.2d 694 (1966) requires that whenever an individual
is taken into custody or otherwise deprived of his freedom in
any significant way and is subjected to questioning, he must be
advised of his privilege against self-incrimination; his right
to an attorney; and related rights. The right to Miranda warnings
specifically includes statements which are meant to be exculpatory
for they can also be highly incriminating.

The first time petitioner was questioned he was at his
home. The second time, however, he had been taken to the Manchester,
Georgia Police Station.!* It is difficult to imagine that a youny
(19 year old) ill-educated man being questioned in rural Georgia
about a rape-murder did not feel and suffer under the coercive

atmosphere criticized in Miranda v. Arizona. The result of this

second questioning was for petitioner to make a statement which
was highly damaging and which was used against him at trial. Onl)
after these admissions by the petitioner did the police then
belatedly give Miranda warnings. ™

This second statement by petitioner was followed by a

third interrogation where Miranda warnings were given prior to
interrogation. However, neither the warnings given after the
second statement or before the third statement were complete. Both
times the police investigator gave the Miranda warnings from
menory!> and both times the investigator tetally failed to advise
petitioner that he had the right to have the interrogation cease

at any time even after questioning began. Miranda v. Arizona,

U.S. at 444-45, 473-74.

leg Tr. p. 148.
132g Tr. p. 144.

The continuing, serial progression of these three
Statements from the petitioner--each of which implicate the
petitioner more strongly--demonstrate the dramatic effect on
petitioner and the impact at his death sentencing trial of the
prosecution's failure to give timely or adequate Miranda warnings,

Finally, there is simply no evidence in this record to
Support a finding that this 19 year old youth waived his right to
remain silent or his right to a lawyer. Proof of waiver by the
state of Georgia should have included (but did not) proof of
understanding of the rights and "comprehension" as well as

“relinquishment.” Brewer vy. Williams, 430 U.S. 387. 97

S. Ct. 1232 , 51 L.Ed.2d 424 (1975).

abo tain

a

VII. TRIAL COUNSEL FAILED TO PROVIDE
PETITIONER WITH EFFECTIVE ASSISTANCE.

Measured against the appropriate "reasonably effective”
standard, petitioner did not receive constitutionally adequate
legal assistance at his capital trial.

The “reasonably effective assistance" standard is
inherently flexible. What is reasonable in one situation is not
reasonable in another. In this case, petitioner was sentenced to
die. In that situation, the Eighth Amendment, together with the
Sixth and Fourteenth, establish a particularly high standard of
reasonableness.

Because “the penalty of death is qualitatively different
from a sentence of imprisonment, however long . . . there is a
corresponding difference in the need for reliability in the
determination that death is the appropriate punishment in a

specific case.” Woodson v. North Carolina, 428 U.S. 280, 305 (197b)

96 >. Ct. 2978 , 49 L.Ed.2¢d 944 (plurality opinion).

To satisfy this heigetened need for reliability, this court has
held that certain procedures which are not required by the
Constitution in other criminal cases are nonetheless due in capital
cases under the Eighth Amendment. Thus, the level of procedural
fairness that the Due Process Clause of the Fourteenth Amendment
{and all of its incorporated amendments) require as a reflection

of the concerns of the Eighth Amendment in capital cases is

higher than that required in non-capital cases. Compare Woodson

v. North Carolina, supra, with McGautha v. California, 402

U.S. 185, ol 6S. Ce. 1654, oe OL BO. 28 71) sD.

Accordingly, while a relatively high level of lack of
preparation, error and neglect by counsel might satisfy the dic-
tates of reasonableness in a non-capital case, it will not satisfy
the higher degree of "reliability" that the Eighth Amendment demands
of determinations “decisive (of) life ... and... death."

Gardner v. Florida, 430 U.S. 349, 359, 97 S. Ce. 1197, 51

~ 22 .

**

L. Bd. ? agS (1977) (plurality opinion). When a condemned man
has not had consistently reliable assistance at his capital

trial, therefore, "the state's criminal justice system has operated
to deny (the) due process (required by the Eighth as well as the
Sixth and Fourteenth Amendments) . . . and the state's consequent
(execution) of the defendant is fundamentally wrong." Fitzgerald

v. Estelle, supra, at 1336.

Petitioner did not receive “reasonably effective” or
reliable assistance of counsel at his capital trial. Indeed, his
lawyer's lack of ability to adequately prepare rendered the trial
so fundamentaliy unfair that under any standard petitioner's
constitutional rights were violated. As a consequence, a writ of
certiorari should be issued for this court to review the appli-
cation of the “reasonably cffective” standard to petitioner's

Case.

VIII. CONCLUSION

For the foregoing reasons, petitioner respectfully
submits that this court should grant his petition for a writ of
certiorari to review the Supreme Court of Georgia's order denying
his application for a certificate of probable cause to appeal
the denial of petitioner's petition for writ of habeas corpus.

Respectfully submitted,

WOODS, BRYAN, WOODS §& WATSON
A Professiona] Law,Associatj)on

121 17th Avenue South
Nashville, IN 37205
(615) 259-4366

CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the
foregoing Petition for a Writ of Certiorari to the Supreme Court
of Georgia has been placed with the U.S. Mail, postage prepaid,
and addressed to Mary Beth Westmoreland, Assistant Attorney

General, Attorney General's Office, 132 State Judicial Building,

40 Capitol Square, Atlanta, GA 30334 and to Mike Bowers, Attorney

State a Building, 40 Capitol Square, Atlanta, GA 30334 on

this the | » day of

e e RECEIVED
JUN & 1982

OFFICE OF THE CLERK
_ SUPREME COURT, U.S.

IN THE SUPREME COURT OF THE UNITED ST
OCTOBER TERM, 1982

vo. s1- @1 6854

AAA, A LARA L AEA

FREDDIE DAVIS,
Petitioner,

Ve

WALTER D. CANT, WARDEN,
GEORGIA DIAGNOSTIC AND
CLASSIFICATION CENTER,

Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

‘aaa MEER ENTE REAR

fhe petitioner, freddie Davis, who is now held in the
Georgia Diagnostic and Classification Center in Jackson, Georgia,

asks leave to file the attached petition for writ of certiorari

to the Supreme Court of Georgia without prepayment of costs and te
proceed in forma pauperis pursuant to Rule 53.
The petitioner's affidavit in support of this motion is

attached hereto.

©
oo
tw

This the

~~
y of june . 3

Respectfully submitted,

WOODS, BRYAN, WOODS §& WATSON
A Professional Law Association

7 , 7
¢ #
F # Pad,
# zp,
#

121 17th Avenue South
Nashville, TN 37205
(615) 259-4366

: @

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1982

vo. s1- 81 6854

FREDDIE DAVIS,

Petitioner,

Vv .

WALTER D. CANT, WARDEN,
GEORGIA DIAGNOSTIC AND
CLASSIFICATION CENTER, ‘

Respondent.

AFFIDAVIT IN SUPPORT OF MOTION FoR
LEAVE TC PROCEED IN FORMA PAUPERIS

REMAN OA NALS SHARES ARS SBIR ARES ARSE TS AI

| 1, Freddie Davis, being first duly sworn according to

law, depose and say, in support of my motion for leave to proceed
without being required to prepay costs or fees:

1. I am the petitioner in the above-entitled case.

2. | am currently incarcerated at the Georgia
Diagnostic and Classification Center in Jackson, Georgia.

3. Because of my poverty I am unable. to pay the costs
of said cause.

4. I am unable to give security for the costs in this

cause.
5. I believe that I am entitled to the relief that |

seek in this action,
6. The nature of this action is briefly stated as

follows:

I was sentenced to death by the state court in Georgia
on the charge of murder and rape and I am presently incarcerated
in the Georgia Diagnostic and Classification Center in Jackson,
Georgia. The present proceeding is an application for writ of

certiorari to the Supreme Court of Georgia which affirmed the

denial of my petition for writ of habeas corpus based upon my

claim that my federal constitutional rights have been violated

as set forth in the petition for certiorari.

Sworn to and subscribed
: Py, Ms
before me this 7 aay

ft *
of Agri! , 1982.
/ |

My Commission Expires:

Sv COMMERCE CPS GARD 21. 1906

CERTIFICATE OF SERVICE

l hereby certify that a true and exact copy of the
foregoing Motion for Leave to Proceed in Forma Pauperis has been
placed with the U.S. Mail, postage prepaid, and addressed to
Mary Beth Westmoreland, Assistant Attorney General, Attorney
General's Office, 132 State Judicial Building, 40 Capitol Square,
Atlanta, GA 30334 and to Mike Bowers, Atterney General of the
State of Georgia, Attorney General's Office, 132 State Judicial
Building, 40 Capitol Square, Atlanta, GA 30334 on this ne Oth

day of _ (gh 1982.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1364%3A1. Public record. Not legal advice.