Petition — Stanley v. Kemp

‘

8 27008

No, @2~

IN THE

RECEIVID

SUPREME COURT OF THE UNITED STATES

Jun 29 1983

OFFICE OF THE CL. ix

- p—BUPRENE COUKI, U3

October Term, 1982

IVON RAY STANLEY,

Petitioner,

eye

WALTER ZANT, Warden, Georgia

Diagnostic and Classification

Center,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THC ELEVENTH CIRCUIT

MELVIN L. WULF

BELDOCK LEVINE & HOFFMAN

565 Fifth Avenue

New York, New York 10017

(212) 490-0400

ATTORNEY OF RECORD

NEIL BRADLEY

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

Suite 355

52 Fairlie Street, N.W.

Atlanta, Georgia 30303

(404) 523-2721

Attorneys for Petitioner

QUESTIONS PRESENTED

l. Whether the failure of appointed trial coursel to

put in any evidence in mitigation on petitioner's be alf in

the punishment phase of trial, though ample evidence was at

hand, violated the Sixth, Eighth and Fourteenth Amendments to

the United States Constitution.

2. Whether petitioner's incriminating statement was

improperly introduced at trial.

3. Whether the decision below conflicts with Godfrey v.

Georgia, 446 U.S. 420 (1980).

TABLE OF CONTENTS

Page

QUOSTIONS PFESENted woccccvcccccesccveveccccveccsesece i

CiCaACion CO OPINION Below wcccccvcvcccceccccccsevvese l

JUPIBSGICCION cocccccrvscrsecesrccseseeesseresseeseeeee 2

Constitutional Provisions Involved ..sssseeensesseves 2

Statement OF CHE CASE no cscccccceverecceveevecevseves 2

Statement Of the Fact wuscsccescvvsecsvvsccevesssves 4

Reasons for Granting the Writ wccccccccvcvvvccscescece 6

I. Petitioner Was Deprived of His

Right to the Effective Assistance

Of COUNSE] cccrecevceseccseveeveesseseesece 6

II. Petitioner's Incriminating Statement

Was Improperly Admitted into Evidence ..... 1]

7 SLLLDE Requices Reversal of ce

Cioner’sS CONVICTION .occcccvecceseveccveces 14

CONCLUSION cecccrcrcccerccresrereresseveseseseseseces 16

Appendix:

Opinions:

United States Court of Appeals

for the Eleventh Circuit cccccccccccccccccvees la

United States District Court (6/12/81) ....... 28a

Superior Court Butts County (10/14/80) ....... 34a

Supreme Court of Georgia (9/6/79) .w.ceseeeeeese 378

Superior Court Butts County (7/26/79) ......+. 38a

Supreme Court of Georgia (11/28/77) .w..sseeeee 448

Closing AFGUMONE ccccccccccccccccccccccccscccecs 628

Waiver of Counsel eeeeeevoeveeeeeeveevpeeeeeeeeeeeeeeeae 65a

-ii-

TABLE OF CASES

Page

Brewer v. Williams, 430 U.S. 387 (1977) wesseeeeevees 3

Godfrey Vv. Georgia, 446 U.S. 420 (1980) eeosseeneoneoveve 14

Lockett Ve Ohio, 438 U8. 586 (1978) ee ee eeeeeeeeene 10, ll

wires vv. Beisone, 3264 0.8. 8636 (1966) «i002 0osvese0 13

Wood Vv. Strickland, 51 U.8.L.8. 387) ’ ® 2 € 66.8 CC 4.9 Bie 6

“1ii-

No. 82-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

IVON RAY STANLEY,

Petitioner,

- ve

WALTER ZANT, Warden, Georgia

Diagnostic and Classification

Center,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Petitioner IVON RAY STANLEY, respectfully prays that

a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Eleventh Circuit in

this case.

CITATION TO OPINIONS BELOW

The opinions of the United States Court of Appeals

for the Eleventh Circuit, the United States District Court for

the Middle District of Georgia, the Superior Court of Butts

County, and the Supreme Court of Georgia are set out in the

Appendix, infra, at pp. la, 28a, 38a and 44a, respectively.

The opinion of the Supreme Court of Georgia is reported at 240

Ga. 341. The other opinions are unreported,

JURISDICTION

The judgment of the Court of Appeals for the Elev-

enth Circuit was entered on February 10, 1983. A timely

petition for rehearing was denied on May 3, 1983. This

Court's jurisdiction is invoked pursuant to 28 U.S.C.

§ 1257(3), petitioner having asserted below and is asserting

herein deprivations of rights secured by the Constitution of

the United States.

CONSTITUTIONAL PROVISIONS

INVOLVED

This case involves the Sixth Amendment to the Con-

Stitution of the United States, which provides in relevant

part:

In all criminal prosecutions the accused

shall enjoy the right to... have the

assistance of counsel for his defense."

and the Eighth Amendment to the Constitution of the United

States, which provides in relevant part:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and

unusual punishments inflicted.”

and the Fourteenth Amendment to the Constitution of the United

States, which provides in relevant part:

{[Nlor shall any State deprive any person

of life, liberty, or property, without due

process of law....

STATEMENT OF THE CASE

l. Course of Proceedings in the State Courts and in the

Court Below.

On January 15, 1977, petitioner was convicted in the

Superior Court of Decatur County of felony murder, kidnapping

with bodily injury, and armed robbery. By a final judgment

entered on the same date, he was sentenced to death upon each

of the three convictions. On November 28, 1977, the Supreme

Court ot Georgia set aside the conviction for armed robbery,

affirmed the other convictions, and affirmed the sentence of

death. 240 Ga. 341, 241 SE2d 173 (1977); App., infra, p. 44a.

On May 14, 1978, a petition for certiorari to the Supreme

Court of the United States was denied. Stanley v. Georgia,

439 U.S. 882 (1978).

The Supreme Court of Georgia issued remittitur to

the Superior Court of Decatur County, and on January 15, 1979

that court set February 2, 1979 as the date for execution of

petitioner's death sentence.

Petitioner thereupon filed a petition for a writ of

habeas corpus in the Superior Court of Butts County. The

Court stayed the execution of the death sentence pending

determination of the habeas petition. After an evidentiary

hearing, the writ was denied on July 26, 1979 with an opinion

by the Hon. R. Alex Crumbley. App., infra, p. 38a.

The Supreme Court of Georgia denied a certificate of

probable cause to appeal, and a subsequent petition for cert-

iorari was denied by the Supreme Court of the United States,

444 U.S. 1103 (1980).

Petitioner then filed a second petition for a writ

of habeas corpus in the Superior Court of Butts County. Judge

Crumbley denied the petition on October 14, 1980, and the

Supreme Court of Georgia denied an application to appeal on

October 16, 1980.

The petition for a writ of habeas corpus was filed

in the United States District Court on October 16, 1980. It

was denied on June 12, 1981 by Judge J. Robert Elliott with an

oa}=

opinion. App., ‘infra, p. 28a. Notice of appeal was filed on

July 9, 1981. On July 20, 1981, Judge Elliott issued a cer-

tifticate of probable cause and an order staying execution of

appellant's sentence of death pending this appeal. The United

States Court of Appeals for the Eleventh Circuit affirmed on

February 10, 1983, one judge dissenting, App., infra, p. la,

and on May 3, 1983 denied a timely application for rehearing

and rehearing en banc.

y Statement of Facts.

At the punishment phase of trial, petitioner's

appointed attorney put forward no evidence whatever in mitiga-

tion. All he did was to make a speech to the jurors urging

them to be merciful to his client. He also said of himself

that:

I have done my duty. I'll walk out of

this courtroom today feeling that I have

even gone overboard against my friends,

against those I sit in church with,

against those I have sat in the lodge

‘ with, against those I have broken bread

with, 1

At the state habeas hearing, petitioner's mother,

his grandmother, his brother, two second cousins, and an old

family friend testified on his behalf.

Petitioner's mother, Mrs. Evelyn Stanley, testified

that she came up from Florida to be present at petitioner's

trial, accompanied by her second son, Jeffrey, and the assist-

ant pastor of petitioner's church, Mr. Waters (H. 25-26).2

Though court-appointed counsel had once mentioned character

witnesses to her (H. 26), he did not refer to such witnesses

1 The attorney's entire address to the jury is set out in the

Appendix, infra, p. 62a.

2 The symbol “H" refers to the transcript of the state habeas

hearing.

-4-

at the time of trial (H, 26-27), and never mentioned the term

“mitigation” to her,

Mrs. Stanley also testified that, while growing up,

her son had never been in trouble, had never been arrested,

was not a problem in school, never stole, never hurt anyone,

and that he attended church (H. 17-19). She produced a letter

from the Pastor of her son's church (Petitioner's Exh. 1;

H. 19) which stated, among other positive things, that when he

learned of petitioner's conviction, he was “overwhelmed be-

cause it didn't portray the image I saw him as." She also

produced a 1973 high school report (Petitioner's Exh. 2; H 25)

which indicated that he son's character was thought to be

excellent in every respect.

Mrs. Stanley confirmed that she did not testify to

any of these facts concerning her son after the jury brought

in its verdict of guilty against him, and that her only testi-

mony was to read a letter during the trial (H. 27).

Petitioner's second cousin, Mrs. Linda Thompson,

also testified at the habeas hearing. Mrs. Thompson is a high

school teacher in Atlanta with a master's degree (H. 35). She

grew up with petitioner and knew him as "A very likeable

person. Jovial, Obedient. Willing to cooperate with the

family. No problems, at all” (H. 36); that he had no instinct

for violence, that he never lifted a hand to anyone, was not

capable of murder, and was very altruistic (H. 37),

Petitioner's grandmother (H. 40-45), the family

friend (H. 46-49), and the other second cousin (H. 49-54), all

testified to the same affirmative effect concerning peti-

tioner's character and upbringing.

Petitioner's younger brother testified at the habeas

hearing that he knew his brother to be pacific, helpful and

a§-

cooperative (H. 55-56). He also stated that he had been

present at his »rother's trial, had met the court-appointed

lawyer, and that the lawyer nev'r said anything to him about

testifying for his brother, either before or after the jury

came in with a conviction (H,. 56-58),

Petitioner himself testified at the habeas hearing.

He stated that his court-appointed lawyer had once asked him

about people who could testify about his character, that he

had given the lawyer names of some people, but it never came

up again (H. 62-63). He also specifically remembered that,

after the jury came in with its guilty verdict, the lawyer

said nothing to him about character witnesses (H. 62-64).

Petitioner stated that he never gave his lawyer consent not to

put on character witnesses in mitigation of the death sen-

tence,

REASONS FOR GRANTING

THE WRIT

I,

PETITIONER WAS DEPRIVED OF

HIS RIGHT TO THE EFFECTIVE

ASSISTANCE OF COUNSEL

Certiorari should be granted because the decision

below can be profitably reviewed together with Wood v.

Strickland, No. 82-1554, in which certiorari was granted on

June 7, 1983, 51 U.S.L.W. 3871, for the following reasons.

The record is clear that petitioner's trial counsel

failed to render reasonably effective assistance to his client

at the punishment phase of trial by failing to attempt to

persuade the jury that the death sentence ought not be im-

posed; by failing to present the jury with effective testimony

in mitigation by his client's mother, brother and minister,

who were present in court; by failing in any way to investi-

gate whether other effective witnesses were available to

testify in mitigation; and by failing even to discuss the

question of mitigation evidence with his client (who never

implicitly or explicitly waived his right to have evidence in

mitigation presented on his behalf) or with his client's

mother, brother and minister, all of whom were present in

court. Not only did trial counsel fail to do his duty in

those respects, he actually betrayed his client's interests by

asking the jurors to forgive him -- the lawyer -- for even

having represented petitioner.

In the face of the facts of record, the court below

held that counsel's assistance was not constitutionally inet-

fective, on the grounds that (1) petitioner had the burden of

proving that trial counsel's decision to put on no evidence in

mitigation was not a conscious strategic decision on his part,

and (2) that, in any case, the available mitigation testimony

-- by the client's mother, brother, minister and others --

“would have revealed nothing more than general aftirmations

from family members and triends that Stanley had been, at a

time remote from the events giving rise to the charge, a

basically good and responsible child and young adult” App.,

infra, p. 15a.

i. The Burden of Proof

The decision below is wrong in two respects concern-

ing the burden of proof. One, it ought not be on petitioner;

two, it it is, petitioner satisfied it.

To impose upon petitioner the burden of showing that

trial counsel made a strategic decision to put on no evidence

aIe

in mitigation is factually unrealistic and legally hypertech-

nical. It is factually unrealistic for the very reasons

specified by Judge Arnold in dissent in this case App., infra,

p. 23a:

The lawyer himself is obviously the best

witness on that subject ... but he is now

in an adversary position vis-a-vis his

former client. He may be unwilling to

cooperate with present counsel. The very

point of the proceeding is to challenge

his professional conduct. He is much more

likely to cooperate and consult with

counse: for the State, whose object at the

hearing will be to vindicate his conduct.

In the light of that reality, the decision below to impose the

burden of proof on the issue upon petitioner, sacrifices

substance to form. The allocation or burdens ot proof are

rational efforts to dcistribute between the parties the respon-

sibility for establishing elements of their case, without at

the same time rendering that responsibility beyond the party's

reach. The distribution of burdens of proof is regulated in

part by recognition that one party cen discharge a particular

burden more easily than the other. It is not to say in this

case that the fact need not be established, but it should be

said -- because it is fairer to say so -- that the State

should bear the burden, at least in this capital case, of

proving whether or not trial counsel made the conscious choice

presently at issue.

There are some mechanical rules about burden. Obvi-

ously some necessarily belong tc one party, and some to the

other. In the case at bar, however, it cannot be said on the

basis either ot precedent or logic, that the burden must be on

petitioner. It is an open question, which was decided incor-

rectly below.

rurthermore, if the court below is correct as to

which party has the burden, it is incorrect in having conclud-

ed that petitioner failed to meet it.

The court acknowledged that inetfective assistance

can be established without proof from trial counsel himselt

“where circumstances clearly show that counsel's failure to

otter mitigating evidence could not have been based on reason-

able strategy” App., infra, p. l4a. That principle was satis-

fied in this case, for a natural reacing of the record must

lead to the conclusion that trial counsel did not make a

conscious decision to forego mitigation evidence as a matter

of strategy. How could he have? He never even looked into

the possibilities, as the record clearly shows. Though he

reterred once before trial to the possibility of character

witnesses with his client, it never came up again. He did not

even discuss with his client's mother, brother and minister,

all of whom were in the courtroom, the nature of the testimony

they might give in mitigation. How can the panel repeatedly

Speculate on the possibility that trial counsel made a con-

scious strategic decision when the record establishes that he

did nothing to collect any of the tacts necessary to make such

a decision?

The conclusion below that “the record” shows that

defense counsel did in fact contemplate the possibility of a

character witness defense at the sentencing stage and that he

“explored that possibility” (App., infra, p. 14a), is just

fanciful.

2. The Nature of the Available Testimony

The court below dismissed the nature of the testi-

mony which was available for mitigation as mere “general

affirmations” that petitioner was "a basically good and re-

sponsible child and young adult." It was wrony to do so, for

the fact is that what it disdainfully calls “general affirma-

tions" are in fact the essence of the kind ot information

which should be brought to the attention of jurors who have to

make the profound decision whether a person should be put to

death.

In Lockett v. Ohio, 438 U.S. 586 (1978), this Court,

emphasizing the importance ot mitigating evidence in capital

cases, described the nature of such evidence. Among the

information which it held was relevant to the individualized

decision whether or not to impose the ultimate sentence ot

death were the “character, prior record, age, lack of specific

intent to cause deatn" (Id. at 597); the “character and record

of the individual offender and the circumstances of the par-

ticular offense ..." (Id. at 601); and “prospects for rehabil-

itation" (Id. at 620) (Marshall, J., concurring). In other

words, “any aspect ot a defendant's character or record and

any of the circumstances of the otfense ..." (Id. at 604).

Clearly, the court below did not follow this Court's

precedents, for its dismissed as unimportant precisely the

same intormation pertaining to e sefendant in a capital case

which this Court believes was quintessential. The dismissal

as inconsequential of intormation showing that petitioner was

"a basically good and responsible child and young adult”

(App., infra, p. 15a), is the very evidence of “character and

record of the individual offender" declared by this Court to

be indispensible evidence in mitigation.

There is some question whether the court below

believed that any evidence of history and character could bear

on mitigation. Speaking of the testimony by petitioner's

-10-

mother at the habeas hearing that he son went to church, the

court said that that fact “could well have been perceived by

the jury as being aggravating: if Staniey went to church,

then he shoulc have known the extreme culpability of his

conduct” (App., infra, p. 18a). That attitude gets us no-

where, for it evidence of past goodness is to be characterized

as evidence ot present evil, then no such information could

ever safely be brought to a jury's attention. The notion

denies the very possibility as a philosophical matter ot any

such thing aS mitigation. Given the language in Lockett v.

Ohio, it 18 not an admissible notion.

Lastly, the court below attempted further to mini-

mize the significance of the potentiality of the mitigation

testimony, as it was produced at the habeas hearing. by stat-

ing that "almost without exception these witnesses' testimony

consisted of simple ‘yes' or 'no' responses to counsel's

questions concerning Stanley's character." Undersigned coun-

sel presumes to point out that it was his questions to which

those “yes” or “no” answers were given. He also presumes to

point out that he knows the difference between making a record

in a habeas corpus hearing before a judge, and presenting

evidence persuasively in a criminal case to a jury. It would

have been done difterently at trial.

Il.

PETITIOWER'S INCRIMINATING STATEMENT

WAS IMPROPERLY ADMITTED INTO EVIDENCE,

The crime for which petitioner was convicted was

committed on April 12, 1976, and petitioner was arrested on

April 14, 1976. He was interviewed at 4:30 p.m. that day by

Billy Turner, an agent with the Georgia Bureau of Investiga-

-]1-

tion. Prior to the interview, petitioner signed a document

entitled Waiver of Custody. App., intra, p. 65a.

At that interview, petitioner "denied having any-

thing to do with the murder” (B. 514).

Three days later, on April 17th, a long confessional

Statement was taken from petitioner by the police, and was

later introduced as evidence against him at trial. The state-

ment is in the trial record at B. 148-166. Petitioner had not

then consulted a lawyer. Indeed, an attorney was not ap-

pointed to represent petitioner until June 22, 1976, more than

two months after his arrest (B. 17).

The circumstances surrounding the taking of the

statement were the subject of a Jackson v. Denno hearing held

on December 6-7, 1976. At that hearing, Billy Turner, the

police officer who conducted the interrogation, testitied that

petitioner was “advised of his Miranda rights” (JD 198-199).3

Turner explained that he advised petitioner of his rights "by

reading from the rights waiver form..." (JD 200), but on

cross-examination he added that "I don't know whether he

understood it or not” (JD 216). On re-direct, he testified

that there was no “question in [his] mind as to whether or not

he understood [his] rights" (JD 218).

At the conclusion of the hearing, the trial judge

announced, "All right. I'm going to submit the evidence in

both of these matters‘ to the jury on the question of volun-

tariness" (JD 230-231). The judge himself made no finding

concerning admissibility, nor is there any order concerning

3 References to the transcript of that hearing, which is sepa-

rately bound, will be made by the symbol "JD."

4 The other matter was the Jackson v. Denno hearing concerning

admissibility of statements made by the other defendant in the

case.

-l12-

such a finding in the record. The evidence at trial concern-

ing the admissibility of the incriminating statement was

essentially the same as at the Jackson v. Denno hearing. See

Tr. II-93-95, 195-197, 264-265.

Miranda v. Arizona, 384 U.S. 436 (1966), held that,

prior to custodial interrogation, the police must inform the

prisoner that he has the right to consult with counsel before

being questioned, and that is he wants to consult with counsel

but is unable to afford one, an attorney will be appointed to

represent him prior to interrogation at no cost. In Brewer v.

Williams, 430 U.S. 387 (1977), the Court reaffirmed the strict

standards required to establish waiver of counsel, both at

trial and "at a critical stage of pretrial proceedings” (Id.

at 404), including custodial interrogation. The Court held

that “waiver requires not merely comprehension but relinguish-

ment..." (Ibid.)

In this case, as the means of advising petitioner of

his Miranda rights, the police presented him with and read

from a document entitled, “Waiver of Counsel by Defendant in

Custody.”

Certiorari should be granted to decide whether

presentation to a prisoner in police custody of a document

entitled “Waiver of Counsel” satisfies the requirement of

Miranda that prisoners be meaningfully advised that they have

a right to counsel, not a right to waive counsel. The differ-

ence is crucial, especially within the inherently coercive

atmosphere of police custody, and particularly in a capital

case.

-l13-

Ill.

GODFREY V. GEORGIA, 446 U.S. 420 (1980),

REQUIRES REVERSAL OF PETITIONER'S CONVICTION,

In Godfrey v. Georgia, this Court, in construing the

validity of a death sentence under Ga. Code Ann. § 27-

2534.1(b)(7), the same section under which petitioner was

sentenced to death, held that for (b)(7) to be constitution-

ally construed and applied, the trial judge's sentencing

instructions “must channel the sentencer's discretion by

‘clear and objective standards' that provide "specific and

detailed guidance,' and that make rationally reviewable the

process for imposing a sentence of death" (Id. at 606). The

Court set aside Godfrey's death sentence because the trial

judge had only “quoted to the jury the statutory language of

the § (b)(7) aggravating circumstance in its entirety” (Id. at

405). That, said the Court, was constitutionally inadequate

(Id. at 406):

In the case before us, the Georgia Supreme

Court has affirmed a sentence of death

based upon no more than a finding that the

offense was “outrageously or wantonly

vile, horrible and inhuman." There is

nothing in these few words, standing

alone, that implies any inherent restraint

on the arbitrary and capricious infliction

of the death sentence. A person of ordi-

nary sensibility could fairly characterize

almost every murder as “outrageous or

wantonly vile, horrible and inhuman."

Petitioner's death sentence must also be set aside

because his jury was no differently informed about the meaning

of (b)(7) than was Godfrey's.

The trial court's entire charge to the jury at the

penalty phase of petitioner's trial on the § (b)(7) aggravat-

ing circumstance was as follows (Tr. III-103):

FIVE: “The offenses of murder, armed

robbery and kidnapping were outrageously

and wantonly vile, horrible and inhuman in

-l14-

that the offenses involved Defendant's

depravity of mind ani torture to the

victim.”

The trial court failed to define the aggravating circumstance

or any of the terms contained therein, and failed even to

distinguish among the three “capital offenses" to which the

§ (b)(7) aggravating circumstance was urged by the State.

The jury's verdict on the § (b)(7) circumstance

read: "The offenses of Murder, Armed Robbert and Kidnapping

were outrageously and wantonly vile, horrible and inhuman in

that the offenses involved Defendant's depravity of mind and

torture to the victim.” This verdict failed to clarify

whether the § (b)(7) aggravating circumstance was found as to

each or all of the "capital offenses” charged and it failed so

specify whether the § (5)(7) circumstance was dependent on a

finding of all three of the "capital offenses" charged.

The statutory review of petitioner's sentence of

death and the § (b)(7) finding by the Supreme Court of Georgia

consisted solely of the following statement: "...the death

penalties tor both murder and kidnapping in this case are each

independently valid under our law and are each amply supported

by the evidence." 240 Ga. at 350; App., infra, p. 59,

Since there is no difference between the circum-

stances surrounding the charge given in Godfrey and in the

case at bar, certiorari should be granted to decide whether

petitioner's death sentence must be set aside.

-15-

be granted.

June 1983

CONCLUSION

For the reasons set forth above,

Respectfully submitted,

(yn, C! ee:

certiorari should

° L

BELDOCK LEVINE & HOFFMAN

565 Fifth Avenue

New York, New York 10017

(212) 490-0400

Attorney of Record

NEIL BRADLEY

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

52 Fairlie Street, N.E.

Atlanta, Georgia 30303

(404) 523-2721

Attorneys for Petitioner

@l16-

STANLEY v. ZANT

Ivon Ray STANLEY, Pilaintiff-Appeliant,

No. 81-7615.

United States Court of Appeals,

Eleventh Circuit.

Feb. 10, 1983.

State prisoner convicted of murder and

sentenced to death filed petition for habeas

corpus. The United States District Court

for the Middle District of Georgia, J. Robert

Elliott, J., concluded that petitioner was not

entitled to federal evidentiary hearing and

denied petition, and petitioner appealed.

The Court of Appeals, Vance, Circuit Judge,

held that: (1) defendant was not rendered

ineffective assistance at his tria] on grounds

his counsel failed to present any evidence at

penalty phase of trial; (2) petitioner's claim

of inefficiency in trial court's instruction on

statute governing death penalty for com-

mission of crime of murder in atrociously or

wantonly vile manner did not provide suffi-

cient justification for habeas corpus relief;

(3) waiver of counse! form signed by de-

fendant did not fail to satisfy Miranda re-

quirement; and (4) evidence supported con-

clusion beyond reasonable doubt that de-

fendant had clear intent to kidnap, rob and

murder victim so as to negate assertion that

death penalty was unconstitutional on

nd that defendant took no part in kill-

ing

Affirmed.

Fay, Circuit Judge, filed concurring

opinion.

1476

Arnold, Circuit Judge, sitting by desig-

nation, filed dissenting opinion.

1. Habeas Corpus @=85.2(2)

Habeas corpus petitioner asserting that

counsel failed to conduct adequate pretrial

investigation has initial burden of making

dua! showing; as threshold, he must show

that his counsel was in fact ineffective, that

counsel's conduct was not within range of

competence demanded of attorneys in crim-

inal cases, and additionally, petitioner has

additiona) burden of proving his counsel's

ineffectiveness caused actual substantial

prejudice to his case. U.S.C.A Const

Amend. 6.

2. Criminal Law 12081)

Subject only to loose evidentiary re-

quirement of relevance, capita) defendants

have right to offer any evidence they

choose on character or record or circum-

stances of offense; further, death penalty

scheme must allow sentencing authority to

consider and give independent weight to

mitigating factors in addition to those listed

in death penalty statute.

3. Criminal Law @=1208(1)

While sentencing authority may con-

sider only those aggravating circumstances

listed in relevant death penalty statute, it

may consider any mitigating factors that it

wishes.

4. Criminal Law @=1208(1)

There is no requirement that any par-

ticular kind of mitigating evidence be

presented in order for sentence of death to

be constitutional. U.S.C.A. Const.Amend.

8.

Synopem, Syria and Key Number Classification

COPYRIGHT € 1983, by WEST PUBLISHING CO.

The Symepecs, Syiiatx and Key Number Ciasifi-

qelice qoastitete no peri of Une opimon of the court

477

5. Criminal Law @=641.13(1)

Counsel to which defendant is entitled

under Sixth Amendment is counsel reason-

ably likely to render and rendering reason-

ably effective assistance given totality of

circumstances. U.S.C.A. Const.Amend. 6.

6. Criminal Law @=641.13(1)

Defendant is not guaranteed errorless

counsel; however, counsel's failure effec-

tively to pursue entire line of defense may

in some circumstances transeend individua!

error category and stamp his overall per-

formance with mark of ineffectiveness.

U.S.C.A. Const_Amend. 6.

7. Criminal Law @=641.13(1)

Although legal standards of effective

representation may remain constant in capi-

tal and noncapital cases, seriousness of

charges against defendant is factor which

must be considered in assessing counsel's

performance. U.S.C.A. Const.Amend. 6.

8. Criminal Law @=641.13(7)

Specia] importance of capita! sentenc-

ing proceeding gives rise to duty on part of

defense counsel to be prepared for that

crucial] phase of trial. U.S.C.A. Const.

Amend. 6.

9. Criminal Law @=641.13(6)

Scope of counsel's duty to investigate

character evidence in capita] cases cannot

be separated from rule that counsel! is not

required to present to jury any arguably

mitigating character evidence that might

exist; having conducted sufficient investi-

gation, counsel may make reasonable stra-

tegic judgment to present less than al! pos-

sible available evidence in mitigation. U.S.

C.A. Const. Amends. 6, 8.

STANLEY v. ZANT

10. Criminal Law = 641.13(6)

Showing that counsel's decision to fore-

go evidence was not based on reasoned tac-

tical judgment will give mse to ineffective

assistance claim; this is as true of character

evidence as it is of any other sort of evi-

dence. U.S.C.A. Const.Amend. 6.

11. Criminal Law @=641.13(7)

Were trial counsel for capital defend-

ant to testify that he had no strategy what-

ever for sentencing phase and that he failed

to consider or develop possible mitigating

evidence, counse! would be deemed ineffec-

tive; such claim can be made out, even if

trial counsel does not testify, where circum-

stances clearly show that counsel's failure

to offer mitigating evidence could not have

been based on reasonable strategy. U.S.

C.A. Const.Amend. 6.

12. Criminal Law @=641.13(7)

Where investigation into character evi-

dence would have revealed nothing more

than general affirmations from family

members and friends that defendant had

been, at time remote from events giving

rise to charge, basically good and responsi-

ble child and young adult, and evidence was

cumulative of evidence presented during

guilt phase of trial, counsel's failure to

present character evidence at mitigation

phase did not deprive capital defendant of

his right to reasonable representation. U.S.

C.A. Const.Amend. 6.

13. Criminal Law @=641.13(7)

Under Georgia law, sentencing jury

may consider evidence placed before it dur-

ing both guilt and punishment phases of

trial; thus, while Georgia defendant's trial

counsel elected not to offer additional evi-

dence during sentencing phase, record be-

lied assertion that trial counsel made no

. eee

STANLEY v. ZANT

effort to place before jury information that

might have tended to mitigate jury's view

of what defendant's punishment should be,

where such evidence was presented during

guilt phase. O.C.G.A. § 17-10-30(b); U.S.

C.A. Const.Amend. 6.

14. Criminal Law @=641.13(6)

While character witnesses may make

critica] difference, especially in capita! case,

their utility in any given case is very much

a matter of judgment and trial! tactics.

15. Habeas Corpus ¢=25.1(1)

Habeas corpus review focuses on role

of great writ as bulwark against convictions

that violate fundamental fairness.

16. Habeas Corpus ¢=30(1)

As threshold for Court of Appeals in-

trusion into state criminal trials, Court of

Appeals looks to see that habeas corpus

petitioner has shown not merely that errors

at his trial created possibility of prejudice,

but that they worked to his actual and

substantia! disadvantage.

17. Habeas Corpus ¢30(1)

Under instructions given to habeas cor-

pus petitioner's jury, jury could not fix pun-

ishment at death unless they found beyond

reasonable doubt that defendant's “depravi-

ty of mind” resulted in torture to his victim;

thus, petitioner's claim of deficiency in trial

court's instruction governing sentence of

death upon commission of murder outra-

geously or wantonly vile, horrible and inhu-

man did not provide sufficient justification

for habeas corpus relief. O.C.C.A. § 17-

10-30(b).

*Honorable Richard S$. Arnold, US. Circuit

Judge for the Eighth Circuit, sitting by designa-

1478

18. Criminal Law @4122(5)

Where contents of waiver of counsel

form and tape-recorded interview with de-

fendant indicated that defendant was ad-

vised fully and correctly of his rights and

that he acknowledged that he understood

separately with respect te each provision,

“waiver of counsel” form did not fail to

satisfy Miranda requirement that prisoners

be meaningfully advised that they had right

to counsel, not just right to waive counsel.

U.S.C.A. Const.Amend. 6.

19. Homicide 354

Evidence in prosecution for murder,

armed robbery and kidnapping with bodily

injury, including evidence that defendant

himself was overheard long before murder

to say that after he and codefendant robbed

victim they would have to “get rid of him,”

was sufficient to allow trier of fact to con-

clude beyond reasonable doubt that defend-

ant had clear intention to kidnap, rob and

murder victim, so that death penalty was

not unconstitutional on ground that defend-

ant took no part in killing and tried to

discourage codefendant from killing victim.

U.S.C.A. Const Amend. 8

Appeal from the United States District

Court for the Middle District of Georgia

Before FAY, VANCE and ARNOLD *,

Cireuit Judges.

VANCE, Circuit Judge:

Ivon Ray Stanley was convicted in the

Decatur County, Georgia Superior Court of

uon

murder, armed robbery and kidnapping

with bodily injury and sentenced to death.

On April 12, 1976 Stanley and his code-

fendant, Joseph Thomas,

The Georgia Supreme Court affirmed

Stanley's convictions and death sentences

for murder and Kidnapping with bodily in-

jury. Stanley v. State, 240 Ga. 341, 24)

8.E.2d 178 (1977), cert. denied, 439 U.S. 882,

99 S.C. 218, 88 LEd.2d 194 (1978), The

court vacated his armed robbery conviction,

holding that it was included in the felony

murder charge. Jd, 240 Ga at 343, 24)

S.E.2d at 176.

Stanley filed a petition for state habeas

corpus in the Butts County Superior Court.

An evidentiary hearing was held on March

28, 1979, and Stanley was afforded {ull Op

portunity to present evidence. He testified

and called six other witnesses. Al! of this

Vestimony related to Stanley's contention

that he was denied the effective asnislance

of counsel in violation of his sixth and four-

teenth amendment rights. His petition was

denied on July 26, 1979. Certificate of

probable cause for appeal to the Georgia

Supreme Court and petition for certiorari to

the United States Supreme Court were de-

nied. Stanley v. Zant, 444 US. 1108, 100

S.Ct. 1068, 62 L.Ed.2d 788 (1980). He filed

& second state habeas petition in supenor

STANLEY v. ZANT

court but, with one exception, the court

held that the petition presented grounds

which could have been presented earlier and

were therefore waived. The state court

considered one ground, a claim that the

jury instructions violated Godfrey v. Geor-

gia, 46 U.S. 420, 100 S.Ct. 1750, 64 L.Bd.2d

398 (1980), on the merits. The second peti-

tion was denied on October 4, 1980, after

which Stanley filed his petition in district

court.

The district court found that Stanley had

been given a full and fair hearing in state

court and that such findings were fully

supported by the record. It concluded that

Stanley was not entitled to a federal evi-

dentiary hearing and denied the petition.

Stanley now appeals that judgment.

On appeal to this court Stanley presents

four contentions: (1) that he was denied the

effective assistance of counsel by his ap

pointed lawyer's failure to present any evi-

dence of mitigation in the penalty phase of

trial; (2) that the jury instructions violated

Godfrey; (3) that his incriminating state-

ment was improperly received in evidence;

and (4) that imposition of the death penalty

where there was no purpose to cause the

victim's death is unconstitutional. We will

consider the contentions in the order

presented.

(1)

Ineffective Assistance of Counsel at the

Sentencing Phase

Stanley asserts that the only theory avail-

able to defense counsel that might have

saved his client from the death penalty was

that Stanley did not participate in the actu-

al torture slaying but that he rather at-

tempted to persuade Thomas to let the vic-

tim live. Stanley so testified at the guilt

phase of the trial. Defense counsel produc-

STANLEY v. ZANT

ed no character evidence that might have

made the theory more credible, nor did

counsel produce any corroborative character

evidence to supplement Stanley's own testi-

mony about his background and personal

history. At the state habeas hearing, Stan-

ley's mother, his grandmother, his brother,

two second cousins, and an old family friend

testified on his behalf about his character

and personal history. Stanley argues that

by failing to present any of this evidence in

mitigation, even though these competent

witnenses were easily obtainable and willing

to testify, and by failing to explore the

possibilities, his trial counsel failed to pro-

vide the minimally effective assistance of

counsel required by the sixth amendment.

{1] The framework for analyzing claims

of constitutionally ineffective assistance of

counsel in this circuit was set forth in the

en banc opinion in Washington v. Strick-

land, 698 F.2d 1248 (Sth Cir.1982) (Unit B

en banc). Under Washington v. Strickland,

& petitioner asserting that counsel failed to

conduct an adequate pretrial investigation

has the initial burden of making a dual

showing. As a threshold requirement, he

must show that his counsel was in fact

ineffective, that counsel's conduct was not

within the “range of competence demanded

of attorneys in criminal cases.” McMann v.

Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441,

1449, 25 L..Ed.2d 763 (1970); Mylar v. State,

671 F.2d 1299, 1901 (11th Cir.1982), petition

for cert. filed, —— US. ——, 103 S.Ct.

———, 14 LEd2d —, 50 US.LW. 3984

(U.S. June 7, 1982) (No. 81-2240). This is

an objective assessment of whether trial

counsel fell below acceptable professional

standards in not advocating the underlying

claim. This portion of the analysis may

ask, for example, whether counsel conduct-

ed a reasonable pretrial investigation and

whether counsel's failure to investigate cer-

tain lines of defense was part of a strategy

based on reasonable assumptions. A peti-

tioner has the additional burden of proving

that his counsel's ineffectiveness caused

“actual and substantial prejudice” to his

case. Because we hold that Stanley has

failed to prove that his trial counsel was

ineffective, we need not reach the issue of

prejudice.

Petitioner's ineffectiveness argument

proceeds on two levels. Stanley first con-

tends that the Supreme Court's death pen-

alty cases require that the sentencing au-

thority consider all available aspects of the

character and personal history of the de-

fendant. From this proposition flows the

logically necessary corollary that counsel's

failure to present any evidence in mitiga-

tion constitutes per se ineffective assist-

ance. Should this absolutist position prove

unavailing, Stanley adopts the fallback ar-

gument that, under the facts of this partic

ular case, counsel's failure wo offer evidence

in mitigation rose to the level of ineffec-

tiveness. While we have no difficulty re-

jecting Stanley's initial position, we are

more concerned by Stanley's allegations of

ineffective assistance of counsel under the

specific circumstances of his case.

Stanley argues initially that the Supreme

Court decisions in Eddings v. Oklahoma, 455

U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982);

Lockett v. Ohio, 488 U.S. 586, 98 S.Ct. 2954,

57 L.Ed.2d 978 (1978); and Weodson v.

North Carolina, 428 U.S. 280, 96 S.Ct. 2978,

49 L.Ed.2d 944 (1976), require a rule creat-

ing an absolute duty to investigate and

present mitigating character evidence in ev-

ery capital case. His reliance on these cases

is m . The plurality in Woodson y.

North Carolina, 428 U.S. 280, 96 S.C. 2978,

49 L.Ed.2d 944 (1976), concluded that the

sentencing process must allow consideration

of the “character and record of the individ-

wal offender and the circumstances of the

1481

particular offense.” 428 US at 304, 96

S.Ct. at 2001.' The Court held unconstitu-

used in North Carolina, which failed to a)-

low any such consideration. The opinion

did not address the duty counse! to

The Supreme Court elaborated on Wood-

son in Lockett v. Ohio. The Ohio death

penalty statute did not permit the sentenc-

ing judge to consider, as mitigating factors,

the sentencer “not be precluded from con-

sidering, as a mitigating factor, any aspect

of a defendant's character or record and

any of the circumstances of the offense that

STANLEY v. ZANT

the defendant proffers as a basis for a

sentence leas than death.” Lockett v. Ohio,

438 U.S. at 604, 98 S.CtL at 2064 (emphasis

partially added) (footnote omitted). This

result was necessary because “a statute

thas prevents the sentencer in all capital

cases from giving independent mitigating

weight to aspects of the defendant's charac-

ter and record and to circumstances of the

offense proffered in mitigation creates the

risk that the death penalty will be imposed

in spite of factors which may call for a leas

severe penalty.” Jd at 605, 98 S.Ct. at

2965. Lockett, when combined with cases

such as Gregg v. Georgia, 428 U.S. 158, 198,

96 S.Ct. 2900, 2936, 49 L.Ed.2d 859 (1976)

(holding that the discretion of the sentencer

must be guided by “objective standards so

as to produce nondiscriminatory applica-

tion"), means that the sentence of death

may only be proper under a system allow-

ing guided individualization!

The Lockett holding that the sentencer

must give “independent mitigating weight"

426 US 200, 304, 06 SCi 2978, 2001, 49

LEd2d 044 (1976) (citation omitted)

STANLEY ¥. ZANT

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1483 STANLEY v. ZANT

create an asymmetry weighted on the side

of mercy: while a sentencing authority may

consider only those aggravating circum-

stances listed in the relevant statute, Prof-

fitt v. Wainwright, 85 F.2d 1227, 1266-70

(11th Cir.1982), it. may consider any mitigat-

ing factors that it wishes.‘

Although we give full recognition to the

rule of Woodson, Lockett and Eddings that

the eighth and fourteenth amendments re-

quire defendants to have the opportunity to

4. As the fifth circuit explained in Washington

v. Waetians

Equally as important may be the jury's

wnaruculable perceptions of

fhiyct

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present any evidence in mitigation, we can-

not draw from these cases a corresponding

duty on defense counsel to present general

character evidence in every capital case.

Acknowledgement of the importance of

character testimony and the right to have it

considered by the sentencing body when

presented does not of itself speak to the

duty of counsel. As we discuss below, the

posture of a given case may well justify, if

not require, an effective attorney to refrain

from presenting such evidence.

id. at 375 (footnote omitted) in this view,

quist

655 F.2d at 1376 n 57. Hertz & Weisberg.

supra note conclude that “there is a central

far as i reed on Furman), to sidestep

both”); Berns, For Capital Punishment 1&4

(1979) (Thus, having begun in 1972 in Furman

v. Georgia by complaining of the capricious-

ness of the sentences imposed in capital cases

and suggesting that to prevent this capricious-

ness statutes must limit the distinction availa:

ble to judges or junes when imposing sen-

tences, the Court [in Lockett } has now

begun to complain of in effect, the absence of

My

be

STANLEY v. ZANT

(4) For similar reasons, the eleventh cir-

cuit en banc court recently rejected an ar-

gument closely related to that advanced by

Stanley:

[In addition to ineffective assistance of

counsel.) Washington also argues that

(counsel's) failure to investigate and

present character evidence rendered the

imposition of the death penalty unconsti-

tutional under Lockett v. Ohio, 438 U.S.

586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

Ip Lockett the Supreme Court struck

down a procedure which prevented the

sentencer from considering aspects of the

defendant's character and record as non-

statutory mitigating factors. Id. at 604,

98 S.Ct at 2964. As noted by the court in

Washington v. Watkins, the Supreme

Court cases on the death penalty deal

with “procedural flaw{s) in the system of

justice,” not with alleged flaws in the

judgment of counsel. 655 F.2d at 1356.

Therefore, (counsel's) failure to investi-

gate or present extensive character evi-

dence does not render the imposition of

the death penalty unconstitutional.

Washington v. Strickland, 693 F.2d at 1250

n. 12 We thus agree with the state habeas

court's conclusion in the present case that

“{ Lockett } does not require that any partic-

ular kind of mitigating evidence be present-

ed in order for the sentence of death to be

constitutional” First state habeas hearing,

Stanley v. Zant, No. 4186, slip op. at 3-4

(Super.Ct. of Butts County, Ge March 6,

1981).

Our inquiry cannot end, however, with

the determination that Stanley is wrong in

asserting that failure to present any addi-

tional evidence at the penalty stage consti-

tutes per se ineffective assistance of coun-

sel. Stanley's attorney may still have been

ineffective, under the circumstances of this

case, in not presenting character evidence

1484

that he had the power to present under

Woodson, Lockett and Eddings. This re-

quires application of the general principles

governing effectiveness of counsel to the

specific context of a capital sentencing pro-

ceeding.

[5] The legal standard for judging ef-

fective assistance of counsel is easier to

state than to apply. The black letter law in

this circuit informs us that the counsel to

which Stanley was entitled under the sixth

amendment was a counsel reasonably likely

to render and rendering reasonably effec-

tive assistance given the totality of the

circumstances. See, e.g., Herring v. Estelle,

491 F.2d 125, 127 (Sth Cir.1974). Stanley

does not contend that his attorney was not

“likely to render” effective assistance or

that counsel suffered under a disability

(such as conflict of interest) that subtly

pervaded his entire conduct of the defense.

Rather, Stanley asserts that counsel's actual

performance was inadequate, that specific

actions or omissions of his attorney ren-

dered his representation ineffective.

(6) Stanley's burden, therefore, is to

show that his counsel was not rendering

reasonably effective assistance given the

totality of the circumstances. Washington

v. Strickland, 688 F.2d at 1250-51; United

States v. Killian, 689 F.2d 206, 210 (5th

Cir.), cert. denied, 451 U.S. 1021, 101 S.Ct.

3014, 69 L.Ed.2d 304 (1981); Mays v. Balk-

com, 631 F.2d 48, 52 n. 1 (5th Cir.1980).

Reference to the totality of circumstances

implies that we look at counsel's overall

performance rather than dissect his advoca-

cy and second guess each individual action

or inaction. The latter exercise would ac-

complish little, since a defendant is not

guaranteed errorless counsel. “Our re

peated assertions that a criminal defendant

is not entitled to error-free counsel are not

mere rhetoric” Washington v. Watkins,

655 F.2d 1346, 1367 (Sth Cir.1981), cert. de-

nied, — US ——, 1 SCi W021, 72

LE¢ 2d 474 (1982). The court in Wash-

ington v. Strickland acknowledged, how-

ever, that counsel's failure effectively to

pursue an entire line of defense may in

some circumstances transcend the individu-

a! error category and stamp his overal! per-

formance with the mark of ineffectiveness.

(7) To paraphrase Stanley's contention

on appeal, the sentencing stage in a capita)

case is, in effect, a “trial,” and counsel's

failure to put forth a character evidence

“defense” constituted ineffective represen-

tation. The core of Stanley's position is

that the unique status of mitigation testi-

mony in capital cases makes a failure to

investigate or present such testimony when

available a fundamental error rendering the

overal] performance ineffective. This is not

because our standards of review of ineffec-

tiveness claims are unusually strict in cases

imposing the death penalty. Although the

jurisprudence of this cireuit has consistently

recognized that “death is different” for a

variety of reasons and in a number of con-

texts," we have also applied the same legal

principles governing ineffectiveness of

counsel! to capital and non-capital cases

alike. But although the legal standards of

effective representation may remain con-

stant, “the seriousness of the charges

against the defendant is a factor that must

be considered in assessing counsel's per-

formance.” Proffitt v. Wainwright, 685

5. For an analysis of the jurisprudential reasons

why “death is different.” see Gillers, supra note

3, at 46-56. See also C. Black, Capita! Punish-

ment. The inevitability of Caprice and Mistake

30-36 (1974).

6 The pane! opinion in Washington v. Strick-

land, 673 F.2d at 894, vacated when the en

10a

STANLEY v. ZANT

F.2d 1227, 1247 (llth Cir.1982) (quoting

Washington v. Watkins, 655 F.2d at 1357).

Accord Washington v. Strickland, 693 F.2d

at 1250 n. 12

{8} The sentencing stage of any case,

regardiess of the potential punishment, is

“the time at which for many defendants the

most important serviees of the entire pro-

ceeding can be performed.” ABA Stan-

dards on the Administration of Criminal

Justice, Sentencing Alternatives and Proce-

dures § 5.8(e). The special importance of

the capital sentencing proceeding gives rise

to a duty on the part of defense counsel to

be prepared for that crucial phase of the

trial. This circuit has insisted that “effec-

tive counsel conduct a reasonable amount of

pretrial investigation.” Washington v.

Strickland, 693 F.2d at 1251; Goodwin v.

Balkcom, 684 F.2d 794, 805 (11th Cir.1982)

(“at the heart of effective representation is

the independent duty to investigate and

prepare”). While most of our ineffective

assistance cases dea) with the guilt phase

and with materia] witnesses rather than

character witnesses, see, e.g., Goodwin v.

Balkcom, 684 F.2d at 810-14 (ineffective-

ness found where attorney in capital case

failed to interview damaging prosecution

witnesses in addition to presenting no evi-

dence at the sentencing phase); Wash-

ington v. Watkins, 655 F.2d at 1357-64, the

doctrina] underpinnings of those cases apply

equally to the sentencing phase of capita!

trials. This circuit has not before resolved

the precise issue presented by Stanley.* In-

banc court voted to rehear the case, reached a

resuk similar to that we reach today.

trast, Judge Clark has argued that failure to

present any available testimony at the sentenc-

ing hearing may constitute ineffectiveness.

See Proffitt v. Wi 685 F.2d 1227,

1270-72 (11th Cir.1962) (Clark, concurring and

STANLEY v. ZANT

effective assistance cases in general, and

cases turning on the need for character

witnesses in particular, are extremely fact-

specific. See Goodwin v. Balkcom, 684 F.2d

at 805 (“[e}very case involving a constitu-

tional claim of imeffective assistance of

counsel turns on the facts and the conduct

of those involved”). Prior cases, while pro-

viding some guidance, are thus of limited

value. Still, it is notable that no panel of

the eleventh or fifth circuits has to date

dissenting) Most of our cases have no

reached the issue

Proffitt v Wainwright did not reach the pre-

mulugating evidence was limited to the statuto

ry mutigating circumstances. Thus, the court

counsel's “belief that he

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found ineffective counsel predicated on fail-

ure to cal! character witnesses at the penal-

ty stage of a capital case. In fact, the cases

strongly suggest that such an ineffective-

ness claim would be difficult t. sustain even

apart from the additional requisite showing

of prejudice.

The en banc court in Washington v.

Strickland rejected the contention that

counsel in a capital case has an absolute

2936 (jury is not required to find any mitigating

circumstance in order to make a recommenda.

tion of mercy that is binding on the trial court)

Similarly, the court in Spivey v. Zant, 661

F.2d 464, 477 (Sth Cw.1961), cert. denied, —

US ——, 102 S.Ct. 3495, 73 LES 2d 1374

1487

duty to investigate mitigating evidence

even if counsel's trial strategy would not

call for the use of the evidence. Wash-

ington v. Strickland involved a claim that

trial counsel was ineffective because he did

not investigate or present character wit-

nesses ‘* evidence of Washington's mental

distrer Trial counsel had based his plea

for im cy at sentencing on defendant's re-

morse and willingness to accept responsibili-

ty for his crime; his strategy was to intro-

duce limited evidence of mental distur-

bance. Following a death sentence, Wash-

ington moved for postconviction relief on

the basis of his counsel's failure to explore

evidence in mitagation. Washington prof-

fered fourteen affidavits from friends and

relatives who stated they would have testi-

fied on Washington's behalf had they been

requested to do so. Further, two psychia-

trists were willing to submit reports stating

that Washington was “chronically frustrat-

ed and depressed.” Washington called his

trial counsel as a witness in the federal

habeas evidentiary hearing, and the en banc

court focused on counsel's explanation of

his tria! strategy:

The role of strategy in the calculus of

reasonableness is of particular impor-

tance to this case. (Counsel) testified

that he made a strategic choice to intro-

duce limited character evidence during

the plea colloquy and thereafter to rely

upon expressions of frankness, sincerity,

and remorse to persuade the judge to

impose a sentence of life imprisonment.

In light of that strategy, [counsel] would

STANLEY v. ZANT

have viewed as unnecessary an extensive

investigation into Washington's charac-

ter. The district court did not evaluate

the credibility of (counsel's) testimony or

the reasonableness of his strategy in light

of available alternatives. Rather, the

court concluded that [counsel] was

obliged tc conduct an extensive investiga-

tion of Washington's character irrespec-

tive of whether his trial strategy would

benefit from such investigation ....

Washington v. Strickland, 693 F.2d at 1251.

The en banc court declined to impose a

constitutional requirement that counsel per-

form a substantial investigation into every

plausible line of defense.’ The choice by

counse! to rely upon certain lines of defense

to the exclusion of others before investigat-

ing all such lines is still a strategic choice,

although that choice would not receive the

degree of judicial deference accorded to

strategic choices made following & full in-

vestigation:

A strategy chosen without the benefit

of # reasonably substantial investigation

into all plausible lines of defense is gener-

ally based upon counsel's professional as-

sumptions regarding the prospects for

success offered by the various lines. The

cases generally conform to a workable

and sensible rule: when counsel's as-

sumptions are reasonable given the totali-

ty of the circumstances and when coun-

sel’'s strategy represents a reasonable

choice based upon those assumptions,

counsel need not investigate lines of de-

ted to perfection but to basic fairness. In

the real world, expenditure of time and effort

is dependent on a reasonable indication of

materiality.

United States v. Decoster, 624 F.2d 196, 211

(D.C.Cir.1976) (footnote omitted). See Wash-

ington v. Watkins, 655 F.2d at 1356.

STANLEY v. ZANT

fense that he has chosen not to employ at

trial.

Id. at 1255 (footnote omitted).

In sum, an attorney who makes a stra-

teg’ choice to channel his investigation

int fewer than all plausible lines of de-

ferse is effective s0 long as the assump-

tions upon which he bases his strateg)

are reasonatie and his choices on the ba-

sis of those assumptions are reasonable.

Id. at 1256 (footnote omitted).

[9] The scope of counsel's duty to inves-

tigate character evidence in capita! cases

cannot be separated from the rule, articu-

lated above, that counsel is not required

under Woodson, Lockett and Eddings to

present to the jury any arguably mitigating

character evidence that might exist. In

many cases, counse! could reasonably con-

clude that such evidence would be of little

persuasive value or that it would cause

more harm than good by opening the door

for harmful cross-examination or rebuttal!

evidence. See, eg. Easter v. Estelle, 609

F.2d 756, 759 (Sth Cir.1980) (“{wJhile coun-

se! failed to interview and subpoena certain

witnesses, this constituted trial strategy

since to do so would have opened the door

to introduction of Easter’s prior convic-

tion”). Having conducted a sufficient in-

vestigation, counsel may make a reasonable

strategic judgment to present less than all

possible available evidence in mitigation.

This analysis finds support in the only

two fifth circuit cases that have discussed

the issue of counsel's duty to investigate or

present character evidence in capital cases.

In Williams v. Maggio, 679 F.2d 381 (5th

Cir.1982) (en banc), petitioner contended

that his trial counsel was ineffective for

failing to conduct an adequate investigation

arguing that, with proper pretrial investi-

gation, counsel would have discovered many

good character witnesses

——

and then would possibly have decided not

to have petitioner's mother testify but

would have depended on favorable vesti-

mony from members of the community

This challenge to counsel's performance

attempts to do precisely that which is

barred by this Court; it invites us to

question counsel's tria] strategy and

judge his performance incompetent if it

was not errorless. We decline to take

this action. There is little doubt that had

trial counse! employed the trial strategy

proposed by petitioner, this Court would

now face an effectiveness of counsel ar-

gument based thereon. Trial counsel in

this case made the best of a bad case

Id. at 393. Petitioner also contended that

his counse! had not prepared properiy for

the sentencing hearing since he failed to

interview six readily available character

witnesses in mitigation Affidavits from

those witnesses concluded that “drugs or

bad influences” had brought about the

criminal conduct. Three of these witnesses

testified at the guilt-innocence stage about

Williams’ drug use. The en banc court,

including the dissenters, agreed that the

affidavits revealed that the witnesses would

not have added any new evidence to that

which had already been presented at the

sentencing hearing by petitioner's mother.

Id. at 392, 409. The court concluded that

what “petitioner’s present counsel is really

objecting to is the trial strategy employed

by trial counsel. We do not elect to second

guess the trial strategy decisions of compe-

tent counsel.” Jd. at 392

Similarly, in Gray v. Lucas, 677 F.2d 1086

(Sth C..1982), Gray asserted that his trial

counsel failed to render effective assistance

by not fully investigating the use of charac-

ter witnesses. Gray contended on appeal

that a more substantial investigation would

have revealed certain witnesses who could

have testified that he had a satisfactory

prison record and others who would have

testified that he had become “very spiritual

and exhibited a ‘caring, sharing type of

interest in other people.’” Id at 1092

The court foun . however, that even though

“Gray steadfe \y maintained that he did

not want character witnesses, [counsel] ex-

plored the possibility of having family

members testify. This proved unsuccessful,

however, since Gray's mother believed that

her son should be executed and his brother

was unable to come to Mississippi for the

trial.” Id. at 1091. Counsel also spoke with

Gray's parole officer and with a police offi-

cer who had befriended Gray. The court

stated:

Gray purports not to challenge [coun-

sel's) choice of trial strategy. However,

some of his arguments are in fact direct-

ed solely at their decision to rely on &

mentally disturbed defense rather than

testimony on Gray's good character...

In the case ut bar, [counsel] could have

reasonably decided that testimony on

Gray's good character would not be per-

suasive to a jury aware of the nature of

his crime. Moreover, their decision that

good character testimony would be incon-

sistent with a mentally disturbed defense

is perfectly reasonable. Although these

two types of testimony need not be incon-

sistent, [counsel] could have reasonably

determined that in this case a loca! jury

would perceive them to be inconsistent.

In short, counsel's tactical decision did

not constitute ineffective assistance.

Id. at 1094.

The attorneys in both Williams and Gray

had conducted constitutionally sufficient in-

vestigations into the possibility of mitiga-

tion. The courts in both cases were thus

14a

STANLEY v. ZANT

understandably reluctant to second-guess

the attorneys’ tactical decisions. This is no

more than a specific application of the gen-

eral principle that when an attorney makes

an informed choice between alternatives,

his tactical judgment will almost never be

overturned on habeas corpus.

{10,11} On the other hand, a showing

that counsel's decision to forego evidence

was not based on a reasoned tactical judg-

ment will give rise to an ineffective assist-

ance claim. This is as true of character

evidence as it is of any other sort of evi-

dence. Were trial counsel for a capital

defendant to testify that he had no strategy

whatever for the sentencing phase and that

he failed to consider or develop possible

mitigating evidence, then such counsel must

be deemed ineffective. See Washington v.

Strickland, 693 F.2d at 1257 (the presump-

tion of attorney competence could be rebut-

ted “when trial counsel testifies credibly at

an evidentiary hearing that his choice was

not strategic”); Kemp v. Leggett, 635 F.2d

453, 454 (5th Cir.1981) (ineffectiveness

found when trial counsel submitted affida-

vit admitting he was not competent to try &

murder case). Similarly, such a claim can

be made out, even if trial counsel does not

testify, where the circumstances clearly

show that counsel's failure to offer mitigat-

ing evidence could uot have been based on

reasonable strategy.

[12] The record in the present case sug-

gests that Stanley's counsel did in fact con-

template the possibility of a character wit-

ness defense at the sentencing stage and

that he explored that possibility. While we

do not know the extent of this inquiry, the

transcript of the state habeas hearing con-

firmed that the attorney discussed the mat-

ter at least with Stanley and with Stanley's

STANLEY vy. ZANT

tuve

Mie mother stated that be had difficult) in

rool and indicated that he was § HOW

15a

however, merely

material already

had been placed before the jury, in some

detail, by various witnesses during the first

phase of the tial.

repeat and

uoed.

Stanley's low intellectual capacity and

reading ability were broug

testimony of EW. Phillips. sheriff of Deca-

tur County.

the results of ® psychologic®

conducted on Stanley when he was fourteen

old. That evaluation had

0-65); (2) Stanley's test scores “suggestied]

a history of culture deprivation as

test results and observation indicated Ivon

table mentally retarded young-

that he be

class designed for educatably mentally re-

tarded youngsters as soon as poss

avoid any further continuation of the fail-

ure experience that he has undoubtedly in-

curred throughout his school history.”

that his examination revealed that Stanley

tna an 1Q of 81 which he defined ss Ke

i di hether “this

ley’s mother

ey "fying that her son had been placed in &

special class at school.

1491

STANLEY y, ZANT

The second type of evidence presented at

the state habeas hearing was testimony of

questions concerning Stanley’s character

Stanley's mother, Mrs. Evelyn Stanley, les-

tified that

Stanley's church were

and prepared to testify;

tor had come for that Purpose.

person.

cooperate

a An example is this excerpt from the testimo-

By of Stanley's mother.

Q Did he ever get into any kind of trouble?

A No. This is the first time

Q Was he obedient?

A Yes.

Q jad be ever been arrested?

A .

Q Had he ever been in any tc hie with the

police?

A No.

Q Was he ever a problem in school?

A No.

with the family.” He was “a very altruistic

Person. He wasn't self centered He loved

his family and cared about them quite a bit

-" She also stated that Stanley had

never before been in trouble With the law

Another second cousin testified that Stan-

ley was fun loving, very obedient, very nice,

had never been in trouble, and had a prom.

ising life ahead of him.

she

weekend

informed

Finally, she

testified that she had been unable to come

employment pres-

sures.

Stanley's younger brother testified that

he knew his brother to be pacific, helpful

and cooperative. He also Stated that he

had been present at his brother's trial. had

met Stanley's attorney, that the lawyer

never said anything to him about testifying

for his brother, either before or after the

jury came in with a finding of guilt.

A friend of the family testified that she

had known Stanley for nine years and saw

Was he helpful around the house?

Yes

Did you ever see him engage in any fights

Or any kind of violence?

No, sir.

Dic he ever steal as « child?

No

Did he ever burt anyone as a cule?

No

>O>O> O>oO

>o

Did Ivon go to chureh?

Yes

STANLEY v. ZANT

him frequently. He often played with her

sons, who were his age, and he was nonviol-

ent.

his good character, as well as a high school

report which indicated that his character

was thought to be excellent in every re-

spect. Finally, he produced the letter that

his mother had read into evidence during

the penalty phase of the trial”

assistance of counsel.

®. At trial, Stanley's mother’s testimony was

limited to reading the letter from her son into

evidence:

Ws

In the present case, counsel's failure to

nt character evi at the mitiga-

what his trial strategy was,

know why he elected not to pursue the

character witness line of inquiry, which he

initiated in conferences with both Stanley

and his mother well in advance of the trial.

The absence of any evidence of counsel's

strategy places this case in stark contrast to

cases such as Washington Vv. Strickland.

We decline to infer from such silence an

absence of strategy. When we know noth-

ing of counsel's strategy, when the evidence

not presented consists of general state

ments by family members that the defend-

ant was, at a point in time remote from the

events in question, a “good boy” and when

such evidence is cumulative of evidence

presented during the guilt phase of the

trial, then the “ineffectiveness” prong of

Washington v. Strickland has not been sat-

isfied.

good you will, we won't have to go to

jai. | been good.” | think way, be got this

WAY ; ht is the

(13) This is not to suggest that trial

counsel's testimony about his strategy is a

necessary condition of an ineffective assist-

ance claim. If counsel's conduct is 80 egre-

gious as to raise an inference that it could

not reasonably be part of any legitimate

strategy, see, eg, Nero v. Blackburn, 507

F.2d 991 (5th Cir.1979), then counsel's testi-

mony would not be necessary. But Stan-

ley's is not a case in which i « difficult to

Visualize a plausible triel + wtegy to ex-

plain the actions of his attorney. Under

Georgia law, the sentencing jury may con-

sider evidence placed before it during both

phases of the trial See Ga.Code Ann.

§ 17-10-80(b) (formerly codified at § 27-

2534.1(b) of the 1983 Code). Thus, while

Stanley's trial counsel elected not to offer

additional evidence during the sentencing

phase, we agree with the state habeas court

that “it is incorrect to say that counsel

offered no mitigating evidence” at all. The

record belies the assertion that trial counse!

made no effort to place before the jury

information that might have tended to miti-

gate the jury's view of what his punishment

should be.

eg

Ly

f

li

34

: Fy

fé

i

al

ants

;

=e" os &-

STANLEY v. ZANT

finding that the “testimony of these wit-

nesses, mostly relatives, related to fairly

obvious assertions of familial-type affection

and loyalty which may well have no effect,

or no good effect, on the jury.” While

character witnesses may make a critical dif-

ference, especially in a capital case, their

utility in any given case is very much

matter of judgment and trial tactics.

Further, mitigation may be in the eye of

the beholder '' Stanley's mother testified

at the state habeas hearing, for example,

that her son went to church. This evidence

might be deemed mitigating, but it also

could well have been perceived by the jury

as being aggravating: if Stanley went to

church, then he should have known the ex-

treme culpability of his conduct. It is ques-

tionable, therefore, whether the evidence

asserted by Stanley to be “mitigating”

would have been perceived by the jury as

such

None of this is very precise, but that, in

fact, is the point of our reluctance to second

gvess trial counsel's strategy. Effective

counsel in a given case may consider the

introduction of character evidence to be

contrary to his client's interest. In other

cases he may consider it unlikely to make

much difference. In certain cases he may

ing’ Jd at 1379 (Coleman, J, dissenting)

(capitalization altered) Judge Coleman went

on to explain

etreedi

ie

ae

reihs

Fe

j

F

:

18a

STANLEY v. ZANT

conclude that although available testimony

might be minimally helpful, it would de-

tract from the impact of another approach

that .1¢ considers more promising. His posi-

tion in reaching these conclusions is strik-

ingly more advantageous than that of fed-

eral habeas court in speculating st hoc

about his conclusions. His knov dge of

local attitudes, his evaluation of the person-

ality of the defendant and his judgment of

the compatibility of the available testimony

and the jury's impression of defendant, his

familiarity with the reactions of the trial

judge under various circumstances, his eval-

uation of the particular jury, his sense of

the “chemistry” of the courtroom are just &

few of the elusive, intangible factors that

are not apparent to a reviewing court, but

are considered by most effective eounse! in

ee

Representation of a capital defendant

calls for a variety of skills. Some involve

technical proficiency connected with the sci-

ence of law. Other demands relate to the

art of advocacy. The proper exercise of

judgment with respect to the tactical and

strategic choices that must be made in the

conduct of a defense cannot be neatly plot-

ted in advance by appellate courts.”

There may well have been sound consid-

erations which dictated that counsel pursue

the path that he elected. He may have felt

10a

ee

that he had placed before the jury enough

of the usable mitigation information and

that a parade of family and friends—testi-

mony

ante—would do no good, and, indeed would

to the habeas court.

“(cJourts presume, in accordance with the

general presumption of attorney compe

tence, that counsel's actions are strategic.”

Washington v. Strickland, 698 F.2d at 1257.

In the absence of any evidence to overcome

the presumption, no constitutional error is

shown.

(2)

Stanley asserts that the aggravating cir-

cumstance set out in Ga.Code Ann. § 17-

10-80(bX7), upon which his death sentence

was at least partially based, was applied in

an impermissibly vague, overbroad and am-

biguous manner in violation of rights pro

tected by the eighth and fourteenth amend-

ments. Specifically, he challenges the trial

court's instruction on section (bX7).4 Stan-

ley contends that Godfrey requires the trial

court to instruct the jury of the limiting

construction which the Georgia Supreme

Court has placed on section (bX7).

We do not read Godfrey as holding that «

limiting instruction is required. The in-

quiry in Godfrey focused on whether the

evidence in that case satisfied the criteria

previously established by the Georgia Su-

preme Court for application of section

(bX7). By stressing the factual setting that

gave rise to the case, the Supreme Court in

Godfrey was not required to resolve the

issue 0” whether a limiting instruction of

section (0X7) is mandated by cases such as

Gregg that stress the importance of chan-

neling jury discretion in death case or

whether the Georgia Supreme Court’ ro-

portionality review of capita! cases is one

sufficient to keep section (bX7) within con-

stitutional bounds.

If we assume without deciding that such

an instruction is required, the record before

us falls far short of supporting the grant of

the writ. Justice Stewart's plurality opin-

ion in Godfrey found the first phrase of

section (bX7) to lack restraining effect on

the arbitrary and capricious infliction of the

death penalty: “A person of ordinary sensi-

bility could fairly characterize almost every

murder as ‘outrageously or wantonly vile,

horrible and inhuman.’” 446 US. at 428-

29, 100 S.Ct. at 1764-65. He analyzed

Georgia law, derived from two opinions of

the Georgia Supreme Court,” as follows

The Harris and Blake opinions suggest

that the Georgia Supreme Court bad by

1977 reached three separate but consist-

ent conclusions respecting the § (bX 7) ag-

gravating circumstance. The first was

that the evidence that the offense was

“outrageously or wantonly vile, horrible

or inhuman” had to demonstrate “tor-

ture, depravity of mind, or an aggravated

battery to the victim.” The second was

that the phrase, “depravity of mind,”

comprehended only the kind of mental

state that led the murderer to torture or

14. Blake v. State, 239 Ga. 292, 236 S.£2¢ 637,

cert. denied, 44 US 060, 06 S.Ct 482, %

L.Ed.2¢ 320 (1977), Harris v. State, 237 Ga

—-

Or eee *

STANLEY v. ZANT

to commit an aggravated battery before

killing his victim. The third, derived

from Blake alone, was that the word,

“torture,” must be construed in pan

materia with “aggravated battery” so as

to require evidence of serious physical

abuse of the victim before death.

Id. at 431, 100 S.Ct. at 1766 (footnotes omit-

ted) Using this standard he concluded that

the Georgia Supreme Court had misapplied

its own constitutional construction because

the evidence that it found sufficient did not

reveal a consciousness materially more de-

praved than that of any other murderer.

His reference to the fact that Godfrey's

victims were killed instantaneously noted

the absence of any evidence of serious phys

ical abuse before death

The trial court's charge to the jury in

Godfrey was stated in the disjunctive lan-

guage of the statute, ie, that the offense

“was outrageously or wantonly vile, horri-

ble or inhuman in that it involved torture,

depravity of mind or an aggravated battery

to the victim.” (emphasis added). Use of

the disjunctive authorized the jury to find

depravity of mind even absent any serious

physical abuse of the victim before death

The jury did not address the second phrase

in its finding at all. It found merely that

the offense was outrageously or wantonly

vile, horrible and inhuman. 446 U.S. at 426,

100 S.Ct at 1763. Concerning this part of

the judge's instructions and the jury's re-

sponse, Justice Stewart said in dicta, “These

gave the jury no guidance concerning the

meaning of § (bX7)'s terms. In fact, the

jury's interpretation of § (bX7) can only be

the subject of sheer speculation.” Jd. at

429, 100 S.Ct. at 1765.

718, 230 S.E2¢ | (1976), cert denied, 43) U.S

933, 97 S.Ct. 2642, 53 L.Ed.2d 25) (1977)

STANLEY +. ZANT

The instruction given Stanley's jury was

significantly different Section (0X7) was

stated in terms of the state's contention:

that the offenses were “outrageously and

wantonly +2, horrible and inhuman, in

that the offenses involved Defendant's de-

pravity of mind and torture to the vietim.”

(emphasis added). The jury reported

finding beyond a reasonable doubt in t’

same languare: “the offense involved de-

pravity of m.od and torture to the wietim”

(emphasis added).

The vice to which Justice Stewart pointed

is simply absent. Under their instructions

Stanley's jury could not fix punishment at

death unless they found beyond a reasona-

ble doubt that his depravity of mind result-

ed in torture to his vietim. Godfrey's jury

was free to fix punishment at death even in

the absence of any abuse of his vietim be-

fore death and, indeed, they did so.

Arguably the undefined word “torture”

sti’) falls short of meeting the test because

in a given case jury might understand it

to mean mental torture rather than a word

to be read in pari materia with “aggravated

battery” to require evidence of serous

physical abuse. Stanley, however, is in no

position to contend for a limitation of the

word “torture” in his case. No comtention

is made that the torture to which his victim

was subjected was anything other than

physical. The evidence disclosed that in

fact it was the most extreme type of physi-

ca) abuse aptly characterized by the Su-

preme Court of Georgia: “Although the

sheer savagery of Ivon Stanley's conduct

may have been equalled by others, it has

seldom if ever been exceeded.” Stanley v

State, 241 S-E.2d at 180.

{1S-17] Our habeas corpus review focus-

es on the role of the great writ as “as

bulwark against convictions that viciste

1496

‘fundamental fairness.'" Engle v. Isaac,

— US —, —, 102 S.Ct 1558, 1570,

71 L.Ed.2d 783 (1982). As a threshold for

our intrusion into state criminal trials we

look to see that petitioner has shown “not

merely that the errors at his trial created a

possibility of prejudice, but that they

worked to his actual and substantia! disad-

vantage.” United States v. Frady, —

US ——, —, 102 S.Ct. 1584, 1596, 71

L.Ed.2d 816 (1982) (emphasis in original).

Stanley's claim of deficiencies in the section

(bX7) instruction provides insufficient justi-

fication for habeas relief in light of the

evidence before us

(3)

Stanley was arrested two days after the

murder. He was advised of his rights and

signed a waiver of counsel form. He was

interviewed by an agent of the Georgia

Bureau of Investigation but at that time

denied any involvement.

Three days later Stanley was again inter-

viewed. He had not then consulted a law-

yer He was again read his Miranda rights,

allowed to read the rights from the form,

acknowledged that he understood his nights

and then signed the form. Stanley then

gave a Lape recorded statement in which he

confessed to the details of the robbery and

murder

[18] Stanley argues that use of a “waiv-

er of counsel” form does not satisfy the

Miranda requirement that prisoners be

meaningfully advised that they had a right

to counsel—not just a right to waive coun-

sel. The contents of the form and the tape

recorded interview, however, make it abso

jutely clear that Stanley was advised fully

and correctly of his rights and that he ac-

knowledged that he understood separately

with respect to each provision. Stanley's

criticism of the caption of the form finds no

support in either Miranda v. Arizona, $84

U.S. 436, 8 SCt 1602, 16 LEd2d om

(1966), or Brewer ~ Williams, 430 U.S. 387,

97 S.Ct. 1232, 51 uEd.2d 424 (1977), the

authorities on which he purports to rely

The record strongly supports the district

court's conclusion that Stanley “was thor-

oughly advised of his right to consult with

an attorney before making any statement

and that he understood his rights and was

willing to make @ statement freely and

voluntarily.” Stanley v. Zant, Civ. Action

No. 80-66-THOM, slip op. at 3 (M.D.Ga

June 11, 1981).

(4)

{19} Stanley's final contention is

grounded on his own testimony that he took

no part in the killing and tried to discour-

age codefendant Thomas from killing the

victim. Based on this version of the mur-

der, he argues that imposition of the death

penalty is unconstitutional because he pos

sessed no purpose to cause the death of the

victim.

Subsequent to oral argument the Su-

preme Court spoke to this subject area in

Enmund v. Florida, — US. ——, 102

S.Ct. 3368, 73 L.Ed.2d 1140 (1982), where on

eighth and fourteenth amendment grounds

it reversed a death penalty that was based

on @ conviction for felony-murder. The Su-

preme Court examined the historical devel-

opment of the death penalty for accomplice

liability and concluded that our culture has

rejected the imposition of the penalty upon

persons who “neither took life, atuempted

to take life nor intended to take life.” Id

102 S.Ct. at 3371. The Supreme Court ac-

cepted the holding of the Florida Supreme

Court that the record supported no more

than an inference that Enmund was the

a

tongs

STANLEY v. ZANT

driver of the getaway car, where he re-

mained throughout the robbery and mur-

der:

the only evidence of the degree of his

participation is the jury's likely inference

that he was the person in the car by the

side of the road near the scene of the

« mes. The jury could have concluded

* wo he was there, a few hundred feet

Way, waiting to help the robbers escape

with the money. The evidence,

therefore, was sufficient to find that the

appellant was a principal of the second

degree, constructively present aiding and

abetting the commission of the crime of

robbery

Id. 102 S.Ct. at 8371 (quoting Enmund v.

State, 399 So.2d 1362, 1370 (Fla.1981))

Stanley's level of persona! culpability is

greater than Enmund's by at least an order

of magnitude It was Stanley, himself, who

was overheard long before the murder to

Say that after he and Thomas robbed the

victim they would have to “get rid of him.”

His role was aptly described by the Su-

preme Court of Georgia as follows:

[T)here was evidence showing that he

was an active participant in the crimes:

enticing the victim to the place of the

robbery, handling the pistol, guarding the

victim while Thomas moved the car, dig-

ging the victim's grave, and burying the

victim while he was still alive and plead-

ing for his life.

Stanley v. State, 241 S.E2d at 180.

From our examination of the record we

agree with the district court that “a trier of

the fact could conclude beyond a reasonable

doubt that the Defendant had a clear inten-

tion to kidnap, rob and murder the victim.”

AFFIRMED.

22a

STANLEY v. ZANT

WAY, Cireuit Judge, concurring:

Bound by our court's recent opinion in

Washington v. Strickland, 693 F.2d 1243

(Sth Cir.1982) (Unit B en banc), I concur.

My personal views continue & oe those

expressed in the dissents of Juv es Roney

and Hill.

ARNOLD, Circuit Judge, Sitting by Des-

ignation, dissenting.

In the penalty phase of his capital trial,

counse! for Ivon Ray Stanley introduced no

evidence. We now know that relatives and

friends of the defendant could have given

testimony that would have portrayed Stan-

ley as a “uniquely individual human being

[]." Woodson v. North Carolina, 423 US.

230, 304, 96 S.Ct. 2978, 3991, 49 L_Ed.2d 944

(1976) (plurality opinion) perhaps worthy of

the compassion of at least one member of

the jury. The Court concedes that it “can-

not say that this evidence would have had

no impact on the jury,” ante, slip op. at 1492,

at —— and that “{w}e .. . donot know what

{counsel's} trial strategy was .. .,” ibid. Yet,

the death penalty is upheld because Stanley

did not, at the evidentiary hearing held by

the state post-conviction court, prove that

counsel's conduct was not the result of some

reasonable trial strategy. Because | cannot

agree with this allocation of the burden of

proof, | respectfully dissent.

As an original matter, | should not have

placed the burden of proof on Stanley to

negative the possibility that his lawyer had

made a tactical or strategic choice to

present no evidence in mitigation. In gen-

eral, the burden is and should be on anyone

who seeks to overturn the judgment of a

court having jurisdiction. And it is emi-

nently fair to require a defendant who

claims his lawyer was ineffective to come

forward with specific complaints about

23a

1498

what the lawyer failed to do, and with

specific arguments about how this failure

hurt his case. If the claim is, for example,

that certain witnesses were not presented,

the defendant should be required to show

who they were and what they would have

said if called to testify. That kind of evi-

dence is readily accessible to the defendant,

and probably to no one else, since defense

witnesses in the penalty phase of a capital

trial are likely to be family members,

friends, or acquaintances. “Generally, the

burden of proof is allocated to that party

who has control of the evidence required to

prove the claim raised in the action. In an

action based on a claim of ineffective assist-

ance of counsel due to a failure to produce

evidence, this mitigating evidence is pecu-

liarly within the control of the petitioner.

Therefore, it is appropriate in such cases to

allocate the burden of proof to the petition-

er.” Washington v. Strickland, p. 1274 n.

23 (5th Cir.1982) (Unit B en banc) (Tjoflat,

J., concurring). To this extent, Stanley has

met his burden, and I do not understand the

Court to hold otherwise.

The question of trial counsel's strategy,

or lack of it, is quite different. The lawyer

himself is obviously the best witness on that

subject, in many cases the only witness, but

he is now in an adversary position vis-a-vis

his former client. He may be unwilling to

cooperate with present counsel. The very

point of the proceeding is to challenge his

professional conduct. He is much more

likely to cooperate and consult with counsel

for the State, whose object at the hearing

will be to vindicate his conduct. It makes

more sense, it seems to me, to put the

burden of proof on the State, once a peti-

tioner demonstrates some omission serious

on its face, to call trial counsel as a witness

to explain his or her reasons for what was

done at the trial. “If in a given case the

1499 STANLEY v. ZANT

petitioner does not have access to the infor-

mation necessary to sustain his burden of

proof, the district court is of course free to

make appropriate adjustments in the alloca-

tion of the burden.” Washington v. Strick-

land, supra, at 1261 n. 31. Here, the State

did not cal! trial counsel as a witness; |

brief in this Court ds not suggest what

counsel's strategy was, we do not know

what it was; and no court, state or federal,

has ever found that counsel's conduct was

the result of a strategic decision. In this

situation, if I were free to do so, I should

hold that counsel was constitutionally inef-

fective and that petitioner should have a

new trial. He would not be released from

prison. There would simply be a new tria!

as to punishment, and the worst that could

happen, from the point of view of the State,

would be a sentence of life imprisonment.

Obviously my view of the proper alloca-

tion of the burden of proof is influenced in

part by the fact that this is a death case.

The more serious the consequences of a

wrong decision, the more one wants to be

careful to make the right one That is

what burden of proof is all about Rules

about presumptions and burdens of proof

reflect one's views about where the risk of

loss ought to be placed, and about what

kinds of mistakes are more tolerable than

others. Presumptions are not usually ap

plied in favorem mortis. It is not a nove!

proposition that judgments inflicting the

penalty of death should be hedged about

with greater safeguards. The very exist-

ence of bifurcated trials in death cases

proves that, if proof be needed It may be

true that the same legal! principles govern

ineffectiveness of counsel in capital as in

non-capital cases; it is also true that the

1. Cf Holtan v. Parratt, 683 F.2d 1163, 1170 (8th

Cir. 1982) (counsel's ineffectiveness held preju-

dicial in a capital case in part “because of the

seriousness of the charges is a factor to be

considered in assessing counsel's perform-

ance. Ante, slip op. at 1485 at ——.' Itis

not asking too much, when life is at stake, to

require the State or counsel! himself to ex-

plain a choice to present no evidence in miti-

gation. This is not a case, as! shal! argue be-

low, where counsel chose to present one line

of testimony rather than another. Nor isita

case where a plausible strategic explanation

readi!’ suggests itself “It is not enough,”

as th Supreme Court said in another capi-

tal case involving the right to counsel, “to

assume that counsel thought there was

no defense and exercised [his] best judg-

ment.” Powell v. Alabama, 287 U.S. 45, 58,

53 S.Ct. 55, 60, 77 L.Ed. 158 (1932) (empha-

sis supplied)

As | understand the en banc opinion in

Washington v. Strickland, supra, however,

it is the rule of this Circuit that if a lawyer

fails to conduct a substantial investigation

into one plausible line of defense, “(cjourts

presume, in accordance with the general

presumption of attorney competence, that

counsel's actions are strategic.” Jd. at 1257.

It is, in general, up to the petitioning pris-

oner to rebut this presumption, by, for ex-

ample, calling counsel as a witness to testi-

fy that his choice was not strategic. Sitting

by designation as a judge of this Circuit, |

am bound by that rule. Even so, there are

at least three reasons why the presumption

of strategic choice should not apply to the

facts of this case

First. This is not a case in which counsel

discerned severa! plausible lines of defense

and chose to make a substantia! investiga-

tion of fewer than all of them. Here, coun-

se] made no investigation whatever, so far

Gre consequences that would [otherwise] flow

-

24a

But here « good deal of what could have

that this “investigation,” if it can be called

at 1490, at ———. It seams W aay, instead,

Ubat counse! could reasomably have chosen to

Here no witnesses at all were called If

counsel's closing argument to the jury (of

which more hereafter) is to be treated as a

“strategy” or a “line of defense” that coun-

se! chose in preference to character witness-

es, it is still difficult to approve his choice

as constitutionally effective lawyering

The closing argument, at best, was a simple

plea for mercy, and character evidence

would have helped that plea, not hurt it.

There is nothing in the least inconsistent

2. The only material difference between this

v. Zest, — F.2d ——, No

25a

about calling character witnesses and then

pleading for mercy In short, this case

should be governed by the Court's state-

ment in Washington, at 1252-53, that “per.

missible trial strategy can never include the

failure to conduct a reasonably substantia!

investigation into a defendant's one plausi-

ble line of defense “*

Second. As the Court notes in Thomas,

the companion case, slip op n. 14, Ga Code

§ 38-O0l(d) (recodified at § %-10-2%,

1982) requires the tender of a witness fee of

ten dollars and mileage of 2) cents a mile

with the service of 4 subpoena for the at-

tendance of a witness. Stanley was con-

vieted in Decatur County, in the southwest-

ern part of the State He is in prison in

Butts County, in central Georgia State

habeas must be brought in the county of

incarceration, Ga.Code § 50-127 (recodified

at § 14-43, 1982), and that is where

Stanley's two state habeas petitions were

filed. Stanley has no money, and indigent

habeas petitioners have no right to financial!

assistance under Georgia law. State v. Da-

vis, 246 Ga. 200, 269 S.E.2d 461, cert. denied,

#49 U.S. 1057, 101 S.Ct. 631, 66 L.Ed.2d 511

(1980); Pulliam v. Balkcom, 245 Ga. 99, 263

$.E2d 123, cert. denied, 447 U.S. 927, 100

S.Ct. 8023, 65 L.Ed.2d 1121 (1980). Not

even witness fees wil] be waived. Neal vy.

Smith, 226 Ga. 96, 98, 172 S.E.2d 684, 686

(1970) (Georgia laws do “not contemplate

that the public shal! bear the expense of

bringing witnesses into court.”).

the

Court has the last word, will die They com.

mitted the It is true in Thomas, as

. present record contains no

evidence of why tna! counsel was not

testify at the state habeas proceed.

f

/

i

181

It ts unjust for the State to deny petition-

for the federal courts then to fault him for

showing.

proof. He could have had witnesses sub-

poenaed at federal expense to testify before

the federal habeas court, but the District

Court declined to hold an evidentuary hear-

ing In Thomas an evidentiary hearing wil!

be held on remand, and one of the points

raised wil! presumably be that Thomas was

not guilty of deliberately bypassing an

available stale procedure precisely because

Stale law denied him the means of using

that procedure. | would allow Stanley at

beast the same chance to establish an excuse

for not meeting his burden of proof.

Third The presumption that counsel's

choice was a strategic one can be rebutted

not only “when tria] counse! testifies credi-

bly at an evidentiary hearing that his choice

was not strategic,” but also “when certain

of counsel's actions do not conform w a

genera! pattern of a rational! tria! strategy ~

Washington v. Strickland, supra, at p. 1258

] think this record contains a substantia!

indication that the latter standard is met

In the course of his fina] address to the jury

counse! said:

I have done my duty. I'll walk out of

this courtroom today feeling that ] have

even gone overboard against my friends.

against those | sit in church with, against

those | have sat in the lodge with, against

those | have broken bread with.

We do not know what counsel hoped to

accomplish by these remarks. Perhaps he

meant to say, “I have done my duty. Now

you, the jury, should do yours by being

STANLEY +. ZANT

merciful But the natural meaning of the

words is quite different They seem to be

asking the jurors to forgive the lawyer,

their fellow citizen, for taking the side of a

criminal They seem to be apologizing for

the vigor of the defense counsel had of-

fered They raise the question whether

counsel's decision to present no evidence in

mitigation, { . from being # strategic

choice, was m oer motivated by a desire not

to offend church and lodge by going an)

further “overboard” in Stanley's cause

When a lawyer has a conflict of interest

between two defendants, both of whom he

is trying to represent, the conviction wil! be

reversed without a showing of prejudice

See Holloway v. Arkansas, 435 US. 475, 98

S.Ct 1173, 55 L.Ed.2d 426 (1978) Here a

conflict just as real seems to have existed in

the lawyer's mind He had “gone over-

board” in the guiltor-innocence phase of

the trial, and chose to present no evidence

in the punishment phase. Here, just as “in

a case of joint representation of conflicting

interests{,} the evil is in what the advo

cate finds himself compelled to refrain from

doing” Holloway v. Arkansas, supra, 435

U.S. at 490, 98 S.Ct. at 118).

The implications of counsel's closing ar-

gument, it seems to me, are at least serous

enough to neutralize any presumption that

his decision to present no mitigating evi-

dence was a reasonable strategic choice.

Perhaps my reconstruction of counsel's

possible motivation is unfairly harsh. If so,

an evidentiary hearing on remand could set

the record straight. The Court suggests

that counsel, if he had made an investiga-

tion of character witnesses, might have de-

cided that they would do Stanley more

harm than good. Certainly that is true in

STANLEY v. ZANT 1502

the abstract. But there is very little con-

crete indication that character witnesses

would have hurt Stanley's chances in this

case. Some evidence wil! almost always be

better than none With all deferenc the

Court's reflections on Stanley's lawyer's

possible menta! processes are no more than

speculation

At the ver) least | would remand this

case for an evidentiar; hearing on why no

evidence in mitigation was offered |

therefore respectfully dissent

Adm. Office, U.S. Courta—West Publishing Company, Saint Paul, Minn

27a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

THOMASVILLE DIVISION

[VON RAY STANLEY, CIVIL ACTION NO. 80-66-THOM

Petitioner

)

)

)

Vv. )

)

WALTER D. ZANT, Warden, Filed at___7.00 A. M

)

) J

)

)

Georgia Diagnostic and

Classification Center,

Resnondent

OPINION AND ORDER

Petitioner Stanley along with a co-defendant, Joseph

Thomas, was convicted in the Superior Court of Decatur County,

Georgia, in April, 1976, for the murder of Clifford Floyd.

He was also convicted of kidnapping with bodily injury.

Succinctly stated, the record shows that Stanley admitted robbing

the victim at gunpoint and along with Thomas taking the victim to

the woods where the victim was struck with a hammer, tied to a

tree, made to lie in a shallow grave, beaten and jabbed with a

shovel in the head, throat and chest, shot with a pistol and

buried alive while he was pleading with Stanley and Thomas to

stop. Petitioner's convictions and death sentences for murder and

kidnapping with bodily injury were affirmed. See Stanley v.

State, 240 Ga. 341 (1977), cert. den. 439 U. S. 882 (1978).

Petitioner filed a state habeas corpus petition in the

Superior Court of Butts County, Georgia, where he was denied

relief and was denied a certificate of probable cause to appeal

to the Supreme Court of Georgia. His petition for a writ of

certiorari was denied by the United States Supreme Court in

February, 1980. Stanley v. Zant, U. S. (1980)

(Case No. 79-5714]. The Petitioner then refiled a habeas corpus

petition in the Butts Superior Court ¢ .d thereafter filed the

petition which is now before this Court.

In his state habeas corpus proceeding the first contention

made by the Petitioner (and here repeated) was that he was denied

the effective assistance of trial counsel, primarily because of a

alleged failure of the trial attorney to investigate and secure

witnesses to testify on mitigating evidence during the punishment

phase of trial.

Petitioner has not shown his trial attorney to have been

ineffective. If his contention is that the trial attorney failed

to provide evidence in mitigation, that contention is unfounded

and is belied by the record and the findings of the state habeas

court. What Petitioner is doing is simply reviewing his trial

<r

_—

several years later and in hindsight attempting to show that his

trial attorney was ineffective for not placing before the jury

evidence which would have been redundant in nature. Indeed, it

is quite questionable whether the evidence asserted by the

Petitioner as "mitigating" would have been viewed by the jury as

such. In any event, the conduct of the trial by Petitioner's

trial attorney was certainly reasonable effective assistance of

counsel. Petitioner was given a full and fair opportunity to

develop this issue in the state habeas corpus proceedings and was

unable to establish his contention. The state habeas corpus

court has properly ruled on this issue and this Court, applying

federal legal standards to the facts so developed, concludes

that this issue is without merit.

The next contention made by the Petitioner is that his

confession was inadmissible in evidence during the trial because

he contends that the confession was given without consultation

with counsel. This issue was addressed in detail by the Supreme

Court of Georgia. The record shows that the Petitioner was

thoroughly advised of his right to consult with an attorney

before making any statement and that he understood his rights

and was willing to make a statement freely and voluntarily.

The entire sequence of events was considered by the Supreme

Court of Georgia in addressing this issue and that court con-

cluded, as we do, that the contention is without merit.

The next issue presented in this petition alleges that the

Petitioner's death sentence was based at least in part upon an

unconstitutional application of Georgia Code Annotated,

§27-2534.1(b)(7) contrary to the admonitions of the United

States Supreme Court in Godfrey v. Georgia, U. S. ‘

100 S.Ct. 1759 (1980). The record in this case shows that the

jury was instructed on the statutory aggravating circumstances

and that those circumstances were supported by the evidence and

that the jury was correctly instructed by the trial court and

that the determination made by the jury was justified. Under the

facts of this case as shown by the transcript of the evidence it

is clear that the offenses for which the Petitioner was convicted

"were outrageously and wantonly vile, horrible and inhuman, in

that the offenses involved Defendant's depravity of mind and

torture to the victim". The state habeas corpus court concluded

that this contention was without merit and this Court agrees with

that conclusion.

In his next enumeration the Petitioner contends that

imposition of the death penalty is unconstitutional in his case

because he had no "purpovre" to cause the death of the victim.

The issue here raised by the Petitioner is in effect one of his

intent and a review of the evidence in th:. case clearly shows

that the jury was authorized to find the Defendant's intent.

Stated otherwise, a trier of the fact could conclude beyond a

reasonable doubt that the Defendant had a clear intention to

kidnap, rob and murder the victim, and the death penalty in the

circumstances here presented would not be precluded.

The next contention made by the Petitioner is that the

prosecuting attorney made improper argument to the jury during

the sentence phase of the trial. It is noted that no objection

was made at the time of trial to the prosecuting attorney's

argument. The question was raised for the first time on appeal.

The Supreme Court of Georgia gave consideration to this contentic

and concluded that the closing argument of the District Attorney

did not provide any basis for reversal of his conviction, that

Court concluding that the death sentence was not imposed under

the influence of passion, prejudice or any other arbitrary factor

and this Court likewise concludes that this contention made by

the Petitioner provides no basis for the granting of federal

habeas corpus relief.

The next contention here made by the Petitioner is that

the ampssition and execution sf a death sentence under the

applicable Georgia statute violates certain pertinent provisions

of the United States Constitution because Petitioner alleges that

3la

the death penalty is administered arbitrarily, capriciously and

whimsically in the State of Georgia. The Supreme Court of Georgi.

has in a number of cases decided that this contention is

unfounded and this Court ac-ees with that conclusion.

The last contention made by the Petitioner is that the

imposition of the death sentence in his case violates certain

other provisions of the Constitution of the United States and of

the Constitution of the State of Georgia because he alleges the

Georgia statutory provisions and practices governing appellate

review of death sentences deny the Petitioner the effective

assistance of counsel and a fair hearing. The Supreme Court of

Georgia has in a number of cases determined that the Georgia

procedures referred to are not subject to such constitutional

attack and this Court agrees with that conclusion.

The Court notes that the Petitioner presents some other

contentions in the habeas petition filed in this Court which are

not properly before this Court because they were not urged by

the Petitioner before the courts of the State of Georgia, but

even if they were properly before this Court for consideration,

the record indicates that they are without merit.

In summary, this Court determines that the Petitioner has

had a full and fair opportunity to present any issue which he

desired to present to the courts of the State of Georgia and

that he was given ample opportunity to present evidence and did

in fact present evidence with regard to any issue asserted and

that the contentions made by the Petitioner were addressed fully

by the state courts and under the standards set forth in 28 U.S.c.

§2254(d) the findings of fact thus made by the state court after

a full and fair hearing on the merits should by this Court be

presumed to be correct, the state court proceedings not falling

within any statutory exceptions which would rebut such

presumption of credibility. “he findings of fact made by the

state court are fully supported by the evidence developed at the

hearing. This Court, therefore, accepts the f ndings of fact

contained in the state court's order, applies federal legal

standards to those factual determinations, and concludes that

the Petitioner is not entitled to a federal evidentiary hearing

and that such a hearing would not benefit this Court in addressinc

the Petitioner's allegations.

Consistent with the foregoing, the relief sought by the

Petitioner is denied and it is directed that the petition be

dismissed and the Petitioner is remanded to the custody of the

Respondent so that the sentence heretofore imposed by the state

court may be carried out according to law.

IT IS SO ORDERED this llth day of June, 1961.

USITED STATES DISTRICT JUDGE

IN THE SUPERIOR CouRT OF BUTTS COUNTY

STATE OF GEORGIA

IVON RAY STANLEY, ;

PETITIONER HABEAS CORPUS

vs. : FILE wo, ¥/3¢

3

WALTER ZANT, WARDEN :

GEORGIA DIAGNOSTIC :

AND CLASSIFICATION :

CENTER, :

3

RESPONDENT :

“ORDER

This habeas petition contains 79 paragraphs,

64 of which set forth substantive Claims for relief.

The Petitioner litigated a habeas corpus case in

this Court in H.C. No. 4186, Butts Superior Court,

in which relief was denied on July 26,°1979.

Certificate of Probable Cause was denied by the

Georgia Supreme Court on September 6, 1979,

Certiorari was denied by the United States Supreme

Court in February, 1980.

The Court has examined the Petition and finds

no grounds \for relief which could not reasonably

have been raised in the Original petition with one

exception. Accordingly, all grounds are deemed

waived and e petition successive except as to

paragraphs 1P and 20.

, 1

Paragraphs 19 and 20 raise a Godfrey issue.

¥ I

Godfrey v. orgia, U.S. , 64 L.EBd.2d.398 (1980).

34a

While this issue was raised in the Petition for

Certiorari which was denied by the United States

Supreme Court, this Court will address it. First,

the deat:h penalty for the Murder was based on Ga.

code 827-2534.1(b) (4) as well as (b)(.). Second,

the evidence indicated that Petitioner and a

co-defendant beat the victim, shot him in the

head five times, and then buried him alive while

he was still trying to talk to them. This justifies

@ finding that an aggravating battery was inflicted

upon the victim and that he was tortured prior to

his death. Godfrey, therefore, is not authority

for the constitutional attack made on the sentence

of death imposed for the murder.

The Court notes that Petitioner raises an

ineffective assistance claim in paragraphs 12-17,

Petitioner's eins in his first State habeas

raised this claim but it was rejected by this

Court (See Division I of Order in Stanley v. Zant,

Habeas Corpus Case No. 4186, Butts Superior Court)

and the Supreme Court of Georgia upon denial of

a Certificate of Probable Cause. This ground not

only could have been but was raised in the prior

petition. To allow each habeas counsel to litigate

the effectiveness of Previous habeas counsel would

make termination of the litigation impossible.

Therefore, the Court finds that all claims

for relief in this Petition have either already

been ruled on, have been waived, or are legally

insufficient. No evidentiary hearing is needed

2

Not the counsel filing this Petition.

Or required. The Petition is denied. The

Application for Stay of Execution is denied.

So Ordered, this 14th day of Oct. ber, 1980.

R. ALEX CRUMBLEY

JUDGE SUPERIOR COURTS

PLINT JUDICIAL CIRCUIT

SUPREME COURT 0

F GEORGIA

ATLANTA, September 6, 1979

~ The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

IVON RAY STANLEY

Upon consideration of the application for a certificate

Vv. WALTER ZANT, WARDEN

of probable cause to appeal filed in this case, it is ordered

that it be hereby

denied -

SUPREME COURT OF THE STATE OF GEORGIA,

CLERK’s OFFICE, ATLANTA,

I certify that the above is a true extract from the minutes

of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto affixed

the day and year last above written.

‘ t-

Ee

b.e

37a

IN THE SUPERIOR COURT OP BUTTS COUNTY

STATE OF GEORGIA

IVON RAY STANLEY, :

PETITIONER : HABLCAS CORPUS

: NO. 4186

V8. :

WALTER D. ZANT, :

WARDEN, :

RESPONDENT :

ORDER

This Petition for writ of Habeas Corpus

seeks relief from a conviction and sentence of

death imposed upon Petitioner by the Superior

Court of Decatur County on January 15, 1977.

The convictions for Murder and Kidnapping

with Bodily Injury and the imposition of the

death sentence as to each were affirmed by the

Supreme Court of Georgia in Stanley v. State,

240 Ga. 341 (1977). A Petition for Certiorari

was denied by the Suprem2 Court of the United States.

Stanley v. Georgia, U.S. » 58 L.Ed.2da 194

(1978). This Habeas Corpus Petition was filed,

amended, and hearing was held on March 28, 1979.

The Petition, as amended, raises severa] issues on

which no evidence was presented at the hearing and

on which no argument has been made. Accordingly,

the Court will discuss Only the three points argued

by Petitioner in his Brief. They are as follows:

1.

Petitioner claims that he was denied his

Sixth and Fourteenth Amendment rights to the effective

assistance of counsel by the failure of his trial

counsel to present any evidence during the sentencing

phase of the trial. In Support of this claim,

Petitioner presented at the habeas hearing the

testimony of several persons who would have been

available to lestify during the sentencing phase

of the trial. Petitioner argues that this evidence

could have made a difference in the determination

of the jury as to the penalty to be imposed and

that his trial counsel was ineffective for sot

putting up this evidence at the appropriate ‘cine,

These witnesses were !rs. Evelyn Stanley,

Petitioner's mother; Linda Thompson, Petitioner's

second cousin; Eliza B. Yulee, Petitioner's grand-

mother; Eddie Mae Williams, a friend of Petitioner's

family; Martha Louise Henley, Petitoner's second

cousin; and, Jeff Stanley, Petitioner's brother.

The transcript of the trial indicates that

Petitioner's trial counsel elected not to offer

additional evidence during the sentencing phase

of the trial. But it is incorrect to say that

Petitioner's trial counsel introduced no mitigating

evidence because the jury was authorized to

consider all evidence placed before it during both

Phases of the trial. During the main trial,

Petitioner's mother testifiog (Trial Transcript, vol. II,

Pp. 450-453). The Petitioner testified during the

main trial, giving his age, some of his background,

¥;

C4. x. eR

employment, and information about his family (Trial

Transcript, Vol. II, pp. 453-455). Petitioner's

low intellectual capacity and reading ab‘lity were

before the jury, the same having been brought out

on cross-examination of the Sheriff. (Trial

Transcript, Vol. II, pp. 110-122). Further, the

testimony of Dr. Smith concerns Petitioner's

mentality, psychiatric makeup, and other facets

of his examination of Petitioner. (Trial Transcript,

Vol. II, pp. 150-164). 4

Accordingly, it cannot be said that trial

counsel made no effort to place before the jury

information that might have tended to mitigate

the jury's view of what his punishment should

be. In retrospect, it might be said, or at least

argued, that there was nothing to be lost by

calling the witnesses listed above who testified

at the habeas hearing. But the testimony of these

witnesses, mostly relatives, relates to fairly

obvious assertions of familial-type affection

and loyalty which might well have had no effect,

or no good effect, on the jury.

Petitioner argues that Lockett v. Ohio,

U.S. » 57 L.Ed.2a 973 (1978) requires

that mitigating evidence be heard by a sentencing

jury. But Lockett stands for the proposition

that the Constitution requires that no mitigating

evidence be excluded from consideration by the jury.

It does not require that any particular kind of

40a

mitigating evidence be Presented in order for the

sentence of death to be constitutional.

The standard for effective assistance which

has been recently used by Georgia Courts is that

of whether counsel is capable of and is in fact

rendering reasonably effective assistance of counsel.

The Court finds nothing in the transcript of

Petitioner's trial or anything in the habeas

proceeding which leads to the conclusion that

Petitioner's counsel rendered less than reasonably

effective assistance. Accordingly, this aspect

of the habeas petition is without merit.

re

Petitioner claims that his rights under the

Eighth and Fourteenth Amendments have been violated

by the imposition of the death penalty in a case

where, according to Petitioner, there was no

Purpose to cause the death of the victim. Petitioner

argues that, because he was convicted of felony-murder

and because his story was that he tried to discourage

his companion from killing the victim, the imposition

of the death penalty is unconstitutional.

Regardless of whether this argument is well

grounded factually, Petitioner haa directed the

Court to no legal authority for the position urged.

Lockett v. Ohio, supra, which is cited by Petitioner,

does not support Petitioner's position in this regard;

to the contrary, the majority in Mockett did not even

address the issue concerning whetMer the Defendant

<a.

e

—a

had a purpose to cause the death of the victim.

Because the Defendant in Lockett was indicted for

murder on a theory consistent with the felony

murder theory of Petitioner's case and the Supreme

Court failed to focus on this as ion issue, Lockett

supports by inference the proposition that the

death penalty can be imposed for felony murder.

The Supreme Court of Georgia, in Stanley v.

State, supra, examined the evidence against Petitioner

and found that he was an active participant. The

Court concluded that the sentence of death was not

excessive or disproportionate to the penalty

imposed in similar cases and that the imposition of

the death sentence was consitutional within the

guidelines in Gregg v. Georgia, 428 U.S. 153 (1976),

and its progeny. (Cf. Hall v. State, 241 Ga. 252

(1978), in which the defendant's death sentence for

felony murder was reversed as disproportionate in

light of his lack of participation, and a failure

to assess a death sentence against his companion

"trigger-man.")

3.

Petitioner claims that his constitutional

right to a fair trial was violated when the Court

failed to grant his Motion for Change of Venue.

Further, Petitioner asserts that his counsel was

ineffective for failing to insist on a written

ruling on this Motion.

In order to prevail on this ground, Petitioner

would have to show that the jurors summoned to try

his case had been so influenced by pre-trial publicity

A%a

that they had formed fixed opinions as to his

guilt or innocence. Krist v. Caldwell, 230 Ga.

536 (1973); Young v. State, 239 Ga. 53, 56-57

(1977). Jurors summoned for the trial of

Petitioner's case were asked questions concerning

pre-trial publicity and whether they could perform

the function of being a fair and impartial juror,

and there is no indication that any juror had

been adversely affected. (See Trial Transcript,

Vol. I, p. 50). Petitioner now asks the Court

to assume that the jurors had been adversely

affected without any evidence to support what

amounts to no more than mere supposition.

This claim of Petitioner presents no

issue on which any relief can be granted to him.

To the extent that any other issues raised

in the Petition have been covered by the evidence

Or argument, they are found to be without merit.

Accordingly, the Petition for Writ of

Habeas Corpus is denied.

This 2L% day of July, 1979.

. ALEX CRUMBLEY, JUDGE SUPERIOR

COURTS, FLINT JUDICIAL CIRCUIT

*y

yo

—

\

In the Supreme Court of Georgia ao la.

+ \0 N28 <7) |

—\— Decided: yy

\

) :

!

|

32260 TANLE - THE STATE

wad |

HILL, Justice.

This is a death case. The defendant oe convicted by a jury

of felony murder (during commission of an armed robbery), armed

robbery, and kidnapping with bodily injury. The jury found that

each of these crimes was committed while the defendant was en-

gaged in the commission of the other capital offenses, and that

each was outrageously and wantonly vile, horrible and inhuman in

that the offense involved depravity of mind of the defendant and |

torture to the victim. The jury also found that the murder was

committed by the defendant for himself for the purpose of receiv-;

ing money and other things of value. For each of the three con- |!

victions the jury fixed punishment at death by electrocution.

Several weeks before the crime, two witnesses on separate

occasions had heard discussions between the defendant and Joseph |

Thomas, who was indicted with the defendant. The two were dis-

cussing “hitting” an insurance agent who routinely followed a

collection route through the small community in which the defen-

dant lived. One of the witnesses overheard the defendant remark

that after the robbery they would have to "get rid of him.”

2a.

In a taped statement played to the jury the defendant said

that on the day of the crimes he agreed with Thomas to "get" the

insurance man for his money. The defendant stated that later

ee es ee =

that day, after the victim had made some collections in the area,

and as the victim went behind a trailer, he (the defendant)

pointed a gun at the victim. A witness saw the defendant point-

ing at the victim. The victim was forced to turn over his money,

which the collection records indicated to be about $220. The

defendant testified at trial that the three then went into some

nearby woods and that on the way Thomas struck the victim on

the arm with a hammer. After pleading for his life, the victim

was hit on the head with the hammer and fell to the ground. The

victim was then tied to a tree, and Thomas left the woods to move

the victim's car. A witness testified to seeing Thomas drive

away in the car and return on foot. Two witnesses saw him re-

enter the woods with a shovel. A eis saw the three move

further into the woods and disappear from view. The defendant

said in his taped statement that a shallow grave was dug and

that he had the gun in his back pocket. The victim, still

bound, was made to lie down in the grave.

The victim was pleading for his life when he was beaten and

jabbed with a shovel in the head, throat and chest. The

+ cma « eee «sae

_ the lip directly below the right nostril and dislodged two teeth.

| The autopsy revealed severe bruises, scrapes and curved lacera-

3a.

defendant said in his taped statement that Thomas then took the

gun from the defendant and fired at the victim's head. Witnesses

heard three shots. The defendant said that the victim was again

beaten and jabbed with the shovel. in his taped statement the

detentions said that the victim knew what was happening as he lay

in his grave and that he was pleading with them to stop. the

victim was then buried alive. The distance from the trailer where

the robbery took place to the grave was over 150 yards.

It appears from the evidence of the forensic autopsy that

one bullet struck the victim, entered his upper right jaw through

tions on the victim's head, face and neck. The breastbone was

broken in two with associated internal hemorrhaging. There had

been internal hemorrhaging about the lower tele xtheese and the

right collarbone. The autopsy evidence indicated that two

lacerations of the head went to the skull bone which was fracturec

in these areas. The crushed bone had damaged the brain and ecu

internal hemorrhaging over the brain. The autopsy revealed that

an event similar to a blow to the head with a hammer had crushed

the skull in the temporal region above the left ear. The victim's

4a.

windpipes and throat contained large amounts of dirt and blood so

that smaller areas of both lungs were completely closed. A

. moderate amount of dirt and blood was found in the upper end of

the stomach. The cause of death was found to be suffocation.

1. The defendant contends that the verdicts are contrary to

the evidence and without evidence to support them, are decidedly

and strongly against the weight of the evidence, and are contrary

to law and the principles of justice and egikts. In accord with

Ridley v. State, 236 Ga. 147 (1) (223 SE2d 131) (1976), Ingram v.

State, 204 Ga. 164, 184 (48 SE2d 891) (1948), we find that the

evidence was sufficient to authorize the jury to return the

verdicts of guilty of felony murder and kidnapping with bodily

injury. However, the conviction for armed robbery must be set

aside as being contrary to law in that a person cannot legally

be convicted and sentenced for both a felony murder and the

lesser included felony on which that felony murder conviction is

' based, the armed robbery in this case. Atkins v. Hopper, 234 Ga.

330 (3) {216 SE2d 89) (1975); see also Burke v. State, 234 Ga.

512, 514-515, 518 (216 SE2d 812) (1975).

Ala

| overruling his motion to suppress evidence of a Statement he made!

7 the statement the sheriff read the Miranda rights to the defen-

dant one at a time from a waiver form the defendant had pre-

| promised the slightest hope of benefit, and that it was not in-

| affirmatively to the sheriff. The sheriff read to the defendant

from the form that the defendant had freely and voluntarily

Sa.

2 The defendant contends that the trial court erred in

on the third day after his arrest because it was made in a cus-

todial interrogation without the benefit of counsel. A tape

recording of the statement was allowed to be played to the jury

and a transcript of the tape recording was allowed in evidence.

The beginning of the statement complained of contains a

waiver of fifth and sixth amendment rights. In this portion of

viously signed and, after each right, the defendant answered that

he understood that right. The sheriff ther. read affirmations

from the form that his statement was voluntary, that it was not

being induced by another, that it was made without his being

duced by the remotest fear of injury. The defendant responded

waived his right to counsel and that no threats or promises had

induced the waiver. The defendant was asked if he had signed

that statement form, and he replied, yes. He was then asked,

"Are you willing to talk with us?" He responded, "Yes, sir.”

.

5

6a.

Although the interrogation was custodial, it was not con-

ducted in isolation. The evidence indicates the defendant's

taped statement was made in the sheriff's office during the day.

. The tape contains noises from the police radio and from the

telephone in the sheriff's office. There is evidence of short

interruptions while other business was attended. The taped

statement does not indicate that the defendant was compelled in

5

' amy manner to be a witness against himself.

The defendant argues that Escobedo v. Illinois, 378 U. S.

' 478 (84 SC 1758, 12 LE2d4 977) (1964), and Brewer v. Williams,

/ 430 U. S. 387 ( sc ’ LE2d ) (1977), require that the

statement should have been suppressed. In those cases, the

defendant had been denied the benefit of previously obtained

counsel. In the case at bar, the defendant had not obtained

counsel nor had there been any promise by authorities not to

interrogate the defendant without the presence of his counsel.

The defendant also urges that Miranda v. Arizona, 384 U. S. 436

(86 SC 1602, 16 LE2d 694) (1966), requires that the statement be

suppressed even though no counsel had been obtained. We have

carefully scrutinized the efforts of the state to comply with the

procedural safeguards required by Miranda and find no failure to

+ ee ee ee ee

---

——— — — ————

'@ second grade reading ability, had experienced reading problems

7a. |

meet the constitutional standards for the protection of the

privilege against self-incrimination.

The defendant has attempted to show mental and literary

weakness which would prevent an intelligent and knowing waiver of '

counsel. He introduced evidence that he had an IQ of 62, had

in the eighth grade and had difficulty writing coherently. The

evidence also shows that the defendant was 20 years old, that he

had completed the eleventh grade, that he wrote many letters

from prison, and that he was able to communicate normally and

respond intelligently to other persons. The trial court did not

err in finding that the Pen was offered counsel but intelli-

gently and understandingly rejected the offer. Carnley v.

Cochran, 369 U. S. 506 (82 SC 884, 8 LE2d 70) (1962); Hunt v.

State, (32330, decided September 8, 1977); Miller v. State,

(32711, decided November 1, 1977). The cases of Powell v.

*

Alabama, 287 U. S. 45 (53 SC 55, 77 LE 158) (1932); Marshall v.

Riley, 7 Ga. 367 (1849); and Smith v. State, 17 Ga. App. 693

(88 SE 42) (1915); are inapposite.

The trial court did not err in overruling a motion to sup-

press the statement made by the Sellentens during custodial

interrogation.

3. The defendant contends that the trial court erred in

overruling his motion to suppress the evidence of the taped

statement on grounds that the prosecution did not establish the

, proper foundation for its admissibility, and because of errors

{

j

'

'

in the tape. | ;

The record contains ample evidence that the device used to

make the tape was capable of recording an interrogation, the

event which the evidence was tendered to portray. The persons

operating the device were shown to be competent to do so. There

was sufficient proof that the recording was preserved without

alteration. After hearing the tape recording, the defendant

testified that he made the statement that was recorded on the

tape. A proper foundation was made for admissibility of the

taped statement. See Harris v. State, 237 Ga. 718 (5) (230 SE2da

1) (1976).

The defendant has not contended that the tape recording did

not accurately portray his statement. His evidence indicates

only that, in general, tape recording devices are not perfect

recorders of sound events. However, there was ample evidence of

reliability and accuracy so that the trial judge did not err in

overruling the defendant's objections on these grounds.

|

9a.

4. The defendant contends that he was denied the assistance’

: Of counsel for his defense. The defendant was arrested on

April 14, 1976, two days after the crimes occurred. He was

| initially indicted on May 4. Counsel was appointed on June 22.

The initial arraignment was held two weeks later on July 6, 1976.

A challenge to the composition of the grand jury was sustained.

The defendant was reindicted on November 29, 1976, following

revision of the jury lists. His trial began January 13, 1977.

The defendant alleges that the court erred in not appointing

an attorney upon his arrest, since his indigency should have

been apparent, and because he was available for interrogation

, while in jail. We found in division 2 that the constitutional

standards applicable to custodial interrogation were fully met in

this case. All of the evidence indicates that the defendant made,

no request for counsel to any authority and that he declined the

offers of assistance of counsel that were presented to him. We

find that custodial interrogation “dl not sufficient reason to

compel the defendant to accept conte that he has waived.

“

Miranda v. Arizona, supra; see also Paretta v. California, 422

U. S&S. 806 (95 SC 2525, 45 LE2d 562) (1975).

t;

“f

The defendant asserts that Pair v. Balkcom, 216 Ga. 721

(119 SE2d 691) (1961), would require that counsel be appointed

LS EE SS ES eS RS

10a.

for him earlier than two weeks prior to his arraignment. Pair v.

Balkcom, supra, was a murder case in which a suspect was arrested .

and indicted, pled guilty and was sentenced to death without the

assistance of counsel and within & porics of less than 63 hours.

Finding that justice unnecessarily hastened is to be condemned

' as much as justice unnecessarily delayed, this court vacated the

conviction. The court held that Fair had not waived the assis-

tance of counsel for his defense and that the Constitution of

Georgia directs that the privilege and benefit of counsel be

afforded Fair. Ga. Const. of 1976, art. I, § I, par. XI; Code

Ann. § 2-111. The court remarked that it was not called upon

to decide just when the richt to counsel commences, but indicated

that counsel should be available after the indictment to assist

the defendant with his arraignment. In the case now before us,

counsel was appointed two weeks prior to the initial arraignment

and afforded the defendant adequate assistance in his preparation

for and plea of not guilty. Pair v. Balkcom, supra, is not

applicable here. The defendant has not shown how, if at all, the

delay in appointing counsel deprived him of the effective

assistance of counsel. The defendant was not denied the assis-

;, tance of counsel guaranteed by the sixth amendment.

lla.

5. The defendant contends that the court erred in admitting,

several pieces of physical evidence. A pair of gloves, one of

which was found in the grave and the other near it, a pair of

tennis shoes allegedly worn by the co-defendant Thomas, and the

victim's bloody shirt are specifically complained about. From

the transcript of the trial we find that when these items were

offered in evidence the defendant had no objection. We also find

that the exhibits complained of were evidence that the crimes

charged in the indictment were committed and that their probative

value justified whatever small effect of confusion or emotion

these exhibits may have had on the jury. We cannot find that the

trial court erred in admitting these exhibits. Herrin v. State,

230 Ga. 476 (1) (197 SE2d 734) (1973); West v. State, 232 Ga.

861 (1) (209 SE2d 195) (1974).

6. The defendant contends that the trial court granted the

defendant's common law wife immunity from criminal prosecution in

order to entice her to testify a the defendant and that

the court improperly refused to allow her to be cross examined at

the commencement of her testimony concerning her willingness to

.

testify against the defendant. We assume without deciding that

@ common law marriage was shown.

The witness was represented by counsel and had been granted

k

_immunity. The transcript reveals that after the witness testified

for the state the defendant's counsel asked her, "You have

elected to take the stand and testify against him [defendant],

haven't you?" She replied, “Yes, sir." The defendant was not

denied the right to cross examine his spouse as to the voluntari-

ness of her testimony.

In Young v. State, 232 Ga. 285 (206 SE2d 439) (1974), this

court found that the privilege accorded spouses by Code Ann.

§ 38-1604 belongs to the spouse testifying in a criminal pro-

ceeding, not to the defendant. Thus the defendant may not assert

error when the defendant's spouse voluntarily testifies against

him.

The grant to a witness of immunity from prosecution results

in compulsory testimony notwithstanding the privilege against

being required to testify against one's self. The grant of

immunity does not operate to compel one spouse to testify against

another. State v. Smith, 237 Ga. 647 (229 SE2d 433) (1976).

The witness was not compelled by the grant of immunity to testify

against her spouse. We find no violation of Code § 38-1604. The

trial court instructed the jury that they should scrutinize with

' care the testimony of a witness granted immunity as an inducement

to testify. The trial court did not err in allowing the witness

to testify over the defendant's objections.

55a "

_ ,

l2a. a 1

tutional. It was, however, upheld in Gregg v. Georgia, 428 U. S&S.

7. The defendant contends that the district attorney made

improper remarks to the jury in his opening and cle.ing statements

in the first phase of the trial. In his opening statement the

district attorney informed the jury that the state was seeking

the death penalty. He told them the aggravating circumstances

he intended to prove and asked the jury to note evidence which

supported the aggravating circumstances. In his closing argument

the district attorney asked the jury to put themselves in the

place of the victim who must have felt pain and to think of the

loss to the victim's family. We find no error in the opening

statement and no reversible error ie the closing argument.

Moreover, we find no objection to these comments made at trial.

Therefore, the trial court was not called upon to consider

whether the comments were error or to take any action. We

therefore do not find that the trial court erred in allowing the

comments of the district attorney. * Pulliam v. State, 236 Ga. 460

465 (224 SE2d 8) (1976); see Hill v. State, 237 Ga. 794 (5)

(229 SE2d 737) (1976).

. eee

> 4

8. The defendant argues that the death penalty is unconsti-

153 ( sc P LE2@ ) (1976).

- ae os ee

-——e-

. See division 1 of this opinion. See also Coker v. Georgia,

_ attorney in his opening statement and closing argument were

“a

He argues that the death penalty for armed robbery has

rarely been imposed in the past and cannot now be imposed under

Floyd v. State, 233 Ga. 280, 285 (210 SE2d 810) (1974); Gregg v.

State, 233 Ga. 117, 127 (210 SE2d 659) (1974); and Jarrell ©.

State, 234 Ga. 410, 424-425 (216 SE2d 258) (1975). The district

attorney urges that the death penalty frequently has been imposed

for armed robbery as evidenced by the number of cases in which

we have set it aside. In the case before us, this issue is moot.

U. S. (45 USLW 4961, decided June 29, 1977).

9. Sentence Review. We must determine whether the sen-

tences were imposed under the influence of passion, prejudice or

j

any other arbitrary factor. Code Ann. § 27-2537(c) (1).

The defendant contends that the comments of the district

inflammatory and unlawfully prejudicial. Although objections

were not made at trial, we consider such matters in reviewing the

death sentences, along with others which might appear. Code Ann.

§ 27-2537; Ross v. State, 233 Ga. 361, 367 (211 SE2d 356) (1974);

Prevatte v. State, 233 Ga. 929, 931 (214 SE2d 365) (1975).

However, the statements of the district attorney did not in our

A

57a n

rageously and wantonly vile, horrible, and inhuman in that it

«7G.

opinion cause the jury to impose the sentences under the influence

of passion, prejudice or any other arbitrary factor. See

Jarrell v. State, 234 Ga. 410, 426, supra. Using the standards

prescribed for our review by the statute, we conclude that the

sentences of death imposed in this case were not imposed under

the influence of passion, prejudice or any other arbitrary factor.

;

We must also determine whether the evidence supports the

jury's finding of aggravating eircunstance. Code Ann. § 27-2537

(c)(2). The jury found that the defendant committed felony murder

while engaged in the commission of other capital felonies, armed

robbery and kidnapping with bodily injury, that the defendant

committed the murder for himself for the purpose of receiving

money and other things of value, and that the murder was out-

involved depravity of mind of the defendant and torture to the

victim. The jury found as aggravating circumstances supporting

the death sentence for kidnapping that the kidnapping was com-

mitted while the defendant was engaged in the commission of other

capital offenses, murder and armed robbery, and that the kidnap-

ping was outrageously and wantonly vile, horrible, and inhuman in

that the offense involved depravity of mind of the defendant and

torture to the victim.

l6a.

According to Gregg v. State, supra (233 Ga. at 127), where

the aggravating circumstance authorizing the death penalty for

one crime is a second crime, the first crime cannot then be used

in aggravation of the second crime to support a second death

penalty. However, according to Pryor v. State, 238 Ga. 698,

702-703 (234 SE2d 918) (1977), a lesser included offense may

constitute an aggravating circumstance even though it may not be

punished separately.

From the foregoing it can be seen that even eliminating the

kidnapping from consideration as an aggravating circumstance

supporting the death penalty for murder, the death penalties for

both murder and kidnapping in this case are each independently

valid under our law and are each amply supported by the evidence.

The death penalty for kidnapping with bodily injury is not

unconstitutional where the victim is killed. See Coker v.

Georgia, supra; Collins v. State, 239 Ga. 400 ( SE2d )

(1977).

We must also determine whether the sentence of death is

excessive or disproportionate to the penalty imposed in similar

. @ases, considering both the crime and the defendant. Code Ann.

' § 27-2537(c)(3). In reviewing the death penalties in this case,

we have considered the cases appealed to this court since

.

de : 4/a.

° January 1, 1970, in which death or life sentences were imposed

and we find the similar cases listed in the appendix support the

7 affirmance of the death penalties in this case. Since kidnapping

: with bodily harm was made a benek offense by adoption of the

1968 criminal Code (Ga. L. 1968, pp. 1249, 1282), juries have

' imposed the death penalty for ik alates in those similar cases

listed in the appendix under the heading "kidnapping cases". The

t.

cases used in the comparison were cases where the defendant

‘ exhibited a complete disregard for human life.

Although Ivon Stanley had no prior criminal record, there was

evidence showing that he was an active participant in the crimes:

enticing the victim to the place of the robbery, handling the

pistol, guarding the victim while Thomas moved the car, digging

the victim's grave, and burying the victim while he was still

alive and pleading for his life. Although the sheer savagery of

Ivon Stanley's conduct may have been equalled by others, it has

: seldom if ever been exceeded. Ivon Stanley's sentences to death

are not excessive or disproportionate to the penalty imposed in

1 similar cases considering both the crime and the defendant.

The judgments convicting the defendant of murder and kid-

, napping with bodily injury and imposing the sentences of death

for each are affirmed. The judgment convicting the defendant of

armed robbery is reversed. All the Justices concur.

APPENDIX

32260. STANLEY v. STATE

',. House v. State, 232 Ga. 140 (205 SE2d 217) (1974)

‘2. McCorquodale v. State, 233 Ga. 369 (211 SE2d 577) (1974)

3. Floyd v. State, 233 Ga. 280 (210 SE2d 810) (1974)

| 4. Jarrell v. State, 234 Ga. 410 (216 SE2d 258) (1975)

5. Berryhill v. State, 235 Ga. 549 (211 SE2d 185) (1975)

6. Birt v. State, 236 Ga. 815 (225 SE2d 248) (1976)

7. Gibson v. State, 236 Ga. 874 (226 SE2d 63) (1976)

8. Harris v. State, 237 Ga. 718 (230 SE2d 1) (1976)

9. Young v. State, 237 Ga. 852 (230 SE2d 287) (1976)

10. Dix v. State, 238 Ga. 209 (232 SE2d 47) (1976)

ll. Blake v. State, 239 Ga. 292 ( SE2d ) (1977)

12. Young v. State, 239 Ga. 53 (236 SE2d 1) (1977)

\' KIDNAPPING CASES

!' 13. Henderson v. State, 227 Ga. 68 (179 SE2d 76) (1970)

_ 14. Akins v. State, 231 Ga. 411 (202 SE2d 62) (1973)

15. Eberheart v. State, 232 Ga. 247 (206 SE2d 12) (1974)*

| 16. Jarrell v. State, 234 Ga. 410 (216 SE2d 258) (1975)

17. Peek v. State, 32150 decided September 6, 1977

erm.

.

' *Although the death penalty in Eberheart v. State, supra, was

“ get aside because no death was Involved, Eberheart v. Georgia,

:3 U. S. , it is a case in which the jury imposed the

death penalty for kidnapping with bodily injury.

Se

tor.

I 61a

® fF 8S RB

9°

oe ee ee AREUS

THE COURT:

Mr. Stacy?

MR. STACY:

Ladies end gertlemer of the jury, I know

this has been a trying case for you. I know it hes been for

me. I.know you have had an unpleasant duty to do, one that

no doubt you didn't want to do. You did it because you were

summoned here. =

Put I'm not going into the gvitence any

further in this case because you heard it all. And you have

been aware of anything that has gone on in here. You have

listened to each and every indivicual witness. You have

weighed anc evaluatec evidence. And you heve made your

findings.

As for me, this is the first time I've

ever beer involved in a capital offense where the death

penalty has been called for. I have done my duty. I'1l walk

out of this Courtroom today feeling that I have even gone

¢ eer comets PEOERAL

Gubbuna cameanes court parcemon sure

Pare TAU REPORTING avon uae os

+a TaLAMAseEe 32202

pray BH 224-0722 + 224-0728 ;

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62a

ao

overboard against ry friends, against those I sit in churer

with, against those I have sat in the lodge with. against

those I nave troken tread with. When you can no lonrer hear

Mr. Cato's voice, all when it's silent, you can hear rin ro

longer p2unding with the harmer on the tatle., when the whole

place is silent. is it going to be silent with you? If you

ear. bring in a death sentence or bring in a sentence without

mercy?

I knew Clifford Floyd. I knew hir well.

And I don't believe Clifford Floyd ever had in his reart the

Latin phrase, an eye for an eye and a tooth

for a tooth. I don't believe he ever thought of that. If

you've ever read church history, at the time that our Naster

was crucified, they hed the same lawlessness in and arounc

Jeruselen thet they have in this country today. Old Pilot

was a hatchet man of Caesar's. He had the suprere power of

life and death. Ee wes judge, jury and tre executioner. "e

was all powerful. The death penalty had been taken away fror

the Jews. The Sanhedrin couldn't prorounce the death

sentence. And Jesus was brought before hin. Pilot didn't

want the responsibility. Take hin and try him under your

law. The Jews replied to hin, the Sanhedrin replied to

him, you know the death penalty: has been taken away from us.

And if you will remember, old Pilot wanted to wash his hands

of it. His good wife sent him a@ message thet says have

J

-

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Pa reoe,

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+ Ger aorevee : PEOCERAL

100

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3

nothing to do with this innocent ran. I've hat a ¢rean

concerning hic this night. So he tried to shift his respor-

sibility to semebody else. "Ne said take him away and

crucify hin. And then, ladies and gentlemen of the jury,

he got hic a pan of water and washed his hands. If it shoul4

ever appear and in your mind and in your conscience, when,

at any tize you reflect tack in the dark of the night ard

say, was I absolutely right on this thing? Wes I absolutely

Tight om this thing? This ran, we can about Prother Floyd,

sleep on, Erother Floyd. sleep on. But this ran, whon I

consicer an ircbecile, you can refuse him mercy if you want

to, that's your prerogative. But I can hear his footprints

goirg down as they rcarch him down to that death chair and

I can hear that cry thet Brother Floy4 cried. You've got

ry torney. Fe won't be saying it then. He'll be saying, have

mercy, have mercy. .You have the right to bring in a vote of

mercy for this man. You can do it whether or not you want

to. That's your prerogative.

: My duty to this man, I've already rendere?

it. I don't have to wash my hands. I think his people ania

will say I've done the best I could do. I thank you.

7

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— '

64a -

{

WAIVER GF COUNSEL BY DEFENDANT IN CUSTODY

5, ret Ae 4 yi tae Toe, ,have been informed by the

unGerSignec .4-erlorceémest officers. prior to being questioned hed thea

that I am suspected~of the offense of Wie ’ be Lod

in bi Oe Pre. County. Georgia, on the Fi J. Gay oF wasg

and nave been iniormed by them of my Right® as follows:

1. That I -ay remain silent anc do not have to make any statement at all.

2. That an. statement which I might rake may be used against me in court.

3. That I i.swe the right to consult with an attorney before making any

Statemen* anc to have Such attorney present with me while I am making

a staten at.

4. Tnaat if : €o not have enough money to employ an attorney, I have the

right to nave one appointed by the Court to represent me; to consult

with hin before making any Statement; and to have him present with

me whiie { ar maxing &@ statement.

5. Tnat if i request an attorney, no questions will be asked me until an

attorney is present to represent me.

6. That I maxe this statenent voluntarily, without being induced by

another, or dDeing promises the slightest hope of benefit or without

having the remotest fecr of injury.

fter having my Rights explained to xe, freely and voluntarily waive

my right to an attorney, I am willing to make a statement to the officers.

I can read and write the Englism language and fully understand my Rights

to an attorney. I have read this waiver of counsel and fully understand

it. No threats or promises have been mace to me to induce me to sign this

Waiver of Counsel are to zaxe a’ statement to the officers.

Tris peel day Ra Ss ve

oe ee oe

° ¢

All of the Rights in the above Waiver of Counsel were read and explained

to the above defendant by nme and he freely and voluntarily waived iis

right to an attorney. No threats, promises, tricks or persuasion were

employed by me or anyone in my presence to induce hia to waive his rights

to an attorney and to make a statement without an attorney. He freely and

voluntarily signed the above waiver of Counsel in my presence after having

read it.

4 g

MEP or owes cone, ~

Witnessed-by,—_“—"*- Y 4 te.

el 4 Fld in ? él

4 Tie

7 es R

8 27003

No. 82-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982 ane

IVON RAY STANLEY,

Petitioner,

~against-

WALTER D. ZANT, WARDEN,

Georgia Diagnostic and

Classification Center,

Respondent.

MOTION TO PROCEED IN FORMA PAUPERIS

The petitioner, Ivon Ray Stanley, by his undersigned

counsel, asks leave to file the attached Petition for Writ

of Certiorari to the United States Court of Appeals For The

Eleventh Circuit without prepayment of costs and to proceed

in forma pauperis pursuant to Rule 46. Mr. Stanley's affidavit

in support of this motion is attached hereto.

Melvin L. Wulf

June 28, 1983

No. 82

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

IVON RAY STANLEY,

Petitioner,

-against-

WALTER ZANT, Warden,

Georgia Dianostic Center,

Respondent.

ee ee de i

I, Ivon Ray Stanley, being duly sworn, depose and say,

in support of my motion for leave to proceed without being

required to prepay costs or fees and to proceed in forma

pauperis:

1. I am the petitioner in the above-captioned action.

2. Because of my poverty I am unable to pay the costs

of said cause; I own no real or personal property; I am

incarcerated and receive no income from earnings.

3. I am unable to give security for said cause.

4. Counsel is serving on my behalf without remuneration.

At trial and on appeal, lawyers were appointed to represent

me because I was indigent.

5. I believe that I am entitled to redress.

6. The nature of said cause is briefly stated as follows:

I was convicted in the Superior Court of Decator County,

a trial court of the State of Georgia, of felony murder and

kidnapping with bodily injury, and was sentenced to death.

I am being held at the Georgia Dianostic & Classification

Center in Jackson, Georgia. I1 believe that errors were

committed during the course of my trial in violation of my

constitutional rights and that my conviction and death

sentence were imposed upon me in violation of my constitutional

rights.

Doe) Stadkey

IVON RAY STANLEY J

STATE OF GEORGIA

COUNTY OF BUTTS

The foregoing affidavit of Ivon Ray Stanley, ws subscribed

and sworn to before me this 23 day of June, 1983.