Petition — Conner v. Georgia

Supreme Court brief1983

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Whether

QUESTIONS PRESENTED

the death penalty is imposed in violation of the

eighth amendment, as construed in Godfrey v. Georgia and Greg¢

v. Georgia, where:

Whether

rights to a fair and impartial trial and sentencing hearing were

violated:

the jury imposes the sentence of death on

a person who after drinking heavily all

night with a friends, gets into a fight

from which the friend dies;

there is no evidence of torture or the use

of a deadly weapon and the only evidence as

to the cause of the ficht is the petitioner's

statement; and

the judge in his charge to the jury merely

recited the statutory language, "that the

offense of murder for which the defendant

stands convicted was outrageously or wantonly

vile, horrible, or inhumane in that it in-

battery to the victim” and the

ly misunderstanding the instruction, found

vated battery to the victim.

the petitioner's due process and eighth amendment

where the state's highest court expressly

founé that the prose

ments to the jury, a

cutor's repeated state-

t both the guilty and

penalty phases, concerning his personal

reasons for seeking the death penalty with

comments such as, "As District Attorney

have prosecuted nine murder cases .

have been responsible for prosecuting

several terrible killings. I have never

before sought the death penalty,” were

supported by any evidence and, moreover,

[were] not relevant to any issue in

"not

the case"

nd were

b) where a statement

admitted into eviden

irrelevant and preju

reference to a secon

for which the petiti

tried nor convicted,

pressly ruled could

evidence because of

~ +,

--+-+

Georgia death pen

terpreted i

Georcia, and Lockett Ohio, wher

states with death pe utes

ircumstances or

authority the factors mitigati

Geath penalty

the petitioner was

ce although it contained

Gicial matter, such as

@, unrelated killing

oner had neither been

and which the judge ex-

not come directly

its irrelevancy.

alty statute violates the

Grego v. Georgia, Furman v.

e, out of the thirty-five

, only Georgia and one other

the sentencing authority's

to apprise the sentencing

g against imposition of the

Cotak bisakn hae!

mata

w wetn

“+

Stateme

Godfrey

-~~-

mstances

TABLE OF AUTHORITIES

Bowen v. State, 244 Ga. 495, 260 S.E.2d 855 (1979)...

Burns v. Beto, 371 F.2d 598 (5th Cir. 1967).....26--

Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir.

(i yy ) Pear rrr tees Cr re oe ee ee

Furman v. Georgia, 408 U.S. 238 (1972)... eeeeeeees

Gaddis v. Zant, 247 Ga.

Gregg v. Georgia, 428 U

Hance v. State, 245 Ga. 856 (1980)... .cceeeeeeevvnes

Hance v. zant, 696 F.2d 940 (llth Cir. 1983)........

Lockett v. Ohio, 438 U.S. 586 (1978) ...cceevesseeees

Prevatte v. State, 233 Ga. 929, 214 S.E.2d 365

BY pe) eee eee re ere Pee re oo tse ee ey

Proffitt v. Florida, 428 U.S. 242 (1976) ...ceeeeeees

Redd v. state, 242 Ga. 876, 252 S.E.2d 383 (1979)...

Ross v. Maloney, 372 F.2d 53 (3rd Cir. 1967).....++-

Spivey v. State, 241 Ga. 477, 246 S.E.2d 288 (1980)

Cert. denied, 439 U.S. 1039 (1980)... ee eeeeees

Spivey v. Zant, 660 F.2d 464 (5th Cir. 1981), cert.

Genied, 102 S.Ct. 2495 (1982)... cece eee eeecccens

United states v. Gonzales, 488 F.2d 833 (2nd Cir.

hd) ew eevee ceo eet ce ee ee

United States v. Modica, 663 F.2d 1173 (2nd Cir.

LOGE) ccd ase rhe esseccescdsecsevsasesseeseesecan

717, 279 S.B.2a 219 (1981)...

Godfrey v. Georgia, 446 U.S. 420 (1979)... cere eeeeees

6B TSS CLOTS) ci bese e eee eases

ll, 12,

14, 16,

18, 19,

7, 8,13

7, 9, il,

12, 14,

16, 17,

United States v. White, 486 F.2d 204 (2nd Cir. 1973),

Cert. denied, 415 U.S. 980 (1974)... cee eeseeces

tes a

Statu

mn"

™

mn. § l

Lebel

Code A

Ga.

cellaneous

Mis

981)

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1983

No. 83-

JOHN WAYNE CONNER,

Petitioner,

STATE OF GEORGIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF GEORGIA

Petitioner, John Wayne Conner, respectfully orays ti

writ of certiorari issue to review the judgment and decisio

of the Supreme Court of the State of Georgia, entered on

24th day of May, 1983.

OPINION BELOW

The opinion of the Georgia Supreme Court (Aop. A) is

ported at Ga. ’ S.E.2d (1983).

JURISDICTION

The judgment of the Georgia Supreme Court was entere

May 24, 1983. There was no petition for rehearing. The

@iction of this Court is invoked under 28 U.S.C. § 1257(3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fifth. Eighth and Fourteenth Amendments to the Const

of the United States.

Ga. Code Ann. § 17-10-30

17-10-35

STATEMENT OF THE CASE

On the evening of January 9,

Conner (petitioner) and James T.

party in Eastman, Georgia [T.

quantities of alcohol [T. 170-72,

Beverly Ann’ Bates, and one

attended the party [T. 240).

the deceased, Burnham, and Bates

to the residence of

172, 240]. Burnham left the grou

thereafter, Bates went to bed

Just before Bates retired

the deceased left the home,

liguor [T. 172,

bottle of bourbon [T. 172-3]. Th

house at 1:00 or a.m.

where they could

Pete Dupree, was

transportation [T. 281] At

the deceased

together, apparently

After leaving Dupree's house

somehow got into a fight. This €£

the deceased [T. 173, 271-2,

been struck in the head with a

resulting in

respiratory

receded

)

‘0

Arthur

petitioner an

on foot,

seeking transportation

Dupree's house

bottle and

chest cavity and ceasing of

The state's expert witness

a al "

1982, two friends - John Wayne

White (deceased) - attended a

Both consumed substantial

239-40]. Petitioner's fiance,

("Stacey") Burnham also

After the party, petitioner,

all returned in Burnham's truck

d Bates in Milan, Georgia [T.

p, (T. 172, 240) and shortl;

titioner and

search of more

partially full

two arrived at a neighbor's

to a place

The awakened neighbor,

neither petitioner

. 282); the two walked

nd more liquor

, petitioner and the deceased

ight resulted in the death of

. The deceased had apparently

beaten in the face,

the

who

refer to the trial

performed the autopsy on the deceased indicated that there were

no signs of torture to the deceased [T. 225] and no clear evi-

dence that more than one battery had occurred to the body of the

deceased [T. 228]. On cross-examination, the state's expert wit-

ness admitted that some contusions on the deceased's hands might

be consistent with the deceased having acted in an offensive

manner [T. 225-7]. No one but the deceased and vetitioner were

present at the scene of the fight.

The cause of the altercation that developed between the

petitioner and the deceased in the early morning hours of January

10, 1982 was a matter of considerable dispute at trial. The only

direct evidence of what occurred was found in petitioner's state-

ments, which were introduced at trial. [In these post-arrest

statements, petitioner indicated that the deceased had expressed

a desire to engage in sexual relations with Bates (petitioner's

fiance), and that these expressions by the ceceased led to the

fight (T. 186, 331].

ral

«t

The state's theory of t

based entirely on circumstantial evidence. Because petitioner

was found to possess a five dollar bill stained with the blood of

the deceased, the state reasoned that petitioner had killed his

friend in order to obtain five dollars with which to buy more

ligquor.*

As a result of the death, petitioner was indicted in Telfair

County, Georgia for the murder of James T. White; in the same in-

dictment, petitioner was alse charged with motor vehicle theft

and armed robbery (based on the blood-stained five dollar bill).

Petitioner pleaded not guilty, and was tried before a jury on

July 12, 13, and 14, 1982. He was convicted on all three counts

* A theory expressly found by the Georg

supported by insufficient evidence to

armed robbery. See page 6 , infra.

i. w&

and sentenced to death on July 14, 1982. The sentencing jury

based its imposition of the death penalty on their conclusion

that the death involved the aggravating circumstances of an out=-

rageously and wantonly vile, horrible, and inhuman murder and a

murder involving depravity of mind and a murder involving an

aggravated battery to the victim [T. 466-7]. The jury specifi-

cally rejected armed robbery as an aggravating circumstance.

What occurred after the fight between petitioner and

deceased was relatively undisputed at trial. Petitioner apparent=-

ly returned home, picked up Bates, and fled with her in a stolen

car (the basis for the auto theft charge). The couple was

apprehended while en route to Gainsville, Georgia.

At the close of the state's case, petitioner presented no

evidence on his own behalf. In closing argument at the guilt/

innocence phase of the trial (before sentencing was at issue),

the prosecutor, accepting petitioner's statement that he killed

the deceased but rejecting the balance of petitioner's statements

relating to the circumstances leading up to the fight, made the

following remarks:

I know of no one and have never been involved in a

case which more graphically demonstrated an abandoned

and malignant heart than the case we have here [T.

379} . . . Ladies and Gentlemen, as prosecutor, as

defense attorney, I have been involved in criminal

law for seven years. As District Attorney of this

circuit, I have prosecuted nine murder cases. I!

have never before sought the death penalty. I have

seen several killings. I have been responsible for

prosecuting several terrible killings. I have never

before sought the death penalty .. . What he [defense

counsel] wants is you to use the fact that I'm going

for the death penalty to try to get you to return some

verdict other than murder so that the death penalty

will not be able to be considered in this case. 1!

mean, that's the real issue here. The real issue is

the death penalty ... I don't see that there is any

way -- in all sincerety and all honesty -- that there

is any way you could have any doubt in your mind as

to whether John Conner murdered J. T. White...

Are you at this time unconvinced that John Conner

should die for this murder? [T. 398-99).

In his closing argument, the prosecutor also made use of a

statement allegedly made by petitioner to sheriff's deputies

during the course of the trial (. .. “they ought to give me a

medal for killing them two sons of bitches instead of trying me

for it .. .") [T. 377]. This statement refers to an unrelated

-é-«

killing in another county for which petitioner had apparently

been charged but not yet convicted.

After closing arguments and the court's charge to the jury,

the jury, after fifty minutes of deliberation, returned a verdict

of guilty on all counts [T. 433].

After return of the verdicts, the court proceeded with the

bifurcated sentencing hearing. The state announced its intention

to base its request for imposition of the death penalty on two

aggravating circumstances: 1) the offense of murder was

committed while the offender was engaged in the commission of a

felony, to wit: armed robbery (Ga. Code § 17-10=-30(b)(2)) (the

only basis for this circumstance was the blood stained five dollar

bill), and 2) the offense of murder was outrageously or wantonly

vile, horrible, or inhuman in that it involved depravity of mind

or an aggravated battery to the victim (Ga. Code § 17=10=30(b) (2)),

{T. 437-8]. The state also announced its intention to introduce

evidence at the sentencing hearing of the second killing referred

to in petitioner's statement [(T. 439]. The court expressly ruled

that no evidence of the alleged second killing would be admissible

in evidence during the sentencing hearing [T. 444]. This ruling

appears inconsistent with the court's prior ruling which allowed

introduction of the statement referring to the second, unrelated

killing at trial.

In argument at the sentencing hearing, the prosecutor

characterized the attitude of petitioner as follows:

» « "2 killed them two sons of bitches and = don't

I don't care about : life. I don’t care

tche as he stood ready to go on trial for his

* The underlined statements attributed to petitioner by the

prosecutor appear nowhere in the record.

very life that's what he told him. If there has

ever been a depraved mind it belongs to John Wayne

Conner. As I told you, I have never previously

sought the death penalty in any murder case, but

I tell you, I am seeking it now, and I am asking

this jury to go back to that jury room and return

a verdict, or a decision to send John Wayne Conner

to the electric chair [T. 450].

After the closing arguments of counsel, the court charged the

jury on sentencing [T. 454-61]. The court charged the jury that

it could find the aggravating circumstances of “wanton and vile”

murder and armed robbery. The jury was told it could "consider"

mitigating circumstances. The court merely recited the statutory

language on the potentially aggravating circumstances and on what

constitutes an aggravated battery. The jury, apparently recog-

nizing the weakness of the state's case on the five dollar armed

robbery charge, explicitly rejected armed robbery as an agcravat-

ing circumstance. [It nevertheless returned a verdict for the

death penalty, apparently misunderstanding the court's charge to

the extent that it found not the one remaining aggravating cir-

cumstance charged by she court and authorized by statute (Ga. Code

§ 17-10-30(b)(7)), but three separate aggravating circumstances,

namely = an outrageously and wantonly vile horrible and inhuman

murder, and a murder involving depravity of mind, and an aggra-

vated battery [T. 466-7]. The court then imposed the death

penalty upon petitioner.

The Georgia Supreme Court affirmed the convictions for murder

and motor vehicle theft, but reversed the conviction for armed

robbery because of insufficient evidence. Ga. ’

S.E.2d (1983). The Georgia Supreme Court also affirmed the

death penalty. Although exoressly conceding that the prosecutor

had engaged in improper conduct, the court found that the prosecu-

tor's argument did not require reversal, holding “that the ‘passion’

proscribed by [Georgia]! law does not encompass al! emotion, but only

that engendered by vrejudice, particularly racial prejudice, or

other arbitrary factors." Id. (footnote omitted).

The federal questions raised in this petition were con-

sidered by the Georgia Supreme Court. The Court expressly

addressed the prosecutor's misconduct and took a position in con-

flict with the Eleventh Circuit Court of Appeals' decision in

Hance v. Zant, 696 F.2d 940 (llth Cir. 1983). The Court also

found that the petitioner's sentence was not excessive or dis-

proportionate compared to other cases. In addition, all of the

questions presented in this case were necessarily reviewed by

the Georgia Supreme Court under Ga. Code § 17-10-35(c) (1), which

calls for mandatory review of “whether the sentence of death was

imposed under the influence of passion, prejudice or any other

arbitrary factor. .."*

THE IMPOSITION OF THE DEATH PENALTY IN THIS CASE

VIOLATES THE EIGHTH AMENDMENT AS CONSTRUED IN

GODFREY V. GEORGIA AND GREGG V. GEORGIA.

A. The imposition of the death penalty

where the evidence fails to show an

aggravated battery or depraved mind

constitutionally sufficient to justi-

fy the death penalty conflicts with

this Court's decisions in Godfrey and

Gregg.

l. A mere fight between two persons,

who had been drinking heavily,

resulting in the death of one

does not constitute an aggravated

battery constitutionally suffi-

cient for the imposition of the

death penalty.

Imposition of the sentence of death on a finding of aggra-

vated battery in this case contravenes this Court's holding in

Godfrey v. Georgia, 446 U.S. 420 (1979). The uncontroverted

evidence shows that the petitioner and the deceased had been out

to a party together and had been drinking all night [T. 172).

* The Georgia Supreme Court has interpreted Ga. Code § 17-10-35

circumstances found by the jury and the evidence concerning the

crime and the defendant. Conner v. State, Ga. ’

S.E.2d (1983).

They then returned home and set off in search of more liquor [T.172].

During their venture, they got into a fight which resulted in the

death of the deceased [T. 198]. The Georgia Supreme Court held

that this conduct was sufficient to support a finding of aggra-

vated battery warranting the imposition of the death penalty.

Ga. , $.E.2da (1983).

In Godfrey, this Court held that the shotgun killing of two

persons is not an aggravated battery warranting impcevsition of the

death penalty. Godfrey, 446 U.S. at 433. In reaching this con-

Clusion, the Court focused on the following facts: the absence

of torture, death was instantaneous, and the deceased were family

members who caused the petitioner emotional trauma. Id. at 132-

133. The Court concluded that "the petitioner's crimes cannot be

said to have reflected a consciousness materially more 'depraved'

than that of any person guilty of murder.” Id. at 133.

The circumstances of the case now before the Court similarly

fail to reflect “a consciousness materially more depraved than

that of any person guilty of murder. Here, two men who had been

@rinking all night got into a fight -- a generic “bar-room brawl”

which resulted in a death. As the state's medical expert testi-

fied, there was no evidence of torture [T. 225]. The pre-trial

statements of the petitioner, int

oduced by the prosecution to

prove the killing of the deceased by the petitioner, also indi-

cated that the deceased may have provoked the incident by telling

the petitioner that he wanted to sleep with petitioner's girl-

friend [T. 186, 331]. Unlike the facts in Godfrey, a gun was not

used, but only fists and a bottle. Moreover, there was no evi-

dence of premeditation, nor any other motive for the killing

(other than the purported robbery suggested by the prosecution,

but which the jury rejected as an aggravating circumstance).

2. A killing during a brawl between

two friends who had been drinking

is not a sufficient basis for a

finding of a depraved mind

justifying the imposition of

the death penalty.

The finding of depravity of mind in this case violates the

principles set forth in Gregg v. Georgia, 428 v.S. 153 (1975). In

Gregg, this Court, in rejecting a facial challenge to the consti-

tutionality of the statutory language “outrageously or wantonly

vile, horrible, or inhuman in that it involved torture, depravity

of mind, or aggravated battery," clearly expressed its assumption

that the statute would not be construed to permit the imposition

of the death penalty on facts such as those involved here:

It is, of course, a

rguable that any murder

involves depravity o

;

£ mind or an aggravated

battery. ut this language need not be con-

strued in this way and there is no reason to

assume that the Supreme Court of Georgia will

adopt such an open-ended construction.

Id. at 201. In this case, Georgia has done exactly what this

Court was confident it would not do: it has adopted an open-

ended construction of the statutory language, and affirmed a

finding that depravity of mind existed on facts such that the

death penalty would be justified for virtually any murder.

B. The trial j

the statuto

dcse's mere recitation of

aggravating circumstance

without any other

Godfrey.

In the sentencing phase of the case sub judice, the trial

judge merely recited to the jury the statutory language of Ga.

Code § 17-10-30(b) (7): “that the offense of murder for which the

defendant stands convictedwas outrageously or wantonly vile,

horrible, or inhumane in that it involved depravity of mind or an

fal

aggravated battery (T. 456]. Other than reciting

the statutory definition of aggravated battery [T. 457], he did

not give the jury any guidance in applying these words to the

facts of the case. [T. 456-458). After a short deliber-

«ct

ation, the jury, apparently misunderstanding the statutory

language and the court's instruction, recommended the death

penalty based on three aggravating circumstances: "the offense

of murder was outrageously and wantonly vile, horrible, and in-

humane and that it did involve depravity of mind and aggravated

battery to the victim" [(T. 467]. The jury believed that they had

found several aggravating circumstances when, in reality, they

had only found one. Their confusion is further shown by the

wording of their finding. They listed their finding in the con-

junctive while the judge in his instruction used the disjunctive.

To avoid the confusion and misunderstanding faced by the

jury, the trial judge should have explained the two-tiered test in-

herent in the statutory provision. First, the jury should have

determined whether an aggravated battery or depraved mind existed.

Upon finding one of these, they should then have determined

whether the murder was outrageously or wantonly vile, horrible, or

inhumane. If both of these steps were satisfied, and if the evi-

dence was otherwise constitutionally sufficient to justify the

conclusion, the jury then could have found that the aggravating

circumstance of subsection (b)(7) existed. See, Hance v. State,

245 Ga. 856, 860 (1980), reh'g denied, (1980) (setting forth

the two-tiered test -- which is used by the Georgia Supreme Court

in reviewing subsection (b)(7) cases).

Consequently, even if the evidence considered by the jury in

this case was sufficient to justify the imposition of the death

penalty, the instruction here was so deficient so as to make it

impossible to conclude that the jury's determination was not

based upon passion, prejudice, or any other arbitrary factor.

See, Ga. Code § 17-10-35(c) (1) (1983).

THE PROSECUTOR'S MISCONDUCT AND THE ADMISSION INTO

EVIDENCE OF PETITIONER'S IRRELEVANT STATEMENT

RENDERED THE PROCEEDINGS SO FUNDAMENTALLY UNFAIR AS

TO RAISE IMPORTANT ISSUES OF DUE PROCESS AND EIGHTH

AMENDMENT PROTECTION.

- 10 -

A. The Eleventh Circuit and Georgia Supreme

Court are in conflict as to what consti-

tutes “constitutionally intolerable" con-

duct.

Gregg v. Georgia, 428 U.S. 153 (1976), and Furman v. Georgia,

408 U.S. 238 (1972), forbid the imposition of the death penalty

in an arbitrary and capricious manner based on extraneous factors.

The Eleventh Circuit Court of Appeals in Hance v. Zant, 696 F.2d

940 (llth Cir. 1983) held that "dramatic appeal to gut emotion” by

the prosecutor at the sentencing stage was a "constitutionally in-

tolerable” extraneous factor in a death penalty case. The Georgia

Supreme Court, in contrast, conceded that the prosecutor had

acted improperly in the petitioner's case but rejected Hance's

holding that emotional appeal is constitutionally prohibited.

Ga. ’ S.E.24 (1983). Instead, the Georgia

Supreme Court concluded that because "the imposition of the death

penalty can never be a wholly rational, calculated or logical

process," the Georgia statutory prohibition against a death

penalty based upon “passion” was a narrow prohibition aimed

primarily at racial prejudice. Id.

B. The prosecutor's misconduct substantially

prejudiced the petitioner by placing pre-

judicial, extraneous facts before the jury.

The prosecutor, during both the guilt and penalty phases of

the trial, made repeated statements as to his own reasons for

seeking the death penalty. During his closing argument at the

guilt phase, he stated that, "I know of no one and have never been

involved in a case which more graphically demonstrated an

abandoned and malignant heart than the case we have here” [T. 379].

The prosecutor then proceeded to tell the jury:

“Ladies and gentlemen, as prosecutor, as defense

attorney, I have been involved in criminal law

for seven years. As District Attorney of this

circuit, I have prosecuted nine murder cases. f

have never before sought the death penalty. I

have seen several killings. I have been respon-

sible for prosecuting several terrible killings.

- i] «

I have never before sought the death penalty”

(T. 399].

Although the trial was still at the guilt phase, the prosecutor

made clear that he was already arguing for the death penalty: “I

mean, that's the real issue here. The real issue is the death

penalty” [T. 399]. At this point, defense counsel objected to the

state arguing for the death penalty at the guilt phase, and the

objection was sustained [T. 399].

The prosecutor reiterated at the sentencing hearing that,

based upon his own experiences as a prosecutor, the defendant in

his opinion should be sentenced to death: "As I told you, I have

never previously sought the death penalty in any murder case, but

I tell you, I am seeking it now, and am asking the jury to go

back to that jury room and return a verdict or a decision to send

John Wayne Conner to the electric chair” [T. 450].

Prosecutors are held tc a higher standard of conduct than

private attorneys because, as agents of the state, juries might

place greater weight in their statements and arguments. United

States v. Modica, 663 F.2d 1173, 1178 (1981). The courts have

recognized the special dancer that improper prosecutorial state-

ments may cause the jury “to take less than full responsibility

for their awesome task of determining life or death for the

prisoners before them." Prevatte v. State, 233 Ga. 929, 214 S.E.

24 365, 367 (1975). The prejudicial impact of the prosecutor's

misconduct, therefore, was especially adverse to the petitioner as

it went to the imposition of the death penalty; his comments

allowed the jury to rely on the extraneous factor of the state's

judgment in seeking the death penalty, which, in turn, enabled

them to act in an arbitrary and capricious manner in violation of

Gregg and Furman. Indeed, the Georgia Supreme Court in reviewing

the petitioner's case candidly admitted that the prosecutor's

statements were "not supported by any evidence and, morecever, was

not relevant to any issue in the case. The argument was therefore

improper." Ga. , S.E.2d (1983).

Although this Court has not yet set forth standards, the

lower courts have implemented the due process clause when re-

viewing prosecutorial miscondcut through a substantial prejudice

test. The test focuses on several factors: the strength of the

government's case, the severity of the misconduct, and the

curative effect of the judge's instructions. Modica, 663 F.2d

at 1178.

(1) The State's Evidence

The weakness of the State's evidence makes it doubtful that

the petitioner's acts constituted the aggravating circumstance of

being “outrageously or wantonly vile, horrible, or inhumane in

that it involved torture, depravity of mind or an aggravated

battery to the victim." GA. CODE ANN. 17=-10=-30(b)(7). The

Court has already noted the potential of this aggravating cir-

cumstance to be applied capriciously, Godfrey v. Georgia, 446 U.S.

420 (1979), and the prosecutor's comments heightened the danger

that the jury would apply it in such a manner.

Indeed, it may have been the weakness of the state's case

that compelled the prosecutor to assure the jury that he would

seek the death penalty only where it was appropriate. Evidence

of torture was completely lacking [T. 225], and evidence of

depraved mind or aggravated battery sufficient to justify the

@Geath penalty was in dispute. No eyewitnesses were present at

the scene, and the evidence indicates that the death occurred as

the result of a fight between two drunk men of equal strength

(T. 227, 251]. The encounter was described as a fight throughout

the trial, and reason existed to believe that the victim fought

back [T. 161, 164, 167, 198, 226, 241, 335, 336-37]. Furthermore,

Georgia law allows the jury to find "mercy" even though it finds

the aggravating circumstance, and the prosecutor's comments may

have influenced the jury to reject "mercy."

a $3 «

(2) The Severity of the Misconduct

The prosecutor's comments constituted severe misconduct, as

they were extensive pleas for the death penalty based upon his

own experiences as a prosecutor. These statements were not

isolated, offhand comments, but formed an integral part of the

state's argument for the death penalty so as to manifest a pattern

of misconduct. See, United States v. Gonzales, 488 F.2d 833 (2nd

Cir. 1973). Moreover, the courts have observed that prosecu-

torial misconduct is more pronounced during short trials, United

States v. White, 486 F.2d 204, 205 (2nd Cir. 1973), cert. denied,

415 U.S. 980 (1974), and this principle is particularly appli-

cable to this case: not only was the trial short, but the

sentencing hearing consisted solely of the prosecutor and defense

counsel's arguments.

(3) Curative Actions by the Trial Judge

Although the judge did instruct the jury on the difference

between argument and evidence at the guilt phase of the trial [T.

413), he did not make a similar instruction at the sentencing

phase. The jury, therefore, may have viewed the prosecutor's

comments as evidence to be considered in imposing the death

penalty. The judge also failed to give any curative instructions

in response to the misconduct at the time the comments were made.

See, Modica, 663 F.2d at i141.

C. The petitioner's due process and eighth

amendment rights were violated by admitting

into evidence petitioner's statement con-

taining highly prejudicial, irrelevant evi-

dence.

The tenets of Gregg and Furman in disallowing an arbitrary

and capricious imposition of the death penalty based upon extra-

neous factors were also violated by the admission into evidence

of the petitioner's statement made to law officers just before

the beginning of his trial. One of the officers testified that

the petitioner had told him:

"they should give [petitioner] a medal for, I quote,

for killing them two son of a bitches” [T. 345).

", . . and he brought up the incident about the

time -- the escape from Dodge County where two

inmates escaped, that Sheriff Jones was about to

put him into the cell with these two inmates that

aid escape and that if he had escaped that they

were fools for leaving the rifle in the truck, that

if it had been him, he would have got the rifle,

and that he would have left, as I quote "a bunch

of you son of a bitches laying out there in the

woods" (T. 345).

Despite defense counsel's cbjections to the statements as irrele-

vant and inflammatory, the full statement was admitted into evi-

dence [T. 344-45].

Erroneous admission of evidence must render "the trial

fundamentally unfair" to constitute a denial of due process.

Burns v. Beto, 371 F.2d 598 (Sth Cir. 1967). See, Ross v.

Maloney, 372 F.2d 53, 60 (3rd Cir. 1967) (dissenting opinion).

Portions of the petitioner's statement fall within the prohi-

bitions of the Due Process clause. The statement about "killing

them two son of a bitches" refers to a second killing which the

petitioner had not been tried for or convicted of by a court.

The prosecutor made extensive use of this portion of the state-

ment during his closing argument at the guilt phase [T. 376-77),

and the prejudicial effect was compounded by his use of it during

the sentencing argument as well [T. 450].

The prejudicial effect is highlighted by the judge's refusal

to let the state introduce direct evidence of the second killing.

The judge expressly ruled that, “there must be some relationships

between the cases much stronger than you have shown here, or from

what you tell me the similarities would involve" [T. 444). The

prosecutor's use of the "killing them two son cof a bitches

language thus achieved indirectly what the judge had ruled the

state could not do directly.

The portion of the statement vcertaining to the petitioner's

boast that he would have killed the deputies and left them in

the woods is similarly prejudicial. The comment had no logical

relevance to a determination of the petitioner's guilt and had

no basis in fact; it served no purpose but to inflame the juror's

minds. The prosecutor made extensive use of the statement in his

closing argument [T. 377] and made further reference to it in his

sentencing argument [T. 450].

Finally, the prosecutor used the statement to attribute

comments to the petitioner that he never made. In the prose-

cutor's sentencing argument, he stated that the petitioner had

said:

", . « I killed them two son of a bitches and I don't

care. I don't care about my life. I don't care

about any of it. If they will just give me a chance

I'll do it again. That's what he told Frank Mitchell

as he stood ready to go on trial for his very life

that's what he told him [T. 450, emphasis added].

A review of Mr. Mitchell's testimony [T. 345] shows that he never

testified that the petitioner had said, "I don't care about any

of it. If they give me a chance I'll do it again.” Yet, the

prosecutor misquoted the statement in such a manner in an attempt

to show the petitioner's depraved state of mind.

Even granting the deference given to state evidentiary

rulings, admission of these irrelevant portions of the peti-

tioner's statement constituted "fundamental unfairness."

Tis

THE GEORGIA DEATH PENALTY STATUTE'S FAILURE TO GUIDE

THE SENTENCER'S USE OF MITIGATING CIRCUMSTANCES VIO-

LATES GREGG V. GEORGIA, FURMAN V. GEORGIA, AND LOCKETT

VY. OHIO, AND HAS GIVEN RISE TO A CONFLICT BETWEEN THE

GEORGIA SUPREME COURT AND THE FIFTH CIRCUIT.

The Georgia death penalty statute does not direct the

sentencer to 'weigh' aggravating circumstances and mitigating

circumstances against each other or otherwise instruct the

sentencer's use of mitigating circumstances; it only directs

the sentencer to "consider" mitigating circumstances. GA. CODE

- 16 =

49 L.Ed.2d 859 (1976), this Court identified the requirement of

‘weighing' aggravating circumstances against mitisating cir-

cumstances as one of the most efficacious safecuards acainst

arbitrary and capricious imposition of the death scenalty:

While some have suggested that standard

guide a capital jury's sentencing deliberati

are impossible to formulate, the fact is that

such standards have been developed. When the

drafters of the Model Penal Code faced thi

problem, they concluded ‘that it is within the

realm of possibility to point to the main cir-

cumstances of aggravation and mitigation that

should be weighed and weighed against each other

- « « While such standards are by necessity some-

what general, they do provide guidance to the

sentencing authority and thereby reduce the like-

lihood that it will impose a sentence that fairly

could be called capricious or arbitrary.

Id. at 194-195, 96 S.Ct. at 2934-2935 (emphasis supplied).

Twenty-one of the thirty-five states with death penalty statutes

have complied with this Court's directive by providing the

sentencer with specific guidance concerning the use of mitigating

circumstances, most often requiring that aggravating and miti-

gating circumstances should be weighed against each other. (See

Appendix B). Because the Georgia statute fails to provide any

such instruction, it creates a substantial risk that imposition

of the death penalty in Georgia will be arbitrary and capricious.

The Georgia statute's silence on the use of mitigating cir-

cumstances has also given rise to a conflict between the Georgia

Supreme Court and the Fifth Cire

«t

J 4 ' . ~ . .

the adequacy of trial judges’ instructions on mitigating cir-

cumstances. In Spivey v. State, 241 Ga. 477,

(1980), cert. denied, 439 U.S. 1039 (1980), the Georgia Supreme

Court held that the trial

were “authorized to consider all of the evidence

guided the jury's consideration of mitigating factors even thougn

the instruction did not mention, define, or explain those factors

to the jury. The Fifth Circuit subsequently struck down this

charge as violating Lockett's requirement of clear instructions

on mitigating circumstances. Spivey v. Zant, 660 F.2d 464 (Sth

Cir. 1981), cert. denied, 102 $.Ct. 2495 (1982).

A. The Georgia death penalty statute fails

to apprise the sentencer of the infor-

mation relevant to finding mitigating cir-

cumstances in violation of Furman and

Lockett.

The Georgia statute's failure to apprise the sentencer of

information relevant to the finding of mitigating circumstances

both resurrects the unguided discretion condemned in Furman and

prevents the sentencer from considering mitigating circumstances

as Lockett requires. As this Court stated in Proffitt v. Florida,

428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), "The require-

ments of Furman are satisfied when the sentencing authority's

discretion is guided and channeled by recuiring examination of

specific factors that argue in favor of or against imposition of

the death penalty." Id. at 258, 96 S.Ct. at 2969. (emphasis

supplied). Although twenty-nine of the thirty-five states with

death penalty statutes comply with Furman by enumerating nonex-

clusive statutory mitigating factors (see Appendix C), the

Georgia statute does not list any possible factors that could

mitigate against death. Moreover, Georgia courts have held

repeatedly that a capital defendant is not entitled to an in-

struction referring specifically to particular mitigating cir-

cumstances even upon request. See, e.g., Redd v. State, 242 Ga.

876, 252 S.E.2a 383 (1979); Gaddis v. Zant, 247 Ga. 717, 279 S.E.

24 219 (1981); Bowen v. State, 244 Ga. 495, 260 S.E.2d 855 (1979).

By failing to apprise the sentencer of the information

relevant to finding mitigating circumstances, the Georgia death

penalty statute also causes the sentencer to remain unaware of

what facts in the case may have mitigating effect and thereby

prevents the sentencer from sonsidering mitigating factors as

Lockett requires. Lockett requires that the sentencer must be

able to consider all factors which may call for a punishment

other than death. However, as the Fifth Circuit recognized in

Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir. 1978), "this

constitutional requirement to allow consideration of mitigating

circumstances would have no importance if the sentencing authori-

ty is unaware of what it may consider in reaching its decision."

Id. at 448.

Although Lockett is susceptible to being construed, as

Justice Rehnquist feared, as allowing unfettered discretion in

the finding of mitigating circumstances (see Rehnquist, J., con-

curring in part and dissenting in part, in Lockett v. Ohio, 438

U.S. at 628-636, 98 S.Ct. at 2973-2977), this reading is incorrect

for two reasons. First, it ignores the fact that the finding of

mitigating circumstances is not part of the decision to afford

mercy, where guidance and reliability are not required, but is

part of the determination of eligibility for the death penalty,

where guidance and reliability are essential. That Georgia law

permits the sentencing authority to afford mercy even absent miti-

gating circumstances demonstrates that the consideration of miti-

gating factors is antecedent to and separate from the decision to

fford mercy. GA. CODE ANN. 17-10-30. Second, such an inter-

pretation renders Lockett in conflict with Furman. Instead,

Lockett should be read in conjunction with Furman; together these

decisions require that jury discretion in finding mitigating cir-

cumstances must be channeled or guided but cannot be limited to

consideration of an exclusive list of mitigating factors. The

approach that the majority of states have adopted - providing a

; . ,

nonexc.usiv ,ist of statutory mitigating

accomodates both Furmanand Lockett.

The potential impact of the deficiencies in the Georgi

statute is highlighted by the facts presented here. This was

hardly a cold-blooded killing; in fact, petitioner and the

deceased were friends, they had been drinking all evening together

(T. 170-172, 239-240], and when the killing occurred they were

out searching for more alcohol together [T. 172, 271, 330]. If

the jury had been instructed that any of these facts could have

Mitigating effect, it might have either found mitigating cir-

cumstances or decided to afford mercy.

B. Georgia's unequal treatment of —

vating and mitigating circumstances

violates Lockett.

The Georgia death penalty statute's treatment of aggravating

and mitigating circumstances is strikingly unequal. The statute

enumerates ten aggravating circumstances justifying imposition

of the death sentence but does not correspondingly list any miti-

gating circumstances. While the statute further requires that

the trial judge orally instruct the jury on the aggravating cir-

cumstances, it does not require the judge to give instructions

referring specifically to any particular mitigating factors. It

also provides that the jury must be given written instructions

which, reflecting the format of the statute itself, set forth

each potentially applicable aggravating circumstance but provide

only a general direction as to mitigating circumstances which

does not delineate the mitigating effect of particular aspects of

the defendant's character, record, or offense.

Express reference to particular aggravating factors in the

jury instructions helps the jury recall the state's evidence and

informs it that these factors can have the legal effect of miti-

gating in favor of death. By contrast, the general instruction

on mitigating circumstances neither specifically reminds the jury

of the defendant's evidence nor informs it that these particular

factors can have miticatinc effect. While petitioner recognizes

that the state must enumerate aggravating circumstances in order

to satisfy Furman and Gregg, those decisions neither necessitate

nor countenance the gross inecuality of treatment present in the

Georgia statute.

This emphasis on aggravating factors to the virtual ex-

Clusion of mitigating factors violates this Court's mandate in

Lockett that a capital sentencing authority must be permitted to

give full consideration to each and every mitigating circumstance:

When a procedure for giving jury instructions

reduces the importance of any of the proffered miti-

gating circumstances in the minds of the jurors, it

unconstitutionally precludes those factors from re-

ceiving effective sentencer consideration. The

Georgia procedure has precisely this effect. The

oral and written jury instructions emphasize and

reinforce only the aggravating circumstances, and

thus add weight to the aggravating side of the

balance.

R. Hertz and R. Weisberg, In Mitigation of the Penalty of Death:

Lockett v. Ohio and the Capital Defendant's Right to Consider-

ation of Mitigating Circumstances, 69 Cal. L. Rev. 317, 349 (1981).

Thus, even if a capital defendant does not have a general

eicghth amendment right to particularized instructions on miti-

gating factors, the need to offset the Georgia statute's nearly

exclusive emphasis upon aggravating circumstances creates a

corresponding right to specific instructions on mitigating cir-

cumstances.

CONCLUSION

The petition for a writ of ceriorari should be granted.

Respectfully submitted,

Nelson E. Roth, Esq.

The Cornell Law School

Myron Taylor Hall

Ithaca, New York 14853

(607) 256-3408

» 21 «

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1982

JOHN WAYNE CONNER,

Petitioner,

STATE OF GEORGIA,

Respondent.

APPENDICES TO PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF GEORGIA

Nelson E. Roth, Esq.

The Cornell Law School

Myron Taylor Hall

Ithaca, New York 14853

(607) 256-3408

NDICES

APPE}

™

ee ed

{

cwrn es .

ENDIX A

™N

pro-

erwise :

afer

~ wee

ances.

circums

——-—~— ae

—_

—

atm ey

tu me

ee es

APPE?

APPENDI}

APPENDIX

‘. , hii o

In the Supreme Court of Georgia Decided: hh) ~ | 1993

39325. CONNER v. THE STATE.

GREGORY, Justice.

Appellant, John Wayne Conner, was indicted in

Telfair County for murder, armed robbery and motor

vehicle theft. Because the state sought the death pen-

alty for the murder, Conner's trial was conducted under

the Unified Appeal Procedures set forth at 246 Ga. A-l

(1980), as amended, 248 Ga. $06 (1982).

At the time of the murder, Conner lived with his

girlfriend, Beverly Bates, in Milan. On the evening of

January 9, 1982, they rode with friends, including the

victim, J. T. White, to a party in Eastman. After

Spending the evening drinking and SMOKing Marijuana, the

group returned to Milan around midnight. J. T., described

by one witness as “humble and satisfied" and by another

as “mellow,” exited the vehicle with Conner and Ms. Bates

at their house. Soon afterwards, Conner and J. T left

tne house on foot, taking with them a nearly empty bottle

of bourbon that Conner had purchased the nicht before

They walked to the home of Pete Dupree, woke Aim up, and

asked him to take them to get more whiskey He refused

APPENDIX A

he statement abou

made

-”

with

would

over

anc

1reugh o

ehe +

i. -*

‘

and

Aim

him

abbed

there at

down

‘as

1m =a

}

back a

Atm

Ss,

ros

Orenea

pul

he car was

-“*

and walked

Sure,“

with

cent

consis

whiskey

was

now

well as a

nts and

returned, and said

The $5 bill, as

found to have

that of the vict

the “fight").

innocence phase, or

guilty cn all three cou

murder.

and

Conner

Conner $20 to buy

bloody $5 b

tree limb

the

convicts

lant's

robbery beyond

we are

armed

when,

Crime of armed robbery." Woodall v. State, 235 Ga.

raf

imide

$33 (221 SE2d 794) (1975). The property alleged by the

State to have been taken in the armed robbery was the

bloody $5 bill which appellant subsequently gave to Ms.

Bates.

No competent evidence was presented to show that

prior to his murder, J. T. had money, or that appellant

did not. Compare Rivers v. State, 250 Ga. 288 (1) (298

SE2¢ 10) (1982). The only circumstances which would sup-

port an inference that appellant took $5 from J. T. or

from his immediate presence are two: (1) The money had

J. T.'s blood on it, and (2) an empty leather pouch was

found approximately eight and one-half feet from his

body.

Appellant offered an explanation for the presence

of blood on the money: [n pre-trial statement, appel-

lant told an investigator that the $5 bill had been in

the breast pocket of his shirt and had become saturated

with the victim's blood during the fight. The leather

pouch, which was not connected to J. T. except by its

proximity to his body, had no blood on it.

"To warrant a conviction on circumstantial evi-

dence, the proved facts shall not only be consistent with

the hypothesis of guilt, but shall exclude every other

reasonable hypothesis save that of the guilt of th

accused." OCGA § 24-4-6. The evidence in this case does

not meet this standard. "Only by speculation and ccn-

jecture could we assume that [appellant] .. . took the

«ct

money, and speculation will not sustain a conviction.”

Woodall v. State, supra.

Appellant's armed robbery conviction must be

reversed.

2. Appellant enumerates as error the trial court's

refusal to give three of his requests to charge:

(a) The trial court did not err in refusinu to

charge on selfedcfense. Sie: OCGA § 16-3-2)]1. Appellant's

Own statement refutcs a theory of self-defense and no

Other evidence in the record supports such a claim.

Nor should the trial court have charged on self-

defense because “self-defense [was] the only defense

raised." See, e.g., Jackson v. State, 154 Ga. App. 867

(2) (270 SE2d 76) (1980). Where there is no evidence to

Support a theory of self-defense, it is no more “raised”

than any other defense not supported by evidence.

(6b) For the same reasons, the trial court did not

err in refusing to charge on good character as a defense.

"(A]) defendant may present evidence of his good

character as a substantive fact indicative of his inno-

cence." Waters v. State, 248 Ga. 355, 366 (5) (283 SE2¢

238) (1981). Where he fails to do so, however, to charge

On good character would give the defendant the benefit of

evidence which was never introduced, and if it had been,

it might have been disputed. Jones v. State

App. 56, 58 (3) (274 SE2d 99) (1980). See also, MeDaniel

v. State, 248 Ga. 494, 496 (4) (283 SE2d 962) (1981):

es : : Se ae

(¢) The trial court did not err by failing to

5 : ,. ~ — | .

charge involuntary manslaughter, misdemeanor grade.

" " c Pd

A person commits the offense of involuntary man-

Slaughter in the commission of a lawful act in an unlaw-

ful manner when he causes the death of another Auman

being without any intention to do so, by the commission

of a lawful act in an unlawful manner likely to cause

Geath or great bodil

Appellant's theory in support of this charge i

s that he

acted in self-defense (the lawful act) but used excessiv

force (the unlawful manner). However, not only was there

nO evidence that appellant acted in self-defense, "'t)he

number of wounds inflicted leaves no doubt on the ques-

tion of intent or voluntariness.”" Anderson v.

Ga. 682, 682 (1)

(285

SENTENCE REVIEW

The jury found the following

vating circumstance: "The offense

rageously and wantonly vile, horrible

it did involve depravity of mind

and nee

eae) ty

to the victim. OCGA § 17°10-230 (b) (7

The evidence supports this f

chased an unarmed, intoxicated v

leave a mark on Ais assailant) frome

he roa

@rainage ditch and into a barbed

wire fence;

back to the drainage ditch; used a whiskey

heavy stick and his feet to

death; and left h

evidence

wantonly hysical abuse

mel

“

ditch oppos:it

to that of th

fresh tears on i

wire.

ba ba be ba

2 q % > |

c: Q

€-

Oo @g

& &

a? be

ee -

rin

=§ --4

2 oe

oO wu

n «4

q@ ta

3 tr

recommend a sentence of death unless it found at lease

one statutory aggravating circumstance, and that even

the jury found a statutory agccravating cir

could nonetheless refuse to recommend a sentence of

death. Hawes v. State, 240 Ga. 327 (9) (240 SE2d $32

(1977); Fleming v. State, 240 Ga. 142 (7) (240 SE2d 37)

(1977). Thus, we find no reversible error

charge.

5. An important aspect of our statutor

dated independent review of death sentences is the

requirement that we must determine whether or a

tee

sentence of death "was imposed under the influen

passion, prejudice, or any other arbitrary factor.” 0

§ 17-11-35 (c) (1). To make this determiration, we must

examine the entire record fur the presence of factors

improperly impacting on the decision to impose a sentence

of death.

Deciding the proper scope of this review is no

mere matter of statutory interpretation: every decision

to impose the death penalty implicates the procedural an

substantive protections of the E:ghth Amendment, and our

review must, at a@ minimum, be sufficient to satisfy those

protections. The ultimate arbiter of the extent of those

protections is, of course, the United States Supreme

courts. Nonetheless, it would b snduly myop: £ us te

agnore federal precedent, if only because of the

In addit

ion to the review of the sentence

required by OCGA § 17-10-35, the Unified Appeal Procedure

requires this court, in death penalty cases, to evaluate

the sufficiency of the evidence supporting the conviction

anc to review assertions of error timely raised durins

the trial proceedings whether or not such assertions are

enumerated as error on appeal. Rule Iv (8 so

944)

LE2d

SC 2978, 49

280 (96

$23

4ina,

rth Caro

3001,

325 (96 SC

a i

‘

423

siana,

~OUL

directed ar

Ss essential

decision

al cases."

capi

78).

(19

LE2d 973)

34,

(98 SC 29

Georgia,

i @]

Ss.

408 U.

addresse

Ose cases

"s discretion he

"to distinguish cases in which the death penal

CO mm SS

Phillio

The

a dea

veorgd

, Ate

— ee

-eC

nda

proportionality review ma

iness can

—

ated

Aaroictra

ter

charac

efendan

the absolute

A statutory scheme

scretion

Collier v.

allows some

miaghte recomme

ury

cases one

oo intangib

ass

—

for a less severe

necessar

constitutionally

whethe

Ggetermine

ich

to wh

ener

o Q °

x ha i 4 uU a“

”’ a ee . a C oO

c . Ua] 4) bay Ww) ¥ > &

a a a “Ma o a UO ba a .

— iO] a B vd 4 . 2: & ~)

ov G vu a " oa | rvrx

me) “4 t. Q v t: A w oa

bat] Bo CG vu i @) @ ~ sc a

t ® wo 1 a eu o. ea @) ef

18) 4 3 a + aroarue

Q) C io Q oO & ws 4 .

be a) | w a ce a’ m s+4 w

La] bs ion Oo t Dal . ts Q a

4 Dh) oO a] a fia) of x4 3°

oO 4 = a ra oO ¢ oO

“4 4 c oO Q v { ts to @ re

” ra oO ” 4) a? ” ha s =

t. s? he a pay 0 oo a)

4 uw La) ® fa o Q " t 0 ;

t ba ” 4 oOo @™ 3) a o-:-%9 a

a ne) ha @ of ww rs) a v0 ow o

q) w tu =z — 4 3 ha “4 ka Ue oh UB 8) 4

U ° “ ! 4 a) v a Q Ole 4

C - vu w v1 S f 4

O oO ue) . al - = ie 4 -

> C a wa ° Cal a Lal ocr Ww "

a > os - ua] 4 Q ue

ba A Da) 04) tw ~ Tn ome @) a4

a 3 = dea be oO Q Mee Ct: eta

w rm oO - “we n oO 4) o w a 4

OU aA oo f 4 ve] 4 "

cos 9] 4 .@) y 4 oO ne) ” uo = o o

rf) = Cal 4 " a a] ba ¢

rs) uo a) ” 9) . a] ha coe a

“a 4 a oa a > n o 4 wn oO

an - ” 6) wu a? Mn -r

@ 4 @ a ® o wn Y von 4

> 3 Me] ie) o Q ue) an 4 eo -

° 4 C a @ "n ot xc wy

4 @] a - oe ha be (a) ~ Vow -r

4 be) & 4) “ bis] Ge f2. eG xe v

Q = oO ia] 4 be oO "ew uw +

“4 ba a ft. 2] & 3 a) i wn ed

a4 ra) a - ” wa QO » G aw om

“4 bal ” ~*~ 3) oe | Q. .

. wa ee | ed 4s? ow of Q I) Ds rg

” us] 4 ba a “a " ‘ i to]

s @ cis 7 ba < (oA

0 v ” @ c 4] 1] a? (2 D>»

“ Bo ” & ou oy oO oo) U9 °

“4 ” a t+ Oo ”) i) ha oO & 1

at 183. Justice Stewart's discussion of retribution is

particularly important, because it is clearly supported

by a majority of the Supreme Court and because it demon-

Strates that an emotional response to properly admitted

evidence regarding the defendant and his crime is not

intrinsically unacceptable in death penalty cases:

In part, capital punishment is an expression of

society's moral outrage at particularly offensive conduct.

This function may be unappealing to many, but it is

essential in an ordered society that asks its citizens

to rely on legal processes rather than self-help to

vindicate their wrongs.

"'tThe instinct for retribution is part

ir)

of the natur

Cause

tt)

“

12]

we]

12)

they "deserve," then there are sown the seeds

of anarchy--of self-help, vigilante justice,

and lynch law.’ Furman v. Georgia, supra, 408

""Retribution is no longer the dominant objective

. " 7947 ’ _ 747

of the criminal law, Jilliams v. New York, 337 U. S. 241

i oe | cer 7A? _-.* > eed | % ‘ \

(67 SC 1079, 93 LE2Zad iss 1949), but neither is it a

Rehabilitation is not a justification for the

death penalty A defendant's prospects for rehabilitation

may, however, mitigate in favor of a sentence less than

death. C£&., Horton State, 249 Ga. 871, 881 (14) (295

SE2d 281) (1962

(Tt

fe)

forbidden objec inconsisten

«T

“

12]

for the dignity of man. [cits]. Indeed

that capital punishment may be the appropriate sanction

in extreme cases is an expression of the comm

belief that certain crimes are themselves so grievous an

affront to humanity that the only adequate response may

be the penalty of death." Gregg v. Georgia, supra, 428

Lord Justice Denning

Court of Appeal in England, spoke to this effect before

""Punishment is the way in which society expresses

its denunciation of wrong doing: and, in order to

Or preventive and nothing else. ... The truth is that

some crimes are so outrageous that society insists on

acequate punishment, because the wrongdoer deserves it,

irrespective of whether it is a deterrent or not.' Royal

Commission on Capital Punishment, Minutes of Evidence,

Dec. 1, 1949, p. 207 (1950).

‘A contemporary writer has noted more recently

tnat opposition to capital punishment ‘has much more

Raspberry, Death Sentence he Washington Post, Mar. 12,

1976, p. A 27, cols. 5-6." Gregg, 428 U. S. at 184 n. 30

ine ue)

a) a wn a '

x > Vv a] MO] a — w” wt Gs

- oO 4 4 3 a a) ba oa w ~ v0 1 biel wot

vu ol 4 CG & = ba a 4 Cc) real - f. a oO tal

teh) ue) a Oo oe so a? ha q i : m" Om oO - ac

tal i. “a 3 re) ob) = we > ha re) oO . roa) a ne) Ov Ove a

- 0] oO a va] a) a on a . ' ha nih a) ef

pa | ita) ~ bis) _ Qa. hu 2 oO wo» ha wn oO "3 Oo > 3a WN --4 bt

Vv w" am - ie C 1@) @ ° Gc oO oa 1a) ef w a wT oxocY

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{ GC o Cc & be 2) (., w oO " a € Vv cg 4’

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ft o 4 ”’ ha Oo ~ = » x ue) a o - ~ @ &

On constitutionally impermissible reasons, such as race

Or religious preference." Horton v. State, supra, 249

Ga. at 874. We have set aside death penalties where the

trial court failed to properly charge the jury at the

sentencing phase, whether or not such failure was

objected to at trial or raised on appeal. See, e.g

Rivers v. State, 250 Ga. 303, 310-311 (8(a), 9) (298

SE2d 1) (1982); Hawes v. State, 240 Ga. 327 (9) (240 SE2a

833) (1977); Fleming v. State, 240 Ga. 142 (7) (240 SE2a

37) (1977). We have reversed death penalties when the

defendant was erroneously denied the opportunity to

present mitigating evidence, Sprouse v. State, 250 Ca.

174 (296 SE2d 584) (1982); Cobb v. State, 244 Ga. 344

(28) (260 SE2d 60) (1979); Sprouse v. State, 242 Ga. 831

(S) (252 SE2d 173) (1979); or where the Witherspoon voir

dire was not recorded, Owens v. State, 233 Ga. 869 (2)

(214 SE2d 173) (1975). We have considered alleced

tions were made at trial. Castell v. State, Ga.

(7(b)) ( SE2d ) (Case No. 39080, decided March 16,

1983); Davis v. State, 236 Ga. 804 (1) (225 SE2da 241)

(1976). And we have examined allegedly improper argument

whether or not objected to at trial. See, e.g., Horton

v. State, supra at 875, 876: Gilreath v. State, 247 Ga.

814 (15) (279 SE2d 650) (1981): Thomas v. State, 240 Ga.

aCVvatle.

929 (6) (214 SE2d 365) (1975). What we have not done is

invalidate a death penalty simply because the prosecutor

made an impassioned argument to the jury during she

mendment nor OCGA § 17-10-35 (c) (1) forbids a ceath

penalty based in part on an emotional response to factors

in evidence which implicate valid penological justifica=-

tions for the imposition of the death penalty. Perforce,

argument by the prosecutor which “dramatically appeals”

to such legitimate emotional response is not “constitu=

To the extent that Hance v. Zant

holds to the contrary, we must disagree.

6. In this case, the prosecutor informed the jury

that he had been involved in criminal law for seven years

and that as district attorney for the circuit, had prose-

cuted nine murder cases. He told the jury that he had

never before soucht the death penalty, but he was seeking

"The rance of discussion [during closing argument]

is wide--very wide... (I]n his addresses to the

jury it is [counsel's] right to descant upon the facts

proven or admitted .. .:; to arraign the conduct of the

parties; impugn, excuse, justify or condemn motives, so

far as they are developed in evidence; assail the credi-

bility of witnesses, when that is impeached by direct

evidence, or by the inconsistency or incoherence of

[their] testimony, [their] manner of testifying, [their]

appearance, or by circumstances. His illustrations may

be aS various as are the resources of his genius; his

ion as full and as profound as his learning can

make it; and he may, if he will, give play to His Wit, GF

wing to his imacination."” Mitchum v. State, 1l Ga. 615,

See Grece "We think that the Georgia court

wisely has chosen .. . tO approve open and far-rancing

argument." 428 U. S. at 203. (Emphasis supplied.)

689

counsel s!

However,

rgument of

onal

law condemns

nmsic

extr

his prior

‘-

these remarks a:

onduc

m1SC

reversal of appellant's death sentence on the basis that

it was impermissibly influenced by passion, prejudice,

Or any other arbitrary factor.

7. <A€ter review of the record in this case,

including matters dealt with in Divisions 1 and 6

of this opinion, we conclude that the sentence of death

was not imposed under the influence of passion, prejudice,

in€

Or other arbitrary factor.

7. Appellant's sentence is not excessive or

disproportionate to the penalty imposed in similar

cases, considering the crime and the defendant. The

Similar cases listed in the appendix support the affir-

mance of the death penalty.

Judgment affirmed in part, reversed in part. All

the Justices concur.

erroneously

did not find

gravating

that the armed ;

ugh given the

Circumstance sup

opportunity to do s

(1983); Smith v. State, 249 Ga. 228 (299 SE2d 43) (1982);

Cunningham v. Statc, 248 Ga. $58 (284 SE2d 390) (1981

Cervi v. State, 248 Ga. 325 (282 SE2d 629) (1981);

State, 245 Ga. 856 (268 SE2d 339) (1980); Hamilton v.

State, 244 Ga. 145 (259 SE2d 81) (1979); Alderman v.

State, 241 Ga. 496 (246 SE2d 642) (1978): Thomas v.

State, 240 Ga. 393 (242 SE2d 1) (1977).

States Recquirin

On The Use Of M3

‘Wei

APPENDIX B

1erwise Providinc Instructions

5¢ Thirty-

Five States Hav

itigating Circums

inc A Death Penal

tances: Twenty-One

Alabama

Arkansas

California

Delaware

Florida

Idaho

Maryland

Massachusetts

Mississippi

Missouri

Montana

Nebraska

Nevada

New Jersey

New Mexico

North Carolina

Ohio

Oklahoma

Tennessee

Wyoming

ALA. CODE 13A-5-48

ARK. STAT. ANN. 41-1302

CAL. PENAL CODE 190.2,3

DEL. CODE ANN. 11:4209 (1979 repl. vol.).

FLA. STAT. ANN. 921.141 (West. 1982 pocket part).

IDAHO CODE 19-2515 (1979).

MD. ANN. CODE 27-413 (1982 pocket part).

MASS. GEN. LAWS ANN. 279.69 (1982 supp.).

MISS. CODE ANN. 99-19-101 (1982 pocket part).

MO. REV. STAT. 40A-565.012 (1979).

MONT. CODE ANN. 46-18-305 (1981).

NEB. REV. STAT. 2902522(2) (1979).

NEV. REV. STAT. 175.554(1c) (1981).

N.J. STAT. ANN. 2C:11-3(3) (West. 1982).

N.M. STAT. AN 31-20A-2(B) (1978).

N.C. GEN. STAT. 15A-2000 (1981 cum. supp.)

OHIO REV. CODE ANN. 2929.93 (Baldwin 1982)

OKLA. STAT. ANN. 21=-701.11 (West. 1982)

TENN. CODE ANN. 392-203 (1982)

WYO. STAT. 6-4-102 (1977).

APPENDIX C

States Enumerating Nonexclusive Statutory Mitigating Factors:

Twenty-Nine Of Thirty-Five States Having A Death Penalty.

Alabama

Arizona

Arkansas

Colorado

Connecticut

Florida

Illinois

Indiana

Kentucky

Louisiana

Marylan

Massachusetts

Mississippi

Missouri

Montana

Nebraska

Nevada

New Hampshire

New Jersey

South Carolina

Tennessee

Utah

Virginia

Washington

Wyoming

ALA. CODE 13A-5-51l.

ARIZ REV. STAT. ANN. 13-703 (1982 pocket part).

ARK. STAT. ANN. 41-1304.

COLO. REV. STAT. 1611-103 (1978).

CONN. GEN. STAT. 53a-46a (1983 pocket part).

FLA. STAT. ANN. 921.141 (West 1982 pocket part).

ILL. STAT. ANN. 7A.04 (Smith-Hurd 1982 pocket

part).

IND. CODE ANN. 35-50-2-9 (Burns 1979 repl.

vol.).

KY. REV. STAT. 532.025 (1981 cum. supp.).

LA. CODE CRIM. PROC. ANN. 905.5 (West 1983

pocket part).

MD. ANN. CODE 27-413 (1982 pocket part).

MASS. GEN. LAWS ANN. 279.69 (1982 supp.).

MISS. CODE ANN. 99-19-101 (1982 pocket part).

MO. REV. STAT. 40A-565.012 (1979).

MONT. CODE ANN. 46-18-304 (1981).

NES. REV. STAT. 29-2523(2) (1979).

NEV. REV. STAT. 200.035 (1981).

N.H. REV. STAT. ANN. 630.5 (1981 supp.).

N.J. STAT. ANN. 2C:11-3(5) (West 1982).

N.M. STAT. ANN. 31.20A-6 (1978).

N.C. GEN. STAT. 15A=-2000 (1981 cum. supp.).

OHIO REV. CODE ANN. 2929.04 (Baldwin 1982).

S.C. CODE ANN. 16-3-20(b) (1982 supp.).

TENN. CODE ANN. 39-2-203 (1982).

UTAH CODE ANN. 76-3-207 (1978).

VA. CODE 19.2-262.4 (1982).

WASH. REV. CODE ANN. 10.95.070 (1982).

WYO. STAT, 6-4-102 (1977).

“

SUMMARY

Of the thirty-five states having death penalty statutes, only

Georgia, South Dakota and Texas neither instruct the sentencer's

use of mitigating circumstances nor apprise the sentencer of

the factors mitigating against death. However, Texas otherwise

structures the sentencer's consideration of mitigating cir-

cumstances by requiring the sentencer to answer three questions

which simultaneously address both aggravating an

rey

pe |

circumstances through a “whether or not” format. Only Georgia

and South Dakota neither instruct the sentencer on the use of

mitigating circumstances nor apprise the sentencer of the infor-

mation relevant to mitigation. Thus, Georgia's statute is one of

the two least protective and most deficient death penalty statutes

in the nation.

APPENDIX 0D

ARTICLE 2

DEATH PENALTY GENERALLY

17-10-30.

27-2534.1 Micgating aad aggravating circumstances, death penalty

(a) The death penalty may be imposed for the offenses of aircraft bijacking or treason in any case

(D) In all cases of otner offenses for which the death penalty May de authomzed. the judge shal! consider. or

he shal! inciude in bis instructions to the jury for it to consider. any MIL BRUNE CITCUMSLances oF aggravating

circumstances otherwise authorized by law and any of the following statutory aggravating crcumstances

which may be supported by the evidence

(1) The offense of murder, rape, armed robbery or WIGNADDINE was COMMiItiEd Dy & DErsON WIth a Dror

record of conviction for a camtal felony:

(2) The offense of murder. rape, armed robbery. or iacnapping was committed while the offender was

engagec i> the commussion of another capita! feiony or aggravates Datiery or the offense of murder was

committed while the offender was engaged in the commussion of Durgiary of arson in the first degree.

(3) The offender, by bis act of murder, armed robbery, or WCNapping. Knowingly created a great nsx of

Geath to more than one person in a public place by means of a weapon or device which would normally be

hazardous to the lives of more than one person,

(4) The offender committed the offense of murder for himself or another, for the purpose of receiving

money or any other thing of monetary value:

($) The murcer of a judicial officer, former judicial officer, district attorney or solicitor, or former distre:

attorney of solicitor was committed during or because of the exercise of his official duties.

(6) The offender caused or directed another to comm murder or commutied murder as an agent or

employee of another person:

(7) The offense of murder, rape, armed robbery, or iudnapping was Oulrageously OF wantonly vile,

horribie, or inhuman in that it involved torture, depravity of mung, or an aggravated Daltery to Lhe Hctum.

(8) The offense of murder was committed against any peace officer, corrections employee, or fireman

while engaged in the performance of bis offical duties.

(9) The offense of murder was committed by a person in, or who has escaped from, the lawful Custody of a

peace officer or piace of lawful confinement: or

(10) The murder was committed for the purpose of avording. interfering with, or preventing a lawful arrest

Of custody in a place of lawful confinement of bumsel! or another

(¢) The statutory instructions as determined by tbe ina! )wGge oO De warranted Dy ibe evidence shall be

given in charge and in writing to the jury for its deliberation The jury, if its verdict is a recommendation of

Geath, shal! designate in writing, signed by tbe foreman of the jury, the aggravating circumstance or

circumstances which it found beyond a reasonable dowdt In nonjury cases the judge sdall mane such

Gesignation. Except in cases of treason or aircraft hijaciang, unless at least one of the statutory aggravating

arcumstances enumerated in subsection (5) of thus Cade section ws 80 found, the Geath penalty shall not be

imposed

(Acts 1973, pp. 189, 163.)

17-10-35.

27-2537 Review of death sentences

(a) Whenever the death penalty is imposed, upon the judgment dDecoming {inal in the imal court, the

sentence shall be reviewed on the record by the Supreme Court of Georgia The clerk of the trial court, within

ten Gays after recerving the transcript, shall transmut "be entire record anc transeript to (he Supreme Coun

together with a nouce prepared by the clerk anc a report prepared Dy (he (ria: uoge The notice shal! set forth

the utle and docket number of tbe case, the name of the defendant and (he name and address of Dus attorney a

narrauve statement of the judgment, the offense, and the punishment preseribec The report snail de in (ne

form of a standard questionnaire prepared and supplied by the Supreme Court

(b) The Supreme Court shall consider the punishment as wel! as any errors enumerated Dy way of appeal

(1) Whether the sentence of death was imposed under (he influence of passion, prejudice, or any otner

arbitrary factor:

(2) Whether, in cases other than treason or aircraft Diacaing, (he evidence supports ine ury § or pucge s

finding of a statutory aggravating Circumstance as enumerated in sudsection | 5) of Cade Section |*- 10-30

and

(32) Whether the sentence of death 1s excessive or Gisproportionale to (De penalty imposed in timiar Cases,

considering both Lhe cmme and defendant.

(d) Both the defendant and the state shall have (he Mgnt to submit Oriefs within (he time provided Dy the

court and to present oral argument to the cour

(e) The court shail include in its decision a reference to (hose simuUar Cases which }t (OOK INLO ConsIGeration

In addinon to its authority regarding correcuon of errors, (be court, #I{h regard to review of death sentences,

shal! be authomzed to

(1) Affirm the sentence of death, or

(2) Set the sentence aside and remand the case for resentencing Dy the (mai judge Dased on the record and

argument of counsel. The records of those simular cases referred to Dy the Supreme Court in its decision anc

tbe extracts prepared as provided for in subsection (a) of Code Section |7+|0-37 shall be provided to tne

resentencing judge for bis consderation

(f) The sentence review shall be in addition to direct appeal, if Laken, anc the review and appes: -_ be

consolidated for consideration. The court shall render \s Gecision on iega. errors enumerates, (ne ‘actua:

sudstanuauon of the verdict, and the validity of the sentence

(Acts 1973, pp. 1$9,. 16S.)

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1983

eA were seranwes

wR AALNE CONNES,

MOTION FOR LEAVE TO PROCEED

ee eT ee eee

IN FORMA PAUPERIS

Nelson E. Roth, Esq.

The Cornell Law School

Myron Taylor Hall

Ithaca, New York 14853

ATTORNEY FOR PETITIONER

STATE OF NEW YORK

COUNTY OF TOMPKINS

COUNSEL'S AFFIDAVIT

Before the undersigned, an officer duly authorized by law

to administer caths, appeared ielson E. Roth who, being

duly sworn, deposes and says as follows:

I am a member in good standing of the Bar of the State o

New York.

I am an attorney of record for Petition

I have agreed to represent Petitioner without fee or

remuneration of any kind;

I have investigated Petitioner's financial circumstances

and have determined that he is without the funds necessary *o

bring this action;

Petitioner is currently incarcerated under the custody of

the State of Georgia at the Georgia Diagnostic and Classifica-

tion Center in Jackson, Georgia;

z= have mace this aAlifidavit because thece i5 i .sucticient

time in which to obtain Petitioner's Affidavit of Poverty.

Petitioner's Affidavit of Poverty will be sent to this

Court as soon as is practical.

NELSON E. ROTH

ATTORNEY FOR PETITIONER,

John Wayne Connor

Sworn to and subscribed before me,

this the 15th day of

July » 1983.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.