# Petition — Conner v. Georgia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1635%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 1005 ## Text ~” n > t . ~~ > ’ ~ ul sO sf |; ‘ _ rf) ‘ ee ; ws J _— N r u A one . — =e —_ » ~ ? . , ‘ 2 tA eoT ed we wr ee . . , . sf { P 4 ?) * © Loa 4 mw fw - = cw od 0 mea 4 * @ td 6: be co ow ” ea oo Ys ” & Whether QUESTIONS PRESENTED I. 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: a) a) 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 - ae terpreted i Georcia, and Lockett Ohio, wher states with death pe utes ircumstances or r as 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 S Cotak bisakn hae! mata w wetn “+ + Stateme a Godfrey ~ -~~- Vv a 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 _- 18 15 19 ll, 12, 14, 16, 18, 19, 20 l 7, 8,13 7, 9, il, 12, 14, 16, 17, 20 United States v. White, 486 F.2d 204 (2nd Cir. 1973), Cert. denied, 415 U.S. 980 (1974)... cee eeseeces 11 14 1d tes a Statu - mn" . . . . . . . . . . . . . . . . . . . . . 2 ~ ' oO et ' ™ . mn. § l Lebel Code A Ga. cellaneous Mis ~* eo 981) : ~- aA aA IN THE SUPREME COURT OF THE UNITED STATES October Term, 1983 No. 83- JOHN WAYNE CONNER, Petitioner, v. 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 Cc 4 4 c i) @ m w | 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 ny ~ » 0 os ~ @ ou ral oO ct a o no © ow «t wv = o wo 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 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 © it again. 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. .."* I 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 (c) (1) as requiring a broad consideration of the aggravating 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 at oO J 5 @ ta 0 fal a i 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). It 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 c ~ «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, y 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} ™ ~ Ss = ee ed i : C { cwrn es . ENDIX A P ™N pro- erwise : afer ~ wee ances. - = circums ——-—~— ae - —_ = ~ - — | c: Q €- Oo @g & & od 7 o a? be © f. ee - au co oI * rin =§ --4 2 oe oO oO wu io n «4 q@ ta om 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 3 o iP o tr 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 4 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 4 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 S. $23 , 4ina, rth Caro Ve 3001, 325 (96 SC a i ‘ Y 423 siana, ~OUL , a ne : directed ar in Ss essential , ~- decision al cases." = - capi 78). (19 LE2d 973) oT 34, (98 SC 29 Georgia, se i @] Ss. 408 U. addresse Ose cases a) ps ? "s discretion he "to distinguish cases in which the death penal CO mm SS Phillio The eh 2) a dea . - veorgd - i , Ate — ee * ¥ - b eo -eC nda proportionality review ma iness can — - ated ae Aaroictra ter charac s -? efendan w 10 the absolute A statutory scheme scretion di Collier v. allows some miaghte recomme ury ii - cases one le oo intangib ass — for a less severe vw ye : 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 a t. © a’ v own 9 ‘ w > ua t Lz a 0 Saha ©) 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 = . c 4 ~ ) Af ©O “4 €£ 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 ba © al ? . a 2) " nO ku TI) a ne) ha @ of ww rs) a v0 ow o a al m © Lis 4 7) > c ag © > VIO 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 » “ 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) oO m B wo 3 of the natur Cause Cc 1) Tt ~ 0 @ uv 0 " tt) “ ow po ~ q 12] Oo a ct fe 3 t we] ro ee gS 12) n 0 » 3 0 " 1) ! 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 re Pe ~ fe) " oO - = forbidden objec inconsisten «T S ~ aT oa Oo tc " " o “ 12] Dd a as 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 a” m™ oO yo oO mn a OU ae | ” @ m” © a om wa F&F O- 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 -4 ‘© 4 oY = be U 6) & ae) w Ma) ru e ' - a NUOO 4A Nn ta] ba 2 Cc a w a oO Le] . 4 t Dh wv ts, Qaeda ord - ts} on r?) & ru) ~ ba o or | Y us toa] an da Q. aounvuvwv w w ha 16) 74 re) - | raed a v0 | a] - 1 ©) oi | oO oe aT - © w ® aad w : ot ) > 1@) v ss VU wo wm ~~ ‘a t @ sw ba 4 4 4 a ~ . uv © 0 Ou] o ba NQ 4’ (6) > roa) - (2, mie Ow % M 18) Qo 1) wy G > re “ S oa “4 4 oO aa) i) o a w” c ry Q - 4 © ” t: ” ” © Oo et = & Lal vu 1s) oO oO o ” ” WY ua) ia] . 4 is) a ! re) a) » & “4 ha ba Cis] ” ba {; ue] a > OQ, f = pert wu [OF a’ 0, ") ° v 4 De 4 i | o ” oO so Le) a ° dO] —_ oe S - 8) 4 ¢ > 4 4 0 74 Ww e ue 0 ed © - hu Le] wow ni atl G " ° a | Q 8) w4 4? ra o vo 7} 7 . “) c ha oO - A > . tl oO w @ t 4 . Qa . rt) “x ® oO 4 = 18) : oA =z ‘ Des { GC o Cc & be 2) (., w oO " a € Vv cg 4’ % 4 od a) oC *) . @) c - w “4 ha { e 4 t oo x n 4 © / a) be) . Es a @ | ae] ” "3 > © Mil ti] " . 4 0 a ‘ ” ca] Lo oO > YU : * Gq .@) c " ha v0 Le) * o 4? c t 4 be Q y Y = 4 hi “ c Oo nt) cis} a Sa - ‘ Tr Sa QO. a © o 74 i) ue) 4 | a ' t be ™“ ee te ’ 4 4 pa . oy oO, 3 a 4 : o ~ Q ke - a a © P| ’ Ww 4 a) So > ” . Cc 7) £ Lie] ue) vos _ 4 nal o oO nt ral w oO © - ? ha q) el ” a] ” 4 on “ws = a n a) 4? 3 G a o 0 Dal w ” . or ~ oO "1 a ce] cS’ a 4 ol t tea es " ha ” 4 ' om @ © t 4 4 oO Le} Q Q 4 oO - ” Dal wu hu oy 4 ” — w Oo Ta) ” y ba hu s 4 m. oF © wo wo (2. 4 be w uo 9] ra = t: cal i & ? 0 ’ oO. - 7 4 oO “a ya oO e 4 © - 2) ' io] id] © - e ‘aa " ha hu re oO a a) oO o OH) a] mo oa 1 w oO ‘ae . 4 o Vv "a © A 4 s’ a i G © “a -r td fl taal 9 a wo ha € C ” 4 ” ® “4 ” w v 2) . 1s) t ~ a’ ” n ” ” ti] v uU oe ue) & Ma t: c a) ran) o 4 "a oO w ia] oO ‘a - ? 3 ‘a ca ita) “Tr f. 4 oO a ° vo cad Ss 0 i @ | ® QO cL oO tr 0 ta aa] Oo a QO Pe t: ‘ me 4 e f. om _ a Sa i" os os nm ” ms ed - Oo G ” a4 4 be ’ ~ “4 bs) © ve) a} a "J 2 i @ 4 7) » a a a» Su Ww “r Dal 4? 4 hu a oO a n ' + ‘ a Cc on] x © ci] ba Oo oO & & oO Pa ha a oa cae) 4 a 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, La 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.) i Co 689 counsel s! However, rgument of a onal law condemns nmsic . - extr his prior to os ‘- these remarks a: - i 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. 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 (c) With regard to the sentence, tbe court shai! Getermine (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.) 22 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 ra - 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1635%3A1. Public record. Not legal advice.