Petition — HIGH v. KEMP (No. 83-5148)
Supreme Court brief1983
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RECEIVED
JUL 2 8 183
OFFICE OF THE CLERK
SUPREME COURT, U.S.
83-S/43
No.2
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1982
JOSE MARTINEZ HIGH,
Petitioner,
vs.
WALTER D. ZANT, Warden,
Georgia Diagnostic and
Classification Center
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF GEORGIA
BRADLEY S. STETLER,
419 Seventh Street, N.W.
Suite 202
Washington, D.C. 20004
(202) 638-4798
Counsel for petitioner
QUESTIONS PRESENTED
1. Does the infliction of the death penalty on a
child under the age of 18 at the time of the offense constitute
cruel and unusual punishment?
2. What standard of competency of defense counsel
is required in capital cases to satisfy the Sixth, Eighth and
Fourteenth Amendments?
4
~
TABLE OF CONTEN
Questions Presented hos se 6 ae eo & ee oe Oo ee i
Table of Authorities a - os en & e 6. es, oe 6 ee. eee
Opinion Below eS yr at See ee oe a i ee 1
Jurisdiction Cn easel e's @ 6 6: ‘oe 6 e l
Constitutional Provisions Involved oe 4s 3 ww 2
Statement of the Case “oa he ee a a a a a oe Ye ee 2
How the Federal Questions Were
Raised and Decided Below ae on a on oe Oe ee a ee 5
Reasons for Granting the Writ i er a or cat i! oe et oe Oe 6
I. This court should review the decision
below to decide whether the infliction
of the death penalty on a child under
the age of 18 at the time of the
offense constitutes cruel and
unusual punishment “ie we ee a oe a oe 6
II. This Court should review the decision
below to decide what standard of
competence of counsel is constitutionally
required in capital cases << oe or ee ay ae 9
Conclusion Mie. Belk @ 6 6 6.6 © eee 17
Appendix
High v. Zant, Ga. , 300 S.E.2d 654 (1983) la
Opinion cf the Superior Court of
Butts County, Georgia eaee ees 6 6 & & eee
Order of the Supreme Court of Georgia
denying rehearing a: eo Oe eo @ 6-8 Oe
TABLE OF AUTHORITIES
Cases:
Bell v. Ohio, 438 U.S. 637 (1978) “an oe oe er ee 7
Coker v. Georgia, 433 U.S. 584 (1977) oe ee 7
Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) . 12
Dyer v. Crisp, 613 F.2d 275 (l0th Cir. 1980) i ix ll
Eddings v. Oklahoma, 455 U.S. 104 (1982) eS a, 7
Gregg v. Georgia, 428 U.S. 153 (1976) an Se te ee 12
High v. Zant, __ Ga. ___, 300 S.E.2d 654 (1983) + « passim
High v. State, 247 Ga. 289, 276 S.E.2d 5 (1981),
cert. denied, 455 U.S. 927 (1982) ea at te oe 4
Johnson v. United States, 413 A.2d 499 (D.C. App. 1980) ll
Kent v. United States, 383 U.S. 541 (1966) “be er ae 8
Lockett v. Ohio, 438 U.S. 586 (1978) o © © 0 0 Fy 14, 16
MacKenna v. Ellis, 280 F.2d 592 (Sth Cir. 1960),
~~—Cert. denied, 369 U.S. 877 (1961) eevee 5, 10
McMann v. Richardson, 397 U.S. 759 (1970) .« « « «© « « 10
team: ORs HUoSays me S13 M0 Poa aH eee ay
Pitts v. Glass, 231 Ga. 638, 203 S.E.2d 515 (1974) 5, 10
Slayton v. Weinberger, 213 Va. 630, 194 S.E.2d 703
(1974) ‘6 4 8 Oe are < ll
State v. Orona, 638 P.2d 1077 (N.M. 1982) sue se ll
Strickland v. Washington, 693 F.2d 1243 (llth Cir.
(en banc), cert. granted, 33 Cr. L. Rep.
4073 (ULB. Sune G@1SO3 Cw we we ee 20, 22, 22
Trop v. Dulles, 356 U.S. 86 (1958) ea i et as 6
United States v. Cronic, 675 F.2d 1126 (10th Cir.
, cert. granted, 75 L.£d.2d 430, 32 Cr.
L. Rep. 4193 {Pebeubcy 22, 1983) i ite oe ve 10, ll
United States v. DeCoster, 624 F.2d 196 (D.C. Cir.
, cert. denied, 444 U.S. 944 (1979) ... 10, 12
Woodson v. North Carolina, 428 U.S. 280 (1976) al 13
- iii -
Constitutional Provisions and Statutes:
United States Constitution
Sixth Amendment o .& 6 & «ere: or (Ee Oe eee ee
United States Constitution 2, 6, 7, 9
Eighth Amendment 2 © 4 e863 Aae aoe SF
United States Constitution
Fourteenth Amendment ee a ae oe ee er ae 2, 13, 17
28 U.S.C. § 1257 (3) réy a6. wales l
Ga. Code Ann. § 27-2534.1 (b)(7) oe ate ae 3
Other:
W. Bowers, Executions in America (Lexington, Mass. 1974) 8
Erickson, Standards of Competency for Defense Counsel
in Criminal Cases, 17 Am. Cr. L. Rev. 233 (1979) ll
International Covenant on Civil and Political Rights 8
International Human Rights Treaties: Hearings before
the Senate Foreign Relations Comm., 96th Cong.,
lst Sess. 55 (1979) . . . . . . . . 4
No. 82-
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1982
JOSE MARTINEZ HIGH,
Petitioner,
vs.
WALTER D. ZANT, Warden,
Georgia Diagnostic and
Classification Center
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF GEORGIA
Petitioner, JOSE MARTINEZ HIGH, prays that a writ of
certiorari issue to review the judgment of the Supreme Court
of Georgia entered in this case.
OPINION BELOW
The opinion of the Supreme Court of Georgia is
reported in High v. Zant, Ga. » 300 S.E.2d 654 (1983),
and is appended hereto at la.
URISD ION
The judgment of the Supreme Court of Georgia was
entered on March 1, 1983. A timely motion for rehearing was
denied on May x. 1983. Jurisdiction of this Court is invoked
under 28 U.S.C. § 1257(3), peticioner having asserted below
and intending to here assert deprivation of rights secured by
the Constitution of the United States.
CONSTITUTIONAL PROVISIONS INVOLVED
This case involves the Sixth Amendment to the
United States Constitution, which provides in relevant part:
In all criminal prosecutions, the
accused shall enjoy the right to
have the Assistance of Counsel
for his defence;
the Eighth Amendment to the United States Constitution which
provides:
Excessive bail shall not be required,
nor excessive fines imposed nor cruel
and unusual punishments inflicted;
and the Fourteenth Amendment to the United States Constitution
which provides in relevant part:
No state shall ... deprive any person of
life, liberty, or property, without due
process of law.
STATEMENT OF THE CASE
Jose Martinez High seeks a writ of certiorari from
this Court to the Supreme Ccurt of Georgia to review a decision
of that Court upiividing the denial of his petition for a writ
of habeas corpus which challenged his convictions and sentence of
death.
Petitioner asserted in his habeas corpus petition
in the Superior Court of Butts County, Georgia, that he was
being detained wrongfully by the respondent pursuant to convic-
tions of murder and other cffenses and a sentence of death which
were imposed upon him by the state of Georgia in violation of
his rights guaranteed by the Constitution of the United States.
He sought to vacate his convictions and sentence of death
alleging, inter alia, that he was denied the effective assis-
tance of counsel at the penalty phase of his capital trial and
that it was cruel and unusual punishment for a person under the
age of 18 years at the time of the offense to be sentenced to
death.
The Superior Court of Butts County denied the petition
for a writ of habeas corpus. The Supreme Court of Georgia
granted petitioner a certificate of probable cause to appeal
and reviewed the ruling of the Superior Court of Butts County.
The Supreme Court of Georgia upheld the denial of the petition
for a writ of habeas corpus.
At petitioner's trial, the state presented evidence
that late on July 26, 1976, a car with three occupants arrived
at a service station in Taliaferro County, Georgia, where one
Henry Phillips worked. The three men got out of the car and
petitioner, identified as one of the three, robbed Phillips at
gunpoint. Tr. 373-376. Mr. Phillips testifed that he was then
ordered into the robbers' car, tr. 376-377, and soon found him-
self in the woods along with his step-son, Bonnie Bulloch, who
had been with him at the service station. Both were told to
lie on the ground, shots were fired, and when Mr. Phillips re-
gained consciousness, his step-son was dead. Tr. 379-383. The
State also introduced at trial several inculpatory statements by
petitioner. Tr. 607-610, 773-775. Petitioner presented no
evidence in his defense at the guilt-innocence phase of his
trial.
After the jury returned findings of guilt of murder and
related counts, the jury was reconvened to determine whether the
punishment of death or life imprisonment was proper. Neither
the state nor petitioner produced any evidence at the sentencing
hearing. The jury recommended that petitioner be sentenced to
die, finding the existence of aggravating circumstance, Ga. Code
Ann. § 27-2534.1 (b)(7), which allows for the death penalty where.
the offense of murder “was outrageously or wantonly vile,
horrible or inhuman in that it involved torture, depravity of
mind, or an aggravated battery to the victim." The Court,
accordingly, sentenced petitioner to die and the conviction
and death sentence was upheld on direct appeal by the Supreme
Court of Georgia. High v. State, 247 Ga. 289, 276 S.E.2d 5
(1981), cert. denied, 455 U.S. 927 (1982).
Thereafter, petitioner filed a petition for a writ
of habeas corpus in the Superior Court of Butts County,
Georgia, where he is confined on death row awaiting execution.
The Superior Court first summarily denied the petition the
day after it was filed. The Supreme Court of Georgia, however,
remanded the case to the Superior Court on petitioner's applica-
tion and ordered it to hold an evidentiary hearing. The
Superior Court did so on August 12, 1982. The Superior Court
denied petitioner's motion for funds to retain counsel, inves-
tigators, experts and law clerks to aid him in the presentation
of evidence in support of his contentions. Petitioner's request
for authorization to subpoena witnesses and for witness fees and
mileage also was denied. As a result, petitioner was represented
by volunteer counsel at his hearing.
Petitioner thereby was precluded from calling witnesses
in support of his claim that he was denied the effective assis-
tance of counsel at his penalty hearing because the witnesses
resided in the Augusta, Georgia area, a 2 to 3 hour drive to
the location of the habeas corpus hearing. Instead, petitioner
presented affidavits of 16 persons to demonstrate that com-
pelling evidence in mitigation could have been presented to the
jury that sentenced him to die, but was not offered because of
the failure of his trial counsel to investigate his background
and prepare properly for the penalty phase of his trial. The
respondent offered the testimony of the lawyer who represented
petitioner at his trial.
HOW THE FEDERAL QUESTIONS WERE
PRESENTED AND DECIDED BELOW
l. Petitioner alleged in paragraphs 55 =- 57 of his
petition for a writ of habeas corpus that it was cruel and
unusual punishment for a child under the age of 18 at the time
of the commission of the offense to be sentenced to death. The
Superior Court found no merit in this claim without stating
a reason other than it was previously "raised in the Petition
For a Writ of Certiorari to the Supreme Court of the United
States." Op. at 3, app. at 13. Petitioner presented the ident-
ical claim to the Supreme Court of Georgia in section Q of his
application for a certificate of probable cause to appeal and
in section 17 of his brief on the merits. The Supreme Court of
Georgia rejected the claim, stating "[t]he imposition of the
death penalty is not cruel and unusual punihsment per se simply
because High was a minor at the time of the offense. Eddings v.
Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)."
High, 300 S.E.2d at 662, app. at 9.
2. Petitioner alleged in paragraphs 6 - 8 of his
petition for a writ of habeas corpus that he was denied the
effective assistance of counsel at the sentencing phase of his
trial. The Superior Court held that petitioner was provided
effective assistance at his sentencing hearing. The court
applied the standard set out in MacKenna v. Ellis, 280 F.2d 592,
599 (Sth Cir. 1960), cert. denied, 368 U.S. 877 (1961), and
Pitts v. Glass, 231 Ga. 638, 203 S.E.2d 515 (1974): * ... not
errorless counsel and not counsel judged ineffective by
hindsight but counsel reasonably likely to render and ren-
dering reasonably effective assistance." Op. at 6, app.
at 16. The Court did not mention either the Sixth Amendment
or the Eighth Amendment in its opinion although both grounds
were alleged in the petition for a writ of habeas corpus.
In section A of his application for a certificate of
probable cause to appeal and in section 1 of his brief on
the merits to the Supreme Court of Georgia, petitioner alleged
that the failure of trial counsel to present any mitigation evi-
dence at sentencing deprived petitioner of the effective assis-
tance of counsel. The Supreme Court of Georgia compaied the
evidence of guilt with the evidence presented in mitigation at
the habeas hearing and rejected the claim, concluding that the
"habeas corpus court found as a matter of fact that High's
counsel rendered effective assistance, as do we.” High,
300 $.E.2d at 658, app. at 5.
REASONS FOR GRANTING TH: WRIT
For the reasons which follow, this Court should issue
awrit of certiorari to review the decision of the Supreme
Court of Georgia.
I. THIS COURT SHOULD REVIEW THE DECISION
BELOW TO DECIDE WHETHER THE INFLICTION
OF THE DEATH PENALTY ON A CHILD UNDER
THE AGE OF 18 AT THE TIME OF THE
OFFENSE CONSTITUTES ChJEL AND UNUSUAL
PUNISHMENT.
Petiticner was 17 years old at the time of the
commission of the offense for which he was sentenced to die.
In light of the “evolving standards of decency that mark the
progress of a maturing society," Trop v. Dulles, 356 U.S. 86,
101 (1958), petitioner claims that the state of Georgia should
be precluded by the Eighth and Fourteenth Amendments to the
United States Constitution from inflicting the penalty of death
upon a child under the age of 18 at the time of the offense.
This Court on at least two previous occasions has
granted certiorari to consider a similar question. Eddings
v. Oklahoma, 455 U.S. 104 (1982); Bell v. Ohio, 438 U.S. 637
(1978). On both occasions this Court reserved ruling on this
issue. Rather, the death sentence in each case was set aside
due to a violation of Lockett v. Ohio, 438 U.S. 586 (1978).
Eddings, 455 U.S. at 110, n. 5; Bell, 438 U.S. at 642 Mad
It is clear, of course, that the Eighth Amendment
does place substantive limits on the state's power to impose a
sentence disproportionate to the severity of the offense in a
non-capital context. See Soler v. Helms, U.S. (June 28,
1983). In capital cases, too, the Eighth Amendment may prohibit
the imposition of death as cruel and unusual punishment for cer-
tain offenses. Coker v. Georgia, 433 U.S. 584 (1977). In Coker,
this Court determined that the death penalty could not be
carried out against rapists because it was excessive and
grossly out of proportion to the crime. In determining whether
the punishment of death for rapists was excessive, this Court
looked to objective factors such as “public attitudes concern-
ing a particular sentence, history and precedent, legislative
attitudes and the response of juries reflected in their
sentencing decisions." Id. at 592.
Universally, state statutes and policies protect
juveniles from adult criminal court proceedings. Most states
1/
~ The statement by the Supreme Court of Georgia implying
that Eddings stands for the proposition that it is not per se
cruel and unusual punishment for a minor at the time of the
offense to be sentenced to death, 300 S.E.2d at 662, app. at 9,
therefore, is inaccurate.
have set an absolute minimum age precluding a waiver procedure
of the juvenile to adult court. Juvenile laws, unlike adult
laws, are rehabilitative in nature. The minor offender is not
considered to be wholly responsible for his actions and a focus
On rehabilitation instead of punishment is deemed appropriate.
See Kent v. United States, 383 U.S. 541 (1966).
Further, in nearly cne-half of the states that pre-
sently have capital punishment statutes in effect, the respec-
tive legislatures have mandated either that death may not be
inflicted on a youth under a certain age or that age of the
Gefendant be consitered a mitigating circumstance. The
Gefendant's youth, then, is recognized throughout the states
as an important, if not decisive, mitigating factor in capital
cases.
The actual imposition of the death penalty upon
children has become so rare in this country as to be practically
nonexistent. The most recent child execution occurred in
1948. W. Bowers, Executions in America (Lexington, Mass. 1974).
Recent historical surveys show that the execution of persons
under the age of 20 is also becoming rare. Prior to 1950, 229
teenagers were executed (out of 2,678 executions with available
age data.) Since 1950, only 26 teenagers have been executed
(out of 450 executions with available age data.) Id.
The international community has condemned executions
of children as well. The Internationai Covenant on Civil and
Political Rights, ratified by 73 nations, provides that a
"sentence of death shall not be imposed for crimes committed
by persons below eighteen years of age ..." Part III, Articie 6,
Clause 5. The Covenant was signed by President Jimmy Carter
on October 5, 1977. In reserving the right of the United States
to impose capital punishment, the State Department noted that
the "[purpose of the reservation) was certainly not the preser-
vation of any right to execute children ..., something never
done in the United States.” International Human Rights Treaties:
Hearings be ore the Senate Foreign Relations Comm., 96th Conga.,
lst Sess. 55 (1979).
The gross disproportionality of executions of the young
is evidenced by legislative pronouncement in juvenile laws and
in the recognition of the importance of youth in capital cases,
as well as the actual rarity of and international attitudes
toward child executions. The Eighth Amendment should be con-
strued to eliminate from the face of this country any notion
that we execute our children. It is cruel because of the unique
Manner in which this country historically has treated juvenile
offenders and it is unusual because of its rarity in practice
and its widespread condemnation. This Court should grant
certiorari and settle this issue once and for all.
II. THIS COURT SHOULD REVIEW THE DECISION
BELOW TO DECIDE WHAT STANDARD OF COM-
PETENCY OF COUNSEL IS CONSTITUTIONALLY
REQUIRED IN CAPITAL CASES.
This Court should issue a writ of certiorari to decide
a question of fundamental importance to the administration of
criminal justice in both state and federal courts: what
Standard of competency of defense counsel is required in
capital cases in order to satisfy the Sixth, Eighth and Four-
teenth Amendments to the United States Constitution.
In two other cases docketed this term, this Court has
Granted certiorari on very similar questions concerning the
the standards for evaluating claims of ineffective assistance
2/
of counsel. Petitioner requests that this Court grant
certiorari and set the case down for oral argument in tandem
with Strickland and Cronic, or, alternatively, defer consid-
eration of this case pending issuance of opinions in
Strickland and Cronic.
Although this Court has observed that the Sixth
Amendment's right to counsel includes the right to effective
assistance “within the range of competence demanded of attorneys
in criminal cases[]," McMann v. Richardson, 397 U.S. 759, 771
n. 14 (1970), it left determination of this range of competence
to the "good sense and discretion of trial courts." Id.
The Supreme Court of Georgia, in deciding petitioner's
Claim of ineffective assistance of counsel, applied the stan-
3/
dard it had previously adopted and which is utilized by the
4/
United States Court of Appeals for the Fifth Circuit:
2/
~ §trickland v. Washington, 693 F.2d 1243 (llth Cir.
1982) (en banc), cert. granted, 33 Cr. L. Rep. 4073 (U.S. June 6,
1983) (question presented whether court of appeals, in expressly
overruling Florida Supreme Court and expressly rejecting en banc
Opinion of another federal court of appeals, United States
v. DeCoster, 624 F.2d 196 (D.C. Cir. 1976), cert. denied, 444
U.S. 944 (1979), applied correct standard for review of claims
of ineffective assistance of counsel).
United States v. Cronic, 675 F.2d 1126 (10th Cir.
1982), cert. granted, 75 L.Ed.2d 430, 32 Cr. L. Rep. 4193
(February 22, 1983) (question presented whether court of appeals
correctly reversed defendant's convictions on ground that he
did not receive effective assistance of counsel at trial,
without identifying any act or omission by counsel that
departed substantially from what reasonably competent criminal
defense attorney would have done under circumstances and without
finding any prejudice to defendant).
3/
Pitts v. Glass, 231 Ga. 638, 203 S.E.2d 515 (1974).
4/
MacKenna v. Ellis, 280 F.2d 592, 599 (Sth Cir. 1960),
cert. denied, 368 U.S. 87? (1961).
«= 10 «
counsel reasonably likely to render and rendering reasonably
effective assistance. This standard appears to be in conflict
with the standard set forth by the Eleventh Circuit -- the
Circuit in which Georgia is located -=- in Washington v.
Strickand, which requires a habeas petitioner to demonstrate
that counsel's ineffectiveness “worked to his actual and sub-
Stantial disadvantage.” 675 F.2d at 1258.
The Georgia standard and the Washington v. Strickland
Standard are but two of several standards which are applied in
determining the adequacy of counsel under the Sixth Amendment.
There is conflict in the Circuits and conflict among the
States. Some jurisdictions find counsel's ineffectiveness to
violate the Sixth Amendment only if the incompetence rendered the
proceedings a “farce and mockery of justice." The inquiry
in other jurisdictions has been whether there was “gross incom-
petence of counsel which in effect blotted out the essence of
a substantial eden” whether counsel has exercised the
"skill, judgment and diligence of a reasonably competent defense
when” las the accused was represented by a
"reasonably competent attorney acting as a diligent conscien-
5/
See Erickson, Standards of Com
Counsel in a Criminal Case,
for Defense
6/
See Slayton v. Weinberger, 213 Va. 630, 194 S.E.2d
703 (1974); Erickson, supra at mn. 53.
7/
Johnson v. United States, 413 A.2d 499, 504 (D.C.
App. 1980).
8/
=~ Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir. 1980);
State v. Orona, 638 P.2d 1077 (N.M. 1982).
9/
tious advocate," or whether there has been “serious incom-
petency” that falls “measurably below the peiformance ordinarily
expected of fallible lawyers" that "likely" affected the outcome
of the erial.”
As noted, this case presents policy questions pertain-
ing to the proper standard for the effective assistance of
counsel similar to those presented in Strickland. Certiorari
should be granted, therefore, to ascertain whether the Supreme
Court of Georgia applied the proper standard in evaluating
counsel's competency under the Sixth Amendment. Yet, a refine-
ment of the question is presented here: that is, does the Eighth
Amendment require a more strict standard in assessing counsel's
competency in death penalty cases?
The penalty phase of a capital trial is a distinct
proceeding where the jury's attention is focused not just upon
the circumstances of the crime, but also on “special facts
about this defendant that militate against imposing capital
punishment." Gregg v. Georgia, 428 U.S. 153, 197 (1976)
(Stewart, Stevens, Blackmun, Powell, J.J.). If petitioner's
trial counsel cannot be co.isidered ineffective at sentencing
under the Georgia standare despi*e counsel's wholesale failure
to investigate and present mitigation evidence, then it
would seem appropriate for this Court to establish that in
capital cases, the Eighth Amendment, together with the Sixth
9/
Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir.
1978); People Vv. Poe, 23 cal.3d 412, 423, 590 P.2d 859, 865,
152 Cal. Rptr. 732, 738 (1979).
10/
United States v. DeCoster, 624 F.2d at 206 (opinion
of Leventhal, J.).
and Fourteenth, impose a high standard of reasonableness and
require that a convicted defendant's counsel be subject to
Strict scrutiny.
Indeed, this heightened scrutiny of defense counsel's
services is one of the very conditions under which this Court has
allowed capital punishment to be imposed. There is a qual-
itative difference between death and life imprisonment, and a
corresponding difference in the need for reliability in the
jury's determination that death is the appropriate punishment
in a specific case. Woodson v. North Carolina, 428 U.S. 280
(1976). This necessary reliability is undermined in the absence
of a strict and demanding review of defense counsel's perfor-
mance.
A discussion of trial counsel's failure to develop
and present effective and available mitigation evidence’ demon-
Strates the need for the application of Eighth Amendment prin-
ciples to the question of counsel's competence. Petitioner's
counsel presented no evidence whatsoever at the sentencing phase
of the trial. Petitioner presented at his habeas corpus
hearing some of the evidence which could have been presented
had he been represented by competent counsel. Petitioner
demonstrated through the affidavits of 16 persons that there
were numerous witnesses who could have testified at sentencing
had counsel conducted any investigation.
Counsel's description of the “investigation” he under-
took showed his lack of understanding and lack of diligence. He
did not assign anybody from his office to develop mitigation
evidence and directed his legal assistants only to interview
i1/
police officers. Habeas Corpus Hearing Transcript 23.
1l/
Hereinafter referred to as “HCTr."
@'13 «
+ ee ae we +
He did not talk with anyone about the possibility of testifying
at the sentencing, id. 24, even though he personally knew
Beveral of the persons who offered affidavits at the habeas
hearing, including Dennis Wilds, a former principal of
petitioner's, who described petitioner as a “very conscientious
student,” hcetr. 73, and Constance Evans, petitioner's high
school guidance counselor at the time of offense. Ms. Evans
described Jose as a “very pleasant person ... well liked by
his peers ..., a gentle person ... he never showed any cruelty
to others." HCTr. aa’
It is clear from counsel's testimony both that he was
not aware of what the law and procedures were pertaining to
mitigation hearings and that he failed to make a diligent effort
to find such witnesses. He testified that the "the law was in
somewhat of a state of flux with regard to the bifurcated
procedure. And we were feeling our way at the time.” HCTr.
14, 23. Counsel simply did not know that he had a duty to
make a search for witnesses with knowledge of petitioner's
high school background, character, family situation and record
which might mitigate punishment.
12/
~~ Ms. Evans also stated: “Jose could be quite con-
siderate and quite generous. He gave me flowers once stating
that he appreciated me because I took time out for him and
would talk to him about his feelings and problems. I remember
him giving me candy too ... Jose appeared to be a person lost
and crying out for help and attention. He knew he had a lot
to give but no one seemed to ask for it. He did not have a
mean personality and certainly should be given a chance to
rehabilitate himself. He needs to be placed in a situation
where he will receive the structured professional help he
needs, and not a death sentence.” HCTr. 45.
13
ay wether, this Court had stated months before the penalty
phase of this trial in Lockett v. Ohio, 438 U.S. 586, 604 (1978),
that the sentencer may not be “precluded from considering as
a mitigating factor, any aspect of a defendant's character or
record ..."
© ltée
———
¥
—
ce =
Counsel never even discussed with petitioner's parents
the possibility of testifying at sentencing nor did he request
that they provide him with a list of persons who could be inter-
viewed as potential sentencing witnesses. Id. 24-25. Counsel
was not aware of friends and neighbors of petitioner who were
available to inform the jury of a number of positive character
traits. Next door neighbor, Jeanette Page, hctr. 63, described
petitioner as a nice fellow and good neighbor. He would help out
around his parent's home and she remembered him helping her by
giving her dead battery a boost. Josephine Daniel, who lived
next door to petitioner, described him as a "polite, ... normal,
regular teenager." HCTr. 40. He was often at her house and
she considered him “like one of the family." Id.
Similarly, counsel did not remember talking with
anyone at petitioner's high school, Richmond Academy, nor re-
viewing any school records, hctr. 28-29, nor did he even inform
the jury that petitioner was 17 years old and a student at the
time of the offense. Readily available evidence submitted at
the habeas hearing demonstrated that petitioner was an llth
grade student at Richmond at the time of his arrest in 1979.
The racial friction at Richmond was acute at that time and he
found himself in the center of controversy. Eleanore
Hoernle, petitioner's homeroom teacher, described him as
ready witted, the object of attention and in a state of con-
flict with some of his teachers. "“([H)is teachers that year
seemed to range from indifferent to hostile." HCTr. 58. She
described him as a proud black youngster with little experience
with sympatheic white adults and needing a great deal of
guidance.
- 15 -
Jose was desperate for attention and
definitely begging for psychological
counseling but we didn't even have a
school psychologist.
HCTr. 60.
Petitioner was well remembered by a number of his
teachers. World history teacher Terry Elam stated that in one
assignment petitioner "demonstrated an extraordinary sense of
responsibility that you just don't see.” HCTr. 41-42. In the
spring before petitioner's arrest, Mr. Elam noticed “significant
positive change,” and he comments that “[o]ther teachers also
expressed shock and delight to me at his positive development.”
Id.
It is also clear that counsel was completely ignorant
of petitioner's church activity and attendance. Marie Freeman,
however, relates that petitioner and his family were regular
church goers at the Hickman Tabernacle Church in Augusta.
HCTr. 49-50. He was still going to church the summer of his
arrest. She describes him as a "fine boy and I never knew him
to do anything bad.” Id. Further, counsel never informed the
jury of petitioner's work history at his fa her's store nor at
the Reid service station and funeral home even though evidence
of that history was readily available. HCTr. 51-43, 61-65.
Counsel simply expended no effort in preparing for
the sentencing phase of petitioner's trial. Counsel quite
candidly stated that there was no tactical reason for not
presenting any mitigation evidence. HCTr 33. As noted,
in Lockett, this Court reaffirmed that for the sentencer to
make an individualized decision of the appropriateness of death
as punishment, the sentencer must be allowed to consider all
available mitigation evidence. This Court reasoned that
preventing the sentencer from giving independent weight to such
- 16 «
factors creates the risk that the death penalty will be imposed
in spite of factors which may call for a less severe penalty.
When the choice is between life and death, that risk is unac-
ceptable and incompatible with the commands of the Eighth and
Fourteenth Amendments.
In sum, petitioner's jury was not provided with any
information whatsoever concerning him except his conduct sur-
rounding the crime. His jury was not remotely aware of his
familial relationship, his positive dealings with friends and
neighbors, his work habits, his successes and problems in
school, his church activity, nor the love of his parents.
The jury did not even know the age of the child upon whom it
inflicted death. Petitioner's sentence of death, then, was
imposed without any consideratiocr of his life and circumstances.
The Georgia standard for ineffective assistance of
counsel obviously is not sensitive to this fundamental error.
This Court should review this case to decide whether Zighth
Amendment principles govern a determination of counsel's compe-
tence in a capital case, and the constitutionally required stan-
Gard for deciding claims of ineffective assistance of counsel.
CONCLUSION
For the reasons stated herein, Jose Martinez High
requests that a writ of certiorari issue to review the decision
of the Court below.
Respectfully submitted,
JOSE MARTINEZ HIGH,
Gaal rs By Counsel
419 Seventh Street, N.W
Suite 202
Washington, D.C. 20004
(202) 638-4798
Counsel for petitioner
-17- .
654 Ga.
the trustees need not exercise ordinary dili-
gence. That, it seems to me, was precisel)
what he was paying them to do, at a mini-
mum. No doubt he hoped for more. No
* doubt he hoped for sagacity, minute and
constant attention, and even a measure of
luck. But he did not strike a bargain enti-
tling him to that. No doubt he could not
have struck such a bargain. Nor, in my
opinion, could the trustees have struck the
bargain which the majority opinion croviits
them with. Whether they could have is
not, of course, the question. The question
is whether they clearly and unambiguous!)
did, and I submit that they did not—and
that we effect an injustice when we deter-
mine the settlor'’s intent as a matter of law
and disallow the heneficiaries the simple
right to try to establish a lack of ordinary
diligence. I therefore respectfully dissent
I am authorized to state that SMITH, J.,
joins in this dissent
HIGH
v.
ZANT.
No. 39371.
Supreme Court of Georgia.
March 1, 1983.
Following denial of writ of habeas cor-
pus in the Superior Court, Butts County,
Sam L. Whitmire, J., certificate of probable
cause was granted to consider contentions
of petitioner, who had heen convicted of
murder, two counts of kidnapping, armed
robbery, possession of firearm during com-
mission of crime, and aggravated assault.
The Supreme Court, Weltner, J., held that:
(1) trial defense counsel reridered effective
assistance; (2) trial court did not err in
la
300 SOUTH EASTERN REPORTER, 2d SERIES
excluding from guilt-innocence phase of tri-
al jurors who stated that they were consci-
entiously opposed vo imposition of death
penalty; (3) trial court did not err in deny-
ing motion for change of venuc, (4) peti-
tioner was not denied right to specdy trial,
(5) trial court did not err in admitting in-
criminating custodial statements of peti-
tioner, (4) petitioner was not entitled to
state-paid assistance at habeas corpus hear-
ing: (7) trial court's jury instructions were
not improperly burden-shifting, (*) prose-
cutor’s remarks during jury summation in
guilt-innocence phase of trial did not consti-
tute prejudicial error; (9) prosecutors re-
marks during jury summation in sentencing
phase of trial were not improper, (1M)
death penalty was not excessive punish-
ment under circumstances; and (11) elves
trocution is not crue! and unusual punish-
ment
Judgment affirmed
1. Criminal Law 641,15(7)
Defendant was not denied effective as-
sistance of counsel by reason of failure of
defense counsel, during sentencing phase of
trial, to call witnesses whose testimony
would essentially have been that defendant
was normal tecnager, in view of brutal and
monstrous manner in which defendant
carried out kidnapping of zas station at-
tendant and attendant’s 11-year-old! stepson
and subsequent murder of stepson. U.S
C.A. Const.Amend, 6.
2. Habeas Corpus 285.31)
Haheas corpus court did not err in re-
fusing to admit into evidence two affidavits
in support of petitioner's claim ‘of ineffec-
tive assistance of counsel, in view of fact
that affidavits were not timely served upon
state, and, even if they were properly in
evidence, they were merely cumulative of
other evidence which was considered anc
rejected by habeas corpus court. 0.C.G.A.
§ 9-14-4%(c).
3. Jury e108
Trial court did not err in excluding
from guilt-innorence phase of defendant's
——— aia
phase of tri-
ere consc!-
n of death
err in deny-
vn (4). peti-
needy trial;
imitting in-
wus of peti-
entitled to
Corpus hear-
ictions were
, (8) prose-
‘mmation in
‘l not consti-
«cutor's re-
4 sentencing
roper; (10)
we punish- °
1 (11) elec-
ual purish-
ifective as-
.f failure of
“g phase of
testimony
* lefendant
trutal and
slefendant
station at-
‘err in re-
+ affidavits
of ineffee-
HIGH +. ZANT Ga.
Cig as. Ga. 300 S.£.2d 64
trial jurors who stated that they were con-
scientiously opposed to imposition of death
penalty, and particularly, juror who stated
that, while she could consider capita! pun-
‘ishment along with other possible punish-
ments, she could never impose it, under any
circumstances. US.C.A. Const.Amend 6.
4. Jury @131(17)
'n examining prospective juror, counsel
fo, accused should not ask tec’: -cal lega!
questions in regard lo presumpiion of inno-
cence, but should confine his questions to
those which may illustrate any prejudice of
juror against accused. or any interest of
juror in the cause
5. Jury = 103(1)
’ Though four prospective jurors had
heard about case at time of killing and
indicated that they had opinions either as to
defendant's guilt or as to punishment, there
was no error iff failing to excuse jurors for
cause, in light of responses by aii jurors
that they could subordinate their opinions
to evidence and law as charged by court
U.S.C.A. Const.Amend. 6.
6. Criminal Law @ 126(2)
Trial court did not abuse its discretion
in denying motion for change of venue. in
view of remoteness of publicity surrounding
homicide, and successful empanelment of
jury, none of whom had fixed opinions as to
guilt or innocence of defendant or as to
punishment.
7. Criminal Law ¢=577.10(4, 9)
Defendant was not denied right to
speedy trial, though trial began more than
two years after his arrest, in view of fact
that delay was attributable to defendant's
twice having successfully challenged compo-
sition of grand juries which indicted him,
and in absence of timely demand by defend-
ant for trial and showing of particular pre)-
udice to defendant resulting from delay.
OCGA. § 17-7-171; USCA. Const
Amend. 6.
8 Criminal Law @=414
Evidence adduced at Jackson-Denno
hearing, réiative to custodial statements by
defendant, was sufficient to support trial
court's ruling as to voluntariness, an: state-
ments were properly submitted to jury with
full instructions as to their admissibility
U.S.C.A. Const.Amend. 5
9. Criminal Law 1110(1)
Where transcript or record does not
fully disclose what transpired at trial, bur-
den is on complaining party to have record
completed in trial court, and when this 1s
not done, there is nothing for ajpellate
court to review. O.C.G.A. § 5-641(f).
10. Habeas Corpus 116
It was not error to deny state-paid
assistance to defendant at habeas corpus
hearing. U.S.C.A. Const.Amend. 6
11. Criminal Law 7785)
Trial court's instructions to jury, set-
ting forth rebuttable presumptions that
person intends natural and probable conse-
quences of his act and that person using
deadly weapon intends to kill, were not
improperly burden-shifting, in view of lan-
guage elsewhere in charge that persons are
not presumed to act with criminal intention.
that burden was on state to prove alleged
act bevond reasonable doubt, and that de-
fendant entered trial with presumption of
innocence
12. Habeas Corpus 113(12) -
To constitute reversible error in habeas
corpus proceeding, alleged prosecutorial
misconduct must be so prejudicial as to
render trial fundamentally unfair in viola-
tion of due process. U.S.C.A. Const.Amend.
14.
13. Criminal Law @=71%1), 1171.3
_ Reference by prosecutor in jury sum-
mation to defendant's incriminating state-
ments, which were not admitted into evi-
dence and wnn implicated defendant in
other crimes, was improper, being imper-
missible introduction of facts not in evi-
dence, as distinguished from false logic or
rhetoric; however, such error was not pre)-
udicial, in view of overwhelming evidence
against defendant and in absence of objec-
tion by defendant to statements when they
were made so as to permit curative jury
instructions. O.C.G.A. § 24-2-2.
2a
.%.
ated ote
we Py
tae
656 Gs
14. Criminal Law @721(4)
Remarks by prosecutor during jury
summation, to effect that defendant had
shown no remorse, from time of murder of
ll-year-old boy until time of sentencing
phase in criminal prosecution, were not
comments which improperly asked jury to
infer guilt from defendant's failure to testi-
fy, but, rather, asked jury to infer lack of
remorse.
15. Criminal Law ¢=722(2)
Remarks by prosecutor during jury
_ summation in sentencing phase of murder
prosecution, referring to defendant's con-
duct as “vicious, mean, lowdown, unlawful,
illegal,” and “immoral,” did not constitute
error, in view of fact that jury had already
found defendant to be guilty, and prosecu-
tor’s characterization of defendant's con-
duct was accurate.
16. Criminal Law 1213
Imposition of death penalty is not cruel
and unusual! punishment per se. simply be-
cause defendant was minor at time of of-
fense. U.S.C.A. Const.Amend. 8.
17. Criminal Law 796
Instruction given in kidnap murder
prosecution, to effect that jury was autho-
rized to consider all facts and circumstanc-
es, “including mitigating facts and circum-
stances, if any, on behalf of defendant,”
and that jury could recommend life sen-
tence even if it found aggravating circum-
stances, was not insufficient under sentenc-
ing statute, notwithstanding that direction
to consider mitigating circumstances was
not expressed in mandatory terms and that
term “mitigating circumstances” was not
defined for jury. 0.C.G.A. § 17-10-
8(bX7).
18. Criminal Law =996(1.1)
Where, in prosecution for armed rob-
bery, kidnapping, and murder, after jury
found aggravating circumstances present as
to each count and recommended death pen-
alty, Supreme Court ordered reduction of
sentence as to two counts, defendant was
not entitled as well to resentencing on other
counts, in view of fact that jury was in-
structed to, and did, focus independently on
300 SOUTH EASTERN REPORTER, 2d SERIES
each count in fixing penalty for that count
O.C.G.A. § 17-10-30(bx7).
19. Homicide 354
In view of evidence that defendant was
not merely aider and abettor to murder of
victim, but, rather, was “ringleader” in exe-
cution-style killing of 11-year-old boy, death
penalty was not excessive. U.S.C.A. Const.
Amend. 8.
20. Criminal Law C1213
Electrocution is not cruc! and unusual
punishment, as compared to other possible
methods of carrying out death penalty.
U.S.C.A. Const.Amend. 8.
Joseph Nursey, Atlanta, Bradley S. Stet-
ler, Graber, Stetler & Townsend, Alexan-
dria. Va., Stephen B. Bright, D.C. Law Stu-
dents in Court, Washington, D.C.. for Jose
Martinez High.
Virginia Jeffries, Asst. Atty. Gen., for
Walter D. Zant, Warden.
WELTNER, Justice.
We granted a certificate of probable
cause to consider High's contentions on writ
of habeas corpus. For the factual back-
ground of the case see High v. State, 247
Ga. 289, 276 SE.2d 5 (1981). where this
Court affirmed the imposition of the death
penalty; Brown v. State, 247 Ga. 298, 275
S.E.2d 52 (1981); and Ruffin v. State, 243
Ga. 95, 252 S.E.2d 472 (1979), where we
affirmed death sentences imposed upon
High's co-actors.
{1} 1. High's principal contention,
along with 24 other enumerations of error,
is that he was denied effective assistance of
counsel in that no witnesses were called on
his behalf during the sentencing phase, not-
withstanding his post-trial showing of the
availability of witnesses who, after the tri-
al, indicated their willingness to come for-
ward in his aid.
His counsel, a member of the Bar for
many years and a lawyer possessing wide
experience in the defense of criminal cases,
including capital cases, testified before the
3a
a a
—— nee --
penalty for that count
4bK7). -
1
“we that defendant was
; abettbr to murder of
vas “ringleader” in exe-
f 11-year-old boy, death
-ssive. U.S.C.A. Const.
1213
not cruel and unusual
pared to other possible
sg out death penalty.
nd. 8. ;
silanta, Bradley S. Stet-
& Townsend, Alexan-
*. Bright. D.C. Law Stu-
shington, D.C., for Jose
. Asst. Atty. Gen., for
«rden.
Sie
eettificate of probable
‘ch’ contentions on writ
For the factual back-
see High v. State, 247
*» 5 (1981), where this
imposition of the death
State, 247 Ga. 298, 275
‘md Ruffin v. State, 243
: 472 (]979), where we
‘ences imposed upon
principal contention,
r enumerations of error,
-l effective assistance of
"vitnesses were called on
i sentencing phase, not-
st-trial showing of the
«sees who, after the tri-
willingness to come for-
‘nember of the Bar for
+ lawyer possessing wide
lefense of criminal cases,
ases, testified before the
HIGH v. ZANT
Ga. 657
Cite as, Ga. 300 S.E.24 654
habeas corpus court that he and two assist-
ants made an effort to locate witnesses, and
inquired of High as to the availability of
witnesses—without avail, either from their
own investigation or from suggestions put
forward by High. He further stated that
he had determined not to call High's par-
ents for fear that their distress might be
perceived by the jury to be feigned.
In: support of his contention, High
presented to the habeas corpus court a sc-
ries of affidavits from family, friends,
neighbors, and former teachers, several of
which are excerpted as follows:
“A gentle person ..he never showed any
crueity to others” “Jose could be very
considerate and quite generous. He gave
me flowers once stating that he appreciated
me because I took time out for him ¥ind
would talk to him about his feelings and
problems. I remember him giving me can-
dy too...” “Jose was desperate for atten-
tion and definitely begging for psychologi-
cal counseling but we didn't even have a
school psychologist.”
Other affidavits showed that High was “a
nice fellow and good neighbor,” that he
once helped a neighbor start a car, and that
he cut the grass and took care of the dogs
at his parents’ home; that he was “polite,”
and a “normal regular teenager.”
Having presented these affidavits, High
contends that his counsel, in failing to pro-
duce at the trial equivalent testimony, was
of necessity ineffective, notwithstanding
counsel's relation of the matter.
Lest the total circumstance within the
courtroom be overlooked at this remove, we
quote from High, supra, at p. 297, 276
S.E.2d 5: “The appellant showed no re-
morse for the killing, but rather bragged
that ‘he wanted to be the most famous
black ringleader in the world.’ Under the
evidence of this case, there is no doubt that
the kidnapping and murder were of the
type universally condemned by civilized so-
cieties as outrageously or wantonly vile or
inhuman.”
In our opinion affirming the conviction
and death sentence of High's co-defendant,
4a
Ruffin v. State, supra, there appears at
page 95, 252 S.E.2d 472 the following sum-
mation of fact: “In the late evening hours
of July 26, 1976, Henry Lee Phillips was
operating an Amoco service station off 1-20
near Crawfordsville, Georgia, with his elev-
en-vear-old stepson, Bonnie Bulloch, helping
him. A car pulled into the station with
three occupants. The appellant and the
two co-indictees, Nathan Brown and Jose
High, were in the car. The car had been in
the station a week or two earlier. The
three men got out of the car and one point-
ed a pistol at Phillips. Appellant had a
sawed-off shotgun. Phillips was forced to
leave the booth while the appellant re-
moved the money from the register and
demanded any other money. When Phillips
told him that there was no more money, the
appellant grabbed Bonnie Bulioch and told
Phillips to get in the car trunk or Phillips
and the hoy would be killed
“Phillips got in the trunk of the car and
when he was released from the trunk found
that they were in the woods. Phillips and
his stepson were ordered to lie on the
ground. Phillips then heard shots fired.
When Phillips regained consciousness he
discovered that Bulloch was dead. In his
confession. the appellant stated that he shot
the boy in the head while his cohorts also
shot at the victims. Phillips had been shot
in the temple and wrist. He managed to
get to a nearby house and the sheriff was
summoned.”
In viewing the contention of ineffective-
ness of counsel, we cannot consider poten-
tial mitigation evidence in vacuo, any more
than the trial jury might blot out what they
have seen and heard for several days in the
guilt phase, once they turn to consider sen-
tence. Here, the jury learned of the execu-
tion-style killing of an eleven year-old child,
wise only offense against High was that
he was present when High and his compan-
ions robbed a service station, thereby com-
mitting the crime of becoming an involun-
tary witness. Here, the jury was exposed
to the tragic death of a little boy, shot
through the head after High had continued
to ask and assure him “Are you ready to
die? Do you want to die? Well, you're
658 Ga.
going to die.” High. supra, at p. 296, 276
S.E.2d 5. Here, th jury learned of a small
child removed from a car, marched around
the front of an automobile and forced to lie
upon his face, as three murderers snuffed
out his life. Here, the jury heard of High
bragging that “he wanted to be the most
famous black ringleader in the world.”
Up against that, High's counsel is
charged with derogation of duty in failing
to call someone who would mount the stand
to say that Jose was a normal teenager, or
that he never talked to a school psycholo-
gist.
In the face of the monstrosity of what
High did to eleven year-old Bonnie Bulloch,
we can easily understand the decision of an
experienced defense lawyer who sees, with
us, the hazard of deigning to present such
transparencies.
The habeas corpus court found as a mat-
ter of fact that High's counsel rendered
effective assistance, as do we.
{2] 2 High contends that the habeas
corpus court erred in not admitting into
evidence two affidavits in support of his
claim of ineffective assistance. This con-
tention is without merit, as the affidavits
were not served upon the State five days in
advance of the day set for hearing, as re-
quired by OCGA § 9-14—4&c). Neverthe-
less, we have considered the affidavits and
tive of other evidence which was considered
by the habeas corpus court.
Px 3. Pact gh ep em pt
ca cewe
In ye eons it was not error, under
Witherspoon v. Illinois, 391 U.S. 510, 88
§.Ct. 1770, 20 L.Ed.2d 776 (1966), to exclude
a juror who stated that, while she could
High, supra, at p. 291, 276 S.E.2d 5.
300 SOUTH EASTERN REPORTER, 2d SERIES
4. High contends that the trial court
erred in failing to excuse for cause six
jurors alleged to have preconceived notions
of petitioner's guilt or the penalty to be
imposed.
High argues that two of the jurors shou'd
have been excused due to their failure to
understand the presumption of innocence in
favor of the defendant. Neither juror actu-
ally served on the jury which convicted
High. The basis for High's contention may
be illustrated by excerpting a portion of the
voir dire examination of juror Warren
Johnson by defense counsel:
“Q. You would require the defendant to
put up some evidence to prove he’s inno
cent?
“A. I'd want to hear both sides.
“Q. And you'd have to hear both sides
before you could return a verdict of not
guilty?
“A. Yo.”
Mr. Johnson subsequently stated that :
mind was perfectly impartial between the
State and the accused, that he would want
to hear “all the evidence,” and that he could
return a verdict of guilty or not guilty
whether the defendant put up any evidence
or not.
[4) “In examining a prospective juror,
counsel for the accused should not ask tech-
nical legal questions in regard to the pre-
sumption of innocence, but should confine
his questions to those which may illustrate
any prejudice of the juror against the ac-
cused, or any interest of the juror in the
cause.” McNeai v. State, 228 Ga. 63%3),
187 S.E.2d 271 (1972). The questions prof-
fered were improper, and the responses
thereto were not grounds for excusing the
jurors. Additionally, the layman generally
conceives of a court as a tribunal where
“both sides” will be heard.
(5) High contends that four jurors
should have been excused for cause due to
fixed opinions as to guilt-innocence or pun-
ishment. A review of the voir dire exami-
nation of these jurors reveals that all four
5a
——<— <—<Se ae ©
the trial court
we for cause six
-eoncei\'ed notions
he penalty to be
the jurors should
» their failure to
wn of innocence in
‘either juror actu-
which convicted
's contention may
% @ portion of the —
f juror Warren
el:
the defendant to
prove he's inno-
oth sides.
» hear both skies
a verdict of not
ly stated that his
tial between the
it he would want
and that he could
'y Or not guilty
| up any evidence
‘rospective juror,
wild not ask tech-
gard to the pre-
it should confine
rh may illustrate
HIGH v. ZANT Ga. 659
Cite as, Ga. 300 §.£.26 654
had heard about the case at the time of the
killing One indicated that he had an opin-
jon as to the guilt or innocence of High, but
that he could sulxrdinate that opinion to
the evidence and he law as given by the
court. The others one of whom served on
the convicting jury, indicated that they had
opinions as to punisi.ment, but that, again,
their opinions could be subordinated to the
evidence and the law as charged by the
court. As none of the jurors had fixed
Opinions as to guilt-innocence or punish-
ment, this contention must fail.
High's contentions relative to sequestra-
‘tion of the jury and the oral deniai of a
Brady motion in the presence of the jury
have been considered and rejected on direct
appeal. High, supra, pp. 291-2, 276 S.E.2d
5. °
5. We held previously that the applica-
tion of the peremptory strike statute, for-
mer Code Ann. § 59-905, in this case did
not result in a denial of due process to
High. High, supra, at p. 289, 276 S.E.24 5
6. It was not error to deny State-paid
expert assistance to High at trial. High,
supra, at p. 289, 276 S.E.2d 5.
{6} 7. High contends that the trial
court erred in denying his motion for a
change of venue. In support thereof, High
introduced thirteen newspaper articles, all
published on or about the time of the kill-
ing, some two years prior to trial. We have
reviewed carefully the voir dire examina-
tion of each juror who sat on the convicting
panel, and conclude that, although all but
one had at least heard about the case at the
time of the killing, none had fixed opinions
as to the guilt or innocence of High or as to
punishment. In view of the remoteness of
the publicity surrounding the case and the
successful empanelment of an unbiased
jury, we conclude that the trial court did
not abuse its discretion in denying the mo-
tion for a change of venue. Coleman y.
State, 237 Ga. 84(1), 226 S.E.20 911 (1976).
[7] 8. High contends th:.t he was de-
nied his right to a speedy trial, under the
sixth amendment to the U.S. Constitution.
Applying the four-factor test adopted in
Haisman v. State, 242 Ga. 896 2), 252 S E.2d
97 (1979), we conclude that no constitu-
tional violation occurred.
High's trial began in November, 1978,
more than two years after his arrest in
August, 1976. This delay was attributable
to High twice having challenged successful-
ly the composition of the grand juries which
indicted him. High does not allege that
any demand for trial was made prior to his
motion to dismiss, mare on the first day of
trial. See OCGA § 17-7-171._ Finally,
High does not allege any particular preju-
dice resulting from the delay. Based upon
these factors, we conclude that the delay
between arrest and trial did not amount to
an error of constitutional proportions.
9. High contends that the trial court
erred in allowing the introduction of evi-
dence seized as a result of an allegedly
illegal stop and arrest. This contention has
been considered and rejected by our courts.
High, supra, at p. 295, 276 S.E.2d 5, citing
State v. High, 145 Ga App. 772, 244 S.E.2d
888 (1978)
[8] High contends that the admission of
incriminating statements made to police
while in custody violated the procedural
requirements of Jackson v. Denno, 378 U.S.
368, 8&4 S.Ct. 1774, 12 LEd.2d 908 (1984).
The trial court held a Jackson-Denno hear-
ing, heard evidence concerning the circum-
stances surrounding the giving of the state-
ments, and specifically ruled that they were
freely and voluntarily made. The state-
ments were then submitted to the jury with
full instructions as to their admissibility.
The ruling of the trial court as to voluntari-
ness is supported by the evidence. The
procedure followed was not subject to the
defects disapproved in Jackson v. Denno,
supra, at pp. 377-91, 84 S.Ct. at pp. 1781-
88.
10. High contends that certain eviden-
tiary rulings denied him a fair trial. High
fails to point out where these rulings oc-
curred. Nevertheless, we note that we al-
ready have considered allegations relative
to the disclosure of evidence unfavorable to
High, the enforcement of a sequestration
Ser
660 Ga.
order, the admission of evidence concerning
High's co-defendants and the admission of
certain tire track evidence. See High, su-
pra, at divisions 5, 8 and 9. We have con-
" sidered other evidentiary rulings com-
plained of, including the alleged failure of
the trial court to instruct the jury to disre-
gard certain testimony, and find no error
{9} 11. High contends that he was de-
nied a fair trial due to the failure of the
court reporter to transcribe bench confer-
ences. The trial court granted a motion for
complete recordation “insofar as the law
requires.” Where the transcript or record
does not fully disclose what transpired at
trial, the burden is on the complaining par-
ty to have the record completed in the trial
court under the provisions of OCGA § 5-6-
41(f). When this is not done, there is noth-
ing for the appellate court to review. Zach-
ary v. State, 245 Ga. 2, 4, 262 S.E.2d 779
(1980). :
(10) 12. It was not error to deny State-
paid assistance to High at the habeas corpus
hearing. Harris v. Hopper, 243 Ga. 244, 253
$.E.2d 707 (1979).
(11) 13. High contends that the trial
court's instructions to the jury as to intent
were burden-shifting, in violation of Sand-
strom v. Montana, 442 U.S. 510, 99 S.Ct
2450. 61 L.Ed.2d 39 (1979).'
In defining a “crime,” the trial court
charged the jury as follows: “A crime is a
violation of a statute of this State in which
there shal] be a union of joint operation of
act and intention. I charge you that the
acts of a person of sound mind and discre-
tion are presumed to be the product of a
person's will, but the presumption may be
rebutted. I charge you that a person of
sound m.;.d and discretion is presumed to
intend the natural and probable conse-
quences of his act, but the presumption may
be rebutted. I charge you that a person
will not be presumed to act with criminal
intention, but the trior of the facts may
find such intention upon consideration of
the words, conduct, demeanor, motive and
all other circumstances connected with th«
1. The trial of this case preceded the ruling in
Ja
PS EE Tene Se Loe
act for which the accused is prosecuted.”
Subsequently. after defining the crime of
murder, the court gave the following in-
struction: “I charge you, ladies and gentle-
men of the jury, that the law presumes that
& person intends to accomplish the natural
and probable consequences of his act or acts
if that person uses a deadly weapon or
instrumentality in the manner in which
such weapon or instrumentality is ordinari-
ly employed to produce death and thereby
causes the death of a human being. The
law presumes the intent to kill. This pre-
sumption may be rebutted. J further
charge you that a person shall not be pre-
sumed to act with criminal intention but
the triors of the facts may find such inten-
tion upon consideration of the wortis, con-
duct, demeanor, and al! other circumstances
connected with the act for which the ac-
cused has been prosecuted The burden is
upon the State to prove the act alleged to
be criminal is, in fact, a criminal act heyond
a reasonable doubt.”
High enumerates as error only the latter
portion of the charge. We will! review both
In the first excerpted portion the court
essentially charged a rebuttal presumption
that a person of sound mind and discretion
intends the natural and probable conse-
quences of his act. In the second portion,
the court charged that where a person uses
a deadly weapon in the ordinary manner
and death results, the law presumes the
intent to kill, but this presumption may be
rebutted.
Taken alone, this language, while not cre-
ating conclusive presumptions, might be
considered burden shifting, in violation of
Sandstrom, supra. However, this language
must be considered together with the
court's instruction, twice repeated, that a
person “shall not be presumed to act with
criminal intention but the triors of the facts
may find such intention upon consideration
of the words, conduct, demeanor, and all
other circumstances connected with the act
for which the accused has been prosecuted.”
And the court stated that “[tJhe burden is
Sandstrom.
SN a SEN | SA a Sa ee ee a ee,
; 300 SOUTH EASTERN REPORTER. 2d SERIES
— ee eee ~~
upon the S
be emmin:
a reasonal
that inter’
that the b
every elen
Finally, th
the presum:
five time-
charge you
the trial of
of innocer
cence is aff
accused «i
prosecutwit
proof why
defendant +
doubt. Th
fers to a =
nature of «
Taking *'
clude that °
understoa!
whatsoesc'
With respe:
charged. 1
created a@ j~
to intent, «
Johnson \ :
696 (1982).
271 S.E.2:!
{12} 14
made by ¢!
tion to the
of the tria!
defendant «
religious |.
The habea.
that these +
which is nm:
condemned
Easter v. !
Cir.1980).
a habeas em
conduct m
render a tr
lation of ti
{13) A:
ed by the ;
of High's .
were not a
| is prosecuted.”
ng the crime of
he following in-
adies. and gentle-
w presumes that
ilish the natural
of his act or acts
adly weapon or
anner in which
ality is ordinari-
ath and thereby
nan being. The
> kill. This pre-
ed. | further .
shall not be pre-
al intention but
find such iften-
the words, con-
er circ'ymstances
r which the ac-’
The burden is
ve act alleged to
minal act beyond
r only the latter
will review both.
yrtiqn, the court
ital presumption
«| and discretion
probable conse-
» second portion,
re @ person uses
rdinary manner
* presumes the
umption may be
, while not cre-
ions, might be
. in violation of
r, this language
ther with the
repeated, that a
med to act with
riors of the facts
on consideration
neanor, and al!
ted with the act
cen prosecuted.”
“(t}he burden is
. HIGH v. ZANT Ga 66]
Che os, Ga, 300 S.£.24 654
‘ upon the State to prove the act alleged to
be criminal is, in fact, a criminal act beyond
@ reasonable doubt.” The court charged
that intent is an element of the crime and
that the burden is on the State to prove
every element beyond a reasonable douht
Finally, the court instructed the jury as to
the presumption of innocence no less than
five times, including the following: “I
charge you that the defendant enters into
the trial of this case with the presumption
of innocence. The presumption of inno-
cence is affirmative proof in behalf of one
aceused of a crime and places upon the
prosecution the burden of rebutting it by
proof which shall satisfy the jury of the
defendant's guilt beyond a reasonable
doubt. The presumption of innocence re-
fers to a substantive right \enich is in the
nature of evidence.”
Taking the-charge as a whole, we con-
clude that no reasonable juror could have
understood it to mean that any burden
whatsoever was placed upon the defendant
with respect to the elements of the crimes
charged. The language employed merely
created a permissive inference with resect
to intent, and we find no reversible error
Johnson v. State, 249 Ga. 621(1), 292 S.E.2d
696 (1982); Hosch v. State, 246 Ga. 417(3),
271 S.E.2d 817 (1980)
{12) 14. High complains of remarks
made by the prosecutor during his summa-
tion to the jury in the guilt-innocence phase
of the trial. They include references to the
defendant as subhuman and the invoking of
religious beliefs and familial sympathies.
The habeas corpus court correctly concluJed
that these remarks constitute “.. . conduct
which is merely improper and universally
condemned but not a denial of due process.”
Easter v. Estelle, 609 F.2d 756, 760 (5th
Cir.1980). To constitute reversible error in
a habeas corpus proceeding, the alleged mis-
conduct must be “...so prejudicial as to
render a trial fundamentally unfair in vio-
lation of the due process clause.” Id.
[13] A more serious problem is present-
ed by the prosecutor's reference’ to portions
of High's incriminating statements which
were not admitted into evidence and which
implicated High in other crimes. See
OCGA § 24-2-2. This amounte:! io an im-
permissible introduction of facts not in evi-
dence, as distinguished from false logic or
rhetoric. See Powell v. State, 179 Ga
401(4), 176 S.E. 29 (1934); Houston v. Es-
telle, 569 F.2d 372, 376-84 (Sth Cir.1978).
However, defense counsel made no objec-
tion to these remarks, aithough he did ob
ject to other portions of the closing argu-
ment, and thus the trial] court had no oppor-
tunity to give curative instructions to the
jury. See Whisman v. State, 221 Ga. 46017),
145 S.E.2d 499 (1965). In view of the over-
whelming evidence against High, including
his own incriminating statements and the
eyewitness testimony of a victim who sur-
vived an attempt on his life, we conclude
that it is highly probable that the error did
not contribute to the verdict. Juhnson 1
State, 238 Ga. 59, 60-61, 230 SE2d 869
(1976)
{14} High contends that the following
remarks, made by the prosecutor in his
summation to the. jury in the sentencing
phase of the trial, constitute improper com-
ment upon the defendant's failure to testi-
fv: “You know, if a week or two weeks or
three wecks after this cruel and inhumane
and defenseless little—this murder on a de-
fenseless little 56 inch, 70 Ib. kid—if two or
three weeks later they had come in and
said, listen, I did it, I'm wrong—maybe God
can forgive me and you try. That's one
thing. But no—until this very day there
has been no remorse shown. There hasn't
been one single word that I've heard that
has been uttered that this is something that
shouldn't have happened.” This is not a
comment which asked the jury to infer guilt
from the defendant's failure to testify (see
Jacobs v. State, 187 Ga App. 592(2), 224
S.E.2d 462 (1976)); rather, it asked the jury
to infer a lack of remorse. We find no
error. Marshall v. State, 239 Ga. 101(3), 236
S.E.2d 58 (1977).
{15} Lastly, High complains of allegedly
inflammatory remarks by the prosecutor in
the sentencing summation. For example,
“...] want you to think about a little elev-
662 Ga
en year old boy—a little young fellow who
didn't have a chance to live out his life
- because of the vicious, mean, lowdown, un-
lawful, illegal, immoral, conduct on the part
of this man and two others” Assuming
High to be guilty, which the jury had al-
ready found, we find this to be an accurate,
if ineloquent, assessment of High's deeds
We have reviewed the entire summation
and find no error of constitutional dimen-
sions, nor any violation of stat law. Com-
pare Hance v. Zant, 696 F.2d 940 (llth
Cir.1983). See High, supra, at p. 295, 276
§.E.2d 5.
{16} 15. The imposition of the death
penalty is not cruel and unusual punish-
ment per se simply because High was a
minor at the time of the offense. Eddings
¥. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71
L.Ed.2d 1 (1982)
16. High contends that the imposition of
the death penalty was not justified under
OCGA § 17-10-30(bX7) because of a lack of
serious physical abuse prior to death. This
contention is without merit. High, supra,
&t pp. 296-7, 276 S.E.2d 5.
[17] 17. High contends that the sen-
tence of death must be set aside due to the
failure to instruct the jury sufficiently as to
the meaning of OCGA § 17-10-30(b\7)
This contention is without merit. Gilreath
v. State, 247 Ga. 814(16), 279 S.E.2d 650
(1981)
High contends that the tria! court's in-
structions to the jury relative te their con-
sideration of mitigating circumstances in
fixing punishment were insufficient, citing
Spivey v. Zant, 1 F.2d 464 (former 5th
Cir.1981). With regard to the jury's deci-
sion whether to impose a life sentence or
the death penalty, the court gave these
instructions: “In reaching this determina-
tion, you are suthorized to consider all of
the evidence received by you in open court
in the trial of the case. You are authorized
to consider al! of the facts and cireumstanc-
es of the case including mitigating facts
and circurnstances, if any, on behalf of the
defendant.... | charge you, members of
the jury, that if you find that.the State has
ee
300 SOUTH EASTERN REPORTER, 2d SERIES
proved one or more statutory aggravating
circumstances beyond a reasonable doubt
that you may recommend that the defend-
ant receive a life sentence.”
The sentencing instructions in this case
were not subject to the defects disapproved
in Spivey, supra. In Spivey, the jurors
were told that they could consider all the
facts and circumstances of the case in fix-
ing punishment. Here they were told that
they could consider all the facts and circum-
stances, “ including mitigating facts and
circumstances, if any, on behalf of the de-
fendant.” In Spivey, the jurors were not
instructed clearly as to the option to recom-
mend a life sentence even though they
might find aggravating circumstances
Here, that option was set forth in unmis-
takable terms. See Hawes v. State, 240 Ga
$27(9), 240 S.E2d 833 (1978); Fleming v
State, 240 Ga. 142(7), 240 S.E.2d 37 (1978)
High contends that the jurors should
have been instructed io consider mitigating
factors in mandatory terms, i.e., instead of
“You are authorized to consider, .." the
court should have said, “You must con-
sider...." While mandatory language
might be preferable, we do not believe a
reasonable juror could have been misled by
this variation. If the language had been
construed as pureiy discretionary, the jurors
might have concluded that they could im-
pose the ultimate penalty without consider-
ing any of the facts and circumstances.
Such a construction is plainly contrary to
the reasonable intendment of the charge as
a whole, including the requirement that,
prior to imposition of the death penalty, the
jurors must find the existence of an aggra-
vating circumstance beyond a reasonable
doubt.
High also argues that “mitigating cir-
cumstances” should have been defined for
the jury. Implicit in the charge is a defini-
tion of the term, as the court referred to
“.. mitigating facts and circumstances, if
any, on behalf of the defendant.” (Empha-
sis supplied). Thus, even if a juror did not
understard the term “mitigating,” he or she
could have construed it only in its broadest
possible sense, to mean anything favorable
to the a
nition '
jury ‘er
[18)
to deat’
consis(.'
napping
and Co:
nappiny’
The jur:
cumsta’
8b, 7)
direct a}
the dea
High. «.
contend:
aggrava’
and 5 r
consider.
therefor
Counts
As vw
tention
and not |
circur:'
S.E.2d !
o ~¢euee
circums:
pelled ye
whates:'
to inflici
require!
before {
and we
death jx
require !
19. FF
with be
merged +
and thu:
for erin
ously re):
at pp. 29:
2. hi
penalty is
criminat.
fail. Hig
21. sv
death is
prior caw
8
latu.ory aggravating
a reasonabie doubt
end that the defend-
vince.”
ructions in this case
p defects disapproved
| Spitey, the jurors
ould consider all the
sof the case in fix-
they were told that
the facts and circum-
“miligating facts and
on behalf of the de-
the jurors were not
the option to recom-
even though ‘they
ting circumstances
set forth in unmis-
wes v. State, 240 Ga.
(1978); Fleming v.
240 S.E.2d 37 (1978)
the jurors should
» consider mitigating
urms, i.e., instead of
» consider, ..." the
4, “You must. con-
\undatory language
se do not believe a
have been misled by .
language had been
tionary, the jurors
that they could im-
\y without consider-
and circumstances.
plainly contrary to
unt of the charge as
‘ requirement that,
# death penalty, the
istence of an aggra-
pyond a reasonable
at “mitigating .cir-
« been defined for
« charge is a defini-
* court referred to
id circumstances, if
fendant.” (Empha-
0 if @ juror did not
itigating,” he or she
only in its broadest
anything favorable
“aah . ~~. ar
SABEL ¥. STATE Ga. 663
Che as, Ga, 300 $.E.24 463
to the defendant. Any more technica! defi-
nition might tend unduly to restrict the
jury's consideration
{18} 18. High was originally sentenced
to death on four counts, Counts 1] and 4
consisting of the armed robbery and kid-
napping of Henry Phillips, who survived,
and Counts 3 and 5 consisting of the kid-
napping and murder of Bonnie Bulloch.
The jury found that the aggravating cir-
cumstance set out in OCGA § 17-10-
30(bX7) was present as to each count. On
direct appeal, we reversed the imposition of
the death penalty as to Counts 1 and 4
High, supra, at p. 297, 276 S.E.2d 5. High
contends that the jury's consideration of
aggravating circumstances as to Counts 3
and 5 may have been infected by their
consideration of Counts ] and 4, and that
therefore he should be resentenced as to
Counts 9 and 5.
As we have stated previously, this con-
tention relates to the reduction of sentences
and not the disallowance of an aggravating
circumstance. High, supra, at p. 297, 276
S.E.2d 5. The jury was instructed to
“., #tate and set forth the aggravating
circumstances which caused you or com-
pelled you to inflict the death penalty as to
whatever count or counts you might see fit
to inflict such penalty." The court's charge
required the jury to focus on each count
before fixing the penalty for that count,
and we conclude that the reversal of the
death penalty as to Counts 1 and 4 does not
require resentencing as to Counts 3 and 5.
19. High contends that the kidnanping
with bodily injury of Bonnie Bulloch
merged with the murder of Bonnie Bulloch,
and thus High was improperly sentenced
for crimes which merged. We have previ-
ously rejected this contention. High, supra,
at pp. 294-5, 276 S.E.2d 5.
20. High's contention that the death
penalty is imposed arbitrarily and in a dis-
criminatory manner in Georgia also must
fail. High, supra, at p. 296, 276 S.E-2d 5.
21. High contends that the sentence of
death is disproportionate when compared to
prior cases. This contention is also succes-
10a
sive. High, supra, at pp. 297-8, 276 S.E.2d
5
[19] 22 High argues that the death
penalty is excessive as the evidence shows
he was only an aider and abettor to the
murder of the victim. The evidence, includ-
ing High's own statements, clearly supports
an inference to the contrary, and Enmund
v. Florida, ——- U.S. ——-, 102 S.Ct. 3368, 73
L.Ed.2d 1140 (1982), is distinguishable on its
facts.
(20) 23. Electrocution is not cruel and
unusual punishment as compared to other
possible methods of carrying out the death
penalty
Judgment affirmed
All the Justices concur
SABEL et al.,
, v.
The STATE.
No. 39132.
Supreme Court of Georgia.
March dd, 1983.
Defendants were convicted in the State
Court, Fulton County, John A. Bruner, J.,
of failure to disperse, and they appealed.
The Supreme Court, Bell, J., held that: (1)
statute requiring dispersa] of gatherings
upon request or order of peace officer or
firemen, in interest of public safety, was
neither unconstitutionally vague nor over-
broad; (2) defendants’ arrests and convic-
tions did not violate their First Amendment
rights; (3) defendants were not selectively
prosecuted; and (4) trial court did not
abuse its diserstion in denying motion for
mistrial.
Judgment affirmed.
—-
ee ae |
—<—- ——=— _-
STATE OF GEORGIA
JOSE MARTINEZ HIGH,
Petitioner, : CIVIL ACTION
VS. , FILE NO. 5585
WALTER D. ZANT, WARDEN, HABEAS CORPUS
GEORGIA DIAGNOSTIC &
CLASSIFICATION CENTER,
Respondent.
The matter now pending before this Court is a Petition for
Writ of Habeas Corpus in a death penalty case. The Petitioner, Jose
Martinez High, is currently serving two death sentences imposed by
jury at trial in the Superior Court of Taliaferro County. Petitioner
was convicted of the offenses of murder, two counts cf kidnapping with
bodily injury, are! robbery, possession of a firearm during the connission
Of a crime, and aggravated assault and was sentenced to death for the
murder, armed robbery, and both counts of the kidnapping with bodily
injury. On direct anneal the Supreme Court of Georgia affirmed the
convictions for armed robbery, murder and two counts of kidnapping with
bodily injury but set aside the convictions for possession of a firearm
and aggravated assault holding these crimes merged into the crimes of
armed robbery and kidnapping with bodily injury. The Court also affirmed
the death penalty in two of the four counts for which Petitioner was
sentenced to death setting aside the death sentences for the armed robbery
conviction and one count of kidnapping with bodily injury conviction
where the victim did not die. High V. State, 247 Ga. 289 (1981). Sub-
sequently, a Petition for Writ of Certiorari was denied by the United
States Supreme Court on January 25, 1982 with a petition for rehearing
denied on March 22, 1982. ° :
Following these rulings a new execution date was set for July
6, 1982. On June 24, 1992 Petitioner filed a Motion for Stay of Execu*ion
lla
SE a
and a Petition for a Writ of Habeas Corpus in Butts County Superior Court.
The Motion for Stay of Execution was denied by this Court on June 25,
1982. On appeal the Supreme Court of Georgia granted a Stay of Execution
and remanded the case to this Court for a determination of the Petitioner's
applicaion for Writ of Habeas Corpus by an evidentiary hearing on Petitioner's
contention of ineffective assistance of counsel and other pertinent evident-
iary matters on issues raised. On Auoust 12, 1982 an evidentiary hearing
was held with Petitioner present and represented by his counsel, Bradley
S. Stetler. The Respondent was represented by Virginia H. Jeffries, Staff
Assistant Attorney General.
At the hearing Petitioner limited his evidence and argument
to the issue of ineffective assistance of counsel during the penalty
phase of Petitioner's bifuricated trial. However, the Petitioner, High,
has raised twenty-six grounds for granting relief in his habeas petition,
each of which will be addressed by this Court. In rendering this decision
the Court has considered not only the evidence presented at the hearing,
but the complet’ ‘transcript of Petitioner's trial in Taliaferro County
and numerous affidavits submitted by counsel for Petitioner.
A substantial number of the allegations listed in the petition
have previously been ruled on by appellate courts. Allegations concerning
Witherspoon violations, restricted voir dire, state paid expert assistance,
application of the doctrine of merger of crimes, the admissibility of
certain tangible evidence such as photographs and fingerprints and whether
the death sentence was arbitrarily imposed on the Petitoner have already
been ruled on by the Supreme Court of Georgia on direct appeal. The
Supreme Court has also ruled on other issues not raised in the habeas
petition such as certain jury instructions, ruling on an in camera
inspection in the presence of the jury, violation of the rule of sequestra-
tion, introduction uf a statement by Petitioner, and the refusz’ to suppress
the testimony of witness Phillips. High V. State, supra. Findings of
appellate courts are binding on this Court for purposes of review. Elrod
v. Ault, 231 Sa. 750 (1974). As each of the above named allegations have
previously been raised and ruled upon those findings are birding on this
l2a
Court and those allegations are found to be without merit.
Additionally, the Georgia Supreme Court has ruled upon whether
the High case violated the principle of law set out in Godfrey V. Georgia,
446 U. S. 420 (1985). The Court held that a death sentence based on a
Ga. Code Ann. §27-2534.1 (b) 7, aggravating circumstance, i. e. that
a murder, armed robbery or kidnapping was outrageously or wantonly vile,
horrible and inhuman in that it involved torture, depravity of mind or
an aggravated battery to the victim was justified under the facts of the
case and not a violation of Godfrey. Evidence of psychological abuse
by the defendant to the victim before death where it is shown to have
resulted in severe mental anguish to the victim in anticipation of
physical harm may amount to serious physical abuse (i. e. torture to the
victim) and will support a finding of depravity of mind of the defendant.
Hance V. State, 245 Ga. 856 (1980). This issue as well as the allegation
that Petitioner's death sentence constitutes cruel and unusual punishment
because of his age at the time of sentence were raised in the Petition
or Writ of Certiorari to the Supreme Court of the United States. Therefore,
this Court finds no merit in either of these allegations.
Petitioner has made several general allegations regarding the
constitutionality of the death penalty. Specifically, Petitioner alleges
that the death penalty is unconstitutional as cruel and unusual punishment
and that the means of execution in Georgia is harsh and outmoded. Georgia's
death penalty statute has been upheld by the United States Supreme Court.
Gregg v. Georgia, 428 U. S. 153 (1976). Petitioner has presented no
evidence or advanced any argument which would lead this Court to change
this position. ‘According, these allegations are without merit.
Petitioner alleges that the exclusion for cause of prospective
jurors unequivocally opposed to the death penalty denied him his right
to an impartial jury. This argument has been rejected in Smith ©. Balcom,
660 F. 2d. 573 (1981) and is, therefore, found to be without merit.
The Petitioner challanges Ga. Code Ann. §59-905, the preemptory
strike statute, as unconstitutional. The Petitioner alleges the state
used its preemptory strikes to systematically exclude blacks from the jury.
On direct appeal the Supreme Court of Georgia has held the defendant was
l3a
not denied due process of law by the preemotory striking of some black
potential traverse jurors. High v. State, supra. Petitioner has presented
no new evidence to show his death sentence was the result of any intentional
discrimination nor has he convinced this Court that Ga. Code Ann.359-905
violates his constitutional rights. The Court finds this allegation to be
without merit.
The Petitioner alleges that the venue of his trial should have
been changed due to extensive pre-trial publicity. The test as to whether
unfavorable newspaper (or other media publicity) has so prejudiced a case
against one accused of a crime that a fair trial cannot be had is whether
the jurors summoned to try the case have formed fixed opinions as to the
guilt or innocence of the accused from reading such unfavorable publicity.
Jarrell v. State, 234 Ga. 410 (1975). After a careful review of vior dire
this Court finds that the jurors selected had no fixed opinion as to either
the guilt or innocence of the Petitioner based on media accounts of the
crime and that a change of venue was unnecessary. This Court also finds
that Petitoner's specific allegations regarding six propective jurors who
were not struck because of their exposure to pre-trial publicity did not
deny Petitioner his right to a fair trial. 4 complete review of the vior
dire questioning of these six jurors revealed no fixed opinions. These
allegations are thus without merit. Similarly, Petitioner's alleoation
that his voir dire questioning was erroneously restricted by the Court
and that the Court erroneously allowedthe indictment to be read to the
jury panel are also without merit.
- Concerning the Petitioner's allegation that he was denied the
right to a speedy trial. The record indicates that his trial was delayed
by successful chall nges to the composition of the grand jury. These
challenges were instigated by the Petitioner and it was due to these
challenges that Petitioner did not go to trial sooner. Given these
circumstances this allegation is without merit.
Petitioner next presents several allegations under a heading
entitled denial of a fair trial. These allegations include failure of
the Court to require the state to produce certain evidence, violation
of the rule of sequestration, restriction of vior dire, failure to suppress
l4a
the testimony of witness, Henry Phillions, and the admission of prejudicial
evidence. After a review of these allegations this Court concludes that
most of these points have already been ruled on adversely to Petitioner
in High v. State, supra. Petitioner presented no evidence or argument
in favor of his position and this Court finds no merit in any of these
alleged errors.
The Petioner alleges that the trial Court erred in failing to
transcribe bench conferences between the Court and counsel after a Motion
for Complete Recordation of the Proceedings was made by Petitoner's trial
counsel. The burden was on the Petitioner to have the record completed
according to the provisions of Ga. Code Ann. §5-805 (f). Petitioner
has presented no evidence that his trial counsel was negligent in failing
to get these conferences recorded or that such conferences occurred and
were not recorded. There is, therefore, nothing for an appellate court
to review, Neal v. State, 161 Ga. App. 77 (1982) and this allegation is
without merit.
Petitioner also alleges that he has a right to state paid
assistance for habeas corpus purposes. There is no requirement that the
State assist Petitioner with funds, contrary to his assertion. Failure
to assist the Petitioner is not ‘ constitutional deprivation of rights.
Harris v. Hopper, 243 Ga. 244 (1979). Accordingly, this allegation is
without merit.
The Petitioner's next enumeration of error is that the trial
Court's instructions on presumption of intent were improperly burden
shifting in violation of Sandstrom v. Montana, 442 U. S. 519 (1979).
This Court has examined the jury charge in question and finds that the
charge complained of was not improper and that the presumptions and
inferences created were permissive ones. Ulster County Court v. Allen,
442 U. S. 140 (1979(. This Court has also examined other instructions
given during the guilt innocence phase of Petitioner's trial and finds
no error.
The Petition for Habeas relief contains two separate allegations
of improper prosecutorial comments and argument during both the guilt
15a
ome - ae.
innocence and sentencing phase of Petitioner's trial. A review of the
trial transcript has revealed no prejudice by these remarks which amounts
to a denial of constitutional due process in light of the strength of
the evidence against the Petitioner. There is a distinction between
conduct which is merely improper and condemned from that which constitutes
a denial of due process. This Court finds the prosecutor's comments
fall into the former category and are thus not so prejucicial as to render
the trial fundamentally unfair in violation of the due process clause.
Easter v. Estelle, 609 F. 2d. 756 (5th Cir. 1980). Cobb v. Waimyright.
609 F. 2d 756 (5th Cir. 1989).
The Petioner also alleges that his death sentence was unconstitu-
tionally imposed because after the Supreme Court vacated the two death
sentences for armed robbery and kidnapping with bodily injury, High v. State,
Supra., the Court failed to remand the case for resentencing on the other
death convictions. The Petitioner argues the failure to do so is in
violation of Stephens v. Zant, 631 F. 2d. 397 (5th Cir. 1989). Contrary
to this assertior, Stephens is not applicable to Petitioner's case and
this allegation is without merit. As to mitigating circumstances the
trial Court adequately instructed the jury about considering mitigating
evidence and this Court finds the charge comports with Spivey v. Zant,
661 F. 2d. 464 (1981) . |
The final and most important allegation of the Petitioner is
that trial counsel for Petitioner rendered ineffective assistance of
counsel in that this attorney failed to produce any witnesses or other
mitigating evidence in the sentencing phase of trial. Claims of ineffective
assistance of counsel must be judged by the standard that the right to
counsel means the right to effective counsel and not errorless counsel or
counsel judged ineffective by hindsight but counsel reasonably likely to
render and rendering reasonably effective assistance. Pitts v. Glass,
231 Ga. 638 (1974). MacKenna v. Ellis, 280 F. 2d. 592 (5th Cir. 1960).
The Petitioner was represented at trial by John Ruffin, an attorney
of over twenty years experience. Ruffin devoted a substantial part of his
practice to criminal trial work and had previously represented other
l6a
defendants in capital cases where the death penalty was sought. fir. Ruffin
was retained counse] and personally spent over fifty hours in preparation
for trial. Additionally, Ruffin was assisted by two legal interns (law
Students) from the Southern Poverty Law Center. As a result of his
efforts on Petition's behalf, Ruffin was able to successfully challenge
the composition of the Grand Jury.
At the habeas hearing, Ruffin was subjected to rigorous
examination by Bradley Stetler, current counsel for Petitioner, about his
handling of the sentencing phase of the trial. Ruffin testified that he
tried to produce some competent witnesses to testify in mitigation but
was unable to uncover any despite the efforts of both he and his legal
assistants. Additionally, the defendant, High and his parents, who were
actively supportive, were consulted and were unable to furnish help in
this area. In regard to placing the parents themselves on the stand durina
mitigation evidence Ruffin testified he made a conscious decision not to
do so as part of his trial strategy.
This Court is aware that Petitioner and his counsel have now
produced a number of affidavits from people who now state they would have
been willing to testify at trial during the sentencing phase. However,
as Ruffin testified, it is not unusual ‘or potential witnesses to come
forward after trial with offers of help and this this in fact did occur after
the High trial was over. It should also be noted that counsel for
Petitioner produced none of these potential witnesses at the habeas hearing ;
for more revealing direct and cross examination. In view of the testimony ;
that Ruffin was aware of the law and his obligation to produce mitigating
evidence and made a diligent effort to find such witnesses, this Court
finds that Petitioner was furnished with effective assistance of counsel
and that this ground is without merit.
Thus, after a thorough review of the petition for rit of Habeas
Corpus, a complete examination of the trial record and consideration of
all evidence presented, this Court finds that all of. Petitioner's
enumerated errors to be without merit. Additionally, this Court has
searched the record for other unenumerated errors and found none.
17a
Therefore, this Petition for Writ of Habeas Corpus is hereby denied.
This the /2 day of September, 1982.
ZL. Oana
| ys SAM L. WHITMIRE
JUDGE, SUPERIOR COURT
FLINT JUDICIAL CIRCUIT
i!
i! 18a
‘Saat Clerk’ ( fice, Supreme Court of oe
a
ATLANTA_=SL7
The motion for a rehearing -teas "ee today:
Cue Meucttaad Bek Cin t Ward. CL tA__
Yours very truly,
MRS. JOLINE B. WILLIAMS, Clerk
19a
a (a
RECEIVED
Jo. © 8 1833
ry - _ - ‘
-s- "Ss IQY¥ OFFICE OF THE CLERK
SUPREME COURT, USS.
No. 82-
IN THE SUPREME COURT OF THE UNITED STATES
October Term 1982
JOSE MARTINEZ HIGH,
Petitioner,
vs.
WALTER D. ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
MOTION FOR LEAVE TO
PROCEED IN FORMA PAIPERIS
Comes now petitioner, Jose Martinez High, by counsel,
in the above-styled action and moves this Court for leave to
proceed in forma pauperis without first being required to prepay
fees or costs or otherwise to give security therefore. In
support of this motion, petitioner states that he has been
permitted to proceed in forma pauperis at trial, on appeal to
the Georgia Supreme Court and in his collateral attack in the
state courts of his convictions and death sentence. Petitioner
attaches hereto an Affidavit in support of this motion.
Respectfully submitted,
JOSE MARTINEZ HIGH,
By Counsel
Bnaoll 5. SA
BRADLEY S. STETLER
419 Seventh Street, N.W.
- Suite 202
Washington, D.C. 20004
(202) 638-4798
_ Counsel for petitioner
*
' twelve months.
RECEIVED
vol & 8 1983
OFFICE OF THE CLERK
SUPREME COURT, U.S.
Cy
qc)
‘
’
ra
.
AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED
ON APPEAL IN FORMA PAUPERIS
a A
I, Jose Martinez High, being first duly sworn, depose an
state that I am the petitioner in the above-styied case; that
r P
"
in support of my motion to proceec in forma peuperis, I stac
th
that because of my poverty I am unable to pay the costs oO
said proceeding or tc give security therefore; anc that I
believe I am entitled to redress.
I further swear that the r “,°nses which I have made
to the guestions and instructions below relating to my ability
' to pay the cost of prosecuting this appeal are truce.
i. Are you presently employed? af <s
(a) If the answer is yes, state the amount cf your
_ Salary or wages per month and give the name and adéress of your
' employer.
(b) If the answer is no, state the date of your
last employment and the amount of the salary and wages per
month which you received. Hu (i | At La, 197-21 ban Msp
2. Have you received dismal tne past twelve months any
f income from a business, profession, or- other form of self-
f employment, or in the form of rent payments, interest, dividend
or other source? {\1&
| (a) If the answer is yes describe each source of in-
‘ come and state the amount received from each during the past
| al |
re
ore me this £7 day of
SUBSCRIBED AND SWORN TO bef
sae tas ee
otary Public “~
N
My Commission expires
G20 59
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.