Petition — BERRYHILL v. FRANCIS (No. 83-6090)
Supreme Court brief1983
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RECEIVED
No. 83-6 JAN 13 1984
OFFICE OF THE CLERK
IN THE SuPREME Court, US.
SUPREME COURT OF THE UNITED STATES
October Term, 1983
MICHAEL GENE BERRYHILL,
Petitioner,
vs.
ROBERT FRANCIS, Warden,
Georgia Diagnostic and
Classification Center
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF GEORGIA
STEPHEN G. MILLIKEN
Milliken & Van Susteren, P.C.
511 E Street, N.W.
Washington, D.C. 20001
(202) 393-7676
ATTORNEY FOR PETITIONER
QUESTIONS PRESENTED
I. Whether stricter procedural and substantive standards
should be applied by trial courts in determining whether to
| grant a change of venue motion upon the retrial of a capital
case?
Il. Whether a venireman irrevocably committed to Imposition
of the Death Penalty must be excused for cause?
III. By what constitutional standard should claims of
ineffective assistance of counsel be measured?
ode
TABLE OF CONTENTS
Questions Presented
Table of Authorities
Opinion Below
Jurisdiction
Constitutional Provisions Involved
Statement of the Case
How The Federal Questions Were Raised And Decided
Below
Reasons For Granting The Writ
I. The Court Should Grant Certiorari
To Consider Whether More Careful
Standards Should Be Applied By
Lower Courts In Resolving Change-
Of-Venue Motions Upon The Retrial
Of A Capital Case
A. In Light Of The Risk Of Substantial
Prejudice, More Careful Standards
Should Govern Change-Of-Venue Requests
In Capitsl Cases
B. If A Showing Of Actual Prejudice Is
Required To Obtain A Change Of Venue
In The Retrial Of A Capital Case, Then
Trial Courts Chould Admit Scientifically
Reliable Polls Into Evidence
Il. The Court Should Grant Certiorari
To Consider Whether A Venireman
Irrevocably Committed To Imposition
Of The Death Penalty Must Be Excused
For Cause
III. The Court Should Grant Certiorari
To Determine What Constitutional
Standard Should Be Applied To Claims
Of Ineffective Assistance Of Counsel
Conclusion
Appendix A: Opinion of the Superior Court of
Butts County, Georgia
Appendix B: Order of the Supreme Court of Georgia,
denying application for certificate
of = cause, dated September
28, 1983
Appendix C: Order of the Supreme Court of Georgia
denying rehearing
-ii-
10
13
13
13
15
16
C-1
TABLE OF AUTHORITIES
cases:
| stone Vv. etSboN v.38. , 43,
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| atkins v. Hopper, 234 Ga. 330, 216
| SSSSS-E.2d 85 (i975) Pe ee os oe 2 eee
| Beck —. nr Geils Gee GOMER es cccccsvceccesevsesveedne
| meee hill v. Georgia, U.S. , 103
x Z SG. we Ps 6 os Oe bdsenesasabeehune
| Berryhill v. Georgia, 429 U.S. 1054 (1977)......eeeeeeeeeeees
| Berryhill v. Ricketts, 242 Ga. 447, 249
.E. ), cert. denied,
ee ee ee Ot. wb badvos ce buwscavatecmnal
| Berr hill v. State, 235 Ga. 549, 221
975), cert. denied,
RO de, A MIN oe coe oc cc cob ote vcvadeuskeccbeuds
| Berryhill v. State, 249 Ga. 442, 291
| Ens .E.2d 685 (1982) Ee ee oe ee
| Blake v. Zant, 513 F.Supp. 772
PE BOGE P cack acccdccegesdsvcoveussenaeeceenneten
_| Burns ¥ Eatelie. 592 F.2d 1297, 1300
979), Aff'd., 626 F.2d
396 (1980) (en banc) So week ee CLO 6b oe 6 bbe bs 6hde ak eee
, cechren v. State, 136 Ga.App. 125, 126,
gM & ¥en erry. Sar or
' Commonwealth v. Rolison, 374 A.2d 509
| Wed ies POT eT eT TTT Te TTT eee er
Crawford Vv. power 395 F.2d 297, 303-304
8), cert. denied, 397
U. S. 936. CPUs biet whose behest ebessbn ed besebet scene
Gees ©. Seats. S79 S.0.88 B45, BOS CISTS) cccivcccsecedsssas
Davis v. Georgia, 429 U.S. 122 (1976)......... ee eee eee eee eee
| Davis v. State of Alabama, 596 F.2d 1214
Sn Cd Sr. co nn ss oak dwn aces caandan es el ¥cerwee
‘Dyer v. Crisp, 613 F.2d 275 (10th Cir. 1980)...........-eeeee
|
| Rates vw. Temes, 361 U.S. 332 CB9GS) 20. cccccccccsecessveseeees
|
|
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| i
| -iii-
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_ Gardner v. Florida, 430 U.S. 349 (1977).............
. Gregg v. Georgia, 426 U.S. 153 (1976)..........0000.
I!
Hemileon v. State of Alabama, 368 U.S.
ies “ 2 | Aer
‘Hovey v. State, 168 Cal.Rptr. 128, 616 P.2d
OI T3T0 | aay pe eibiee Sarees
_ Irvin v.§ Dowd, 366 U.S. 717 EDGR) ccc cccvccsucsccecs
Pee SOME = ba wanececsceccscesvessevececens
. v. United States, 413 A.2d 499
\MacKenna v. Ellis, 280 F.2d 592 (Sth
. Cir. 1960), cert. denied, 368 U.S.
rt.
i! BFF CEPORD oc cee cece cst en cccesccenecesccesseecie
Massey v. State, 222 Ga. 143, 149, 149
iy x E.2¢ 118, cert. denied, 385 U.S.
ee cecacdt pecs
| People v. Hughes, 52 Cal.2d 89, 94-95,
17 tal Eptr. 617, 367 P.2d 33, 36 (1961)
People v. Roe, 23 Cal.3d 412, 590 P.2d 859,
Se es Es FRO CUUPOR so stckvcwsvescdisueses
Pierce v. State, 604 S.W.2d 185 (1980)..............
Pierce v. Turner, 276 F.Supp. 289, 296
.Utah, RPP Pe Pre cet rrr ered Pred Ce er re
Pierce v. Turner, 402 F.2d 109 (10th Cir.
1968), cert. denied, 394 U.S. 950 (1969)
Pitts v. Glass, 231 Ga. 638, 203 S.E.2d
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-iv-
I State v. Sonnier, 379 So.2d. 1336 (La. 1979)..................
13
| State v. Sunday, 609 P.2d 1188 (Mont. 1980).................. 13
Stroud v. United States, 251 U.S. 15, 20-21 (1919)....... 16, 18
|
“United States v. Bosch, 584 F.2d 1113, 1122
st St peerage er a re ee rary ee ree eee 29
| United States v. Cronic, 675 F.2d 1126 (10th
2 2), cert. granted, 75 L.Ed.2d 430,
32 Cr. L. Rep. 41 5“ti95 oo ee. errr rere 19
United States v. DeCoster, 624 F.2d 196 (D.C.
| Cir. 1976), cert. denied, 444 U.S. 944 (1979)....... i oe
‘United States v. Fesell, 531 F.2d 1275, 1278
Ne ee eee ed boesaceeeee 31
| united States v. Romano, 482 F.2d 1183, 1196
i t 2 a. 73), cert. denied,
| ee. a ad ot ake haa oo ak Oe aia eae bok Ooo oe wee 30
, Mashin ton v. Strickland, 693 F.2d 1243 (llth
tt 19872) (en banc), cert. granted, 33 12, 19, 20
| Cr. L. Rep. 4073 (U.S. June 6, 1983)...........- 21, 29, 32
_ Witherspoon v. Illinois, 391 U.S. 510, 522 (1968).... 16, 17, 18
Woodson v. North Carolina, 428 U.S. 280 (1976)............... 22
Woods v. State, 233 Ga. 495, 501, 212 S.E.2d ‘
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Other Authorities:
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Constitutional Provisions and Stacuces:
United States Constitution 2, 38. Bao
EIT OCCT CPE TT Cr re 19, 20, 21, 31
} United States Constitution
SE saws ce venssecewese’s adda eueevee wen 19, 21
} United States Constitution
| ee I , i ond wees dunes ee eceue dees 2, 24%, 89. ae
| Other:
| American Psychiatric Association Diagnostic
and Statistical Manual of Mental Disorders,
| Third Edition (Washington, D.C., APA,
| Pc cates <cduces ns auee vee bk bes aes besa 6 hae eae 23, 26
-Ve-
No. 83-
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1983
MICHAEL GENE BERRYHILL,
Petitioner,
| 1
ROBERT FRANCIS, Warden,
Georgia Diagnostic and
Classification Center
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF GEORGIA
Petitioner Michael Gene Berryhill respectfully prays that
a writ of certiorari issue to review the judgment of the Supreme
Court of Georgia in this case.
CITATION TO OPINION BELOW
The unreported opinion of the Superior Court of Butts
County, Georgia and the orders sf the Supreme Court of Georgia
are annexed hereto as Appendices A - C.
JURISDICTION
The judgment of the Supreme Court of Georgia was rendered
on October 18, 1983. The jurisdiction of this Court is invoked
pursuant to 28 U.S.C. §1257(3), petitioner having asserted below
\ and asserting herein deprivation of rights secured by the
Constitution of the United States.
| on September 28, 1983. A timely petition for rehearing was denied
_ of the United States, which provides in relevant part:
CONSTITUTIONAL PROVISIONS INVOLVED
This case involves the Sixth Amendment to the Constitution
"In all criminal prosecutions, the
accused shall enjoy the right to a
speedy and public trial, by an impar- |
tial jury...and to have the Assistance
of Counsel for his defence;"
and the Fourteenth Amendment to the Constitution of the United
States, which provides in relevant part:
“[NJor shall any State deprive any
person of life, liberty, or property,
without due process of law; nor deny to |
any person within its jurisdiction the
equal protection of the laws."
STATEMENT OF THE CASE
Petitioner, Michael Gene Berryhill, seeks a writ of certiorari
' from this Court to the Supreme Court of Ceorgia to review a
decision of that Court upholding 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 convictions of armed
robbery and murder and a sentence of death imposed upon him by the
was denied his right to a fair trial before an impartial jury and
stste of Georgia in violation of his righte guaranteed by the |
' Constitution of the United States. He sought to vacate his
convictions and sentence of death alleging, inter alia, that he
the effective assistance of counsel at trial as weli as at the |
penalty phase of his capital trial.
George C. Hooks, Jr. was a prominent businessman and civic
leader in the south central Georgia town of Cartersville, Georgia..
His murder in 1974 received extensive publicity in the Carters-
ville and Bartow County press. The eventual arrest of a suspect
and later developments in the case were given wide publicity.
| The Bartow County Herald Tribune of November 27, 1974, for
example, included a front page, headline article announcing the
arrest of Michael Gene Berryhill and another article listing the
members of the traverse jury who would try him for murder. Wide-
spread publicity attended petitioner's Bartow County trial,
| including detailed accounts of the facts alleged by the State as
well as the testimony of most witnesses. On January 9, 1975,
petitioner was convicted of felony murder and armed robbery. The
following day he was sentenced to die by electrocution. The
| Supreme Court of Georgia affirmed. Berryhill v. State, 235 Ga.
549, 221 S.E.2d 185 (1975) and this Court subsequently denied a
petition for certiorari. Berryhill v. Georgia, 429 U.S. 1054
~ (1977).
_to delay a ruling on the motion until after the voir dire was
complete. Petitioner sought to strengthen his change-of-venue
After an unsuccessful attempt to obtain state habeas corpus
relief, see Berryhill v. Ricketts, 242 Ga. 447, 249 S.E.2d 197
(1978), cert. denied, 441 U.S. 967 (1979), the United States
District Court for the Northern District of Georgia granted
petitioner habeas corpus relief on May 13, 1980, reversing his
convictions and sentence.
Petitioner was subsequently re-indicted in Bartow County for
the same offense. In June of 1981, jury selection began for his
retrial. Petitioner filed a timely motion seeking a change of
venue from the small rural county in which he had previously been
tried, convicted, and sentenced to death. The trial judge chose
motion by the introduction into evidence of a public opinion poll.
| Petitioner produced as witnesses the experts who conducted the |
poll, and filed a memorandum in support of his motion. The trial |
judge refused to allow the poll as evidence bearing upon the
change of venue issue. Petitioner also filed a motion for an
| individual sequestered voir dire. The trial court permitted
| individual voir dire but refused to permit sequestration.
An examination of the voir dire reveals that of the 102 |
prospective jurors called, 59 veniremen were individually examined.
| Although the first trial had occurred six years before the re- !
| trial, 78 percent of those individually examined remembered reading
| or hearing the facts of the case, including the previous verdict. |
| Moreover, 42 percent said they had heard friends or neighbors |
| express opinions that the petitioner was guilty. Forty-two
| |
| Percent also stated or implied that they too felt petitioner was |
| guilty. Some jurors were quite frank about their bias:
| "Q. Do you have an opinion here today
as to which side shali win this case
based on what you have heard up until
now? When I say “which side" I mean
either the State or the Defendant?
Mr. Curtis: Well, if he did it the State
will win.
Q. All right, but do you have an opinion
yet as to whether or not the Defendant
is guilty or whether or not he did it?
Mr. Curtis: He must have did it. If he
didn't he wouldn't be in here."
(Trial Transcript, 295-96)
An exchange with another prospective venireman was similar:
"Q. All right, based on what you and I have
just talked about rather generally es far
as conversation of people which involves
discussing the facts, discussing opinions,
guilt or innocence and what punishment is
pe 6 fag based on all three of those
things do you think you have found an
opinion in your mind as to whether or not
he is innocent or guilty?
Mr. Dye: I did at the beginning.
Q. Do you still have that opinion in your mind?
Mr. Dye: I will have that opinion until the
defense proves otherwise."
A third exchange exemplifies the attitudes of many prospective
| jurors:
|
|
| "Q. Have you had consultations with your
friends and family about the case?
Mr. Herrin: Yeah, it has been discussed. |
Q. All right, has it been constantly or
fairly well spread out since the “-
| original incident or was it at one
particular time?
Mr. Herrin: I think it was, more or less,
when it first happened and then
when the situation came up where
| they were ro to have to have
! a new trial here there was some
! discussion about it then.
Q. Talk flared up on it again?
Mr. Herrin: Uh-huh [yes].
Q. Now in these conversations that you
have had with people, have people
expressed their opinions to you as
to his guilt or innocence?
Mr. Herrin: Yes.
Q. And what were those opinions?
Mr. Herrin: Guilty.
Q. Any opinion been expressed to you as to
what punishment he should get?
Mr. Herrin: Yes.
Q. What were those opinions?
Mr. Herrin: The electric chair
Q. Now based on your hearing all these
opinions have you formed an opinion
in this case as to guilt or innocence?
Mr. Herrin: No sir. You know, I'm like Mr.
Summey. I think when the first
| trial, there was something to it
that he was convicted, and then
due to some legal technicality,
as I understand it, is the reason
we are up here again."
(Trial Transcript, 210-11)2/ |
1 Wnite the two former veniremen were excused for prejudice, the
latter was not, the trial judge having accepted the jurors’
declaration of impartiality. The court's refusal to strike such
. jurors was not rare. Although 42 percent of the veniremen stated
' or implied an opinion as to the petitioner's guilt, only 8 ee
cent were excused because of prejudicial opinions as to guilt.
On June 2, 1981, venireman Herschell F. Higgins was called
| for voir dire examination (Trial Transcript at 627). Mr. Higgins
| asserted that he was definitely in favor of the death penalty and
_ that he would always vote to impose the death penalty in every
case where life was taken and the law permitted a sentence of
dea*h. (Trial Transcript at 635). When questioned by the trial
court as to whether he would consider the evidence under the law
as charged by the judge, Mr. Higgins stated he would but again
asserted that he would vote for the death penalty if the law
allowed it (Trial Transcript at 636). The frank answers of Mr.
Higgins when asked whether there might be circumstances when a
person convicted of murder should receive a life sentence reveal
an unwavering bias in favor of execution.
"Mr. Higgins: If that person has taken
life he should be responsible
for it. He should be -- If
the facts proved in evidence
that he did the murder I would
vote for it.
Defense Counsel: In every circumstance.
Mr. Higgins: If the facts were there accord-
ing to state law.
Defense Counsel: Even if the law would direct
you to the contrary would you
return a death sentence in
every case? If the law gave
you the chance to go one way
or the other you always impose
the death penalty?
Mr. Higgins: If there was a life involved, yes,
sir."
(Trial Transcript at 637)
The voir dire resulted in the selection of a jury of twelve,
eleven of whom knew the facts of the case and three of whom had_ |
_ an opinion as to petitioner's guilt. Following their selection,
| petitioner renewed his motion for a change of venue. The motion
| was denied and the trial began fifteen minutes later (Trial
|
Transcript, at 818). |
|
_to Marietta and obtained some guns (Trial Transcript 897, 898,
Id. Mrs. Hooks saw an intruder wearing a stocking mask and
At the trial on the issue of petitioner's guilt or innocence,
the jury heard evidence that, on October 7, 1974, petitioner, a
Cobb County resident, drove to Dalton, Georgia to investigate
purchasing an automobile (Trial Transcript 1083-85). On the way
back he stopped in Cartersville to visit Jerry Ray Lane (Trial
Transcript 897, 1085). Together they picked up an acquaintance
|of Mr. Lane's named Allen Vaughn whereupon the three proceeded
|
| 1087). The group returned to Cartersville hoping to sell the guns.
|
One weapon was so disposed (Trial Transcript 1087-1088). Mr.
|, Vaughn was dropped off and did not figure in the events to follow
(Trial Transcript 1089). With Mr. Lane, petitioner then travelled
to a local store where he purchased ammunition (Trial Transcript
1089, 1090). The two rode around burglarizing several homes
during the evening (Trial Transcript 1091). During most of the
day and evening Petitioner was drinking wine and sniffing a sub-
stance called "Blair" (Trial Transcript 1083, 1088, 1091). Later !
in the evening, Mr. Lane and petitioner picked out a house at
random to burglarize, the house of Mr. George C. Hooks, Jr.
(Trial Transcript 1093). Mr. and Mrs. Hooks were at home with
their two children when the following events occurred as related
by Mrs. Hooks.
The doorbell rang at about 10:30 p.m., and Mr. Hooks went
downstairs (Trial Transcript 846-847). Mrs. Hooks heard conversa-
tion, ther the sound of breaking glass and other noise. Mr.
Hooks called to her to telephone the police, which she did (Trial
Transcript 847-848). Mr. Hooks then ran into the bedroom and
closed the door (Trial Transcript 848). A shot came through the
door (Trial Transcript 849). Mr. Hooks stumbled into the hall.
holding a gun (Trial Transcript 850). The intruder began
demanding money (Trial Transcript 851). The intruder then
853). As she was being led back up the stairs, the intruder
the hall while Mrs. Hooks looked for money (Trial Transcript
- 851-852). The intruder then shot Mr. Hooks as he lay on the
: floor (Trial Transcript 852). Mrs. Hooks led the intruder down
entered the bedroom, tore out the telephone and came back into
|
the stairs, found some money and gave it to him (Trial Transcript
called out a name and th . ran out the door (Trial Transcript
| 853-854). |
Thereafter the police and an ambulance arrived (Trial Trans-
cript 872, 938). Mr. Hooks died in the hospital a short time
later. Both Mrs. Hooks and her son, Steven Hooks, identified
petitioner in court as the intruder (Trial Transcript 855, 870).
Taking the witness stand in his own defense, petitioner
_ testified that he had been sniffing first glue, and then Blair
(a plastic aerosol spray used by artists) since he was about
thirteen years of age (Trial Transcript 1083). On the day of
' 1096, 1098). Petitioner testified that the child reminded him of
the incident petitioner had been drinking wine and sniffing Blair
throughout the day and evening (Trial Transcript 1083, 1088, 1091).
petitioner further testified that he and Mr. Lane had chosen the
Hooks’ home to burglarize at random and that they were going to
ting the doorbell and burglarize the residence only if no one was
home (Trial Transcript 1094). Petitioner testified to his diffi-
culty in remembering exactly what occurred since he had trouble
separating his actual recollection from what he had since heard
had actually happened (Trial Transcript 1095). Petitioner recalled
tinging the doorbell and remembered seeing Mr. Hooks come down the
stairs as well as breaking the glass panes around the door (Trial
Transcript 1095, 1097). He remembered seeing Mr. Hooks on the |
floor leaning against the wall, seeing the boy, Steven Hooks, in |
the hallway, and demanding money of Mrs. Hooks (Trial Transcript
his cousin, and startled, he turned to leave when Mr. Hooks
reached up for petitioner and the gun went off (Trial Transcript
1098). Petitioner testified that he did not intend to kill Mr.
Hooks (Trial Transcript 1100). Petitioner left the house and
discovered Mr. Lane had left in the car (Trial Transcript 1099). |
He wandered around town until he located the Lane house where he
spent the night (Trial Transcript 1099).
Petitioner returned home and soon thereafter left the state. |
Following his November, 1974, apprehension by State of Missouri
authorities, petitioner was returned to Georgia (Trial Transcript
1131).
The jury rejected petitioner's defense of insanity and found
him guilty of felony murder and armed robbery (Trial Transcript
' 1294).
During the sentence phase, the State introduced in aggrava-
tion petitioner's criminal record and a film interview with
, petitioner while in prison (Trial Transcript 1131-1315). In
mitigation, petitioner introduced a second film interview with
petitioner and nine witnesses, including himself, who testified
to petitioner's conversion to Catholicism and his exemplary
behavior while in prison (Trial Transcript 1318-1410).
During its deliberations at the sentencing phase, the jury
returned to the courtroom three times for additional information
indicating that they were deadlocked (Trial Transcript 1492, 1496,
| 1501, 1503). After twenty-seven (27) hours, a verdict was
| rendered sentencing Petitioner to death by electrocution (Trial
Transcript 1506).
The Supreme Court of Georgia affirmed petitioner's conviction.
and sentence of death on May 18, 1982. Berryhill v. State, 249
Ga. 442, 291 S.E. 2d 685 (1982). Petitioner thereafter filed a
timely Petition for Writ of Certiorari before the United States
Supreme Court which was denied on November 1, 1982. Berryhill v.
Georgia, _—iU:..S.. » 103 S.Ct. 317, 74 L.Ed. 2d 293 (1982).
ain
| The Petition for Rehearing was denied on January 10, 1983. |
Berryhill v. Georgia, v.38. , 2403 $.Ce. 773, L.Ed.2d
(1983).
Michael Berryhill's petition for a writ of habeas corpus was |
heard on February 14, 1983 and was denied by order of the Superior!
Court of Butts County, Georgia, filed on August 3, 1983. dapendiz'
A. |
Petitioner's timely application for a certificate of probable
cause was denied by the Supreme Court of Georgia on September 28,
1983. Appendix B. Rehearing was denied by the Georgia Supreme
| Court on October 18, 1983. Appendix C.
HOW THE FEDERAL QUESTIONS
WERE RAISED AND DECIDED BELOW
1. Prior to his retrial, petitioner filed a "Motion for |
Change of Venue."' The trial judge delayed a ruling until after :
voir dire. On June 3, 1981, after the selection of the jury,
petitioner argued to the trial court that this motion should be
granted, since prejudicial pre-trial publicity had endangered his
constitutional right to a fair trial by an impartial jury (Trial
Transcript 812-814). Petitioner was allowed to place into the
record several newspaper articles about the petitioner's trial
history. These articles were introduced in order to show community
prejudice. Petitioner also introduced a set of satistics summa-
|" rizing the results of the voir dire in an effort to show the
| actual prejudice of the veniremen and jurors. The trial judge
_ denied the motion for change of venue, because he felt the news
“articles alone were insufficient evidence of community prejudice,
'and because most veniremen with opinions as to petitioner's
_ guilt said that they could lay their opinions aside. As discussed.
' above, the trial judge refused to consider a public opinion poll
|
in his deliberations on the venue motion. |
-10-
On May 29, 1981, petitioner moved for an opportunity to
introduce the resuii.s of a public opinion poll, conducted by the
University of Georgia School of Journalism in support of his
change of venue motion. The motion was denied and the poll ex-
cluded even though expert pollsters indicated that the poll was
statistically reliable and consistent with professional ethics
and practices. (Transcript of Hearings of May 25, 1982, at 23-41,
and May 29, 1982 at 5-43). Petitioner contended that the poll !
demonstrated the high level of community prejudice against him
and therefore should have been admitted into evidence at the venue;
hearing. Since the judge did not allow authentication or admit-
tance of the poll, he failed, in effect, to protect the peti-
tioner's right to due process and his right to trial by an
impartial jury.
On appeal, petitioner alleged in his Enumeration D that
the trial court erred in refusing to grant appellant's motion for |
change of venue and erred in failing to consider the results of
the poll. Petitioner argued that the circumstances of this case
were inherently prejudicial to his Sixth Amendment right to an
impartial jury. The Georgia Supreme Court disagreed, holding
that "motion for change of venue lies within the sound discretion
of the trial judge" and that no abuse of discretion existed in
this case. The Georgia Supreme Court further ruled that even if
the poll had been considered petitioner would not have been
entitled to a change of venue.
Petitioner alleged in peragraphs 21-27 of his petition
for a writ of habeas corpus that the trial court's failure to
grant a change of venue violated his right to a fair trial before
an impartial jury. The Superior Court relied on the findings of
fact and conclusions of law of the Georgia Supreme Court in
denying relief. Berryhill v. Francis, A-10.
| 2. Petitioner's trial counsel's motions to strike Mr. Higgins
for cause were thrice denied (Trial Transcript at 635-36; 637-38;
638). On appeal, petitioner alleged in his Enumeration F that he
| must be granted a new trial for the trial court's refusal to
| strike for cause a prospective juror irrevocably committed to a
| sentence of death in all cases where a life has been taken,
| Tegardless of the evidence.
| The Georgia Supreme Court disagreed on the basis of the
| prospective juror's response "...that he would follow the law and
evidence..." despite the venireman's there repeated assertion
| that he would nevertheless vote for the death penalty if the law
! atlowed st.
Petitioner alleged in paragraph 30 of his petition for
_@ writ of habeas corpus ‘hat he was denied a fair trial by the
court's refusal to strike for cause a venireman irrevocably
commited to the death penalty. The Superior Court relied on the
| conclusion of the Georgia Supreme Court in denying relief.
Berryhill v. Francis, A-ll.
3. Petitioner alleged in paragraphs 18-20 of his petition
for a writ of habeas corpus that he was denied the effective
assistance of counsel both at the trial and sentencing phases of
his trial. The Superior Court held that petitioner was provided
| effective assistance of counsel applying the standard set out in
|MacKenne 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 rendering reasonably effective assistance." Ferryhill v.
| Francis, A-6. The Superior Court cited generally, Washington v.
Strickland, but made no comment concerning the conflict in
standards, setting forth only the Georgia standard. Cf. A-6 and
| A-7. |
a |
REASONS FOR GRANTING THE WRIT
I.
THE COURT SHOULD GRANT CERTIORARI
TO CONSIDER WHETHER MORE CAREFUL
STANDARDS SHOULD BE APPLIED BY
LOWER COURTS IN RESOLVING CHANGE-
OF-VENUE MOTIONS UPON THE RETRIAL
OF A CAPITAL CASE
| A. In Light Of The Risk Of Substantial Prejudice,
More Careful Standards Should Govern Change-Of-
Venue Requests In Capital Cases
This Court has long recognized that excessive pretrial
publicity can have a prejudicial effect upon jurors in a criminal
trial. See, e.g., Irvin v. Dowd, 366 U.S. 717 (1961); Rideau
_v. Louisiana, 373 U.S. 723 (1963); Estes v. Texas, 381 U.S. 532
(1965); Sheppard v. Maxwell, 384 U.S. 333 (1966). The Court
in each of these prior opinions has cautioned that pretrial
accounts of a case can create a wave of public passion inherently
prejudicial to a defendant. However, in Murphy v. Florida, 421
U.S. 794 (1975) this Court held that in order for a petitioner
to show that he was deprived of a fair trial by an impartial
jury, he must ordinarily "show that the setting of the trial
was inherently prejudicial or that the jury selection process of
which he complains permits an inference of actual prejudice."
421 U.S. at 803. Murphy has led many judges to conclude that
prejudicial conditions do not exist unless news publicity has
, been wildly inflammatory; and thus factual news articles have
|
|
|
not been perceived as increasing the level of public passion.
See, e.g., Mooney v. State, 243 Ga. 373, 254 S.E.2d 337 (Ga.
1974), State v. Sunday, 609 P.2d 1188 (Mont. 1980), State v.
Sonnier, 379 So.2d 1336 (La. 1979), Commonwealth v. Rolison,
374 A.2d 509 (Pa. 1977). Under Murphy, some trial courts have
disregarded the fact that even factual information can nurture
a subtle, yet pervasive community prejudice which deprives a
ofS
' defendant of his Sixth and Fourteenth Amendment rights.
This problem is particularly acute in the retrial of
| capital cases, where a community may well have been exposed not
only to the facts of the case, but also to a jury's judgment on
the appropriate sentence to be employed. The knowledge that a
jury had previously sentenced the same person to death will lead
| some veniremen to form a strong opinion as to the appropriate
| punishment which the community should impose:
“With such an opinion permeating their minds,
| it would be difficult to say that each could
i exclude this preconception...from his
deliberations. The influence that lurks
in an opinion once formed is so persistent
that it unconsciously fights detachment from
the mental processes of the average man."
Irvin v. Dowd, supra, 366 U.S. at 727.
Thus when a capital juror is asked on retrial whether he or
she can lay aside their opinions and render a verdict based on
the evidence, as the law requires, an affirmative response is
not necessarily true. As the Court stated about similar jurors
in Irvin v. Dowd, supra, 366 U.S. at 728,
"No doubt each juror was sincere when he
said that he would be fair and impartial
to petitioner, but the psychological impact
requiring such a declaration before one's
fellows is often its father."
This Court has previously insisted that trial courts ensure that
a defendant not be unfairly disadvantaged by community prejudice:
"Given the pervasiveness of modern communica-
tions and the difficulty of effacing preju-
dicial publicity from the minds of the jurors,
the trial courts must take strong measures to
ensure that the balance is never weighted
against the accused."
Sheppard v. Maxwell, supra, 384 U.S. at 362
(emphasis supplied).
On the retrial of a capital case, a stricter standard is
| Tequired to ensure that prejudicial attitudes will not deny the
accused a fair trial by an impartial jury or deprive him of his
| ite without due process of law. See generally, Gardner v.
|
' Florida, 430 U.S. 349 (1977); Beck v. Alabama, 447 U.S. 625
' (1980). Petitioner submits that when prospective jurors state
a
‘that they have opinions as to a defendant's guilt, have knowledge
lof the prior sentencing verdict in the case, or have knowledge of
a community presumption of the appropriate sentence, community
|prejudice should be presumed. Similarly, where a public opinion
| poll or other social science evidence indicates such community
I
j attitudes, prejudice should be presumed.
'B. If A Showing Of Actual Prejudice Is Required To
Obtain A Change Of Venue In The Retrial Of A
Capital Case, Then Trial Courts Should Admit
| Scientifically Reliable Public Opinion Polls
Into Evidence ;
| Currently, no uniform judicial standards govern the circun-
stances in which public opinion polls should be admitted in
, criminal proceedings. 76 ALR 2d 632 §11.
However, where a defendant is being retried for a capital
lettuce. teliable, scientifically gathered information about
| Community prejudice is highly relevant to whether venue should
| be changed. To ignore reliable social science evidence that
| community prejudice exists is equivalent to an abandonment of the
judicial duty to protect a defendant's right to due process of
law and a fair trial by an impartial jury. As Justice Black has
| stated:
“A fair trial in a fair tribunal is a basic
Tequirement of due process. Fairness of
course requires an absence of actual bias
in the trial of cases. But our system of law
| has always endeavored to prevent even the
trobability of unfairness."
Re Murchison, 349 U.S. 133, 136 (1955)
Cemphasis supplied).
| Thus, if the Court were to hold that defendants, in the
|
retrial of capital cases, must show actual prejudice before a |
change of venue is required, then trial courts should be required
| to admit statistically reliable public opinion polls into evidence |
at change of venue hearings.
bi _
Il.
THE COURT SHOULD GRANT CERTIORARI
TO CONSIDER WHETHER A VENIREMAN
IRREVOCABLY COMMITTED TO IMPOSITION |
OF THE DEATH PENALTY MUST BE EXCUSED |
FOR CAUSE
This Court has long recognized that a venireman should be
excused for cause if from his responses during voir dire it is
reasonably certain that in the event of conviction for a capital |
offense, he would render no verdict at the punishment phase of
trial other than one requiring execution. Stroud v. United States,
251 U.S. 15, 20-21 (1919). |
More recently, in Witherspoon v. Illinois, 391 U.S. 510,
522 (1968), this Court held that
"...@ sentence of death cannot be carried out
if the jury that imposed or recommended it was
chosen by excluding veniremen for cause simply
because they voiced general objections to the
death penalty or expressed conscientious or
religious scruples against its infliction.''2/
The rule in Witherspoon requires that a venireman "...be willing
to consider all of the penalties provided by state law, and that
he not be irrevocably committed..."' to a sentence of death. Id.
at fn. 21 (emphasis in original). Only those prospective jurors
opposed to the death penalty in all circumstances, regardless of
_ the evidence must be excused for cause. Ibid. In Davis v.
| Georgia, 429 U.S. 122 (1976) this Court held that to exclude one
venireman on grounds at variance with the Witherspoon standard
| was fatal, even though the government may have gone to trial with |
one peremptory challenge unexercised. See also, Burns v. Estelle,
592 F.2d 1297, 1300 (5th Cir. 1979), Aff£'d, 626 F.2d 396 (1980)
(en banc).
2/the doctrine announced in Witherspoon applies with equal force
to bifurcated capital sentencing procedures. Adams v. Texas,
448 U.S. 38, 45, 49-50 (1980).
-16- . |
The Witherspoon rationale that one who is irrevocably
committed prior to trial cannot be a fair and impartial juror as
required by the Sixth Amendment must be applied with at least as |
great force where a venireman is irrevocably committed to s
sentence of death as in the case of a prospective juror unalterably
| opposed to such a penalty. To say otherwise would defeat the :
| constitutional command of impartiality by favoring death prone
| tribunals over those favoring life imprisonment.
A grant of certiorari is called for here as the Decision of
the Georgia Supreme Court conflicts with decisions of other state
| and federal courts which have considered this question.
The following passage from Witherspoon v. Illinois, supra,
391 U.S. at 522 fn. 20, reveals the United States Court of Appeals”
for the Fourth Circuit's conflict with the decision of the Georgia
Supreme Court:
"...the decision whether a man deserves to live
or die must be made on scales that are not de-
liberately tipped toward death. It was in part
upon such a premise that the Fourth Circuit
recently invalidated a North Carolina murder
conviction, noting that a juror who felt it his
“duty” to sentence every convicted murderer to
death was allowed to serve in that case, "while
those who admitted to scruples against capital
punishment were dismissed without further in-
terrogation." This "double standard", the court
concluded, “inevitably resulted in [a] denial of
due process.'' Crawford v. Bounds, [395 F.2d 297,
303-304 (4th Cir. 1968), cert denied, 397 U.S.
936 (1970)].
| Similarly, a number of decisions from the State of Texas are
, in conflict with the decision of the Georgia Supreme Court. In
| Smith v. State, 573 S.W.2d 763, 766 (1977) the court ruled that
| denial of a defendant's challenge of a prospective juror for
| cause in a death penalty case required reversal where voir dire
examination revealed the juror held strong convictions that
death was the only punishment appropriate for one convicted to
| taking another's life, even though the juror said he was willing
to require the government to prove beyond a reasonable doubt each
| issue submitted at the punishment stage. And in Cuevas v. State,
° | 575 S.W.2d 543, 546 (1979), the Court held that where, although
! the prospective juror stated that he could base his answers on
|
| evidence, his previous statements showed unwillingness to consider
life imprisonment, as opposed to capital punishment, unless defense
| of insanity was proven, defendant's challenge for cause in a
| homicide prosecution, was improperly overruled, and reversal of
| conviction was Tequired. The recent case of Pierce v. State, 604
| S.W.2d 185 (1980) also supports the constitutional deprivation |
argued here as it considers a venireman who freely and unambigu-
ously stated he would consider no punishment other than death.
| Reversal was required for the trial court's refusal to strike
for cause. |
The decisions of the California Supreme Court are also in
conflict. See Hovey v. State, 168 Cal. Rptr. 128, 616 P.2d 1301,
1310 (1980)(Jurors who would automatically vote for the death
penalty must be removed for cause) relying on People v. Hughes,
52 Cal. 2d 89, 94-95, 17 Cal. Rptr. 617, 367 P.2d 33, 36 (1961)
(Immutably established opinion in favor of invariably selecting
the death penalty establishes actual bias supporting a challenge
for cause). This Court should, accordingly, grant review of
this case to resolve the conflict arising from divergent appellate
| decisions concerning jury selection in death penalty cases.
When a prospective juror professes an absolute opinion in
| favor of the imposition of the death penalty in a capital case,
| "...he could appropriately be described as prosecution-prone and
| Wainwright, 578 F.2d 582, 594 (Sth Cir. 1978) citing, inter alia,
|
| would properly have been struck for cause." Spinkellink v. |
|
| Witherspoon v. Illinois, supra, 391 U.S. at 521; and, Stroud v.
| Unite) States, supra, 251 U.S. at 20-21.
IIl.
THE COURT SHOULD GRANT CERTIORARI
TO DETERMINE WHAT CONSTITUTIONAL
STANDARD SHOULD BE APPLIED TO CLAIMS
OF INEFFECTIVE ASSISTANCE OF COUNSEL
This Court should issue a writ of certioreri to decide e
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 Fourteenth Amendments
to the United States Constitution.
In two cases docketed last term this Court has granted
certiorari on very similar questions concerning the standards
for evaluating claims of ineffective assistance of counsel. 3/
| Argument was heard in those cases on January 10, 1984. Petitioner
requests that this Court grant certiorari and defer consideration |
of this case pending issuance of opinions in Washington and
Cronic.
Although this Court has observed that the Sixth Amendment's
right to counsel includes the right to effective assis.ance
“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.
3/Washington Vv. Strickland, 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 over-
ruling 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.
9), applied correct standard for Teview of claims of
ineffective assistance of counsel).
United States v. Cronic, 675 F.2d 1126 (10th Cir. 1982), cert.
ranted, 75 L.Ed.2d 430, 32 Cr. L. Rep. 4193 (February 22,
tausetion presented whether court of appeals correctly reversed
defendant's convictions on ground that he did not receive effec-
tive 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).
~~
-19-
The Supreme Court of Georgia, in deciding petitioner's claim
: of ineffective assistance of counsel, applied the standard it had
/
and which is utilized by the United States
5/
_ previously adopted+
Court of Appeals for the Fifth Circuit: 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. Strickland, which requires a habeas
petitioner to demonstrate that counsel's ineffectiveness "worked
to his actual and substantial 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 or’y if the incompetence rendered the proceedings a
/
“farce and mockery of justice. "2! The inquiry in other jurisdic-
tions has been whether there was "gross incompetence of counsel
which in effect blotted out the essence of a substantial defense, "2/
whether counsel has exercised the "skill, judgment and diligence
19/
of a reasonably competent defense attorney, whether the accused
was represented by a "reasonably competent attorney acting as a
4/ pitts v. Glass, 231 Ga. 638, 203 S.E.2d 515 (1974).
2/mackenna v. Ellis, 280 F.2d 592, 599 (Sth Cir. 1960), cert.
| denied, 365 U.S. 877 (1961).
| B/ See Erickson, Standards of Competency for Defense Counsel in a
Criminal Case, 17 Am. Cr. L. Rev. 233 tO 75)-
1/see Slayton v. Weinberger, 213 Va. 630, 194 S.E.2d 703 (1974);
Erickson, supra at 239 n. 53.
8/ johnson v. United States, 413 A.2d 499, 504 (D.C. App. 1980).
9/5 er v. Crisp, 613 F.2d 275, 278 (lOth Cir. 1980); State v. |
Orona, 635 aL 1077 (N.M. 1982). |
-20-
diligent conscientious advocate, "22/ or whether there has been
“serious incompetency” that falls “measurably below the perform-
ance ordinarily expected of fallible lawyers" that "likely"
1 .22/
affected the outcome of the tria
As noted, this case presents policy questions pertaining to
|
_the proper standard for the effective assistance of counsel similar
to those presented in Washington v. Strickland. Certicrari should.
be granted, therefore, to ascertain whether the habeas court and
Supreme Court of Georgia applied tiie proper standard in evaluating
counsel's competency under the Sixth Amendment. iet, 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 pro-
ceeding 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 considered ineffective at sentencing under the Georgia standard
despite counsel's failure to investigate and present mitigation
evidence based upon drug induced psychosis then it would seem
appropriate for this Court to establish that in capital cases,
the Eighth Amendment, together with the Sixth and Fourteenth,
impose a high standard of reasonableness and require that a
convicted defendant's counsel be subject to strict scrutiny.
10/cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir. 1978);
' People v. Roe, al.3d 412, 423, 590 P.2d 859, 865, 152 Cal.
Rptr. 732, 738 (1979).
11/United States v. DeCoster, 624 F.2d at 206 (opinion of Leven-
, thal, J.). j
-2l-
ing difference in the need for reliability in the jury's determina-
_ commission of the charged offenses.
| petitioner's chronic history of substance abuse of the inhalant
Blair in combination with alcohol; the bizarre behavior exhibited
capital punishment to be imposed. There is a qualitative
Indeed, this heightened scrutiny of defense counsel's service
is one of the very conditions under which this Court has allowed
difference between death and life imprisonment, and a correspond-
tion that death is the appropriate punishment in a specific case.
Woodson v. North Caroline, 428 U.S. 280 (1976). This necessary
reliability is undermined in the absence of a strict and demanding
teview of defense counsel's performance.
Petitioner's counse!l failed to properly investigate and pre- |
sent a defense of insanity on behalf of petitioner based on an 9
organic mental disorder resulting from chronic substance abuse
and giving rise to drug induced psychosis at the time of the
Numerous lay witnesses were presented who testified to
|
|
at the time of the offense; his lack of recollection of particular
events on the date of the offense; prior occasions of irrational
behavior while under the influence of inhalants; and behavior
evidencing paranoia and delusional thought processes.
For approximately ten years prior to the October 7, 1974
offense, since petitioner was thirteen years of age, he had been
inhaling first glue and then a substance called "Blair" on a
regular basis (Trial Transcript 1083). Petitioner used Blair
for several years prior to the offense on trial and on most
days (approximately four out of seven days a week) petitioner was
in the habit of sniffing Blair over a ten to eleven hour period
| each day (Trial Transcript 1084). Petitioner regularly abused |
the inhalant Blair throughout the day (Trial Transcript 1083-1084).
|
Petitioner, despite his lengthy criminal record, was unable, when |
asked on cross-examination, to recount one instance of trouble he
|
|
o22- |
|
|
|
|
|
|
|
|
had been in other than when he was drinking or sniffing an
inhalant (Trial Transcript 1110). The duration of petitioner's
disturbances resuiting from substance abuse stretched over the
ten years preceding the offense of October 7, 1974. Glue, and
inhalants generally, are specifically recognized as giving rise
to substance use disorders and resultant organic mental disorders.
American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders, Third Edition (Washington, D.C., APA,
1980) (hereinafter "DSM-III") Category 305.9x, p. 179.
Jerry Ray Lane, petitioner's accomplice, testified as a
_ state witness that petitioner was spraying something in a paper
bag and sniffing it "...e11 day, the whole time" on the date of
_ the subject offenses (Trial Transcript 900). Additionally,
petitioner was steadily drinking wine and continued inhaling from |
his paper bag the whole day (Trial Transcript 906, 912, 923).
_ Lane testified that petitioner was "...acting more and more
| crazy..."' as the day wore on (Trial Transcript 919, 925). Lane
testified that petitioner, following the offenses didn't know
whether he had shot anyone (Trial Transcript 924). Lane
testified that petitioner had sniffed inhalants all the time he
had known him (six years) and that when he sniffed he would
become "...wild and almost irrational sometimes" (Trial Transcript
925-927).
For the defense Mary Stanley testified that she had known
the petitioner for twenty-two years and that his mental condition
was "...disturbed...insane..." (Trial Transcript 997, 998). Jimmy
Stanley, petitioner's step-brother recounted that petitioner had |
been taken to the emergency room at Kennestone Hospital just prior
to the subject offenses due to excessive glue sniffing (Trial
Transcript 1018). He concluded that petitioner had a severe
(Trial Transcript 1023-1024). Pat Stanley, petitioner's sister-
|
|
mental problem and couldn't always distinguish right from wrong
in-law, recounted an incident two years prior to the subject
|
_
“offenses when petitioner had become "...wild and glassy eyed..." |
| and pulled a gun in a rage against family members over the setting
_ of the volume on a television (Trial Transcript 1026). She |
concluded that petitioner was insane at the time of the October 1
1974 offenses (Trial Transcript 1025).
Ronald Conn confirmed that petitioner started sniffing glue
at age thirteen and since then was "...just not doing right...
“starting acting real crazy..." (Trial Transcript 1034). Conn
' specifically cited the substance Blair as responsible for the
| most profound affect on petitioner. Conn testified to observing
| petitioner on the Wednesday before the October 7, 1974 offense
when petitioner was sniffing Blair: "...he was like a wild man,...
eyes got wide all the way around them, wild. He looked like the
devil." (Trial Transcript 1038). Conn tried to talk to petitioner
".,..and he didn't even know I was there...keep staring at me,
weird" (Trial Transcript 1038). Conn concluded that petitioner's
"...mind was gone...", stated that his disturbance lasted for
about thirty minutes, that he had a weird look and was suspicious
and testified to his opinion that petitioner was "...crazy"
(Trial Transcript 1036, 1039-1040).
Mrs. George, petitioner's mother, related petitioner's
criminal problems back to the time he started sniffing glue
(Trial Transcript 1051). Mrs. George, among other incidents,
testified to an incident when she removed car keys from a vehicle
petitioner was attempting to drive when abusing drugs. Petitioner
"...got wild eyed...lost all control" and broke out the car
| windows with his hands which bear permanent scars as a result
| (Trial Transcript 1059-1060). On the Friday before the October
7, 1974 offense Mrs. George found petitioner, who had been
sniffing Blair all evening, under the house fearful that people
, Were out to get him (Trial Transcript 1063) and she got help to
_ get petitioner hospitalized (Trial Transcript 1064). Mrs. George
-24-
testified that petitioner got into trouble when he was sniffing
glue; otherwise, he was "...pretty normal" (Trial Transcript 1067,
1973).
Petitioner testified at the guilt or innocence phase to his
history of first glue, then Blair sniffing, stating that he
bought Blair whenever he rar out and used it regularly (Trial
Transcript 1083-84). Om October 7, 1974, petitioner got a can of
Blair and drank beer and wine in combination with his abuse of
the inhalant (Trial Transcript 1083, 1088). Petitioner continually
sniffed Blair during the several burglaries he and Lane committed i
during the evening hours prior to arriving at the Hooks home |
(Trial Transcript 1091). Petitioner testified to his difficulty
in sorting out his memory of the actual events of the offenses
| from his memory of prior trial testimony (Trial Transcript 1095).
He remembered seeing Mr. Hooks descending the stairs. He
' remembered breaking the glass. Next he remembered being at the
top of the stairs without any recollection or climb‘ng them. He
remembered jerking the phone from the wall and see‘ng Mr. Hooks
sitting up against the wall. He remembered being startled at
the sight of the Hooks’ son, Steven, and believed the boy to be
his cousin. At that time, petitioner remembered seeing Mr. Hooks
reach up at him and then the gun going off (Trial Transcript
1095-1097).
| Superior Court Judge Hal Craig (Hereinafter "HCTr."') at pages
The record of petitioner's trial establishes that he was
suffering from toxic psychosis at the time of the offenses, which
condition resulted from chronic substance abuse over ten years.
See also affidavit of Dr. Ronald Wynne. Petitioner's Exhibit
No. 1 (Transcript of Procedings of February 14, 1983 before
9 and 91-94).
Petitioner's trial co-counsel Charles Stephen Cox was
| primarily responsible for preparation and presentation of the
i]
-25-
_ insanity defense (HCTr. at page 75). Mr. Cox testified that the
(HCTr. at page 29). Mr. Cox testified that he was familiar with
sole defense at trial on the merits was the one of insanity
petitioner's prior collateral attack that counsel at his first
trial were ineffective for failing to assert a defense of drug
induced insanity (HCTr. at page 29).
Nonetheless, Mr. Cox did not know of, or investigate, the
presence of hallucinogenic ingredients in the abused substance
Blair (HCTr. at page 34-35). Nor were any experts consulted on
effects of chemical substances on the mind (HCTr. at page 35).
Trial counsel did not review scientific literature or research
the law of insanity arising from substance abuse (HCTr. at page 35).
Trial counsel arranged for petitioner to undergo an electro- ;
encephalogram (Petitioner's Exhibit No. 6, HCTr. at pages 86 and i
102-104); yet, counsel failed to consult with the doctor super-
'vising the test and failed to consult a neurological expert as
to whether a normal electroencephalogram test result was incon-
sistent with a drug induced psychosis (HCTr. at page 36).
Trial counsel arranged for petitioner to be psychologically
evaluated by Dr. Richard Hark. Mr. Cox acknowledged that he
reviewed Dr. Hark's ensuing report carefully in the course of
_ trial preparation (HCTr. at page 52)(The report of Dr. Hark is
Petitioner's Exhibit No. 5, HCTr. at pages 70 and 99-101). Dr.
Hark's report concluded that petitioner exhibited a "pre-psychotic
' thought process" which Dr. Hark felt "sure that with the addition
| of an intoxicant that he could act totally impulsively and without
regard to right or wrong." (HCTr. at pages 100-101). Dr. Hark |
diagnosed petitioner pursuant to DSM-III to be suffering from
"alcohol abuse" (305.03); “Hallucinogen abuse (inhalent chemicals)"
|
' (305.33); as having an “antisocial personality disorder" (301.70);
“and a “paranoid personality disorder" (301.00)(HCTr. at page 101). |
-26-
Despite the foregoing diagnosis petitioner's trial counsel
did not investigate the relationship between substance abuse and
personality disorders (HCTr. at page 54).
Dr. Hark was not produced to testify at trial (HCTr. at
page 9°.
At trial on the merits petitioner's counsel put on a defense
of insanity, but then refuted it through the testimony of Dr.
Hughes. In fact, the insenity defense was effectively recanted
by defense counsel in closing argument or the merits.
Dr. Hughes, who testified at petitioner's first trial,
did not reexamine petitioner prior to the re-trial. No
psychiatrist, or psychopharmacologist or other expert was
consulted specifically to evaluate and present a defense of insan-—
ity based on substance abuse. Dr. Hughes, in testifying to his |
expertise, expressed no qualifications in the area of substance
'abuse. In recounting the psychological tests performed on
petitioner, Dr. Hughes did not testify to analysis of petitioner's,
drug abuse as it related organic mental disorder (Trial Transcript
1144-1147). Only general testimony concerning the effect of drug
or alcohol use on self control was elicited (Trial Transcript
1147). Dr. Hughes' opinion of petitioner's personality was that he
was a sociopath (Trial Transcript 1158). No specific correlation
between substance abuse disorders and the sociopathic personality
was drawn, despite recognition of the predisposition of antisocial
, personality disorders to substance abuse disorders. DSM-III,
p. 168.
Far.from advancing the defense of insanity by developing and |
presenting the role of drug abuse in petitioner's mental disorder, |
'
counsel completely undermined the effect of the only expert testi-|
examination of Dr. Hughes with the following dialogue:
fying for the defense on the issue of insanity by closing his
!
«97a
Q: You are not Fenerettas. are you, that
a sociopath is a legally insane person,
are you?
A: No, sir. Legally this condition has
not peen classified as an insanity.
(Trial Transcript 1159)
The expert testimony on the issue of insanity most favorable |
to the petitioner came upon cross-examination of Dr. Hughes by
| the State, as follows:
Q: ...Was he under any compulsion of
any type that might overpower his
will from any of your examinations?
A: His use of controlled substances or
drugs was compulsive, and I did not
determine positively one way or the
other on that. That would be a com-
pulsion; otherwise, I did not find
compulsive behavior.
You found none of that?
A: No.
Q: No delusion, no compulsion other
than maybe using drugs, and cer-
tainly he knew right from wrong
during all this period of time and
under all your examinations?
A: With the exception, perhaps of the
times he was under the influence of
drugs.
Q: Unless he was under the influence of
drugs.
As. 768. sit.
Q: Well, that's not uncommon for him or
me either.
A: Okay.
Q: Like if I get drunk I might be compulsive.
| A: You would at that time, not, perhaps,
| know right from wrong.
Q: Yes, sir, if I got drunk enough.
| A: Yes, sir.
(Trial Transcript 1166-1167)
| -28-
Petitioner's counsel failed to pursue on redirect examination
!
'of Dr. Hughes the probability, or even possibility, that petitioner
oe not distinguish right from wrong at the time of the offenses,
_ In closing argument, counsel further undermined petitioner's cause,
= the weakness of the asserted defense and the expert's |
| testimony by stating that the petitioner "...probably wasn't
| tesa.” (Trial Transcript 1197).
| Recanting the defense, and abdicating the obligations of a
| eesteus advocate, counsel stated, in regard to the evidence of
| insanity "We told you at the outset we don't know what that evi-
| dence shows basically." Counsel mentioned petitioner's inhalation
| of Blair and drinking but never connected tne substance abuse
with the defense of insanity.
The pretrial inefrectiveness found in counsels' failure to
investigate this defense resulted in counsels’ inability to render
| “informed, professional deliberation" in the selection and presen-
tation of petitioner's defense. Washington v. Strickland, 693
F.2d 1243, 1251 (llth Cir. 1982)(en banc) quoting United States
v. Bosch, 584 F.2d 1113, 1122 (lst Cir. 1978).
Where only one plausible line of defense is discernable, as
here, "[t]Jhe failure to perform [reasonable substantial] investi-
gation is a clear example of a breach of the duty to investigate."
Washington v. Strickiand, supra, 693 F.2d at 1252. The Washington
| decision unambiguousiy compels granting Mr. Berryhill a new trial
}
| here:
It is obvious that an attorney can no more
make a strategic decision that renders
| unnecessary an investigation of a defendant's
one plausible line of defense than he can
make a strategic decision to plead guilty
against his client's wishes. (citations
omitted) Therefore, permissible trial
strategy can never include the failure to
conduct a reasonable substantial investiga-
tion into a defendant's one plausible line
of defense. (citations omitted) Id.
-29- |
This Court should grant certiorari to determine whether
the Georgia court's counsel failed to adequately prepare and
investigate a defense of drug induced insanity. |
Whether petitioner's actions in the charged offenses resulted
from voluntary intoxication or from a permanent insanity due to
chronic mixed substance abuse (particularly of the inhalant |
Toluol) was a matter of fact not adequately investigated and
presented for resolution by the jury. For an example of an
insanity defense based upon abuse of Toluol in a jurisdiction
with provisions of law regarding the M'Naghten test, delusional
compulsion test and voluntary intoxication as applicable to
Georgia criminal trials, see Pierce v. Turner, 402 F.2d 109
(10th Cir. 1968), cert. denied, 394 U.S. 950 (1969). See also
Pierce v. Turner, 276 F.Supp. 289, 296 (D.Utah 1967) as footnote
17 therein particularly describes the effects of the inhalant
abused in this case.
By failing to gather and then present before the jury facts
concerning the petitioner's chronic abuse of the hallucinogen
Toluol, trial counsel denied petitioner the opportunity to have
the jury consider the one plausible line of defense.
Certainly, effective assistance of counsel required prepara-
tion and presentation of the effects of the inhalant as the
resulting impairment constituted evidence to negate specific
intent. See United States v. Romano, 482 F.2d 1183, 1196 (5th
Cir.(Ga.) 1973), cert. denied, 414 U.S. 1129; Massey
v. State, 222 Ga. 143, 149, 149 S.E.2d 118, cert. denied, 385
U.S. 36 (1966). See also, Cochran v. State, 136 Ga.App. 125,
126, 220 S.E.2d 477 (1975).
Petitioner was convicted of armed robbery and thereupon
felony murder. Proof of the elements of the offense of felony
murder necessarily requires proof of the elements of the
predicate felony. Woods v. State, 233 Ga. 495, 501, 212 S.E.2d
.
-30- |
| 322 (1975); Atkins v. Hopper, 234 Ga. 330, 216 S.E.2d 89
(1975). Absent proof beyond a reasonable doubt of the specific
intent to commit theft, petitioner's convictions must fall.
Counsel for petitioner, despite the prior notice by experts
and by a prior decision in petitioner's collateral attack upon
his first trial failed to investigate evidence of the effects of
Toluol on his mental state at the time of the offenses charged.
Counsel failed not only to provide the jury with the guidance of
expert testimony on the subject of Toluol abuse, but also failed
in argument to correlate the chronic drug abuse with the defense
of insanity and lack of specific intent.
For counsel to have presented an insanity defense through
an expert and to have elicited testimony from that expert that
petitioner was not insane and then to have equivocated about, if
not abandoned, the ineanity defense in closing argument denied
petitioner effective assistance of counsel. United States v.
Fesell, 531 F.2d 1275, 1278 (5th Cir. 1976)(failure of counsel
' to investigate and present insanity defense denied minimally
effective representation guaranteed by the Sixth Amendment).
Counsel failed to investigate the facts of Toluol abuse
(mixed with alcohol abuse) and failed to obtain expert services
_ directed toward substance abuse. Counsel failed to develop a
legal defense, the only plausible defense, around the mental
impairment suffered by petitioner.
The foregoing lapses resulted from inadequate investigation
of facts and law. Counsel cannot seriously claim any tactical or
strategic rationale for failing to investigate and present the
defenses here set forth since the defense case, including the
testimony of petitioner presented the jury with the facts of
drug abuse by petitioner.
While petitioner submits that the law is unsettled regarding -
a showing of actual prejudice especially as he was denied his one
-3l-
|
|
leads upon which it was based (See Hamilton v. State of Alabama,
| plausible line of defense and counsel failed to investigate the
368 U.S. 52, 55 (1961); Davis v. State of Alabama, 596 F.2d 1214
(5th Cir. 1980) prejudice is clear upon the record of counsel's
failure to advance the one plausible line of defense where the
facts in the record plainly support the defense. Here petitioner |
suffered actual and substantial disadvantage to the course of his
defense. Washington v. Strickland, supra, 693 F.2d at 1262.
Petitioner's trial counsel, Mr. Cox, acknowledged that he
, and his co-counsel, Mr. Neal, felt that they did not have a
“strict” defense of insanity; that they hoped to evoke "sympathy
from the jury and to use the insanity evidence from the merits
phase to "start laying some foundation or groundwork for mitiga-
tion" (HCTr. at page 38).
However, no experts or other testimony on petitioner's
insanity was adduced at the sentencing phase of the trial. Nor
was the jury called upon in argument at the sentencing phase to
examine petitioner's drug abuse and the offenses resulting
therefrom as mitigation in light of the changes in his life since
the incident.
In failing to advance petitioner's organic mental disorder
_ and drug induced psychosis at the time of the offenses as
' mitigating evidence at the sentencing phase, counsel deprived
petitioner of effective assistance of counsel. Blake v. Zant,
'
515 F.Supp. 772 (S.D.Georgia 1981). The error is more egregious
at the sentencing phase as the prospects for rehabilitation of a
person whose character is altered by drugs through the removal
of the drug addiction is a compelling argument for a life sentence
instead of the penalty of death. Failure to address the jury's |
attention to the mental impairment suffered by petitioner, and )
to support the argument with expert testimony, and to seek
specific instructions as to this specific area of mitigation
~32-
Eee
if
| deprived petitioner of a fair hearing on the issue of punishment.
Petitioner contends this failure denied him reasonabiy
' effective assistance of counsel at a crucial phase of the trial.
The courts below failed to specificelly address this issue in its
conclusions of law.
In sum, petitioner's jury was not provided with any informa-
tion whatsoever concerning the correlation between the evidence
of insanity resulting from drug induced psychosis at either
| phase of his capital trial.
This Court should review this case to decide the measure of
| counsel's competence in a capital case, and the constitutionally
required standard for deciding claims of ineffective assistance
of counsel.
CONCLUSION
For the reasons stated herein, Michael Gene Berryhill
requests that a writ of certiorari issue to review the decision
of the Court below.
Respectfully submitted,
, K
en & Van Susteren, P.C.
511 E Street, N.W.
Washington, D.C. 20001
(202)393-7676
Counsel for Petitioner
Michael Gene Berryhill
-33-
-~ CHIEF DTP. CL ENK
3S SUPERIOR COURT
-
J
IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
MICHAEL GENE BERRYHILL,
PETITIONER
: HABEAS CORPUS
vs. : FILE NO. 5820
ROBERT O. FRANCIS, :
WARDEN, GEORGIA DIAGNOSTIC :
AND CLASSIFICATION CENTER, :
RESPONDENT
ORDER
This habeas corpus challenges tue constitutionality
of Petitioner's restraint and the imposition of the death
penalty by the Superior Court of Bartow County. Petitioner
was convicted of felony murder and armed robbery. He
received a death sentence for the felony murder and a life
sentence for the armed robbery. Petitioner's convictions
and sentences were affirmed by the Supreme Court. Berryhill
v. State, 235 Ga. 549 (1975), cert. denied 429 U.S. 1054,
97 S.Ct. 769, 50 L.Ed.2d 771 (1977). The Butts Superior ,
Court denied habeas corpus relief; the Supreme Court attired
the felony murder conviction and death sentence but vacated
the armed robbery conviction as a lesser included offense
of the felony murder. Berryhill v. Ricketts, 242 Ga. “47,
(1978), cert. denied 441 U.S. 967, 99 S.Ct. 2418, 60 L.Ed.2d
1073 (1979). The United States District Court for the
Northern District of Georgia granted habeas corpus relief
on May 13, 1980, reversing Petitioner's conviction and sentence.
APPENDIX A
Upon retrial in the Bartow Superior Court, Petitioner was
convicted of felony murder and armed robbery and was
sentenced to death. His conviction and sentence were
affirmed by the Supreme Court. Berryhill v. State,
249 Ga. 442 (1982). Certiorari was denied by the Supreme
Court of the United States. Berryhill v. Georgia, __
U.S. 8.Ct. , 74 L.Ed.2d 293 (1982).
The petition as amended contains 69 numbered
paragraphs, of which 52 allege substantive claims for
relief (18-68G). The Court will address these claims
for relief by paragraphs corresponding numerically to
the paragraphs in the petition.
The record in this case consists of the transcript of a
‘proceediags before this Court on February 14, 1983; the :
affidavits of Ronald D. Wynne, Ph.D., and Albert M. Pearson; =~ -+
and the record and transcript of Petitioner's retrial in the
Bartow Superior Court.
18-20
In paragraphs 18-20, Petitioner alleges that he was
denied effective assistance of counsel in violation of his
Sixth, Eighth, and Fourteenth Amendment rights and rights
under the Georgia Constitution. |
FINDINGS OF FACT
Petitioner was represented at trial and on appeal by
C. Stephen Cox and William A. Neel, Jr. (H.T. 13;23). Mr. :
Cox was appointed to represent Petitioner:'on April 8, 1981.
(H.T. 13). His request for assistance resulted in the
appointment of Mr. Neel on April 16, 1981. Id. They served ©
A-2- a
as co-counsel. (H.T. 13-14).
Mr. Cox graduated from the University of Georgia
School of Law in 1976 and was admitted to the Georgia Bar
that same year. (H.T. 12). He clerked for one year and
four months prior to entering private practice. Id.
Since December 1982 he has been with the District Attorney's
Office. Id. Mr. Cox estimated that while a private prac-
titioner, 35 to 50 per cent of his general practice
was in criminal law. Id. He had defended 3 murder cases
prior to Petitioner's trial, one of which involved an
insanity defense. (H.T. 13). /
Mr. Neel graduated from Samford University School
of Law in 1979 and that same year was admitted to the Georgia “.
‘Bar. (H.T. 72). Since that time he has been in private
‘practice, estimating that 30 per cent of his practice was
criminal work. Id. He had tried one murder case prior
to Petitioner's. Id.
Counsel were appointed 33 days prior to the original
trial date, May llth (H.T. 25). They sought a continuance,
but the trial court was reluctant to grant one. (H.T. 28).
They did not know until May 6th, when the trial court
granted the plea in abatement, that they would not go to
trial on May lito. (H.T. 26). Counsel testified that
they felt pressured by the time constraints, but that did
not keep them from doing a good job in preparing for trial.
(H.". 29, 62, 81). .
Counsel basically followed the Unified Appeal
Procedure checklist. (H.T. 14). They filed numerous
A-3-
pretrial motions. (E.T. IJ i6-36, 30-73, 76-97, 209-241,
283-286). Of these motions Counsel considered to be most
important the challenge to the composition of the grand
jury that indicted Petitioner in 1974 and the motion for
change of venue. (H.T. 76). Mr. Neel handled the grand
jury challenge while Mr . Cox pursued the change of venue
motion. (H.T. 26). Counsel prevailed on the grand jury
challenge but were not successful in challenging the grand
jury that re-indicted Petitioner and the array of petit
jurors. (H.T. 25-26). The change of venue motion was also
denied. Id. In preparing that motion, Mr. Cox had gathered
from the county newspaper all articles from the date of the
offense to the time of the second trial which referred to he
. Petitioner and incorporated these 24 to 26 articles into the
venue motion. (H.T. 15-16). He also attempted to incorpuiate .
into the motion a public opinion poll to corroborate
community prejudice but was not successful. Id.
Counsel's main theory of defense was first to get a
change of venue. (H.T. 18-19). Failing that, Counsel felt
the only thing they had was an insanity type defense. Ta.
They were aware this defense was not successful at Petitioner's
first trial but hoped to make a good impression for the
sentencing phase and show enough mitigation to get a life
sentence. Id.
In preparing the insanity defense, Mr. Neel talked with
the attorneys who had represented Petitioner at this original
trial about their efforts to establish an insanity defense.
(H.T. 30, 73). Mr. Neel discussed with Mr. Bradshaw
Petitioner's use of drugs, specifically the substance Blair,
A-4-
“are,
and Mr. Bradshaw's research into that area. (H.T. 73-75).
Since medical tests had not been previously run on Petitioner,
Counsel looked into the possibility of brain damage and
arranged for an electroencephalogram (EEG) to be conducted
as well as a psychological evaluation. (H.T. 19-20, 73-75).
Counsel did not rule out a drug-induced insanity defense
because of their conversations with Mr. Bradshaw; rather,
they hoped to build a defense based apes the information
from the EEG and psychological evaluation. (H.T. 82).
Counsel tried to follow all leads from the psychologists
but wound up presenting a rather traditional insanity defense
based on the data they were given. (H.T. 37, 55-56). The
EEG results were normal and were not admitted at trial. —~
'(H.T. 22). Counsel did not call the psychologist who
evaluated Petitioner, Dr. Hark, because they thought his
report would be damaging to Petitioner. (H.T. 21, 56).
Counsel did call Dr. Hughes, a psychologist who had seen
Petitioner while Petitioner was a teenager and who had
examined him after he was arrestei in 1974. (H.T. 20).
Counsel did not preclude a drug-induced insanity defense
but felt there was nothing to point toward such a defense
because of the normal EEG results and the psychologists’
reports wherein Petitioner was found to have known right
from wrong at the time of the offense and was under no
delusional compulsion. (H.T. 37, 40, 55).. Counsel did |
present evidence of Petitioner's substance abuse through
family members and friends (H.T. 39-40, 65) as well as Petitioner
himself. (H.T. 38).
Counsel's strategy at the sentencing phase was to show
~. .
A -5- a3
that Petitioner was off drugs and how he had changed his
life. (H.T. 59-60). Counsel talked with Petitioner, obtained a
list of potential witnesses, and consulted with them. (H.T. 22-23,
79-80). Counsel presented eight witnesses at the sentencing
phase as well as Petitioner himself. (H.T. 59-60, 78-79).
At trial Counsel conducted an extensive voir dire
(T. II 10-804); gave opening argument (T. II 838-840);
cross-examined State witnesses (T. II 857; 873; 886; 892;
917; 928; 936; 945; 963; 972; 976; 978; 982; 986); presented
six witnesses in the guilt/innocence phase (T. II 988; 999;
1024; 1032; 1048; 1143) as well as Petitioner (T. II 1080);
gave closing argument in the guilt/innocence phase (T. II 1194-
1213); gave opening argument in the sentencing phase (T. II
_1307-1311); presented eight witnesses in the sentencing phase _
(T. II 1326; 1334; 1341; 1347; 1360; 1373; 1380; 1386) as well P
as Petitioner (T. II 1396); and gave closing argument in the
sentencing phase (T. II 1429-1446).
CONCLUSIONS OF LAW
The Sixth Amendment right to counsel means "...not
errorless counsel, and not counsel judged ineffective by
hindsight, but counsel reasonably likely to render and
rendering reasonably effective assistance." MacKenna
v. Ellis, 280 F.2d 592 (Sth Cir. 1960); Pitts v. Glass,
231 Ga. 638 (1974); Fortson v. State, 240 Ga. 5 (1977).
Counsel here easily meet the test. They were experienced
in the trial of, criminal cases. They prepared for and
vigorously represented Petitioner's cause at his retrial.
The effort they put forth was certainly reasonably effective
within the meaning of the standard.
Petitioner has claimed that Counsel were ineffective |
A-6-
for not properly investigating and preparing an insanity
defense. Specifically, he alleges that Counsel were
ineffective for failing to have an expert witness testify
as to Petitioner's substance abuse. To support this claim
Petitioner has presented the affidavit of Dr. Ronald D. Wynne.
wherein Dr. Wynne outlines the steps that should have been
taken for a "proper" evaluation and presentation of the
insanity defense. However, this kind of opinion evidence
constitutes the kind of hindsight which has never provided
the basis for ineffective assistance claims.
. Here, Counsel discussed the insanity defense with
the attorneys who represented Petitioner at his first
trial. Counsel arranged for an EEG and psychological
examination of Petitioner. They testified that they tried
to follow all leads provided by the psychologists. Counsel
did not rule out a drug-induced insanity defense but found
nothing to point toward such a defense. They did present
evidence of Petitioner's substance abuse through Petitioner,
family members, and friends. Counsel clearly conducted a
substantial investigation into what they concluded was the
one plausible line of defense. The Court concludes that
Counsel rendered reasonably effective assistance within the
meaning of the standard. Washington v. Strickland, 4593 F.
2d 1243, 1253 (Former 5th Cir. 1982). Effectiveness is
not measured by how another lawyer may have handled the case.
Estes v. Perkins, 225 Ga. 268 (1968).
Petitioner contends that Counsel failed to advance
the defenses of drug-induced psychosis and drug-induced
organic brain damage. Counsel questioned Dr. Robert Hughes
A-7-
a
RB
%
extensively as to evidence of possible brain damage and
delusions. (T. 1154-1157). The testimony was negative
and Counsel abandoned the effort after an affirmation
of Petitioner's severe emotional disturbance. (T. 1159).
A condition which is not permanent, brought about by the
voluntary act of the accused is no defense to a crime.
Peek v. State, 155 Ga. 49, 51 (1923); Strickland v. State,
137 Ga. 115, 116 (1911). If the Petitioner committed the
crime while under the influence of drugs, this would be no
defense unless the condition producing his behavior were
permanent. Peek v. State, 155 Ga. 49, 52 (1923). Even if
the mania or insanity were permanent and fixed, the person
would be considered not responsible only if the infirmities ~
destroyed all knowledge of right and wrong. Peek v. State,
155 Ga. 49, 50 (1923); Strickland v. State, 137 Ga. 115, 116
(1911); Beck v. State, 76 Ga. 452, 470 (1886).
Evidence was presented on both sides of the issues
of permanent insanity and drug-induced organic brain damage.
(T. 925-927, 1027, 1038, 1045, 1067, 1073, 1154-56), ‘The
defense presented a case of emotional disturbances and extended
drug addiction in an attempt to reflect on the abilities of
the accused to know right from wrong. The prosecution
countered with evidence of a sane person who was voluntarily:
under the influence of drugs. The facts and circumstances in
this case would authorize the jury to find for one theory over
the other. a
When inadequate representation is alleged, the critical
factual inquiry ordinarily relates to whether the defendant
had a defense which was not presented; whether trial counsel —
“Ah gee
F 3
A -8-
consulted sufficiently with the accused, and adequately
investigated the facts and the law; whether omissions
charged to trial counsel resulted from inadequate
preparation rather than from unwise choices of trial
tactics and strategy. Hawes v. State, 240 Ga. 327 (1977).
In this case, all defenses were brought before the jurors.
They were charged on specific intent (T. 1275-1276),
criminal intent (T. 1276-1277), lack on mental capacity
(T. 1276), insanity (T. 1277-1278) and permanent insanity
resulting from drug use (T. 1280). All of the points were
covered in the closing argument by Counsel. For this
reason, the Court does not view Counsel as ineffective.
Petitioner has also claimed Counsel were ineffective
for not objecting to the State's introduction of evidence
of other crimes during cross-examination of Petitioner
when Petitioner allegedly had not put his character in
issue. Prior to being cross-examined, Petitioner as part
of his defense introduced evidence of his prior criminal
record. (T. II, 1103). Pretermitting waiver in that
Counsel did not object, the Supreme Court found no error.
Berryhill v. State, 249 Ga. at 451(13). The Court does not
find Counsel ineffective for this reason.
Petitioner has also alleged Counsel were ineffective
for failing to request a mistrial or object to insufficient
curative instructions when the prosecutor asked Petitioner
about his enp Segment history and commented thereupon.
Contrary to Petitioner's assertion, the Supreme Court has
concluded that the prosecutor's remarks were not so
prejudicial as to be incurable by instructions. Berryhill
v. State, 249 Ga. at 451(14). For this reason the Court
does not view Counsel as ineffective.
Ao
Petitioner has also contended that Counsel were
ineffective for failing to ask for curative instructions
when the prosecutor asked Petitioner about his prior
criminal record on cross-examination. In that the Supreme
Court bas found no error in this regard, the Court cannot
find Counsel ineffective for failing to ask for curative
instructions.
Finally, Petitioner has alleged Counsel were
ineffective for failing to object to the prosecutor's
closing argument in the sentencing phase. [In that the
Court has concluded the prosecutor's argument was not
improper (see paragraphs 40-43 below), the Court cannot
find Counsel ineffective for this reason. ]
Accordingly, the claim for relief in paragraphs
18-20 is found to be without merit.
21-27
In paragraphs 21-27, Petitioner claims that the
trial court's failure to grant a change of venue violated
his right to a fair trial by an impartial jury under the
Sixth, Eighth, and Fourteenth Amendments and the Georgia
Constitution.
FINDINGS OF FACT
The Supreme Court has already concluded that the
trial court did not abuse its discretion in denying the
motion for a change of venue. Berryhill v. State, 249
Ga. at 443(2).-
CONCLUSIONS OF LAW
Findings of the Supreme Court are binding upon this
Court for the purposes of review. Elrod v. Ault, 231 Ga.
750 (1974); Brown v. Ricketts, 233 Ga. 809 (1975).
Accordingly, the allegation in paragraphs 21-27 is
found to be witbout merit.
28-32
In paragraphs 28-32, Petitioner aentents he was
denied his right to a representative jury and to a fair
trial by an impartial jury due to the jury selection
procedures in Bartow County and the conduct of voir dire
at his retrial.
The Supreme Court has already concluded that the
trial court was authorized to overrule Petitioner's
challenge to the traverse jury based on the percentage
of women, Berryhill v. State, 249 Ga. at 445(3); that
the trial court did not err in not striking a venireman
for cause, Berryhill, supra, at 446(4); that the trial
court did not impermissibly limit the scope of voir dire,
Berryhill, supra, at 448(5); and that the trial court did
not err in refusing to permit sequestered voir dire,
Berryhill, supra, at 449(7).
Accordingly, this claim for relief is found to be
without merit.
33
The Supreme Court has found no error in the trial
court's denial of defense counsel's request to make his
opening statement at the conclusion of the state's case.
Berryhill v. State, 249 Ga. at 448(6).
34-35
The Supreme Court has already concluded that
Petitioner's Fifth and Sixth Amendment rights were not
violated by the introduction of his statements to Tex
Fuller in a filmed interview. Berryhill v. State, 249 Ga.
at 449(10).
36-38
The Supreme Court has concluded there was no error
4-ll-
by the trial court in excluding in the guilt/innocence
phase the opinion of Petitioner's aunt as to his early
childhood mental condition. Berryhill v. State, 249 Ga.
at 429(9).
39
The Supreme Court has already decided the issue
of alleged prosecutorial misconduct adversely to Petitioner.
Berryhill v. State, 249 Ga. at 451(13) and (14).
40-43
In paragraphs 40-43, Petitioner contends that the
prosecutor's closing argument in the sentencing phase
violated bis constitutional rights.
FINDINGS OF FACT
The Court has reviewed the closing argument of the
prosecutor in the sentencing phase. (T. 1411-1429).
CONCLUSIONS OF LAW
To prevail in a state habeas case, the misconduct
of the prosecutor must be so egregious as to render the
trial fundamentally unfair. Hance v. Zant, 696 F.2d 9340,
950 (1983). It is not sufficient that the comments made
were improper, the asserted error must be one of constitutional
magnitude. Id. This determination should be made by
considering the totality of the circumstances. The prosecutor's
conduct should be evaluated in the context of the entire trial.
Id.; Houston v. Estelle, 569 F.2d 372, 377.
In determining misconduct during the sentencing phase
of the trial, several factors must be considered. First
A -12-
is the degree to which the comments objected to would
mislead the jurors and prejudice the accused. Second is
whether the comments were isolated or extensive, and finally
whether they were deliberately or accidentally placed before
the jury. Hance v. Zant, 696 F.2d at 950 N.7.
Here, Petitioner alleges misconduct on the part of
the prosecution in that the prosecutor used a comment
made during the documentary film, which was presented into
evidence, to incite fear in the jurors. While a prosecutor
should not make an extended appeal to the fears and emotions
of an already aroused jury (Hance v. Zant, 696 F.2d at 951),
this situation is different. A prosecutor may argue
inferences that could be drawn from the facts already in
evidence. Wheeler v. State, 220 Ga. 535, 537 (1965); Shy
v. State, 234 Ga. 816, 824 (1975); Garcia v. State, 240 Ga.
796, 800 (1978). Where the language complained of
introduces no new facts, but is merely a forceful though
possibly extravagant method of impressing on the jury the
magnitude of the offense and the solemnity of the duty of
the jurors no error is shown. Leutner v. State, 235 Ga.
77, 84 (1975).
Petitioner also alleges misconduct in the prosecutor's
comments relating to the appropriateness of the death penalty.
Specifically the Petitioner attacks statements made about
the Atlanta murders, the Biblical support for the death
penalty and the duty to maintain community safety. The
Supreme Court has ruled that a prosecutor may urge severe
punishment during the sentencing phase. Bailey v. State,
153 Ga. 413(4)(1922). In arguing for the death penalty
he may offer plausible reasons for his position. Allen v. State,
£ -13-
¢
e *.
°
= *
a oO
|
187 Ga. 178, 182 (1938); Strickland v. State, 209 Ga.
675(2)(1953). Protection of the community is one
consideration a jury is entitled to entertain in determining
an appropriate sentence. As such, it may be argued by the
prosecution during the sentencing stage, even though such
an argument would have been objectionable during the guilt
determination stage. Hamilton v. State, 131 Ga. App.
69, 70 (1974). The Supreme Court found in the revtew of
the first trial of the accused that appeals to convict
for the safety of the community have been upheld at least
by inference in Hart v. State, 227 Ga. 171 (179 S.E.2d 346)
(1971) and Bryant v. Caldwell, 484 F.2d 65, 66 (1973)
cert. den. 415 U.S. 981 (1974). Berryhill v. State,
235 Ga. 549, 552 (1975).
Petitioner also alleges that the prosecutor invoked
the experience of his office to improperly vouch for the
accused's malingering and improperly commented on the
Petitioner's use of the time elapsed since the first trial.
The Petitioner further contends that the prosecutor cailed
upon the jury to go without the record and draw on their
readings from newspapers in making their decision regarding
the insanity defense. In reviewing the prosecutor's
closing arguments, the comments made appear to be general
argument rather than a personal opinion on the specific
activities of the Petitioner. The statement about newspapers
was a drawing on the experiences of the jurors, not a call
to base their decision on articles about this specific case.
A prosecuting attorney is not bound to cor*fine his comments
solely to the evidence and the Court's instruction. Flights
of oratory and figurative speech are not improper. Wheeler
A -14-
v. State, 220 Ga. 535, 537 (1965).
The Supreme Court recently ruled that neither the
Eighth Amendment nor 0O.C.G.A. 817-10-35(c)(1) forbids a
death penalty based in part on an emotional response to
factors $e evidence which implicate valid penalogical
justifications for the impositions of the death penalty.
Per force argument by the prosecutor which ‘dramatically
appeals’ to such legitimate emotional’ response is not
‘constitutionally intolerable’. Conner v. State, Ga.
__., 2 F.C.D.R. #77, No. 39325 (May 24, 1983).
In this case, even though some of the comments made
by the prosecutor may have been inflammatory, considering
the strength of the state's case, the Court cannot find that
the prosecutor's conduct rendered the sentencing phase of ,
the trial fundamentally unfair.
Accordingly, the claim for relief in paragraphs
40-43 is found to be without merit.
44-48
The Supreme Court has found no error in the trial
court allowing the jury to hear the replay of testimony.
Berryhill v. State, 249 Ga. at 450(11).
49-53
The Supreme Court has already decided the issue of
the alleged jury deadlock adversely to Petitioner, Berryhill
v. State, 249 Ga. at 451(12).
, 54-58
In paragraphs 54-58, Petitioner claims he was denied
his right to a fair trial under the Sixth and Fourteenth
Amendments by the trial court's conduct of the trial.
A -15-
FINDINGS OF FACT
The Supreme Court has already ruled that the
cumulative effect of all errors alleged on direct appeal
did not deny Petitioner a fair trial. Berryhill v. State,
249 Ga. at 452(16). The Supreme Court has also decided
adversely to Petitioner the issues of the denial of a
general motion for funds, Id. at 452(15); the refusal
to permit sequestered voir dire, Id. at 449(7); the scope
of voir dire, Id., at 448(5); the limiting of the testimony
of Petitioner's aunt, Id., at 449(9); and the allegedly
deadlocked jury, Id., at 451(12). .
After the jury returned its verdict in the sentencing
phase and a poll of the jury was taken, the trial court
thanked the jury for its service. (T.T. 1511-1514). During
those remarks the trial court told the jury that if they oe
had given Petitioner a life sentence, he would have been
eligible for parole in November of that year. ce
Counsel requested, in lieu of the comment about parole,
that the trial court tell the jury what the average length
of service is in Georgia on a murder conviction. (T.T. 1514).
The trial court did so. (T.T. 1515).
CONCLUSIONS OF LAW
Petitioner has alleged that the trial court's
comment about parole reveals the trial court's prejudice
against Petitioner. The trial court did not violate
0.C.G.A. 817-8-76 (Code Ann. 827-2206), the Code section
prohibiting in the presence of the jury references to the
possibility of parole. Here, the jury's deliberations had
ended, so there was no possibility that the comment might
have influenced the jury away from a recommendation of mercy.
A -16-
Compare McGruder v. State, 213 Ga. 259, 266 (1957), with
Tucker v. State, 244 Ga. 721, 730 (1979).
Further, the trial court did not by his comment
express approval of the jury's verdict. See 0.C.G.A.
8817-9-22 and 17-19-23 (Code Ann, 6110-201 et seq.).
If the trial court had expressed an opinion as to the jury's
verdict, the penalty would be the disqualification of the
trial judge from presiding in the case if a new trial
were granted, not the reversal of Petitioner's death
sentence. Johnson v. State, 46 Ga. App. 494 (1933).
| The trial court did not act improperly. Accordingly,
the claim for relief in paragraphs 54-58 is found to be
without merit.
59-65
The issue of the denial of the general motion for
funds has already been decided adversely to Petitioner.
Berryhill v. State, 249 Ga. at 452(15).
66-68
Petitioner's challenge to electrocution as the
means of execution is without merit. Gregg v. Georgia,
428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976);
Johnson v. State, 249 Ga. 812, 819 (1982).
68A-68G
In paragraph 68A-68G, Petitioner claims that the
charge to the jury concerning mitigating circumstances
was constitutionally inadequate.
FINDINGS OF FACT
The Court has reviewed the instructiouzs to the jury
in the sentencing phase of trial. (T. 1486-1491).
A -17-
CONCLUSIONS OF LAW
Mitigating circumstances are not required by Georgia
law to be singled out in the charge to the jury. Thomas v.
State, 240 Ga. 393(4)(1977); Collier v. State, 244 Ga. 553,
569 (1979). .
Here, the trial court explicitly instructed the jury
as to mitigating circumstances and the option to recommend
against death even if aggravating circumstances were found
to exist. The charge as given comports with Spivey v. Zant,
661 F.2d 464 (Former 5th Cir. 1981), cert. denied U.S.
. Scr. , 73 L.Ed.2d 1374 (1982).
Accordingly, this claim for relief is found to be
without merit.
WHEREFORE, all claims for relief having been found
to be without merit, the petition is hereby denied.
SO ORDERED, this 34 aay of August, 1983.
| fel L (aasg ——
JUDGE, SUPERIOR COURTS
FLINT JUDICIAL CIRCUIT
A -18-
SUPREME COURT OF GEORGIA
Attanta, September 28, 1983
.
The Honorable Supreme Court met pursuant to adjournment.
'
The following onler was passed:
MICHAEL GENE BERRYHILL V. ROBERT FRANCIS, WARDEN
a
—
Upon consideration of the application for a certificate
of probable cause to appeal filed in this case, it is ordered
All the Justices concur,
that it: be hereby denied °
except Hill, C.J., dissents.
°
exe + ages ad a epg
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+2.
Ry, © ~ 1
es
Ag 45.8
SUPREME COURT OF THE STATE OF GEORGIA, “ae
: r"s tS
z CLERK’s OFFICE, ATLANTA, ets?
I certify that the above is a true extract from the minutes
4ostitag oR ay "
of the ein the Court of Georgie. ea ae
: x es 5. ee
Witness my signature and the seal of sad court hereto affixed
a — . ae oP o, ’
yore > Re 3 <P oe
i , © s. “eis .
“y* eas
’ 6 ‘. >
: ’ vee a 3
SUPREME COURT OF GEORGIA
x°
.
attawta, October 18, 1983
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
MICHAEL GENE BERRYHILL V. ROBERT FRANCIS, WARDEN
Upon consideration of the Motion for Reconsideration filed
in this application, it is ordered that it be hereby denied. All
the Justices concur, except Hill, C.J., dissents.
2 mens
2 Sn ey tte
a 2-
epee” ab. 3 = eis =
re i ay SN
SUPREME COURT OF THE STATE OF GEORGLA,
of the Supreme Court of Georgia. Sk Tia Sone = Sap
- _ Sate, é mene %
No. 83-
IN THE
SUPREME COURT OF THE UNITED
October Term, 1983
RECEIVED
JAN 13 1984
OFFICE OF THE CLERK
SUPREME Court, U.S.
5
MICHAEL GENE BERRYHILL,
Petitioner,
vs.
ROBERT FRANCIS, Warden,
Georgia Diagnostic and
Classification Center
Respondent.
%
CERTIFICATE OF SERVICE
I hereby certify that a copy of the Petition For Writ of
| Certiorari has been mailed, postage prepaid, to Susan Boleyn,
Assistant Attorney General, 132 State Judicial Building, 40
Capital Square, S. W., Atlanta, Georgia 30334 this 13th day of
January, 1984.
ikén & Van Susteren,
P.C.
511 E Street, N.W.
Washington, D.C.
(202)393-7676
20001
Attorney for Petitioner
RECEIVED
AN 13 1984
No. 83-4090
OFFICE OF THE CLERK
IN THE SUPREME Court, U.S.
SUPREME COURT OF THE UNITED STATES
October Term, 1983
MICHAEL GENE BERRYHILL,
Petitioner,
vs.
ROBERT FRANCIS, Warden,
Georgia Diagnostic and
Classification Center
Respondent.
MOTION TO PROCEED IN FORMA PAUPERIS
Comes now the Petitioner Michael Gene Berryhill and respect-
fully requests this Honorable Court to allow him to proceed
without prepayment of costs for the reason that petitioner is
indigent, and for years has been so. See attached affidavit
(Exhibit A) presented to the Superior Court of Butts County and
the Georgia Supreme Court below, where petitioner was permitted
to proceed in forma pauperis.
Respectfully submitted,
‘
.
EPHEN/G. MILLIKEN
Mil®ikén & Van Susteren, P.C.
511 E Street, N.W.
Washington, D.C. 20001
(202)393-7676
Counsel for Petitioner
— = '
f EXHIBIT A
IN THE SUPERIOR COURT OF BUTTS COUNTY -
STATE OF GEORGIA : aa
MICHAEL GENE BERRYHILL,
Petitioner,
-Vv- HABEAS CORPUS NO..
ROBERT FRANCIS, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
ee Ce TP TP TD AP DP TP OP DP DP OP
AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED
ON APPEAL IN FORMA PAUPERIS
7 MICHAEL GENE BERRYHILL , being first
duly sworn, depose and say that I am the Petitioner in the
above-entitled case; that in support of my motion to proceed
On appeal without being required to prepay fees, costs, or
give security therefor, I state that because of my poverty I
am unable to pay the costs of said proceeding or to give security
therefor; and that I believe I am entitled to redress.
I further swear that the responses which I have made
to the questions and instructions below relating to my ability
to pay the cost of prosecuting the appeal are true.
1. Are you presently employed? Yes No i
a. If the answer is yes, state the amount of your salary
or wages per month and give the name and address 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. 1972: f00, - Dnt
Have you received within the past twelve months any income
from a business, profession or other form of self-employ-
ment, or in the form of rent payments, interest, dividends,
or other source? Yes No ~ ii
a. If the answer is yes, describe each source of income,
and state the amount received from each during the
past twelve months. |
3. Do you own any cash or checking or savings account?
Yes No PY
a. If the answer is yes, state the total value of the
items owned. te
4. Do you own any real estate, stocks, bonds, notes, auto-
mobiles, or other valuable property (excluding ordinary
household furnishings and clothing)? Yes No rie
a. If the answer is yes, describe the property and state
its approximate value.
5. List the persons who are dependent upon you for support
and state your relationship to those persons. None a
I understand that a false statement or answer to any
questions in this affidavit will subject me to penalties for
-_ Ay WA CSE,
MICHAEL GENE BERRYHILL
perjury.
STATE OF GEORGIA
COUNTY OF
SUBSCRIBED AND SWORN TO
before me this the /_ day of OcVe ber » 198 2 7a ;
C4 ELC—
Notary Public Y
My Commission expires:
GLO -Ez@
\
No. 83-090
IN THE
RECEIVED
JAN 13 1984
OFFICE OF THE CLERK
SUPREME Court, U.S.
SUPREME COURT OF THE UNITED STATES
October Term, 1983
MICHAEL GENE BERRYHILL,
Petitioner,
vs.
ROBERT FRANCIS, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
CERTIFICATE OF SERVICE
I hereby certify that a copy of the Motion to Proceed in
Forma Pauperis has been mailed, postage prepaid, to Susan Boleyn,
Staff Assistant Attorney General,
Capital Square,
January,
132 State Judicial Building, 40
S. W., Atlanta, Georgia 30334 this 13th day of
Lp
STEPHEN/G. MILLIKEN #254433
Millik & Van Susteren, P.C.
591i & Street, H.W.
Washington, D.C.
(202)393-7676
20001
Attorney for Petitioner
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.