Appendix — Fleming v. Kemp, Warden

Supreme Court brief1986

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Supreme Court. U.S

FILED

’ -

SEP 111985

JOSEPH F. SPANIOL, JR

IN THE SUPREME COURT OF THE UNITED STATES CLERK

Jetober Term 196 . ea ae

85-

SON H. FLEMING, JNITED STATES SUPREME COURT

SASE NO

Petitioner, = F

Eleventh Circuit Court

Vs. of Appeals

vase No S3-042

RALPH KEMP, Warden,

seorgia Diagnostic and

Classification Center,

Habeas Corpus Death

Respondent. Penalty Proceeding

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Kenneth A. Shapiro

POWELL, GOLDSTEIN, FRAZER

& MURPHY

1100 C&S National Bank Building

35 Broad Street, N.W

Atlanta, Georgia 30335

404) 572-606000

Counsel of Record for Petitioner

Son H. Fleming

Jf Counsel:

Stuart €E. zenstat

Kathryn O'Shields Shapiro

POWELL, G STEIN, FRAZER & MURPHY

nal Bank Building

lA) «

Ooi reunwr re

Oy dO

aaa

FLEMING v. KEMP 1435

Cite as 746 F 2d 1435 (1966)

liminary injunction issued here was found-

ed on the Court’s equitable powers to pro

vide relief ancillary to the Commission's

complaint for permanent injunction, it fol-

lows that the motion to vacate should be

denied.

It w therefore ORDERED that defend-

ants “Motion to Vacate Order of Prelim:

nary Injunction lasued October 26, 1983" is

Jened.

s/ W.M. Hoeveier

Judge William M. Hoeveier

DONE and ORDERED this 7th day of Jan..

Son H. FLEMING, Petitioner-Appeilant.,

Raiph KEMP, Respondent-Appeliiee.

No. 83-8321.

United States Court of Appeals

Eleventh Circuit.

Nov. 29, 1984

Petitioner, a Georgia inmate who had

been convicted of murder of a police chief

and sentenced to death, appealed from an

order of the United States District Court

for the Middle. District of Georgia, Wilbur

D. Owens, Jr., Chief Judge, which denied

has petition for a writ of habeas corpus.

The Court of Appeals, Tjoflat, Circuit

Judge, heid that (1) even if evidentiary

hearmng before county justce of peace was

a committal hearmng, pettoner received

representation of counsel at that hearing

and he was therefore not denied represen-

tauion of counse/l at a “critical stage” of his

State criminal proceedings in violation of

Sixth Amendment; (2) petitioner failed to

establish that his attorneys rendered him

ineffective assistance of counse! during e+

ther guilt/innocence phase of murder tral

or during sentencing phase; and (3) death

sentence imposed by Georgia tna! court did

not wolate Eighth Amendment as interpret-

ed by Supreme Court in Edmund rv. Flon-

da where jury was instructed that it could

not find guilt uniess it found that petitioner

committed malice murder, which required

that petitioner cause victim's death with

malice aforethought, and where jury found

petitioner guilty as charged

Affirmed

Tuttle, Semor Circuit Judge, filed sepa-

rate opinion concurmng in part and dissent

ing in part

1. Criminal Law ©°641.3/2)

Under Sixth Amendment, an indigent

defendant is entitled to counse! at any

“crtucal stage’ in his crimina! prosecution,

L.@., One in which the “substantial nghtu

of defendant may be affected. U.S.C.A.

ConstAmend. 6.

2 Criminal Law ©°641.3(4)

Even if evidentiary hearing before

county justce of peace was a committa!

hearing, pewoner received representaton

of counse! at that hearing and he was

therefore not denied representation of

counse! at a “critical stage” of his state

criminai proceedings in violation of Sixth

Amendment. U.S.C.A. Const Amends. 6

3. Criminal Law @°641.13(1)

Sixth Amendment ineffective assist

ance of counse/ claim has two elements:

first. petitioner must show that counse!

mace error so semous that counse/ was not

functioning as “counsel” guaranteed the

defendant by the Sixth Amendment and.

secondly, petitioner must show actua! pre;

udice. U.S.CA. ConstAmend 6.

4. Criminal Law ©°641].13(2. 7)

Petitioner failed to establish that his

attorneys rendered him ineffective assist-

ance of counsel during either guilt/in-

nocence phase of murder trial or during

sentencing phase. U.S.C.A. Const Amends

6, 14.

5. Criminal Law @°641.13(2)

A defense attorney is not ineffective

soiely because his client is sentenced to

death. U.S.C.A. Const Amends. 6, 14

ee ee

1436

6. Criminal Law @°1213.K8)

Death sentence imposed by Georgia

trial court did not violate Eighth Amend-

ment as interpreted by Supreme Court in

Edmund v. Flomda where jury was in-

structed that it could not find guilt uniess

it found that petiuoner commiuttec maiice

murder, which required that petitioner

caused vieurm’s death with malice afore

thought, and where jury found petitioner

guiity as charged. U.S.C Const. Amend

U.o-U.A.

7. Criminal Law ©°622(1)

A single instruction to a jury may not

be judged in artificial isolation, Dut must be

viewed in context of the overail charge and

in light of what the jury heard and saw as

the tral progressed, from beginning to

end

8. Criminal Law @791

Court’s conspiracy instruction, which

impliatly required that jury find that the

murder under consideration was the ‘com

mon purpose’ of the conspiracy, did not

violate rule in Edmund v. flomda, which

foreclosed imposition of death penalty

where sentencer is not satisfied that ev

dence establishes defendant's involvement

mn a murder to the necessary extent. US

C.A. ConstAmend. 5

9. Criminal Law © 1213.5(5)

Jury's guilty verdict in murder tai

could not have been based on felony or

1. Peutroner was convicted in the Supenor Court

of Lamer Country, Georgia of malice Murcer on

January 26, 1977 and. on the jury s recommen

dation. was sentenced to death. On direct ap

peal, the Georgia Supreme Court affirmed the

conviction bul reversed Use death sentence be

cause the tnal judge erred in insiructing ine

ury during the sentencing phase. /lermng +

State. 240 Ga 142, 240 S.E2¢ 37 (1977). Foi

owing remand, petitioner moved for a change

of venue, and the supernor court judge transier

red the case to Cook County, Georgia for the

sentencing tmai. The jury again recommended

the death penalty, and (he court sentenced pet)

toner accordingly The Georgia Supreme

Court affirmed the death sentence, and the US

Supreme Court denied petitioners application

for certioran. Fleming v. State, 243 Ga 120

252 S.E.2d 609 (1979), cert. demed, 444 US. 885

100 S.Ct 177. 62 LEd.2d 115 (1979). There

after, petitioner sought habeas corpus reiie! in

the Supenor Court of Tattnall Counry, Georma

clarmung 52 separaic errors

On July 1980

748 FEDERAL REPORTER, 2¢ SERIES

conspiratoma! murder to exclusion of mai}

ce murder and therefore imposition of

death penalty did not violate Eighth

Amendment as interpreted n Edmund

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

Kenneth Shapiro. Atianta. Ga. for pet:

uoner-appeilant

Mary Beth Westmoreland. Asst. Atty

Gen.. Atianta. Ga.. for respondent-appeilee

Appeal from the United States Distnet

Court for the Middle Distnct of Georma

Before TJOFLAT and VANCE, Circur

Judges. and TUTTLE. Senior Circu

Judge

TJOFLAT, Circuit Judge

The petitioner. Son H. Fleming, is a

Georgia inmate who has been convicted of

the murder of James Edward Giddens. the

police chief of Ray City, a smail town mn

south Georgia, and sentenced to death

He applied to the distnct court for a wmt of

habeas corpus, contending that hiS convic

tion and/or sentence were invalid on thirty

nine federal consutuwonal grounds. Al

the claims Nac previousiy Deen considered

on their ments and rejected by the Georgia

courts.* The distmct court refused to issue

the wrt. Petitioner appeals, raising eight

of the clams he brought to the dismnct

court. We affirm.

that court found petitioner's allegations ‘o oe

without merit and demed reliei. The Georg

Supreme Court demed petitioners application

for a ceruficate of probabie cause to appeal (nal

decision on October 21, 1980. and on November

14, 1980, his motion for reconsiderauon. Peu

uoner filed a second pettion for a wrt of cer

tioram in the U.S. Supreme Court. which was

aiso denied. Flerming v. Ausmn, 452 US. 910

101 SCL. 3040, 69 LEd2d 412 (1981

2 28 US.C &% 2254b) and (c) (1982) sate at

b) An application for a writ of habeas cor

pus in behalf of a person in cusiody pursuani

to the judgment of a State cous! shail not

granted uniess \{ appears thai (the appucani

has exhausied the remedies availabie in We

courts of the State. or that there is esther 2

absence of avaslabie State corrective process

or the existence of crcumstances renoering

such process ineffective to prorect the ngol

of the prnsoner

ith

FLEMING v. KEMP 1437

Cite as 746 F 2d 1435 (1964)

The evidence presented to the petit jury

dunmng the state cmmuina! prosecution in

this case was introduced at two tmais’ At

irst trail. which began on January 24

19 the jury found petitioner guilty of

malice murder and recommended that he be

sentenced to death. The tna/ judge, re

quired by Georgia law to follow the jury s

recommendation. imposed the death penai

ty. The Supreme Court of Georgia set

aside petitioners death sentence,‘ and he

thereafter received a new sentencing tna!

At this tmal. convened on December 5

1977, the parties, collectively, introduced

essentiaiiy the same evidence adduced at

the first tnal, and, on the jury s recommen-

dauon, the court again sentenced petiuoner

to death For ease of presentation. we

recite the evidence as if the guilt and penai-

ty phases of petitioner's tmai had been heid

before the same jury’

The murder of James Edward Giddens

DOK Diace Jetween . ; ano i.14:‘W D.m n

Sebruarvy 11. 1976 near Lakeland, Lanier

ounty, Georgia It was the last of a

enmes of cmmes committed that night Dy

seuuoner, Son H. F'eming, and his accom-

olices. Henry Willis [I] and Larry Donnell

Fleming (peuuoner’s nephew), in south cen-

tral Georgia. On the afternoon of Febru-

ary 11, petitioner, in Moultnme. Georgia, bor-

rowed a red and white Ford car from Terry

Soney, a fmend. At about 8:00 p.m., pet-

tioner left Moultme in the car with Larry

Donnell Fleming and Henry Willis [II as

passengers

An applicant shai! not de deemed ito

have exhausied ithe remedies avaiiadie in (he

courts of the State, within the meaning of (his

section, if he has the mght under the law of

he State to rarse. by any avaslabdie procedure

he quesiion presented

Rose v. Lundy, 455 U.S. 509. $18, 102 S.Ci. 1198

203. 71 LEd.2d 379 (1982). and Geinen

Wainwright, 582 F.2d 348, 355 (Sth Cir.1978) (en

oanc hoid that a federai district court shouic

1Ol entertain a habeas petition containing unex

lausied claims

5. See supra note

The three men robbed a convenience

store that evening between 10:00 and 10:30

n Adel, Georgia. Larry Fleming and Wii-

is, one of them armed with a 22 caliber

revoiver, went into We store while petition

er remained in the car They accosted the

manager, mfled the cash register, and fled

with a brown paper bag of money and a

carton of Kool cigarettes

James Edward Giddens. the police chiet

of Ray City,’ was sitting in his police car in

Ray City talking with a fmend, LV. Du

pree, when he received a broadcast over his

police radio about the robbery. Shortly

thereafter. the red and white Ford passed

through Ray City. The car appeared %

have two occupants, Dut, in fact, there was

third who was hidden from view. One of

the occupants wore a bDasebai] cap. Chief

jiddens pursued the car to investigate

Moments later, he radioed the police dis

Datcher that he was stopping the car anc

gave a conciusive descmpuon of it, includ

ng the license number Ince both cars

were stopped, petsuoner, the dmver of- the

Ford. got out to speak with Chief Giddens

ne or we ther men with petiuoner

jumped Giddens and al) three men strug

gied for hus service revoiver. After signif

cant difficuity, they subdued Giddens and

at gunpoint, placed him im the Ford. Peu

uoner then proceeded to dmve the car over

some isolated country roads.

During the wip, Chief Giddens begged

them to spare hus life, telling them that he

would never report the imoident. that he

had a wife and three smai] children, and

that he was scheduled to reure from the

police force the next day Petiboner

stopped the car near a swamp and ever

4 Flermng v. State. 240 Ga 142, 240 S.E2¢d

iy »@@ supre noe

S. In relating the facts surrounding the commis

sion of (he murder. we draw (fhe inferences ine

ury no doubt drew in finding petinoner guilty

of maince murder

& Ade Seorga is located appromumateiy 25

mies from Mouitne in adjoining Cook Count

7. Ray City, Georgia is situated apprommaiely |4

miles cast of Adei im adjoming Bermen Country

1438 748 FEDERAL REPORTER, 2d SERIES

one got out Chief Giddens ran into the

swamp, whereupon petitioner shot at him

three umes with Giddens’ 38 caliber re

voiver. One of the bullets went through

the chief's body, cmppling him. Giddens

struggied to escape. Petitioner gave Gid-

dens’ revolver to one of the others. The

two younger men, now armed with Gid

dens’ revoiver and the .22 caliber pistoi

used in the robbery, hunted down the chief

and pumped his body full of bullets from

close range

Twenty minutes after Chief Giddens radi-

oed that he was stopping the red and white

Ford, L.V. Dupree found his patro! car

along the highway, where petitoner and

his accomplices had left it, and used the

Cars police radio to report the incident to

the police radio dispatcher. The police im-

mediately broadcast an alert for the Ford,

and two hours later, at 12:30 in the morn-

ing of February 12, two Brooks County

deputy shenffs stopped the Ford near Bar-

ney, Georgia.’ The Ford appeared to have

two occupants: petitioner, wearmng a base-

ball cap, behind the steemng wheel. and a

black male passenger in the mght front

seat. The deputies drew their weapons and

ordered the two men to get out of the car

Petuoner and Willis, the passenger, com-

plied and were placed under arrest One or

the deputies then searched the Ford and

discovered Larry Fleming hiding by the

front seat, under the dashboard. The dep-

uty also discovered Chief Giddens’ revoiv-

er, a .22 caliber pisto! loaded with ratshot,’

a brown paper bag of money and a carton

of Kooi cigarettes.

8 Barney, Georgia is located approximately <2

mules west of Ray City

9. “Ratshot™ is a type of cartridge ioaded wiih

nurnerous smail shot, sirrular to a shotgun shel!

that can be fired from a mfle or pustoi

10 Meanwhile, the manager of the robbed con

venience store identified Larry Fieming and

Willis as the robbers.

11. Petimoner informed police «at he could ne:

her read nor wnte: accordingly, the police did

not take a signed slatement.

12 Petitioner gave the police four statements in

all, after receiving and waiving hus Miranda

nghts. The first statement was grven to Detec

The next day, the police found Chief Gid-

dens’ builet-mddled body face down in the

swamp about 100 feet from county road

122. between Lakeland and Hihira. Ar

autopsy reveaied that he had been shot

several times in the face with ratshot at a

range of less than fifteen inches. He had

also been shot five times with his own

revoiver. Chief Giddens had somehow sur

vived al] of these gunshot wounds; he died

from drowning

Petitioner, Willis, and Larry Fleming

were arrested, advised of their nghts and

transported to the Brooks County jail.’®

At 10:00 a.m. peuuvoner gave an oral state

ment '' to the police. In this statement, he

Said that he knew nothing about Giddens:

murder and that he was in Vaidosta with

his uncie, Cain West. when it occurred.

Later in the day, the three arrestees were

taken before a justice of the peace who

advised them of the charges lodged against

them—armed ‘robberv, kidnapping wit!

odily injury, and murder—and of their

nmghts

On February 16, law enforcement offi

cers confronted petitioner with Cain West's

statement that petitioner had not been with

him in Valdosta at the ume of the murder

as petiuoner had contended. At this point

petimuoner made a second oral statement to

the poiice in which he repudiated his alibi

and admitted that he had been with Willis

and Larry Fleming on the night of Febru

ary 11." He professed inn ence, how-

ever, claiming that Willis an. warry Flem-

ive Regster and Shenff Gaskins on February

12. aS we indicate in the text supra. This was

an unrecorded, orai alibi statement. it was

niroduced into evidence ai Soin the guiil and

penalty phases of petitioner's mai. through the

testimony of the two officers who relaied

from their recollection

The second alibi statement was given to Geor

gia Bureau of Investigation Agent Greeson on

February |5 and was tape recorded. This state

ment was nol introduced into evidence in Wie

guilt phase of petitioners tnai. The State did

niroguce if in the penaity phase. however

hrough Greesons testumony. Greeson descm>

ec the circumstances under whuch (he statement

hac been given and summarizec its contents,

neither side sought (oO piace (he lape recording

on on

5 Slate

in We

Me did

wever

“ment

ents,

ording

FLEMING v. KEMP 1439

Che as 748 F.2d 1435 (1986)

ing were completely responsible for the

kidnapping and murder of Chief Giddens.

Petitioner said the other two forced him,

against his will, to participate in the cmmes.

Willis and Larry Fleming overpowered

Chief Giddens. They compelled him to

drive the car, and they eventually commit

ted the murder. Petitioner only acted out

of fear for his own safety. He even

begged Willis and Larry Fleming to spare

Giddens’ life because of the chief's story

about his wife and three smal] children.

On the afternoon of February 16, pet

tioner, along with Willis and Larry Flem-

ing, appeared before Judge Lott of the

Bernen County Supemor Court"? Judge

Lott advised petitioner of the three cmmes

for which he was being held and of his

mght to an attorney. Petitioner replied

that his mother was going to hire a lawyer

for him

On February 17, the Bermen County

grand jury, having termtoma! jurisdiction

over the kidnapping offense, indicted the

three men for kidnapping with bodily inju-

rv, a capital felony. The grand junes of

Cook and Lanier Counties, where the roo-

berv and murder, respectively. had oc

~urred, were not in session, and new grand

of the staterment or a transcmpt (thereof before

the jury

The third statement was gven to Detective

Regisiter and Sheriff Gaskins on February 1|6

The officers tape recorded their interrogation of

petuuioner and then prepared a digest of ‘hat

transcmpt in narrative form. Petiuoner signed

the digest, after advising the officers that he

could read and wmie and signing a statement to

that effect. Some ume later, the officers made

a written transcript of the tape recording, and

it, together with transcripts of petitioner's other

tape recorded statements, was produced {to ihe

defense and made avaiiabie to the court at the

Jackson-Denno hearing. See infra p. 1449. This

statement was received in evidence ai the penal:

ty tnal; Register and Gaskins both testified as 10

the circumstances surrounding the making of

the statement and its contents, and (he signed

digest thereof was read (to (he jury In this

statement, petnioner said that he was not with

Willis and Larry Fleming when they robbed (ne

convenience store: that he joined them iater:

that they kidnapped Chief Giddens and forced

petitioner, against his will, to dmve them to the

murder scene: and that Willis and Larry Filem

ing shot and killed Giddens over petitioner s

protest

junes would not be impaneled until the

summer or early fail. Consequently, in-

dictments for the armed robbery and mur

der charges would be delayed.

On February 24, the three men again

appeared before the Berrien County Supen

or Court. Petitioner's mother had not been

abie to hire a lawyer to defend petitioner so

the judge appointed Edward Parnsh, an

expemenced tmai attorney, to represent him

on the kidnapping with bodily injury

charge. (Petitioner had not been appointed

counse! on the armed robbery and murder

charges because he had not been indicted

for those offenses.) The court also ap

pointed counse! for Willis and Larry Flem

ing. Larry Fleming's counse! then assoc:

ated Millard Farmer, an Atianta cmminai

defense lawyer with considerable exper-

ence and expertise in capital cases, as co-

counsel. Shortly thereafter, Farmer re

quested the prosecutor in the Supenor

Court for Bernen, Cook, and Lanier Coun-

ties to arrange an “evidentary heanmng

before a justice of the peace on all three

charges so that the defense could examine

the State's evidence. Neither Farmer nor

anv other defense counse! requested 4a

committal! heamng'’ '* for the purpose of

The fourth statement. referred to in the text

accompanving (his note, was (he second one

petitioner made on February |6. The statement:

was given to Shernff Aiderman, a mend of pet

troner s, afler petitioner asked {oO see him A|

derman testified as to its contents at Doth phas

es of the tnai

13. The Alpha Judicial Circus of the Georgia

Supenor Court encompassed Bernen, Cook and

Lamer Counties; accordingly, it had jumsdictuion

over ail three charges against petioner. Judge

Lott presided over all proceedings relating ‘o

the prosecution of petitioner's crimmmnai case

except the “commuttal hearing” heid on May |4

1976. See infra note 14 and accompanying (ext

14 GacCode Ann. § 17-7-23(a) (1982) provided

that, pnmor to indictment, an accused Ddeing Neid

in custody could dernand a preliminary heanng

called a commitment hearing and, as here, often

referred to as a “commuttal hearmng,.” for the

purpose of determining whether there existed

probable cause to believe thai the accused com

mitted the cnme charged and, if so, whether to

bind him over to the grand jury. A grand jury

indictment eliminated the accuseds mght to

such a heamng and deprnved the commiuttai

court of jumsdiction to hold one. first Nar’

“4

Bank & Trust Ca. v. State, 137 Ga.App. 760, 224

ae ae J" i ae

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mes ie te

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1440 748 FEDERAL REPORTER, 2d SERIES

determining whether probable cause exist-

ed to believe that the accused committed

the crimes in question and, if so, whether

he should be bound over to the grand jury.

(The Berrien County grand jury indictment

had already resolved the first issue as to

the capital offense of kidnapping with bodi-

ly injury, and the three accused were being

held on that charge.’*)

A justice of the peace for Cook County

eventually convened the requested eviden-

tiary hearing in Ade! on May 14, 1976."*

Farmer appeared as counse! for al] three

defendants. Pettioner’s appointed counse!

on the kidnapping charge, Edward Parmsh,

chose not to participate in the heanng

The hearing lasted one and one-half days

It was, as Farmer had requested, a dis-

covery hearing, the court not undertaking

to determine whether probabie cause exist-

ed to hold the accused answerabie for arm-

ed robbery or murder

On July 15, 1976 the Lanier County

grand jury indicted petitioner and his two

accomplices for malice murder. Shortly

thereafter, the Cook County grand jury

ndicted them for armed robbery. On Au-

rust 12, the Supenor Court, sitting in Lan:

er County, appointed a former assistant

J.S. Attorney to represent petiuoner on

the murder charge. He withdrew from the

case two weeks later for reasons not pert-

nent to these proceedings, and Edward

Parmsh, who had been appointed to repre-

sent petitioner on the kidnapping charge

and who had been investigating the whole

incident for six months, was immediately

appointed to represent petitioner on the

murder charge. Benjamin Zeesman, an ex

penmenced trial lawyer retained by petition-

ers mother, also entered an appearance for

udoner

S.E.2d 866. aff'd, 237 Ga 112, 227 S.E2d 20

(1976). Im petstuoner’s case, the return of the

kidnapping with bodily injury indictment by the

Bernen County grand jury on February 17, 1976

deprived petitioner of ihe mgnt to a committal

hearing on thai charge.

1S The Supenor Court of Bermen County had

ordered petitioner heid without bail. Georma

aw authorized the court to do so, Ga.Code Ann

§ 17-41 (1982) providing, in pertinent part

that “{t)]he offenses of armed robbery

On December 13, 1976 petitioner was ar-

raigned on the murder charge in Lanier

County. (Petitioner was arraigned in Cook

and Bernen Counties, respectively, but nev-

er tmed, on the armed robbery and kidnap

ping with bodily injury charges.) On Janu-

ary 24, 1977 he went to trai before a jury

In his opening statement to the jury, the

prosecutor said that the State would prove

that petitioner was the pmncipal culpnt and

that he fired the first shots at Chief Gid-

dens. The prosecutor then presented the

facts we have related and established

through balistics experts that the 38 cali-

ber slugs taken from Giddens’ body came

from his service revoiver and the ratshot

came from a 22 caliber pistol of the type

the police found in pettoner’s car. One of

petitioner's cellmates in the Cook County

jail, where petitioner was being heid, test:

fied that petitioner told him that he volun

tarily took part in the robbery, the kidnap

ping, and the murder. According to the

cellmate, petitioner said he fired the first

shots at Chief Giddens with the chief's own

revolver

The prosecutor also introduced petition

ers previous Statements to wie polce—thne

first, that he was not present when the

crimes were committed: the second, that

he was forced to partcipate in them—

which were stmkingivy inconsistent with

what he told his cellmate.'’ Finally, antici-

pating an alibi defense, the prosecutor es-

tablished that the three people whom pet-

tioner originally claimed to have been with

durmng the time of the killing had not been

with petitioner at that ume.

The theory of petitioner's defense was

alibi. Petitioner chose to present the de

fense himself; he cailed no other witness-

fand] murder are bailable only before a

judge of the supernor court; and the granting of

bail is. in every case, a marter of sound discre

tion.”

16. The transcript of this hearing indicated that

it was “Ti]n the Supernor Court of Bernen. Cook,

and Lanier Counties” and covered ai! three

charges againsi the three accused.

17. These two statements are descnbec supra in

note 12 and the accompanying text

efore a

nting of

discre-

ted that

n. Cook,

FLEMING v. KEMP 1441

Cite me 748 F.2d 1435 (1984)

es. Petitioner testified that on the evening

of February 11 he drove to Valdosta to

visit his uncle, Cain West. He gave Willis

and Larry Fleming # nde. There he got

out and went to look for his uncle and

several other friends. The other two drove

off in the car. Several hours later, they

returned to pick him up and wouid not tell

him where they had been. On the way

home they were stopped by the police and

arrested.

In their closing arguments to the Jury,

petitioners lawyers acknowledged that the

jury might not believe peutioners testimo-

ny and suggested that, if the jury rejected

his alibi, they should accept his post-arrest

statement to the police that he was forced

to take part in the kidnapping and murder

against his will. Counsel placed all the

blame on Willis and Larry Fleming, charac-

temzing them as “fireballs,” “kids who

took advantage of a gentle, older man.

The jury accepted none of these defense

arguments and convicted petitioner of mai-

ice murder.

In the penalty phase of the trial,’® the

State relied on the evidence it had produced

earlier. Petitioner then took the witness

stand to tesufy in mtugation. He adhered

to the alibi that he had presented at the

guilt phase of the trial and attempted

explain away the inconsistent incmmnaung

statements he had given to te police fol-

lowing his arrest’? He claimed that these

statements had been coerced, the police

having beaten him to the point that he was

afraid not to cooperate.

In their final summation to the jury, pet-

tioner’s lawyers repeated the closing argu:

1% These proceedings \ook piace on December 5.

1977 in Cook County. The court moved the

case to Cook County in response {0 petitioner s

motion for a change of venue. See supra note

}

19. See supra note 12.

20. Ga.Code Ann. § 17-10-30(b)(8) (1982).

21. GaCode Ann. § 17=10-30(b)(2) (1982).

2 We deny without extended discussion the fol-

lowing four claims raised by petitioner First,

the prosecuuon deliberately withheid exculpato-

ry evidence from defense attorneys. including

the fact that the prosecution promised parole !o

ments they had given at the guilt phase of

the trial. They stressed the testimony of

Sheriff Alderman, who had taken petition-

er's February 16 statement and was a per

sonal friend of petitioner's, that petitioner

cried when he confessed to being forced to

take part in the crime and appeared genu-

inely to regrec Shenff Giddens’ death

They also relied on some points they had

developed in cross-examuning several other

law enforcement officers; petitoner had a

long employment history, respected law en-

forcement officers in general, and had nev-

er been convicted of a violent crime. The

jury nonetheless recommended the death

penalty, finding two aggravaung circum:

stances: (1) the victim was a police officer

engaged in the performance of his duties,™

and (2) defendant committed the murder

while engaged in the commission of anoth-

er capita! felony, kidnapping W th bodily

injury *

After exhaustng his state remedies, peti

tioner instituted these habeas corpus pro

ceedings in the distmct court, presenting

thirty-nine federal constitutional claims

Two required an evidenuary hearing: pet-

tioner’s claim that he was denied counse! at

a cnmtical stage in his state cmmina! pro

ceeding, i.e., the evidenuary heamng before

the Cook County justice of the peace. and

his claim that his lawyers performance

during both phases of his tai was incom:

petent After hearing the partes evidence

on these issues, the district court denied

relief on all of petitioner's claims.

In this appeal, petitioner brings eight of

the claims presented below. Oniy four are

worthy of discussion.* First, petuoner

petitioner's ceilmate in return for testifying that

petitioner confessed to the crime. in moiation of

Brady v. Maryiand, 373 US. 83. 87, 83 S.Ct.

1194. 9-97, 10 L.Ed.2d 235 (1963). Second. in

recommending the death sentence, (he jury im:

property relied on the nonstatutory aggravating

circumstance that the murder icft a young wid:

ow with three smail children. Third, the court

improperly instructed the jury as (o its applica-

tion of mitigating circumstances. Fourth. ve-

mire persons were disqualified improperly on

the ground that their conscientious scrupics

against capital punishment would automaticaily

render ther unabie to impose the death penal

ty. in violation of the rule of Witherspoon v

[linois. 391 US. $10, $8 S.Ct. 1770, 20 LEd.td

1442 748 FEDERAL REPORTER, 24 SERIES

was denied the presence of counse! at a

critical stage of his criminal proceeding, in

vwlation of the sixth and fourteenth

amendments,” thus automatically vitiauing

his conviction and barring his retrial. Sec-

ond and third, petitioner was denied effec-

uve assistance of counse! at both the guilt

and penalty phases of his tnai, in violation

of the fifth, sixth and fourteenth amend-

ments.“ Fourth, since the jury at neither

phase of his tna explicitly found that peti-

tioner either intended or participated in

Chief Giddens’ killing, the eighth and four-

teenth amendments * prohibited the impo

sition of the death sentence. We consider

petitioner's claims sequentally

776 (1968). We note in passing that, under the

Georgia contemporaneous objection rule. a de

fendant musi object to the prosecutions voir

dire at tnai in order to preserve the issue for

appeal Siate v. Graham. 246 Ga. 341. 271

S.E.2d 627. 628 (1980): White v. State, 146 Ga

App. 810, 247 S.E2d $36 (1978). Here, the

defense failed to raise the Witherspoon objec

tions at tmal. This constituted a “procedural

Jefault” under Wainwrghr v. Sykes, 433 US. 72

97 S.Ct. 2497, $53 LEd.2d 594 (1977); Darden .

Wainwright, 725 F.2d 1526, 1549 (11th Cir. 1984)

en banc) (Tjoflat. J.. dissenting). According,

petiioner would normaiis Se required {o snow

cause for failing 'O OOjVEC! and actuai prejucice

resuitine from the fortenure. Untned Siates

Frady, 456 U.S. 152. 167-68. 102 S.Ci. 1584

1594. 7? LEd.2d 816 (1982): Engle v. /saac, 456

U.S. 107, 126-38. 102 S.C:. 1858, 1871-75, 71

LEd.2d 783 (1982). However, as we staied in

Rogers v. McMullen, 673 F.2d 1185, 1188 (ilth

Cir.1982), cert. demed, 459 U.S. 1110, 103 S.Ct.

740. 74 L.Ed2d 961 (1983), where a state appe!

ate court does not rely on a procedurai defauil

in reyecting the claimed error and reaches the

ments imstead, the federal habeas courts may

renew the petitioner's claim of error. See also

Thompson v. Estelle. 642 F2d 996 (Sth Cir

1981). Here, the Supenor Court of Tattnall

County, Georgia, in considenng petitioner's

Witherspoon ciaim, denied ii on the merits, anc

the Georgia Supreme Court alfirmed that dec:

sion by operation of iaw Ov declining to review

t. See supra note |.

As for the first claim, the siate triai judge

found that no secret deal for parole exisied and

that the prosecutor withheld no Brady mater:ai

this finding was not cleariy erroneous. The

second claim is without meri because the jury s

finding of two valid siatuiory aggravating cir

cumstances authorized imposition of capitai

punishment. Zam v. Siepnens, 462 US. 862

ae eee, 103 S.Ci. 2733, 2744-455, 77 LEd.2d

235 (1983). As for the third ciaim, the coun

acdequaliely insiructed ihe jury on mitigating cir

I].

{1} Petitioner claims that he was denied

the representation of counsel at a “critica!

stage’ of his state criminal proceeding, the

May 14, 1976 evidentiary hearing before

the Cook County justice of the peace. in

violation of the sixth and fourteenth

amendments, see Coleman v. Alabama.

399 U.S. 1, 90 S.Ct. 1999. 26 LEd.2d 387

(1970), and that his conviction must there

fore be set aside. He claims, moreover

that Holloway v. Arkansas, 435 U.S. 475

98 S.Ct. 1173, 55 LEd.2d 426 (1978), bars

the State ™ from trying him again for the

murder of Chief Giddens

cumstances anc ‘heir reiationsnhip \|o aggravat

img circumsiances. As-to the fourth claim, the

venire voir dire was sufficient for the court to

determine whether a prospective ;uror was qua!

fred under the Witherspoon ‘esi |o participaic

in the sentencing phase of the triai. The coun

excused mo venire person who appeared to be

qualified to sit

23. The sixth amendment provides. in pertinent

part. thai “jijn ail criminal prosecutions. the

accused shall enjov the might — to have the

Assistance of Counsel. for his defense The

fourteenth amendment makes the sixth amena

ment right !0 counsei appiicabie to siaic cour

proceedings Gideon Wainwmght 372

335, 342, 83 S.Ct. 792, 798. 9 LEd.2d 799 (1963

24. Petitioner prowdes no authority for the prop

osition that the deniai of counse! vioiated the

fifth amendment. We therefore consider this

claim as a violation of the sixth and fourteenth

amendments.

25. The eighth amendment provides that “crue

and unusual punishments [will not be; inflict

ed.” This amendment is made appiicabie ‘o

State criminal proceedings through the four

teenth amendment due process clause. furman

v. Georgia, 408 U.S. 238, 239-40. 92 S.Ct. 2726

2727, 33 LEd.2d 346 (1972)

26. Under the sixth amendment. an indigent de

tendant, such a8 petitioner, is entitiec (Oo counse!

at any “critical stage” in his cmmuinai prosecu-

tion, i.e., one in which the “substantial mghts” of

the defendant may be affected. See. «g., Hoilo-

way v. Arkansas, 435 U.S. 475, 98 S.Ci. 1173, 55

LEd.2d 426 (1978); Unmised States v. Wade, 388

U.S. 218. 227. 87 S.Ci. 1926. 1932, 18 LEd tc

1149 (1977), Powell v. Alabama, 287 U.S. 4 3

S.Ci. $5. 77 L.Ed. 158 (1932 “olerman v. Aia

bara, 399 U.S. 1, 90 S.Ci. 1999, 26 LEd.td 387

1970). hoids thai 2 preiiminary hearing such as

e was denied

at a “erntical

ceeding, the

imng before

1e peace, in

fourteenth

Alabama,

L.Ed.2d 387

must there

moreover

°5 U.S. 475

1978), bars

gain for the

> \O aggravat

stth ciaim. the

r the cour to

-ror was qual

ai. The cour

ppearedc {Oo be

IN pertinent

seculions ne

'o Nave ne

teftense The

xInh amend

idl

tor tne oroc

vidoiated ine

-onsider (his

ine founeenih

es that “crue!

10t be} inflict

appiicabie io

gh the four

iuse. furman

92 S.Ct. 2726

nm indigent de

led to counse!

unal prosecu

sai mghts” of

ce, «g., Hoilo-

S.Ci. 1173, $5

ring such as

FLEMING v. KEMP 1443

Cite as 748 F 2d 1435 (1986)

[2] The May 14, 1976 evidentiary hear

ing was held at the request of Millard

Farmer, the Atlanta criminal! lawyer Larry

Fleming's attorney had brought into the

case, to enable the defense to discover the

State's evidence on ail three pending

charges. Petitioner contends that this evi-

Jenuary heamng was actuailv a committal

hearing convened Dy the court to determine

probable cause as to the then unindicted

crimes. armed robbery and malice murder,

and whether the accused should be bound

over to the grand jury. (The accused had

already been indicted in Bermen County for

kidnapping with bodily injury, and since it

was a capital offense they were being held

without bail on that charge.) The State. in

response, contends that the heamng was

not a committal heamng: rather, it was

simply an informal discovery session, albeit

presided over by a judicial officer, request-

ed by defense counse!, and agreed to by the

prosecutor. This is apparent from the fact

that the presiding judicial officer made no

probable cause determinations at the con-

clusion of the proceeding.”

Peuuoner first raised his claim of demec

representation in the habeas corpus pet)

n he addressed to the Tattnai] County

Supenor Court.“ That court, foilowing an

videnuarvy heamng. sidestepped the ques

nons concerning the nature of the May 14

1976 proceeding and petitioners represen-

he commument hearing provided by Georgia

aw. see supra note \4. is a “critical stage

Petnioner contends that Hollowey heid that the

denial of counsei at any critical Slage viliaices

anv conviction that follows and aiso Dars any

retnal of the defendant. In making this conten.

tron, he overiooks the language of Coleman indi

cating that the demai of counse! at a preiim

nary hearing does not viate the defendants

subsequent convicuon if the denial was “harm

ess error under Chapman v. Califorma, 386

S. 18. 87 S.Ci. 824 LEd.2d 70S (1967).~

399 US. at 11, © S.Ct. at 2004. The logicai

extension of this hoiding would sugges (nai 4

defendants retmai would not be barred if the

demiai of counsei at the preliminary hearing

would noi taint the retmal proceedings. We

need not decide the question, however, Decause

we conciude, as did the district court deiow

that petmioner was represented SY counse! ai

he Mav !4. 1976 hearing

27. The record strongiv supporis the Siate s pos:

ion that the May !4. 1976 heamng was noi a

tation and focused instead on the question

of whether pewtioner had been prejudiced

by the proceeding. The court found that

petitioner had suffered no prejudice and

accordingly rejected his claim.

The district court, being bound by no fact

findings regarding the nature of the hear

ing and petitioner's representation thereat

see 28 U.S.C. § 2254id) (1982), referred pe

utioner’ss claum to the magistrate for an

evidentiary hearing. After hearing the tes-

umony of severai witnesses, the magistrate

found that the May 14, 1976 proceeding

was, in fact, a committal heamng and that

petitioner had not been represented be

cause Edward Parmshi, his court-appointed

attorney on the Kidnapping charge. chose

not to attend. The magistrate conciuded

that Holloway v. Arkansas and Coleman

Alabama mandated that petitioners con

viction and death sentence be set aside. and

he recommended that the district court is

sue the wnt.”

The distmct court. after the State object

ed to the magistrates recommendation

nvened an evidentiary heamng, heard ad

ditional testumony. and considered petition

ers claim de nor The court found. alter

Te . ae . 4 od n

native hat the Mav 14. 1975 proceeding

was an agreed-upon discovery confer

ence.’ not a committal heamng, and that

attorney Farmer had represented petitioner

ommuttal hearing. First. the Cook County Jus

uce of the Peace had subject Maiter pumsdiction

only over the cnme commutted in Cook County

armed robbery: he did not fave jurisdiction

over the malice murder offense now under re

view, because that offense took piace in Lanier

County, GaCode Ann. § 15-10-S0(b) (1982). or

the kidnapping with bodily injury offense, de

cause that offense occurred in Bermen County

ul, and the grand jury had aiready returned an

ndictment thereon. See supra note |4 Sec

ond. the justice of the peace neither entertained

argument nor entered an order on the issues

posed by a commuttai hearing. Third. defense

counsel viewed the hearnng as merely a dis

covery session: as attorney Farmer toid the

district court at the habeas hearing. he requesi

ed the hearing to discover the States case

28. See supra note }

29. The magsirate did not decide the point pet)

yoner now presents to us, that Hollowey

Armensas wouic Dar Ss reinai

1444 148 FEDERAL REPORTER, 24 SERIES

at that hearing. The court therefore de

med petutuoners claim.

Whether the May 14, 1976 proceeding

constituted a commuttal hearing and. thus,

a critical stage in petitioners prosecution

for sixth amendment mght to counse! pur

poses is @ nettlesome queston. Had pet-

uoner and his two companions already Deen

ndicted for ail of the crimes for whch they

had been arrested, so as wo render 4 pre.'m

inary heamng determine probabie cause

unnecessary, we might have litte difficulty

wn concluding that the proceeding was. as

the State has portrayed it, merely @ make

shift discovery session not proviced for by

the Georgia law, which the parues 4r

ranged for their own convenience But

this is not the case; the grand junes for

Cook and Lamer Counties had not yet met

and probable cause to believe that tne

three accused had committed armed rob

bery and malice murder hac not een au

thoritatively determined. Thus, how to 'a

bel this preceeding 5S ndeed, deDatabdie

We need not decide the question. now

ever for we agree with the distmct court

siternative holding that petitioner received

-he representation of counse!. Dy Mr. Farm

er at that hearing” That holding, in tne

~ontext of this case, consututed 4 finding

f fact which we must accept uniess ciear:)

erroneous. See Fed.R.Civ P. 52(a). See

siso Baty v. Balkcom, 661 F.2d 391 (Sth

Cir. Umit B 1981), cert. dented. 456 US

1011. 102 S.Ct 2307, 73 | E 1308

1982): 2! Patterson v. United States, 437

F 2d 341 (Sth Cir.1973) * (holding that Ruie

52(b) applies to factua! determinations in 23

U.S.C. § 2254 (1982) proceedings in the dis

The district court's finding ‘nat Farmer

represented peuwoner at we May 14, 13

w. We reach Uus conciusion notwilhsianding

he fact that no judicial officer had appointed

Farmer to represent petitioner The absence o!

an official appointment did not preciude Farm

er and petitioner from having an attorney~<iient

relauionship at that hearing

“coc 44

31. In Stern v. Reynoids Securnnes, inc., 06/ F..c

33 (11th Cir.1982), ims court adopted as Dinding

precedent ail decisions of Uni B of the former

Fifth Circuit handed down after Septernber 30

281

hearing is well documented Dy the court

reporter's transcript of the hearing The

portion of that transcmpt indicating “Ap

pearances,” Le., the identity of the lawvers

appearing for the respective parties. stated

that Millard Farmer, “Semor Defender

Georgia Cmminal Jusuce ounce! ap

peared “for the defendants ' According to

the style of the case. we defendants were

petitioner, Henry Wiilis Il]. and Larry Don

neil Fleming. Farmer was the only .awyer

who entered an appearance for these de

fendants.= The prosecutor. in his opening

remarks to the court at the beginning of

the hearing, referred to Farmer as ‘cour

sel for the defendants.” Farmer. responc

ng two the prosecutor s pening remar®

said. “] think that is correctly statec

Eighteen witnesses. twelve cailed Dy the

State and six by the defendants. vesutied at

sho b » Their tect » d , ob

the hearing. Their tesumony dealt with a:

three crimes under invesugation and 4)

three defendants. Farmer conductec 4!

the defense quesuoning, as f he represent

> 7 a - r bn

ed al] three defendants. in sfort, nis 4

ns were compiet+ -onsistent Ww

re resentau r =) 4 ner 3 Na ~ ar Me

We think it important wo note that farm

er never suggested wo ‘he court or UK

prosecutor that ne was not represenung a

three defendants at the neamne

vast expemence and expertise in cmmuna

aw, especially in capital cases such a5

syne. Farmer knew the significance of a>

searing” for all the defendants: ne «new

that if this were not true, that. for exam

ple, he did not represent peviuoner, petl

tioner might well be denied his sixth and

fourteenth amendments mgnt w counse

and the integmty of the State s prosecutor

§ pewuoner would be open to quest

32 In Bonner v. City cf Prichard, %61

1209 (lith Cir.1981 en banc tus court

agopited as binding precedent ai secisions

he tormer fr fin Carcuil handed down prior

}crober 1. 1981

43. The record indicates that Farmer ac several

assistants sitting with him al the counse! avie

during the hearing. out i Joes noi inform us

vho these assistants were or whether ey were

even lawyers

——

EEE OO LL

ac severai

nse: laore

niorm us

ney were

FLEMING +. KEMP 1445

Cite an 748 Fld 1435 (188)

Moreover, Farmer knew that if he misied

the court as to the true nature of his ap

pearance for the defendants. especially ina

case as serious as the one at hand, he

might face disciplinary proceedings. The

district court did not believe that Farmer

misied the state court in this situavon it

found that he in fact represented pewuon-

er. The record fully supports the courts

finding Peutioners ciaum therefore

Petitioner ciaims that his convicuon

and/or sentence must be set aside Decause

he received ineffective assistance of coun-

se| at both the guilt and penalty phases of

mis tmal in violation of the sixth amend

ment. See McMann v. Richardson. 397

11S. 759. Tl n. 14, 90 S.Ct. 1441, 1449 1

5 LEd.2d 763 (1970). Petiuoner hac

the services of two attorneys throughout

his prosecution: the court-appomnted Ed

ward Parmsh. a former state prosecutor

and veteran cmmuna! defense lawyer who

had tmed approximately (thirty murder

-ases in his forty-six years at the Dar. and

Reniamin Zeesman. retained Dy petitioner s

mother an equaily expemenced tmai lawyer

with forty-five vears expemence Roth at

rornevs were intimately familiar with the

-ommunities where the cmmes were com

mitted and the tmal occurred, with the pros-

ecutor assigned to the case, anc with the

» enforcement officers invoived. In fact,

P. «sh had known the prosecutor for some

orty vears. This relauonship gave Parmsh

and Zeesman a unique ability to invesugate

the evidence im the case on 4m informal

basis. The record discloses that these two

attorneys conducted a vigorous and ‘thor

yugn defense

The Superior Court of Tattnall County

jeorgia, in whose termtonai jurmsdicuon pe

eboner had been imcarcerated, considered

peutioner’s ineffective assistance of coun-

sei claim on habeas corpus. The court,

%. We emphasize thal petitioners sixth and

fourteenth amendments claim here is that he

was demed counsel at the May 14, 1976 hearing

He makes no ciasm that if Farmer represented

hom at the hearing Farmers pervormance was

nacequatc

relying exciusively on the transcripts of the

proceedings held in petitioner's murder

prosecution in the Supenor Courts of Lanr-

er and Cook Counties.™ concluded that his

lawyers had done a good job and denied his

claim

When petitioner presented his ineffective

assistance claim to the distmct court, the

court concluded that the Tattnall County

Supenor Court had not adequately deve'-

oped and decided the facts on which pet

voner besed his clasm and, according!)

scheduled an evidentiary heamng. See gen

erally 28 U.S.C. § 2254 (1982). At the

hearng, petitioner's habeas counse! called

petitioner's tmal attorneys. Parmsh and

Zeesman, to the stand and questioned them

extensively about their pretmai invesuga-

bon of petwwuoner’s case, their preparauion

for tral. and their tmal strategy. Habeas

-ounse! also elicited tesumony on the same

points from the state prosecutor oun

sel’s final witness was Georgia Bureau

Invesuganon Agent Greeson. Greeson had

participated in the takung of one of peuuuion

ers statements to the police * anc. there

after. discovered that petitioner hac con

fessed to his ceiimate in the Look Count

jail that he Kidnapped and murdereca .

270CGens

Habeas counse!’s point in calling Ureeson

was to show that. contrary to the tesumo

nv of Parmsh and Zeesman, they had

adequately intervewed Greeson pmor *0 pe

ctioner’s tmal. Greesons tesumony

not establish ‘this poimt, iowever 4

though Greeson could not recail the speci!

ies of what he and Parmsh may have ais

cussed pmor to petitioner's trai, he stated

that whatever Parmsh said about any con-

versauon they had was correct.

In addiuon to the testumony of these

witnesses. habeas counse! introduced into

evidence the affidavits of several witnesses

who said they would have given favorabie

character testimony in petitioners behalf

35. See supra note

%. See supra note li.

1446 748 FEDERAL REPORTER. 2d SERIES

at the sentencing phase of the trial Dut

were never contacted by petitioners law-

yers. The State rebutted this evidence

with the affidavits of five people who com-

mented on peuwoner § character unfavor-

abdiy

The districs court thus dended petiuon

er's ineffective assistance of counse! ciaumn

pased on the live tesumony of his trial

lawvers, the prosecutor, and Agent Gree

son, the affidavits of character witnesses.

both favorable and unfavorable to peuuon-

er. and the transcript of petitioners criumr

nal prosecuuon that previously had been

aid before the state habeas court in Tatt

nal] County

The district court rejected peguoner s

-iaim. In so doing, the court did not ac

jress each specific episode of allegedly in

effecuve assistance ef counsei and adic not

find the historcai facts concerning Wwe ep!

sode. Rather, the court picked out & few

f§ petuoner Ss points. conciuded that coun-

sei had acted proper'y and then considered

eunse!’s overall performance The court

wund that, faced with an aimost hopeless

“ase peutuoner $s attorneys nag gone 4

superb job of trying © eonvince two juries

to spare peuuoner S ife and} rendered

more than the effective assistance of coun-

se] that [petuoner) was consutuuonaily en

titled to.” The distmet court appiying the

standard of Washington ¥ Stnckiana, 693

F.2d 1243, 1258 (Sth Cir. Unit B 1982) (en

banc), rev'd — US. —— 104 S.Ct. 2052,

89 LEd.2d 674 (1984) finding Fifth Cir-

euit’s standard for establishing effective

assistance of counsel too 10w!, also found

that peuuoner ad shown no “actual and

substanual disadvantage as a result of

-ounsei’s performance, observing that we

‘mountainous record of evidence proving

pettoner $s guilt” would make any finding

of professiona! wnadequacy harmiess be-

yond a reasonabie doubt

{3] The Supreme Court, in Simexiand

Washington. — us. —., 104 $.Ct

2952. 80 L.Ed.2d 674 (1954) prescmbed we

standard that we must now apply w assess-

ng peuuoner s claim. A sixth amenament

neffectuve assistance xf counse! ciaum has

cwo elements First, the peuuoner must

show “that counsel made errors 80 semous

that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the

Sixth Amendment ” Id. at ——, 104 S.Ct

at 2064. We focus on the professional

reasonabieness of counsel's assistance un

der the arcumstances, bearing in mind that

there are countiess ways wo provide effec-

tive assistance in a given case. Jd sat —

104 S.Ct at 2066 Second, the peuuoner

must show actua! prejudice dae—

104 S.Ct at 2064 Here, the appropmate

test is whether ‘there is a reasonable pro&

ability that, but for counsel's unprofession

al errors, the resuit of the preceeding

would have been ifferent

104 S.Ct at 2068

We now examine each pnase f peuuor

er's case. In the instances where the dis

trict court resolved we salient histomca

facts, we rely on ics findings: where \t dic

not. we treat peuwuoners factual allega

tions as true. For convenience we decide

each episode of alleged nadequate repre

gentauon OV addressing tne Washingt

element that most expeditious?» isposes

penuoner s al ee Fs ’

nes “/

[4] Petuwoner point to numerous act

or omissions that ne -ontends constitutes

neffecuve assistance of counse! in “ne

guilt phase of his case We consider -ne

as they allegedly seccurred, chronoiog)c3!'>

Petitioner contends that "is attorne

failed to challenge the gran¢ jury array 35

not represenung 4 fair cross-section of Wie

community. Peuwoners grand jury

assayed probabie cause Ynce the wa!

court heard ail the evidence and determined

that it established a case >f malice muraer

for jury consideranon, and once the Ur)

jetermined that peuwoner was guilty de

yond 4 reasonabie doubt, peuuoner sul

fered no possibie prejudice from we

grand jury's composicon Rose v. Mit

ei, 443 U.S. 545, 552. 99 S.Ct 2993. <7"

“29 (1979), see a0 juice

FLEMING +. KEMP

1447

Cite as 748 F 2d 1438 (1984)

Fortenderry, 661 F.2d 496, 498-99 (5th Cir.

1981) (en banc).

Petivoner has nct demonstrated the ac-

tual prejudice required by Washington.

The record indicates that, had petitioner's

attorneys obtained a dismissal of his indict-

ment, the prosecutor would have represent-

ed his case to a reconstituted grand jury

within weeks and procured another indict

ment. Thereafter, petitioner would have

gone to tmal and been convicted on the

same overwheiming evidence, presented at

the trial, now under scrutiny

Petituoner contends that Edward Parmsh

was derelict in his duty for failing to attend

the May 14, 1976 discovery heamng before

the Cook County Justice of the Peace

Parmsh knew about the heamng and attenc-

He did not stay for the enure

proceeding because he aiready knew what

the State's evidence was; peQKtioner was

not going to testify, and Parmsh felt that it

was in peuuoner’s best interest not to Stay

No poruon of the transcrpt of the May 14

heamng was introduced into evidence al

petitioner's tmal, either as substantive ev)

ed brnefly

r for umpeachment purposes. Peu

ner makes no claim Wat the hearing, or

anything that transpired as a result there

prejudiced him in any way at his mal

He thus fails to establish the prejudice

to relief under Wash-

lence

element essentai

ington.

Pennoner contends that his lawyers

erred in failing to request a change of

venue from Lanier County, where Chief

Giddens’ murder took piace, because of pre-

trial publicity and the attitude of the com-

munity. Chief Giddens had neither uved

nor worked in Lanier County and was not

widely known there. As the state habeas

court observed, only ten percent of the

jurors were excused because of pretmal

publicity or bias toward the accused. The

37. Parnsh explained, ai the evidentiary Searing

n the district court, why he moved [or a change

of venue for petivoners sentencing retrnai. See

supra note He stated that the notonmety en

gendered in Lanier County by petioner s first

mai was suostantiai and did not subside during

prosecutor, testifying in the district court.

said that there was very litUe pretma! pub-

licity in Lanier County and that the specta-

tors at trial were well behaved. Parrish

felt that Lanier County was a good location

for the tna! and that his considerable expe

rience trying cases there, many as prosecu

tor, enabled him to choose a “favorabie

jury. Moreover, the trail judge had a repu-

tation for fairness. We agree with the

district court that, under these

stances, peuuuoner s

crcum

attorneys exercised

reasonabie professional judgment in decid

ing not to pursue a change of venue”

Petutioner complains that counse! failed

to request a continuance of his tna! when

at his arraignment, the prosecutor did not

produce a list of the witnesses who wouic

testify in the State's case in chief, as re

quired by Georgia law. Ga. Code Ann. 1’7-

7-110 (1982). The arraignment took piace

on December 13, 1976, forty-'

fore petwoners tal was to commence

¥O days be

Following the arraignment, the prosecutor

gave pewuoner s lawyers a tentauve list

we State's witnesses. and he suppiementec

the ust as the Tiai approached, producing

hus final list about a week before the tna

began. There were no surprises; petuor

ers lawyers had fully anucipated whom

the State's witnesses would be, and they

were weil] prepared to confront them. As

Parrish testified in the distmct court, he

had previously spoken with the State's

principal witnesses. Those on the list he

had not interviewed had little, if any, infor

mation about the merts of the case. Pew

tioner does not contend that the prosecu

tor's piecemeal production of the States

witness list prejudiced him in any way

His lawyers’ failure to move for a contunu-

ance thus had no sixth amendment implica

tons

the interval between that tnai and his retnai

He felt that he could not pick a fair jury in

Lamer County and therefore requested a change

of venue. The court selected Cook County as

the retral site. and Parrish acceded to the

courts decision

1448

Petitioner faults counse! $ failure to it-

terview his cellmate in the Brooks County

jail, the prosecution § Key witness lo whom

petitioner made an unqualified confession

Long before the tmal began. Parmsh con

ferred with the Sheriff of Brooks County

anc ne xnew precisely what tne -eilmate

was going say Parrish did not inter

view the cellmate because, 45 he explained

to the district court, ne did not want Up

ff his cross-examinaton strategy. The

mopressed by pet!

handling of

pecause petuoner

district court was not

voner's cmtcism of counse! s

this situauon, perhaps

neither claimed nor demonstrated any T&

emtcizes

sulting prejudice Peutioner ais¢

the adequacy of counse!s interview Ol

Georgia Bureau of

*reeson, but, again, he nas not explained

Invesugauon Agent

how counse! 5 -onduct caused him any prey

sdice. This fasure f adequate interview

pecie Ol sux amenamen't ‘laim according

ail

Pertioner asserts error in COUNS©) » fai

ire to file a forma: Brady mouon seeKxing

the prosecution's disciosure of exculpatory

A formal Brady mouon was un-

necessary in this case, 36 the prosecutor

had already gtven counse! full access to his

file. This is one of the reasons why Parr-

sh considered % unnecessary to attend the

May 14, 1976 discovery hearing in Cook

~ounty. Petitioner overlooks the fact that

a pretrial conference

evidence

his attorneys. at

made an orai request for any Brady mate

nai the State might nave The prosecutor

responded that he had none The

judge ordered the State to turn over any

Brady matena) that subsequenuy might

appear, and te prosecutor, as far as we

Peuwoner s

tia!

ean discern, aid SO Brady

‘laim is frivolous a

38. See supra note 22

399. Jd

made no ciaim n the state ima

he ponece

soner

none now nai

ana maa«es

148 FEDERAL REPORTER. 2d SERIES

Petitioner faults counsel's performance

at trial in several respects We discuss his

points in order

Petitioner asserts that counse! failed to

object to the courts excusal of severai

ypposed to capita

veniremen -onsciousiy

punishment As we have indicated in the

margin.” each of these veniremen were

properiy excused under Witherspoon v. ii

linots, 391 U.S. 510 ag S.Ct. 1770, 20

LEd.2d 776 (1968) eonsequentiy. counse

failure to object caused peuuoner no preju

iice

Dorit .

Petitioner asserts that counse! failed ade

yuately to investigate anc prepare for the

Jackson-Denno hearing we a! court

yened during the States case

jetermine the voluntariness and therefore

the admissibility, of the post arrest state

in chief &

ments peutioner gave 0 aw enforcement

fficers on February i< anc 15 ana tw

vn February 16. 1976 In our recitat

the facts in Part 1.B. supra. we “le

the February 12 statement and une sec

statement of February 16, decauss thev

ntroduced at the gull

phase of the tral The gist of petsuoner

claim is that counse! failed to intermew we

police officers present at the scene of pew

tioner’s arrest and, therefore, did not

that fifteen police cars and thirty policemen

converged on the site within a matter of

minutes, that the atmosphere was emouon

ally chargec, and that an officer punched

yne of peutuoner S accomplices in the stom

ach and kneed him in he face

conjectures ‘hat. had counse!

these officers, counse! would have

moned them to testify at the Jackson-Den

no heamng to portray the arrest scene and

eonvince the court that the events which

there inumidated peutoner “

were the only ones

earn

Peouoner

interviewed

sum

LOOK piace

failed to caution him, as required by Miranda *

anzona, 384 US. 436 86 S.Ci. 1602

594 966), before iney nterrogated him ano

.ok his Statements. ¢e upra note i2

16 LEdd

FLEMING v. KEMP 1449

Cine an 748 F.2d 1485 (1996)

such an extent that hus subsequent state

ments to the police were involuntary.

The record does not support petiuoner s

claim. First. there is no evidence indicat-

ing that counsel failed to interview the

officers. At his evidentiary hearing in the

distmet court, peutoner neither pursued

the point in quesuoning Parrish and Zees-

man nor established it through other tesu-

mony. Second, the allegations his trial

counsel made in their motion to suppress

petitioner's statements strong}y suggest

that counsel had questioned someone who

was at the scene of petwoners arrest.

Counsel recited the events which WoK place

there and alleged that the statements pet-

tioner subsequentiy gave the police were

the product of the fear engendered by tne

hostile atmosphere which permeated the

arrest scene.‘

At the Jackson-Denno hearng, We pros

ecutor presented the four statements peu

tioner had given tne pouice As we have

set forth in the margin, see supra note 12,

they were the February 12 ora! statement

to Detective Register and Shenff Gaskins

the February 15 tape-recorded statement to

Agent Greeson, the February 16 tapere

rded statement to Vetective Register and

Shenff Gaskins; anc we subsequent Feb

ruarvy 16 oral, unrecorded statement 40

sheriff Alderman. Penuoners awyers did

not object to tree of these statements (the

first. second, and fourth), because they con-

sidered them exculpatory, and thus intro

juced no evidence to indicate that they

were involuntary. In fact, they used these

statements to argue © the jury that pet

tioner’s two accomplices had forced pet-

tioner to take part their cmme spree

against his will The lawvers only objected

to petitioners tape-recorded February 16

statement to Detecuve Register and Sher

ff Gaskins. This statement was most

damaging to peuuoner because it contained

so many inconsistencies and vaciilavons

that it appeared to be unbelievable Coun

sei claimed that the interrogators method

41. Pettoners awyers initially thought that hs

siatements ‘to (he police resuiied from We

charged airmosphere which permeaicd (he scene

of his arrest. Their subsequent nvestigation

disciosed (hat such was not the case.

of questioning peutoner was decepuve and

confusing and tended to put words in his

mouth, and they thus urged the court

exclude the statement as the product of

improper police conduct. At the close of

the hearing the tna! judge held the state

ment voluntary and therefore admussibie

He added, however, that, if the prosecution

offered the statement into evidence, ‘e

would entertain defense objections to the

interrogators questions that appeared

be leading or tesumoniai in nature The

prosecutor subsequently Jecided not to in

troduce the statement.“

Our examination of the tmal transcript

convinces us that defense counse! s strate

gy, in objecting only to the first February

16 statement, was entirely reasonaoie Pe

titioner’s other statements, ‘wo of which

were presented to the jury.” provided tne

foundation for counsel's closing argument

that petitioner, normally a law-abiding per

son. was himself the wicuim of two hot

headed accomplices, who took undue advan

tage of him. Without these statements in

evidence. this defense argument wou

have been little more than specu/auon ana

wn the face of the prosecuuor trong cas¢

perhaps worthiess

Petitioner contends that counse! acted

incompetentiy when thev piaced mm n tne

witness stand and allowed him tw present

an alibi, because the prosecutor was ore

pared to, ana did. thoroughiy impeacn 15

story. As the state habeas court and the

district court below have both made clear

counse! faced the unenviabie tasx of de

fending an almost hopeless case The

State’s evidence of guilt was overwhelm

ing. Counsel went forward with petivon

er's alibi defense because peuuoner nsist

ed that his alibi was true We cannot labe!

defense counse! professionally incompetent

under these circumstances for having ther

client present tesumony which, if believed

would make out an absolute defense

42. See supra note |2

43. jd

a ee

1456

Petitioner faults counsei for failing to

object to several allegedly improper and

inflammatory comments made by the pros-

ecutor in his final summatvon the jury

We have examined the comments in ques

tion and conclude that their propmety was

debatable and that objections could have

backfired on the defense. Counsel's heat-

f-tnal decisions not to object are under-

standable here. Even in hindsight, we can

not fault them. See Simckiand v Wash

ington, —— U.S. at 104 S.Ct at 2065

We find no attorney error

Petitioner points to numerous acts OF

ymissions that he contends consututed inef

fective counse! in the penalty phase of his

We address these clams chronoiog)

"ase

-aily as they allegedly occurred

Petitioner contends that his attorneys

failed to invesugate for mugaung evidence

‘

and prepare for the penalty phase of "I's

trai. His habeas counsei extensively ©*

amined Parnmsh and Zeesman on this issue

mn the distmet court. Zeesman test fied

that he was responsibie for invesugaung

and character witnesses for the

jefense. Unfortunately

a stroke and a heart attack after the penai

ty tnal. and, as a result, could not remem,

ber many details of his mvesugation

Zeesman did recall, however, contacung

several potenual witnesses \D Valdosta wno

were antagonistic toward peuwoner and

thus were not subpoenaed. Further inves-

ugauon led to nothing favorabie. Petton-

ers past employer, for example, thougnt

petitioner ought to be executed for murder-

ing Chief Giddens. Peutuoner s mother 7e

clined to tesufy. Peuwoners father hac

never supported his farmiy, and for that

reason he lacked credibility Other family

members aiso presented credibility prob

ems. The only favorable character wit

ness defense counse! could uncover was

Sheriff Alderman. Petitioner considered

the aiid!

Zeesman suffered

him a fmend and sent for hum shortly after

he was arrested. Peutooner told Alderman

that his accomplices had forced him to par

748 FEDERAL REPORTER. 24 SERIES

tierpate in the kidnapping and murder of

Chief Giddens.

As a result of this invesugation, defense

counse! decided to use Sherff Alderman as

their character witness. The State called

Alderman for other purposes, and the de

fense. on cross-examination, Drought out

that peutuoner cmed while telling him about

the murder. that peutuoner usually Wid ne

truth: that he respected and obeyed aw

enforcement officers d that he had ne‘

er been charged with a semous felon) Pe

tuoners testimony ese pomts was

consistent with Sher: Alderman s

To rebut Zeesman’s testmony, petition

habeas counse! presentec we affida

nts of seven potential character witnesses

These potental witnesses were 4 fire che!

a reured school teacher, a deputy shenf!

four members of petitioners fam

The distmet court accorded no signilican

ers

ana

to the witnesses who were unreiatec &

petinoner. All the fire chief could say was

that petitioner had been a trusted part-ume

empiovee in the 1950's The retired scn

teacher and the deputy shenff lived in Ro

«nelle Georgia. sixty miles from Mou:tre

setiuoners home, and had tte nis

with petitioner

The State countered these affidavits wit!

the affidavits of four law enforcement

-ers and a civilian. They said that petit

er was a liar, a fighter, and 2 Grunk. ie

he had an explosive, temper. anc

that he frequently carmed a weapon

vioient

The distnct court. considemng this affida

vit testimony in the context of what Zees

man had said, concluded that there was 4

paucity of mitgaung character evidence

available to the defense The court ais¢

eonciuded that petiuoners attorneys n

preparing for the penaity pnase of the tna:

had rendered competent professionai ser

Petiuoner has not persuaded us “at

erred in drawing

vice

the distmct these

court

conc! usions

Petitioner contends that Ms attorneys

errec n failing w obtain an acequate

‘hange or venue tor nis sentencing J'3

year alter is

took place aimost 2

FLEMING v. KEMP 1451

Cae as 768 F.2d 1485 (1986)

This aspect of pettuoner's claim borders on

the fmvoious

guilt/innocence trial. Petitoners attor

neys moved the court for s change f ver

ve because of the atutude of the communr

ty. The trial court granted Wer moton

and moved the sentencing trai site to Cook

Sounty, ten miles away. Petiwoner now

emticizes this as insufficient and contends

that counsei should have obtained sui! an

yther change of venue

Cook County is «a relatively smai rural

unty. Parmsh was very familar with we

“ e. etotud : 5

mmunity atutuces n AF QUDnL e

aii

~ause he and his farmiy had lived there tor

several generauons Parmsh hac a suc

sessful practice in the county seat anc was

erv active in the community According

e feit very comfortabie choosing 4 jum

here Ssenrkinnd » Wash:naton. — U.S

. Simckiand ashington a

— <— < 4 $.Ct. 2052. 2065-66

_ A i we | 9R4 ’ A chat faders

hte dete awd 4 |\,2704 oicgs Wal 2 5era:

Nabeas rt “mu nduige a strong pre

ymption that defense; counse “oncuct

fails within the wide range { reasonabie

rofessiona! assistance, that is, the defend

ant mus vercome the presumption (na!

er ~ ye reumstances ne "2a engec

might be considered ind tmai strate

y er errome "> reo

reser > r - ry rror

ercm zes US un r aire

ne ur enire and heir -aluure u Djec

ne Tia ucge lusqua cauon n we

rosecutor hallenge for cause. of certain

eniremen pursuant to Witherspoon

mous 91 US. 510, 8 S.Ct 17% 2

Ed.2d 776 (1968 We find no cause for

-—ticism. Attorney Parmsh had Deen prac

“ing law im the general vicinity of Cook

ntv for forty-six years. As ‘he record

f the evidentiary hearing im the distinct

rt indicates. he was very ‘amuar with

he venire summoned to trv peuwoners

ase Parmsh utilized this knowledge in

jeciding whether to strike or accept a par

lar venireman Under these circum

tances, his inquiry of the venire was more

than adequate. With regard to pewtoners

Witherspoon point, we have found that

Petitioner faults his attorneys for failing

to object to certaun ailegediy irrelevant,

orejudicial. and inflammatory quesuons the

prosecutor put to certain witnesses anc

some comments ‘e Mace SH we jury

opening statement and im closing argu

ment. When viewed in light of the totanty

sf the circumstances. these compiaints are

neonsequenta! and petty Mos! f the

prosecutor $s acuons simpiy were not objec

tionable. Defense counse! are allowed 4

sonsiderabie breadth of discretion in choos

ng their tma! strategies Simckiand

Washington — | 2 o—-— 4

S.Ct. at 2065-66 mmar as we a

sointed out, that we presume, in “he rn

text presented here. ‘hat unsei rendere

adequate assistance anc made 4 as

“ant decisions in the exercise reasona

orofessiona udgment Peutuoner has

lanuec vercome (thal presumpU

euwuoner assers hat Mr arTis was

neti ect e “ ne ne rm Imne *

arzumer na 2 ele ee

er esamor a e Wa waver e

90lice following arres arms?

make this comment. which r : 3

eems contrary © Vis er nterest

he was jusafied in doing

Peguoner made the statement about We

beaung while he was on the witess stand

on direct examination, relaung OS ai

Parrish did not elicit the statement aDout

the beating. rather, peoUoner volunteered

t m trying to expiain away hus statements

to the police that he had Deen with Larry

Fleming and Willis when Chief Giddens

was murdered. Up to this point in We ™a

there had been no evidence even remote

suggesung that the police had mustreatec

petitioner at any ume. in fact. the evr

jence was to the contrary. the police ‘ac

Jealt with petitioner quite fairly. anc he

had never compiainec e~out Wer weal

ment - >on

1452 748 FEDERAL REPORTER, 2d SERIES

In his closing argument to the jury, Parr

ish addressed this conflict in the evidence:

it was in this context that he made the

comment petitioner now challenges. Parr-

ish's point to the jury was that petitioner

had made the statement, about the beating,

out of sheer desperation and fear for his

life. Petitioner had been in jail almost two

years, and Parmsh suggested that the pres-

sure on him was so great that he was

willing to say anything to save his life. In

short, Parmsh was asking the jury not to

hoid the allegation of police misconduct

against his client.

The district court based its finding of no

sixth amendment violation in this instance

solely on the record of petitioner's penalty

tral; accordingly, we do not apply the

clearly erroneous rule to the court's deci-

sion. Rather, we review the same coid

record to determine whether defense coun-

sei sausfied the test laid down by Wasa-

ington. We conciude, in Washington's

words, that counse! made no error ‘so ser-

ous that counse! was not functioning as the

counse! guaranteed the defendant bv the

Sixth Amendment,” — US. at

>.Ct. at 2064, and that there is no reason

adie proDaDility that. nad counse not made

the challenged comment, ‘the resuit of

proceeding would have been different

104 5.Ct at 2068

. .

ite Bb

Pentoner’s final objection to his lawvers

performance concerns counse!’s statement

in closing argument that

I hope this case goes not into the Federa!

Courts, we've always stuck to our state

court, but we've got to represent our

clent—that’s all there is to it, and espe

cally when we feel an injustice done

We hope it stops here But, we say

jon t take hus life. Be on the safe side.

you re always safer to give the life sen-

tence.

Petitioner argues that this statement im-

properiy informed the jury that petitioner

could seek relief in the federai courts foi-

lowing the imposition of the death penaity

and led the jury to believe that petitioner

might not be executed even if the jury

sentenced him to death

Viewing counsel's argument as a whole

in the light of everything that had trap.

spired before the jury, we cannot Say that

the mere knowledge that petitioner's case

might wind up in federa! court led the

jurors to take their sentencing responsibili-

ty lightly. Corn v. Zant, 708 F.2d 549. 55

(llth Cir.1983); but cf Prevatte v. State

233 Ga. 929, 214 S.E.2d 365, 367 (1975) ithe

“inevitable effect” of the prosecutor's em

phasis on the defendant's mght to an auto

mac appeai was ‘to encourage the jurv to

attach diminished consequence to their ver

dict’). Counsel's statement certainiv did

not affect the outcome of petitioner's sen

tencing proceeding

(5) In summary, we are not persuaded

Oy petitioner's argument that attorneys

Parmsh and Zeesman rendered him ineffec

uve assistance of counse!]. Petitioner's ex

amples of professional dereliction dissoive

away under ciose scrutiny, leaving at best

a handful of colorable claims. A defense

attorney is not ineffective solely because

his chent is sentenced to death intrusive

post-tmai inquiry into attorney perforr

ance. such as that which has been re

4ulred in WIS case. may Jampen the ardor

and impair the independence of defense

counse!, discourage the acceptance of as

signed cases, and undermine the trust be

Tween attorney and client

Stmekland, — U.S. at ——._ 104 S.Ct at

re ~

2066. Counsel's performance. here. en

sured a fundamentally “fair mai” which

“produced a just result.” /d at

S.Ct. at 2064. There is no reason to set

aside peWwoner’s conviction or his penalty

on account of the representation he re

ceived

104

Petitioner contends that the eighth

amendment, as interpreted by the Supreme

Court in Edmund v. Florida, 458 U.S. 782,

801, 102 S.Ct. 3368, 3379, 73 LEd.2d 1140

(1982), foreclosed the imposition of the

Geath penaity in his case because of ‘the

absence of proof that (petitioner! killed or

attempted to kil! or contempiated that

life would be taken Petitioner premises

FLEMING v. KEMP 1453

Clee as 746 F 3d 1435 (1986)

this argument on two fragments of the

instructions the trmal judge presented to the

jury at the close of the guilt phase of his

trial. The first involves the concept of

felony murder, the second concerns conspr

ratora! liability. Petitioner postulates that

the jury may have convicted him of Chief

Giddens’ murder without believing that he

“killfed], attempt{ed] to kill, or intend[ed])

that a killing take piace or that lethal force

de employed,” 1@ at 797, 102 S.Ct at 3376

because Giddens’ murder may have been

the product of a felony, kidnapping with

bodily injury, or a conspiracy in which pet.-

uoner participated. The jury returned a

general verdict of guilty; accordingly, pet-

uoner argues, his thesis cannot be refuted

Edmund does not require an explicit

finding by the sentencer (court or jury

that the defendant “kill[ed], attemptied] to

kill, or untend{[ed] that a killing take piace

yr that lethal force be empiloyec’ before

the death penalty can be imposed What is

important is that the sentencer be sausfied

the evidence establishes the defendant's in-

volvement in the murder to the extent £a

mund requires. If the sentencer is not, or

iid not be. so satisfied, Edmund deems

the death penalty unreasonabDiy disparate

and thus forbids its :mposiuon

In determining whether an Edmund vio-

avon has taken place we first look to the

instrucnoens under which the jury received

the case at the conciusion of the guilt

phase of the tmai. If, for exampie, the jury

was instructed that it could not find guilt

uniess it found that the defendant commit-

ted malice murder, which in Georgia re

quires that the defendant caused the vic-

tum's death with malice aforethought, and

it found the defendant guilty as charged,

the Edmund inquiry would end.“ If, how-

ever, the jury received the case under in-

structions that would authomze it to Dase

guilt on malice murder or felony murder or

conspiratonai murder, then, in order to sus-

tain the death penalty, we must determine

45. A finding of guilt would not, of course, pre

clude a Jackson v. Virguma, 443 US. 307, 324, 99

S.Ct. 2781, 2791-92, 61 LEd.2d 560 (1979), chai

enge that the evidence was not sufficient for a

rational tner of fact to find the petustioner guilty

of maiice murcer Deyond a reasonadie cGoudt

whether the theory under which the parties

argued the case to the jury and the proof

were such that we can safely say that the

jury found the defendant guilty of malice

murder. If we cannot make that determ:-

nation, then the oniy way a death penalty

can be imposed is if the sentencing jury (or

judge, if the judge is the true sentencer) “

explicitly finds malice murder. Such was

not the case here. We therefore turn to

the guiit-phase jury charge to determine :f

the jury received the case under the mulit-

pie liability theomes pettioner has posed

and, if so, whether the theory under which

the parties argued the case to the jury and

the proof nevertheless ied the jury to con

clude that petitioner was guilty of malice

murder

[6] The indictment in this case charged

tiuoner solely with malice murder. The

court instructed the jury to that effect anda

proceeded to inform the jury about the

elements of maiice murder. In doing s

the court made a Dmef reference to felony

murder. That reference was embedded in

the following instruction

Now, the charge here is murder

Now, a person commits murder when he

uniawtully, and with malice afore

thoucht, either expressed or implied

causes the death of another human be

ing

Now, expressed malice is that deliber

ate intention uniawtully to take away the

life of a fellow creature, which is mani-

fest by externai circumstances capabie of

proof. Now, malice shail be implied

where no considerable provocation ap

pears, and wher ai] of the circumstances

of the killing show an abandon and ma-

lignant heart.

Now, a person also commits the

crime of murder when :n the commis-

ston of a felony re causes the death o/

46. In Flonmda for exampie. the tnai judge 's the

sentencer, he jury Serving oOniy in an acgvisory

capacity. FlaStat § 921.141 (1983

1454

another human being, irrespective of

maiice.

Now, before you would be authorized

to find the Defendant guilty of the of-

fense of murder, you must find and be

neve bDevond a reasonaDie doubt that the

Defendant did, with malice aforethought,

either expressed or impiied, cause the

death of James Edward Giddens

And, | charge you that if you find and

believe that at any ume pmor to the date

this Indictment was returned into

court, that the Defendant did, in

ounty of Lanier, State of Georgia, with

aforethought. kill and murder

James Edward Giddens in the way

manner set forth in the Indictment, then

you would be authonzed to find the De

Unis

the

maice

and

fendant guilty of murder

argues that the

nstruction authonzed

murder

[7] Petsuoner talicized

portion of this the

, . “ — 7 f

ury to find him ft feiony

ntendecd to x)!

‘nat ne

not persuaded fA

D Vaugnten, 4l4 >. 141. 146-4

400. 38 LE 368 (19

“on

iv,

ee he ee

neard and saw

from beginning to

F.2d 1332

Jemied, 460 U.S

96 (1983)

n light of what the jury

progressed

Jernigan

as tne trai

Lambd 683

not

e 1a

1339 (11th Cir.1982),

iVVe Aabel

cert.

ane ene 1ank «

1024, 103 S.CLh 12

5 L.Ed.2d

Immediately preceding its reference to

felony murder, the court instructed the

jury concerning malice murder and how

‘malice aforethought” can be demonstrat-

ed. Immediately following the reference

une court instructed that it must

find malice before it would be authonzed to

find the defendant guilty of malice murder

The mandatory prerequisite of malice con-

the jury

47. The court twice charged the jury as foilows

Every person concerned in the commission

f a cmme is a party (thereto and may be

Nargec with anc convicted of commission of

ne cmme A person is concerned in the com

mission of a cmme on/y if he, No Directly

memirs the crime x No. 2 nientionaily

oiner person commit ne

rcumsiances itnai the on

some

inger sucn

-3uUses

-—me

748 FEDERAL REPORTER, 24 SERIES

sequently rendered the reference to felony

murder meaningiess.

The jury's verdict of “guilty as charged”

confirmed the finding of malice. The jury

had indictment dumng deliberation

Knew that the indictment charged petition-

er only maiice murder, and knew

from the court’s instruction, that it could

convict petitioner absent a finding of

maiice aforethought.” The erroneous ref

erence to felony murder, therefore

mere harmiess surpiusage

the

with

not

was

tus does

court ais<

[8] Petigoner contends that

not end the inquiry because the

referred to conspiracy liability for

in charging the jury. The court said

Where a conspiracy is shown the act of

one becomes the act of ai] insofar as the

furtherance of conspiracy is

moet

nurder

we -oncerned

ang each is as fully responsibie for the act

of the other in carrying out the common

purpose as if he, himself, had committed

the act.” This Standing

Mioiate the Edmund ruie:-for im

was

nstructon zione

lid not

the the require

cit In nstructbon

ment that the jurv find that the murder

inder consideration was the

pose e., the intended object, of the con

remove any doubt, the court

instructed jury further, informing

that it could not convict the defendant. as 3

conspirator, uniess it found that he intend

ed the victims killing.” The court

enged conspiracy instruction therefore did

not contravene the Edmund rule

resey _

> acy iV

the

cnal

As we stated supra, these conclusions

regarding felony and conspiratonai murder

should end the Edmund inquiry. We

nonetheless proceed, in subparts 2 and

infra, to demonstrate that the

guments to the jury and the proof before

did not lead the Jury to impose an unlawful

sentence.

Daruies ar

er person is not guilty of anv cmme either in

fact, or Decause of legal incapacity: or. No

ntennonaily aids or abets in the commission

% the come: or No. 4: /niennonaily advises

encourages. hires. counseis or procures anoth

commi the cmme in

hey did any one of those

wouic De conspiring ‘ogether

Emphasis added

her words

things Wey

«r Oo

four

FLEMING +. KEMP 1455

Cite as 748 F.2d 1435 (1984)

would have been authorized, under the

court's instructions, to find petitioner

guilty of felony murder or conspiracy mur-

der.

{9} The prosecution, in both its opening

and closing arguments to the jury, present

ed a single theory of the case, that peutor

er shot at Chief Giddens three times with

the officer's .38 caliber service revolver.

The prosecutor based this theory on pet:

tioner’s confession to his ceilmate in the

Cook County jail. The defense, in its cios-

ing, said that the jury had three scenarios

before it: petitioner was not at the scene of

the crime: he participated in the kidnap

ping and murder but did so against his will

and thus could not be found guilty; he

committed malice murder, as the prosecu-

uon contended.

The prosecutor did menton conspiracy

but only within the context of a voluntary

joint enterpnse: “If me and one other per-

son kidnapped a person and killed him ana

f I'm driving the car or if I'm puiling the

wngger, or whatever, both of us are guilty

just like the other.” The defense counse!

clarified the prosecutor's remarks with

these words: “There must be an agree

ment [to do something], and its up to the

state to prove that agreement before

)'re responsibie for what someone eise

es Thev continued. “Now a man can*¢

be charged with conspiracy W quill when

hes pleading with the ones that aid the

kjlling not to do it. That's just not the law

It's not even remotely ciose to It A con-

spiracy must be an agreement to go ahead

and do an illegal act.” It appears piain to

as that the conspiracy liability the parties

were addressing is not the sort of intent:

ess vicarious killing Edmund condemns.

None of the lawyers mentioned felony

murder in addressing the jury. In fact, the

prosecutor cauuoned the jury that peton-

er was not on tmal for armed robbery or

kidnapping and reminded it tat he had

introduced evidence of those cmmes only

show petitioner's mouve for the murder

The prosecutor emphasized that “we re not

trying a man who wasnt involved [in the

murder}, who wasn't there We're not try-

ing some abstract theory

In sum we find nothing in the partes

subrmssion of the case to the jury Wat

would lead us to conciude that the jury

The evidence in this case presented, as

the defense stated in its closing argument,

three muti ally exclusive scenanos. First,

petitioner and his accomplices shot Chief

Giddens to death with his .38 caliber ser-

vice revolver and a .22 caliber pistol. Sec

ond. Willis and Larry Fleming kidnapped

Chief Giddens and forced pettoner

against his will, to dmve them to the mur-

der scene. En route petitioner, and Gid-

dens, pleaded that Willis and Fleming spare

Giddens’ life. Willis and Fleming then in

structed peuutoner to stop the car, Willis

and Fleming got out, taking Giddens with

them. and went off into the swamp. Petw-

tioner. remaining behind, contunued to beg

for Giddens’ life. Willis and Fleming then

shot the Chief and left him in the swamr

Third, petitioner was not involved in the

robbery, kidnap, or murder, he was in Vail-

dosta visiung his uncie at the ume

The first of these scenamos, the ofie the

State urged the jury to accept. was estad

ished through the testimony of peuuoner

cellmate. to whom petitioner coniessec

shortly after he was arrested and piaced in

the Cook County jail. The second scenano

which petitioner's counse! urged the jury

accept if it rejected the third one, was

established by pettuoner's statement to the

police on February 16. The third scenano

the alibi, was established by petuoner s

statement to the police on February 12 and

his testimony on the witness stand.

In finding petitioner guilty of murder,

the jury had to reject the second and third

scenarios, which portrayed him as an inno

cent man, and adopt the first one. That

scenario descmbed a pure malice murder

and fully satisfied Edmund 's intent stan-

dard.

We draw three conclusions in analyzing

petitoners Edmund ciaim. First, the in-

dictment charged petivoner with maiice

murder only, and the court instructed the

jury that it had to find all of the elements

+ -

——_ —— eet

1456 748 FEDERAL REPORTER, 2d SERIES

of malice murder, including intent to kill, to

convict him. Second, the parties, in their

closing arguments, did not treat the prose-

cution as one for felony or conspiratona!

murder. Third, the jury's verdict could not

have been based on felony or conspiratona!

murder to the exclusion of malice murder

We find no consutuuona! error in pet

toners conviction or sentence. According

ly, we affirm the judgment of the distnct

court.

AFFIRMED

TUTTLE. Senior Circuit Judge, concur

ring im part and dissenting in part

1 concur in Parts I]-B and C of the

Court’s opinion. With deference, | dissent

from Part IJ-A and the final disposiuon of

affirmance.

I cannot agree with the conclusion that

the peutioner was not depmved of the as

sistance of counse! at a cmtical stage in the

prosecution against nim for murcer In

my view, the petitioner was the subject

-ommittal heamng on the murder charge

as provided by Ga.Code Ann. 8§ 17-7-20 et

seg.. at which he was not represented Dy

-ounsei. That hearing was a cmticai stage

»f the State's prosecution of the peutoner

for murder, and reversal of the pewtoner s

-onvicuon is therefore automauc under

Holloway v. Arkansas, 435 U.S. 475

S.Ct. 1173, 55 LEd2d 426 (1978)

a) Standard of Renew

The district court's conclusions that the

netitioner was not the subject of a commit-

tal hearing at which he was unrepresented

and that. even if it were a committal hear-

ing, he was represented Dy his co-defend-

ants attorney, Millard Farmer, are mixed

questions of law and fact which are freely

reviewable See Stnckiand v. Wash-

JS 104 S.Ct. 2052, 2070

20 LEd.2d 674 (1984); Baty v. Baikcom.,

661 F.2d 391, 394-95 n. 7 (5th Cir. Unit B

1981), cert. dented, 456 U.S. 1011, 102 S.Ct

1. Ln Bonner v. City of Prichard, 661 F2d 1206

lith Cir.1981) (en banc), the court adopted as

binding precedent ai] of the decisions of the

2307, 73 L.Ed.2d 1308 (1982).' These con-

clusions are more than simply findings of

primary or historical fact They are also

conclusions as to the Sixth and Fourteenth

Amendment implications of such facts. In

any event, even if this were an appropriate

case for deferential review, in my view the

record amply demonstrates that these con-

siusions by the district court were Clearly

erroneous

b) The Commiuttal Hearnng

Under Georgia law, a committal heamng

may be held to determine if probabie cause

exists to believe an accused guuity of an

offense charged and, if so, to Dind him over

to a grand jury for indictment. Vea:

State, 160 Ga.App. 498, 499, 287 S

E.2d 399

1981 Such a heamng is not a required

step in a criminal prosecuuon and |s obviat

ed once an indictment issues for the cmme

charged. State v. Middlebrooks, 236 Ga

52. 55, 222 S.E.2d 343 (1976); Sims

~ - “9 oan ae

. |

olate 140 3a App ve DIV, awe

1979) Nor is an adversama! heanng con

However. when such a heamng 1s provid

ed. at which a suspect is afforded an oppor

tunity to cross-examine the prosecuuon s

witnesses, it constitutes a ‘cmucai stage

in the prosecution, at which the suspect is

consutuuonally enutied to the assistance

counsel. Coleman v. Alabama, 399 U.S

9 99 S.Ct 1999, 2003, 26 LEd2d 387

1970): State v. Hightower, 236 Ga. 58, 59

999 3 E.2d 333 (1976). It makes no differ-

ence that the suspect may not have Deen

enttled to such a heamng. So long as one

is held. he is entitied to the assistance of

counsel. Coleman, 399 U.S. at &10, 90

S.Ct at 2002-2004. In my mind, there is

no question that this was a committal hear-

ing as to the petitioner. Indeed the prose

eutor. in his opening remarks at the hear-

ing said as much

Judge. the proceeding we're here for to

day is for a committal hearing in Cook

former Fifth Circum hanged down prmor to the

close of business on September 30, 1981 ld. at

509

FLEMING v. KEMP 1457

Cite ae 748 F.2d 1435 (1986)

County, on charges against Larry Don-

neil Fleming and Henry Willis, III.,

charged with the offense of armed rob-

bery of Farrell Kent, and also the armed

robbery charge against Henry Willis,

IIl., charging him with the armed rob

bery of another place here in Cook Coun-

ty. By agreement of counsel and by

stipulation, and this is subject to correc

uon by counse! for the Defendants, we

are also Aamng a committal Aearing

before this Court with respect to the

charges which are pending in Lanter

County, Georgia, charging the Defend-

ants, Larry Donneil Fleming, Son H

Fleming and Henry Wiilw, lll, with

the offense of murder of James Edwara

Giddens

Emphasis added.

Although the magistrate in the habeas

proceeding below made a proposed finding

that the May 14, 1976. proceeding was a

ommuittal heamng, the distmct court chose

nsteac to charactemze it as an “agreed

upon discovery conference.’* The court

apparently arrived at tnis conciusion on the

ground that a committal heamng was un

necessary bDecause the petivoner was 4ai

ready under indictment on the kidnapping

. ro mn Rerre * mene

nNarges in pbermen OUl

This is entirely beside the point. In the

first piace, if the kidnapping charges had

Seen disposed of in any way favorabie to

the petwuoner—such as by an acquittai—

pmor to the return of an indictment on the

murder charge, the evidence developed at

the May 14 hearing would certainly have

provided the prosecuton with sufficient

probabie cause to bind the petitioner over

to the Lamer County grand jury on the

murder charges. As the prosecutor stated

in his opening remarks at the May 14 hear

ing, a committal hearing was unwarranted

yniy as to the kidnapping charges, and it

was as to those charges aione, on which an

indictment had been returned, that the

hearing was solely for discovery purposes

2 The magstrate concluded. as | do, that the

petitioner was sudrected (Oo a committal Nearing

without counse! and (Mal reversai of fis Murder

convicuion is inerefore aulomatic The distinct

Second, the May 14 hearing, however the

district court chooses to characterize it,

was precisely the sort of proceeding which

was at issue in Coleman v. Alabama iIn-

deed the Supreme Court there found the

Alabama preliminary hearing to be a crit-

ical stage in the prosecution precisely be

cause it was a proceeding at which the

prosecutions witnesses could first be sub

jected to cross-examunawuon:

Plainiy the guiding hand of counse! at

the preliminary heanmng is essential to

protect the indigent accused against an

erroneous or improper prosecution

First, the lawyer's skilled examination

and cross-examunauon of witnesses may

expose fatal weaknesses in the State's

case that may lead the magistrate to

refuse to bing the accused over. Second

in any event, the skilled interrogatoon of

witnesses by an expemenced lawver can

fashion a vital impeachment too! for use

in cross-examination of the State's wit

nesses at the tnai, or preserve testimony

favorabie to the accusd@™ of a witness

who does not appear at the tmai. Third

trained counse! can more effecuvely dis

cover the case the State has against its

chent and make possbie the preparatior

of a proper defense to meet that case at

the tmajl. Fourth. counse/ can aiso be

nfluential at the preliminary heamng in

making effective arguments for the ac

cused on such matters as the necessity

for an early psychiatme examinawion or

Dal.

399 U.S. at 9, 90 S.Ct at 2003

Thus, | would conclude that the May 14

hearing was the sort of preliminary hear-

ing which the Supreme Court has heid to

be a cmucal stage in a crimunai prosecutuon.

It is also clear to me that the petitioner

was a subject of the committal heanng

This, too, is obvious from the prosecutor's

opening remarks quoted above. The pet-

voner was present at the hearing, sitting at

counsel table? Statements which the pen-

judge rejected the magstrate’s proposed find

ngs ang recommendations in their entirety

3%. Indeed. it appears that the state compeiled his

presence despite (he insisience of his attorney as

ee ee ae ee ee

1458

tioner had made in response to police inter

rogation were introduced into evidence by

the state. Prosecution witnesses testified

against the petitioner as wel! as against his

co-defendants and pointed him out when

asked to identify the person about whom

they were testifying. In the face of these

facts, prosecutor Vickers Neugent’s baid

after-the-fact assertion that the petitioner

was not participating because his attorney

on the kidnapping charge had declined to

parucipate is not worthy of consideration

In my view, it simply cannot senously de

contended that the petuwtvoner was not a

subject of this committal heamng as to the

Lanier County murder charges. for pur

poses of consttutonal inquiry

Since this was a committal hearing on

the murder charge against the petiboner

the cmtsca! questons are whether the pet)

tioner was represented by counse/ at the

hearing and, if not, whether he effecnvely

waived his mght to the assistance of coun-

se!

The respondent argues that. at the ume

the committal heamng, the pettoner

was represented with respect to the mur

jer charge either bv Edward Parmsh, wn

had been appointed to defend the peuuoner

the kidnapping charge in Bernmen

County: or by Millard Farmer, who repre

sented the pettuuner's co<efendants, Larry

Donnell Fleming and Henrv Willis, II], in

the committal heamng. in my view, it is

clear that neither of these attorneys repre

sented the petitioner at the ume of the

committal hearing with respect to the mur-

der charge on which ne was ulimatety

tmed and convicted.

against

In the first place, at the ume of the

committal hearing, Mr. Parmsh had never

been appointed to defend the peutoner

against the Lamer County murder charge.

and the distmct court's finding to the con-

trary is clearly erroneous. He had been

to the kidnapping charge. Edward Parmsh. that

nether he nor the petitioner was (0 participaic.

Vickers Neugent, the district aftorney, acknow!-

edged ai the habeas hearing ‘hat. te Sad ‘old

Mr. Parnmsh that the petotioner wouid de at the

commuttal hearing whether he or Us counse!

chose (tO parucipate oF Dol

748 FEDERAL REPORTER, 2d SERIES

appointed by Judge H.W. Lott some*ime in

late April 1976 to defend the petitioner

against the kidnapping charge. for which

the petitioner had already been indicted.‘

An arraignment was had on that charge on

Apmi 30, 1976, and tmal was scheduled for

midJune, 1976. At that ume it was clear

that no action could be taken on the mur

der charges in Lanier County unt! that

county S$ grand jury reconvened in

ber 1976

sentem

Meanume, Mr. Parr-h was certain. as

well as relieved, as he <stified at the habe

as proceeding, iat he had not been ap

pointed with respect to the murder

Indeed, when in August 1976 it was appar

ent that the petwoner had not yet

able to retain counse!. Judge Lott appoint

ed one Reese Franklin

petitioner in his murder tmai. Thus. clear

y, the judge who had appointed Mr. Parr

ish in Apmi was not under the impression

-harge

Deen

to represent the

that Mr. Parmsh had been appointed &

represent the petuvoner with respect

anvthung other than the kidnapping ¢Charre

was only after Mr. Franklin was a a

PU Na 3 ize? A nn UZ -_"

appointed Mr. Parmsh on “whe petitioner

murder charge because of Mr. Parnshr

familiamty with the case. By that sume

was clear that whe state was not zoing

proceed on the kidnapping charge unt! ai

ter the far more semous murder charves

had been disposed of, if at ail

Thus, in my view, the record simpiy does

not support the district courts conciusion

that Mr. Parmsh was the petitioner's attor

ney with respect to the murder charge

That be was specificaily appointed as his

attorney with respect to a related charge

immatemal He had not been appointed to

represent the peQuoner against the murcer

charge. and thus he was not penvoner s

counse! with respect to that charge at the

4 Although Mr. Parmsh has tesnfied that he

thinks De had Seen appointed with respect

the armed robbery charges in Cook County, :t is

clear to me from the entirety of hus testimony

hat he was confusing ‘he armed robdberv anc

kidnapping charges and was refermng to whch

ever charge the petitioner was under indictment

for. .e, the kidnapping charge

“7

FLEMING +. KEMP 1459

Cite an 748 F 2d 1435 (1984)

time of the cornmuttal hearing. Nor did he

im apy way undertake to assume such &

representanon. He specifically declined to

particrpate in the hearing beforehand and

attended only a part of it, as & spectator

The majormty has conciuded that, even if

this were 8 commuttai hearing on the mur-

der charges pending against the peuuoner

the petitioner was m fact represented at

the hearing by Millard Farmer, counsei for

the peutioner s codefendants. With thus

cannot agree

It is true that the transcmpt of the hear-

ing refers o Millard Farmer as counse!

for the Defendants’ and that prosecutor

Neugent in his opening remarks lkewise

referred to Mr. Farmer as ‘“counse/ for the

Defendants It ws also true that Mr

Farmer is not reported to have made any

‘lamficavon to the court about his status

with respect to the uuoner. Nor does

the tramsempt indicate that e:ther the pet

tioner or Mr. Parmsh attempted to correct

the record on Us point

Be that as it may tine recorc I ne

roceeding Delow ampiv demonstrate na

V - - rmer ren re < nt +

2: ai i )« e 4 ~

‘ommuttai neamng anc what

fact ne could not Nave represented "mM

wing to a conflict of interest between the

wetuuuoner and his co-defendants

is undisputed that Mr. Farmer sougnt

the commuttal hearing only on benaif of th

seutioners codefendants and that Mr

Neugent, the prosecutor, knew that he did

not represent the petitioner. Pnror to the

hearing, the court-appointed attorney for

Larry Fleming, the peuuoner's co-defend

ant. asked that Mr. Farmer assist in Larry

Fleming's defense. Larry Fleming in turn

asked Mr. Farmer to represent Henry W

is as weil, to which Mr. Farmer agreed

Vr Farmer then contacted Mr. Neugent on

behalf of the peutoners co-defendants

arrange for a committal hearing. Mr. Neu

gent, in turn. contacted Mr. Parmsh to ad

vise hum that a commuttal hearing was de

ine arranged. Mr. Parmsh insisted that

neither he nor hus client would parucipate

Despite this. Mr. Neugent informed Mr

Parrish that the uuoner would be

brought to the hearing whether or not he

and his counsel were formai “parncipants.”

The prosecutor thus proceeded against

the petitioner, as wei) as against hus code

fendants, knowing that the petitioner's

court-appointed attorney was not partic

pating and that the petiuoner was not oth

erwise represented by counsei. That this

critical stage in the petitvoners murder

prosecution was permitted to go forward

without any representation on the peuuon

er's behalf was thus directly attmbDutabie &

the state, through its distmct attorney .

Cuyler v. Suilivan, 446 U.S. 335, 343, 10

S.Ct. 1708, 1715. 64 LEd2d 333 (198

stale unconsttutionally depmves defend

ant of liberty where it obtains conviction

through tna! at which defense counsei does

not provide adequae lega! assistance

In any event. Millard Farmer could n

have properly represented both the pet

poner and hus co-defendants because of an

actual and substantua! conflict of interest

which had aiready been manifested in their

respective statements to the police >

ng as an actuUai C nf] ct of nterest ex a

etween nt represented co-defendant

wr m acverse aliects ne acequa

ne or more defendants representatu

there is a denial of counse! which necess

tates reversa! without further inquiry int

= ; 40.5

oreyudice. See Cuyler. 446 U.S. at 34

100 S.Ct at 171819: Glasser v. United

States, 315 U.S. 6. 76. 62 S.Ct. 457, 467. 8

Jur Court has adopted a test for deter

munming whether a conflict of interest exists

between co-defendants

4 conflict of interest is present whenever

ne defendant stands to gain significant

y by counsel adducing probdauve ev

Jence or advancing plausibie arguments

that are damaging to the cause of a

co-defendant whom counse! is aiso de

fending

Turnquest v. Wainwnrght. 651 F 2d

333 (5th Cir.. Unit B. 1981): Forworts

Wainwright, 516 F.2d 1072, 1076 (Sth Cir

1976

™ r

The statements made by Larry Fleming

to the police after the arrest of We three

"? {ibid .

etn ee ee ee ee

1460 748 FEDERAL REPORTER, 24 SERIES

defendants piainiy contradict those made

by the petitioner. Moreover, it uw clear

from the two defendants’ statements that

each was seeking to incriminate the other

in order to exculpate himself. Cf Johnson

v. Hopper, 639 F.2d 236, 237 (5th Cir.)

cert. demed, 454 U.S. 1010, 102 S.Ct. 548,

70 LEd2d 412 (1981); Fosworth, 516 F.2d

at 1077 (where no one other than defend-

ants witnessed murder. subDstantua! ssibu-

ity that one defendant would further own

defense by placing soie responsibility on

anoWMer)

Thus, in 8 statement made and signed on

February 16, 1976, the petitioner stated

concerning the murder of Chief Giddens

We stopped the car and Larry and the

other Doy told the policeman to get out

and Larry had the policeman'’s gun and

the other bov had a 22 pistol. The po

uceman got out of the car and started

running out into a pond and Larry and

the other boy were shooting at him and

Wie policeman hoiered wnat he was Nil

Larry and the other boy then said we

can * ieave fim iuxe this and they waded

nh We pond and nearc

snots Wat sounded ike We -ome

»-

the 22 pistol

Larry Fleming, on the other hand. said in

a statement dated February 12, 1976

As they were waiking | heard the police

man start to run as | could hear someone

running through the water and then |

heard six or seven shots fired and | then

got out of the car and told the other two

not to kill him ooked out in the water

where the policeman run and | could not

see Tim

In my judgment. these statements revea!

such a fundamentai conflict between the

jefenses of the petwwoner and his nephew

and codefendant. that Millard Farmer

could not possidDiy have provided adequate

representauon to Doth

Since the prosecuuon knew that the pet-

uoner was unrepresented at the heanng, ‘t

)

5. Apar from questions of conflict of interest

as Mr. Parnmsh and Mr. Farmer have testified

(he pethnvoner in fact sat apart ‘rom ws code

fengants enc (heir counsel ang cicariy cic not

participate in any discussions with Mr. Farmer

is of no consequence that the judge presid-

Ing at the heamng was not formaily advised

that the pettboner was not represented by

Mr. Farmer. Indeed. in my view, the hear-

ing judge was under an affirmative dutv to

inquire whether Mr Farmer represented

the petivoner once there were sufficent

facts before him indicaung the possibility

of a conflict of interest between the defend

ants. See Wood v. Georgia, 450 U.S. 26

272, 101 S.Ct 1097, 1103, 67 LEd.2d 221

198) There is authonty in this Circuit

that the mere fact that the only witnesses

to the murder were the defendants them

seives was sufficient reason for the judge

to inquire, in view of the substantiai poss)

bility that each would emphasize another

guilt tw exonerate themseives. See Foz

worth. 576 F.2d at 1077. In anv event

mice Wne prosecution introduced the state

ments of the three defendants, even a cur

sory reading of those statements wouid

have revesied the existence of an actua

and substanua!l conflict of interest ‘

iat ume the judge wouid certainn ave

been under a du to inquire such a

n ur a JiC ave revegdic d

yoner was not represented

tne hearing

Cc vw ?

Nerther Mr. Farmer nor Mr. Parr

jeved that Mr. Farmer was represenung

peutioner at the heanng

none of the attorneys invoived understood

Mr. Farmer to be represenung ai! three

jefendants. Since he was not, this is not a

case of muluple representation. Instead

iS simpiy a case where two of three coe

onsequent

fendants were represented and the other

was not

since Wne peuvoner was not represented

Dv counse! at We committal hearing ne

Juesuon remains whether he «xnowinge

and intelligentiy waived his mght to coun

sel. See Johnson v. Zerbdst. 304 U.S. 458

464, 58 S.Ct 1019, 1023, 82 LEd. 146)

1938). The mght to counse! must be af

firmatively waived, and the mere failure '

withiie his codefendants cid. such rcumsiances

would aisO0 “ave placed on ‘he ude a du

nquire whether Mr. Farmer in (act represeniecc

4 Mhree cefencants

FLEMING -. KEMP 1461

Clee we 748 F 2d 1485 (1966)

request counse/ will not be deemed a waiv-

er. Brewer v. Williams, 430 U.S. 387, 404,

97 S.Ct. 1232, 1242, 51 L.Ed2d 424 (1977);

Carniey v. Cochran, 369 US. 506, 513, 82

S.Ct. 884, 888, 8 LEd.2d 70 (1962); Brown

v. Wainwright, 665 F.2d 607, 611 (5th Cir

1982) (en banc). Thus, the petivoner’s own

failure to demand representation at the

hearing was not a waiver of his mght to

counse! Moreover, since Mr. Parnsh

served in no capacity other than as appoint

ed counse! on the kidnapping charge. he

had no authonty to waive the peutioners

mght to be represented at the committai

hearing on the murder charge

ce) The Appropnate Relies

In Holloway v. Arkansas, 435 U.S. 4

98 S.Ct 1173, 55 LEd.2d 426 (1978

Supreme Court heid

Wihen a defendant is depmved of the

presence and assistance of his attorney

either throughout the prosecuwuon or dur-

ing a crmtica/ stage in, at least, the prose

‘ution of a capital offense. reversa! is

automatic. Gideon v. Wainwnght. 372

e “on - -

mR ~ ’ 9 ) +, 1 1Q

White v. Maryland, 373 U.S. 59 [83

J} A 1U £G..0 i9d 1390)

Holloway, 435 U.S. at 489, 98 S.Cz at 1781

In my mew. Holloway overruies Cole-

man v. Alabama, 399 US. 1, 90 S.Ct 1999

26 LEd.2d 387 (1970), to the extent that

Coleman applied a harmiess error stan

dard to this sort of violation of the nght to

counsel. See Coleman, 399 US. at 11, 9

S.Ct. at 2004. Holloway makes it clear

that the deprivation of counse! at a crmtca/

stage im a prosecution where the death

penalty us sought or imposed is so inherent

y unfair that prejudice is presumed and

reversal of the conviction is automatuc. It

may be, as the Sixth Circuit has recently

6 In Hollowey. the Court reversed a conviction

on the ground that the (mai judge. over timely

objection, tad improperly required joint repre

sentation of several co-defendants whose inter

ests were in conflict. The Court concluded that

prejudice was \O Se presumed without (he neces

siutv of an actual showing 435 US. a 488-

89 98 S.Ct. at 1180-81

conciuded, that the harmiess error stan-

dard utilized in Coleman ws still applicabie

to denial of counse! claims where the con-

vicuon i for a non-<apita! offense. See

McKeildin v. Rose, 631 F.2d 458, 460 (6th

Cir.1980), cert. denied 450 U.S 969, 101

S.Ct. 1488, 67 LEd.2d 619 (1981). How

ever, under Holloway, the rule is otherwise

when a capital conviction invoived

Reversal is mandatory regardless of the

Stage at which counse! was denied and

regardiess of the form which the denia! of

counse! took. That this is so is clear from

two of the cases on which the court relied

for its holding in Holloway.‘ In Hamilton

v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7

L.Fd.2d 114 (1961), the Supreme Court re

versed a conviction where counse! had been

aosent at the arraignment. at which any

available defenses. including insanity. had

w be pleaded. The Court deciined wo in

yuire whether any defenses were actually

avaiable to the defendant, holding instead

that prejudice was presumed. /a at 55, 22

>.Ci at 159

In White v. Marviand. 37 5. 59. 8

; - r . 4+ ; vr

nh foioway, the defendant pieaded ru

at a preliminary hearing, at which he was

not represented Dy counse! Aithougn he

suDsequentiy changed his plea to not guilty

and not guilty by reason of insanity at a

subsequent arraignment, at which he was

represented by an attorney, the Supreme

Court concluded that the absence of coun

sei at the preliminary hearing required re

versal, adding, “[Wie do not stop to deter

mine whether preyudice resulted White

373 U.S. at 60, 83 S.Ct at 1051.”

Since it is my belief that the pettioner

was denied the mgnt to counse! at a com

mittas nheamng which, under the circum

stances, was a critica! stage in his prosecu

ton for murder, and since he did not waive

7. The prosecution, without objection ntro

jucec (he ongnai guilty piesa as evidence

against (he defendant ai Ws (nai Notng the

jefendant 6 fatiure to object. (he Supreme Coun

mciuged ‘Nhat it was nol necessary ‘0 show

prejudice @ at 60 vn. *. 63 S.Ci. at 1051] vn. *

162 748 FEDERAL

his

therefore reverse the

that mght, reversal of conviction is re

yuired wouid

d mt of th

the issuance

ustrict court and direct

of a writ of habeas corpus

imos Lee KING. Jr

Petitioner-Appeilant

STRICKLAND. J \

Penitentiary

laries irden

lonmda state Louis

Vainwright. and Jim Smith. Attorney

senerai, Respondents-Apoellees

No 87.5306

REPORTER, 2d

SERIES

: $7641.13 1

neffectiveness

Cominail Law

alm i

must estaoiisn ‘nat

ingermineda proper

inse

-unctoning

sariai that

as Naving produced a

onst.Amend. 6

process

rai cannot

ust

1. Cominal Law 64]

resuil

-ounse

e relied

Jecision, Drought to the attention of this

court Dy the defendant, undercut the de-

fendant’s argument. Borrei] v. Continenta/

Casualty Co., et al —— PaSuper. —, 456

A.2d 1074 (1983). The argument, at the

time, however, was certainly non-frivoious.

Finally, plaintiff argues that Travelers’

denial of his entitlement to any benefits

from it was not based in fact, pointing to

the deposition of Travelers’ Assistan

Claims Supervisors. It is apparent that the

clalm was rejected based on advice of coun-

non-frmvolo

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FLEMING v. ZANT

Cite as 560 F_SUPP. 525

1983)

Munus compensation benelits paid under the

rederai

(FECA).

y . . . » 4 at

EmMmpiovee Ompensation ACU.

The defendant shail accept reasonable

proof of the fact and amount of plaintiff's

items of loss and make payment of plain-

tiff’s work loss and allowable expense with-

ut deduction of any FECA benefits pay-

r "m™ Tile nei tt rrr Fomor "rT _ _ ++ _-

adie ‘ Vial! v's d Vit : . aiii 4iiVGiuu a4 oS

ae Bh ond +97 , ad nr r 2

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son H. FLEMING, Petitioner

T, Warden. Respondent

, " 7

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Criminal Law 64].13(5)

_e.ense Inse! Tategic decisi

rMeaimate —

aruicipate in committal hearing on

526 560 FEDERAL SUPPLEMENT

wren,

charge of kidnapping with bodily injury did 8. Criminal Law *=641.13(7)

mot constitute ineffective assistance of All a constitutionally effective lawyer

counsel, particulariy where petitioner amd can be required or expected to do in death

counsel were physically present at hearing, penalty case is to make informed decision of

but only as observers. what mitigating evidence, if any, should be

2. Criminal Law 223 presented and how or through what wit-

Under Georgia law, once indictment nesses it can most effectively be present

has been returned, judicial oversight of de- 9. Homicide #=354

cision to arrest and prosecute ends and Evidence was sufficient to sustain con-

ZS, Le SI

— *

: *

*h ew hed 71 manr *% SOT wer 4 . ay _ f . - ; : .

nere S$ no req ae ement ‘ r OM a webs lear- v CT) n i wi Ne al murcer 7 - 2 ro

\—

| ing. GaCode, § 27-407 aw

£ ~~ . ~ . .

7 3. Criminal Law 1166/1 10. Criminal Law @ 1206/1

é Evan + acc ed w "Serres les ‘oriecd " . o > . . ™ _— -

’ ma ¥ Cae + ccus NA as Cuil Vabii sw ias ‘ eoraa atin ena 3 } vas

,I1¢ ~ yr," Am nr "Tr rerrrr ° nr i? — . = -

US SIX. AmMenament gn inse: al inconstitu na: ra ie. § 2,-2554.!

pbeebesdna@e rnearn . Tring *rar win.

MmMmiviai learn . yn m4 MiiA whe UU SS

sei: who represented codeltendants nad not Kenneth A Shanie Iclame .

n fact agreed to represent defendant. deni- = _ «+,

’ 1c.

rac rorm™ :¢ -— Aewvnnn reacnrar >

44 Was Narmiess error oevondc reasonabdie "

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IO ynere evicence rocucec ,Ul

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™ = as rReR - — nm “"? -

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eter estigactior ind Was rag noe «

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as sch a ¥¥ LD D€ a > 2

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ence. UL.5.C.a.Lonst. Amend ront : » fe —_—— nates

g ix a "

. 7s 5

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e e unse alu aiieng 71:0cens anc e i] m sed-sentence

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2 1 i )

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- '

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‘

s -ECANnICI&/ di1e€g UU NSLILULIONa! er: ‘ _/*

os ls hat he Mmiecor _- sec > ron ee . " .

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satine — ee . ™ “ atom .

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ial ro on - - - ~ ‘* .

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FLEMING v. ZANT Dot

Clte as 560 F.SUPP. 525 (1983)

jail inmate—more than su. tent to con-

vince any tweive jurors of his guilt beyond

a reasonable doubt, this court, for reasons

hereinafter stated, refuses to disturD 41

conviction for murder or his sentence of

jeath. The reasons and the facts herein-

after stated represent this judge's de novo

determination and rejection in whoie of the

findings and recommendations of the mag-

Strate on tne one issue adccressec OV tne

-_ . ad =e hae - — . rhic

af iS .racve anc J er € € .

“-+ RAIN - + “7 ne nne ~+ we -

lige Lindings i .ac. and conciusions i

aw a8 W al remaining issues raised Oy

tener “he lasts A fina — -

Fates t YOSeC .1nClugsS anc recommenca-

> ne o> x? or r au 2)

~4 . .

~iV 119 seuic weve) ae? FTLUIES

a _ wre

= — = -

.n€ murder of vames Edqdward Giddens

— ' nN —

OeLween .U:oU and

11:00 p.m. on Februar

| ee ed al > > ~=

~) - ™

L4, 12/5, near Lakeland. Lanier County

seorgia was the last of a series of crimes

commutted that night by petitioner Son H

Fleming and his accomplices, Henry Willis.

77T a os —-

nee oo ~ . 7 >

i4i 2NC Wal ~Onnell F ieming 2° ner

"enneu r al 2) nities. 6 ermen

- a _ te —_—

inc Lanier— c ut ner entra ruor

’ _

— an ff — x

Ll \veor? i he NiOWINg iS a rningented

+ r ie > ’ nr

Recogmizing the § .254id) presumoptuve

ectness of the factual findings of the Superor

art of Tattnal unty and the Supreme

urt of Georgia. this factual summary is

2ased upon those ‘findings with adGditions con

ya) ° reuw’ ee as unc . e S - -

ecorec ‘US case see, Summer lata, +49

: ? >. G4, G LEdld 22 5

anc Warsfta Lonoerzver. — So

" —~ -

>. a = .~Lu-2G 340 75

;

E98 560 FEDERAL SUPPLEMENT

On the afternoon of February 11, 1976,

petitioner Son H. Fleming, a biack male

then living at the Circus Motel! in Moultrie,

Colquitt County, Georgia, borrowed a 1968

red and white Fairlane Ford equipped with

mag wheels and a jacked-up rear end, from

his friend, Terry Coney, who also resided at

the Circus Motei. Around nine o'clock that

night petitioner, with his nephew, Larry

Donneil Fleming, and Henry Willis, [II as

passengers, left Moultrie in the 1968 red

and white Fairlane and drove to Adei, Cook

County, Georgia, some 25 miles away. Pe-

titioner, the only one possessing a driver's

license, drove at ail times. When they got

to Adel, they drove to Jim’s Minit Market

Fleming and Henry Willis, III got out of

the car, went inside, and with guns robbed

the store while petitioner waited in the car

at a point where neither he nor the car

could be seen by store personnel. The store

manager gave them the stores currency

and coin in a paper Dag and they departed.

At about 10:15 p.m. the police were notified

the robbery of the store and a report

che ropbery was then broadcast over the

urea police radio.

James Edward Gidce 4, the Police Chief

- e ** Pee nee ~ - eee - > |

f Ray City, Georgia—situated some l4

miles easteriy of Adei in the adjoining

county of Berren—was sitting in his police

car in Rav City taiking to a friend and

‘istening to the police radio at the time the

robbery report was broadcast. Soon there-

after he saw a vehicie with two biack males

as passengers, passing through town and

lecided to check it out. At 10:30 p.m. Chief

Giddens repo,.ed Dy police radio that he

“as proceec..g on Highway 129 east behind

a red and white Ford with its oack jacked

up, tag number GBO 282, and two biack

maies as passengers.

, tt?

L.V. Dupree, the man with whom Chief

ziddens was taiking wnen the radio report

vas heard and when the Chief ‘eft in our-

suit of the red and white Ford. became

soncerned when the Chief did not return to

Ray City and went looking for him. At

about 11:00 p.m. he found the Chief's police

car sitting on the side of the road with its

lignts off and the Chief not in the car.

Using the police radio he notified the Nash-

ville police dispatcher who immediately put

out a lookout for the red and white Ford

and dispatched others to the scene. Prior

to that the dispatcher had unsuccessfuily

tried to reach Chief Giddens by radio.

Among the area law enforcement officers

receiving the report of Chief Giddens’ dis-

appearance and the description of the red

and white Ford, were two Brooks County

Deputy Sheriffs who decided to assist by

dmving to the intersection of Hignways 76

and 122 at Barney, Georgia and waiting

there to see if they were needed. Around

midnight they were advised by radio that a

CBer had reported seeing the wanted car

and was then following it on Hignway 94 as

it Was passing through the neardy town of

Morven. The deputies proceeded to the in-

tersection of Highways 122 and 94. parked

and waited. In a few minutes the wanted

vehicie followed by the CBer came bv on

Highway 94. The deputies foilowed, puiled

between the cars and after verfving the

tag number of the Ford. pulled it over

: wy ° a ane #1 :

oon rieming, the amver, got out [irst and

Henry Wiilis, [II] got out next. Oniy after

Son Fleming and Willis were laying on the

ground did one of the deputies see someone

elise in the car and require him to aiso get

out. The third person was Larry Donneil

Fleming. aA search of the car resulted in

two pistols—a 357 magnum issued to Chief

Giddens and a .22—being found under the

driver's seat; a paper sack containing cur-

rency and coin being found under the seat:

and wet clothes being found in the trunk.

The three apprehended biack maies denied

knowing anything about Chief Giddens.

A massive search participated in by area

law enforcement officers began soon there-

after and continued until Chief Giddens’

uniform shirt was found hanging on a Dush

by the side of a road in Lanier County and

nis builet-mddled Sody was found in the

water of a nearby swamp around 5:00 a.m.

While the search was underway, the man-

ager of the robbed Adei store had been

taken to the point where the red and white

Ford had been stopped and had identified

>» *»

8 ee oe) 6 eet cert —. ee.

FLEMING v. ZANT 529

Cite as 56C F.Supp. 525 (1983)

Larry Fleming and Henry Willis, III as the

robbers. Larry Fleming, Henry Willis, III

and Son Fleming were held under arrest.

Later that day—February 12—they were

taken before Justice of the Peace Henry

Snead in Berrien County and advised of

their mghts, among other things, to a com-

mittal hearing and toa lawyer. (V. Nugent

testimony, p. 40).

As will be more fully discussed, each of

the three after being advised of his rights,

made one or more statements to investigat-

ing officers in which Beg F'eming and

of all three defendants in the Cook com

robbery, the Berrien County kidnapping of

Chief Giddens and the Lanier om mur-

jer of Chief Giddens. Son Fleming first

jenied even being with Larry and Henry

juring the robbery and kidnapping. Subse-

juentiy he admitted driving the car until

they reached the swamp, at which point he

said he begged Larry and Henry not to

. - mes ,

vate niet ra! . "ro Ofthae - ne .

re rT Aet.T ta rr : ‘ahs

Darvicipate n we yet OLIN,

—_ Ek rar 6 , =< n™

sd vh gay, s D Ata > a\ )\

sey Fl no Willie TTT

= nr

La rieming, menr y S ii a Son

os min ry nr ry tT a

emin vere orougnt Jelore Superior

‘Y t r ~

+ + } 5 we

r J Jage g! V JUL nh dé en ' in

‘rT £ > * 41 .

TT" I1¢ ’ . rn n ? lal ’ | atel " rn nr

ae ACV ised eacn Of whem Of Lneir mgnt to an

badal ca’ pe T — Blominge a1 _ -. sie

at.orne y Larry A eming 9GiU 1hhS Lami

was trying to get him a lawver: Henry

willis said to wait and see if he could get

a eming said his

mother was going to get him a lawyer

Exhibit IX).

The next davy—February 17—the already

mpaneled grand jury of Berrien County

Superior Court indicted Larry Fleming,

Henry Wiilis, III] and Son Fleming for kid-

napping with bodily injury, a capital felony.

19383 GaCode § 26-1311. (Exhibit XI).

The grand juries of Cook and Lanier Coun-

ties Nad met and disbanded and new grand

juries were to be impaneled in September

and August preceding the reguiar term of

Superior Court in October and September

Indictments for armed robbery and murder

could only be returned by those grand ju-

mes. In the meantime they were held on

the kidnapping indictment charges.

On February 24 at 3:15 p.m. Larry Flem-

ing, Henry Willis, II] and Son Fleming ap-

peared again before Superior Court Judge

Lott in Berrien County. Henry Willis

asked for an appointed lawyer; Larry

Fleming asked for an appointed lawyer:

and Son Fleming asked for an appointed

lawyer to serve until he could employ his

own. M. Dale English, an attorney of Ade},

;

Georgia, was appointed for Larry Fleming:

George H. Wynn, an attorney of Lakeland,

Georgia, for Henry Willis, III: and Edward

Parrish, an attorney of Ade!, Georgia, for

Son Fleming. On April 30, 1976, each de-

erg te appeared before the Superior Court

f Berrien County with appointed counsel,

was arraigned on the kidnapping with bodi-

*? . " > r , “+? -*

injury indictment and pied not guilty

on? man aaa @ -_ 14 Ewhikie WT

imai Was set ior vyune i+ EXMIDIt Ad

| + ‘ et. v.ha tc ‘

in tne meantime, indictments Nad not

= .

— — » Pisa §

yeen considered in Cook County for armed

robbery and Lanier County for murder be-

sause their grand juries had not met. (Nu-

gent testimony, Dp. +4

rrom the time of their arrest and in .

ment until now eac 32 naant Vas n-

ered 4 ) De in Ind rant f re an af-

raed appointed counsel, and afforded a

nat Georgia law furnisnes indigents. Mil-

lard Farmer, an experienced Atlanta crimi-

nal defense lawyer then engaged 100% of

the time as an emplovee of the Georgia

Criminal Justice Council in defending indi-

gent criminal defendants, was contacted by

M. Dale Engiish, Larry Fleming's appointed

lawyer .n the Berrien County kidnapping

indictment charges, and asked to represent

Larry Fleming. Mr. Farmer traveled to

South Georgia, talked to Larry Fleming and

agreed to represent him. He also was

asked by Larry Fleming to represent. Henry

Willis and he agreed to do so. (Farmer's

testimony, p. 32). Mr. Farmer was not ap-

pointed by the judge of the superior court

to represent either Larry Fleming or Henry

Willis

Without contacting the lawver appointed

to defend petitioner Son Fleming in the

Berrien County kidnapping with bodily in-

jury indictment, Millard Farmer advised

District Attorney Vickers Nugent that he

‘

8 ee ee ee eee + ee meee -

——<— or er ee eee ee

— ee eee oe eee

O00

would be representing Larry Fleming and

Henry Willis on all charges—indicted and

unindicted—and requested a so-called com-

mittal hearing for them. Messrs. Farmer

and Nugent then agreed to hold a hearing

before a justice of the peace in Cook Coun-

ty, at which evidence as to ail three

charges—aiready indicted kidnapping with

bodily injury and yet-to-be indicted armed

robbery and murder—would be presented.

Mr. Nugent notified petitioner’s court-ap-

pointed counse! that the hearing wouid be

neid.

Petitioner's court-appointed counse! Ed-

ward Parrish is a veteran trial lawver who

practices in the smail town of Ade!, Geor-

gia. He does not believe that so-called com-

mittal hearings are beneficial to criminal

defendants and routinely does not request

them or participate in such hearings re-

quested by counsei for co-defendants. On

this occasion he received Mr. Nugent’s no-

tice, decided that neither he nor Son Flem-

ing would participate, but nevertheless

went to the hearing to observe. Being a

loca. iawver in this rural area Mr. Parrish

aireacy Knew almost much about the

case as the district attorney knew, and was

im position to interview al! witnesses with-

Farmer, being from Atlanta and new to the

case, was uninformed about the case and

needed all the help he could get. The

agreed upon hearing was designed to make

it unnecessary for Mr. Farmer to have to

personally investigate the entire case.

The agreed upon hearing was heid on

May 14, 1976, in Adei, Cook County, Geor-

gia berore Justice of the Peace Dan Cowart.

[t was transcribed by the official court re-

porter for the Superior Court of the Alap-

ana Judiciai Cireuit—Atkinson, Berrien,

Ciinch, Cook and Lanier Counties.

The transempt—Exhibit []]—snows:

(a) District Attorney Nugent appeared

for the State and Millard C. F

Senior Defencer. Georgia Criminal Justice

i. Atianta. Georgia, appeared “for

the defendants.”

(b) That the hearing “by agreement of

counse! and Dy stipulation, subject to

560 FEDERAL SUPPLEMENT

correction by counsei for the Defendants,

Millard Farmer ...” was a committal hear-

ing on armed robbery in Cook County

charges against Larry Donnell Fleming and

Henry Wiilis and on murder of James Ed-

ward Giddens in Lanier County charges

against Larry Donneil Fleming, Son H.

Fleming and Henry Willis III. As to the

indicted kidnapping with bodily injury

charges, the State, without conceding that

they were entitled to a committal hearing

on already indicted charges, stipuiated that

the hearing would proceed for discovery

purposes. (Ext. III, p. 3).

even intimated that he was then represent-

ing oniy two of the three defendants.

(d) District Attorney Nugent presented

and questioned witnesses as to the conduct

of each of the three defendants, including

in-custody statements made by each of

them, and Mr. Farmer thoroughiy cross-ex-

amined them as to everything known about

each of the three defendants. Mr. Farmer

cailed some witnesses and questioned them

extensively as to each of the three defend-

ants: Mr. Nugent then cross-examined each

witness as to each defendant.

(e) Petitioner Son Fleming and the other

two defendants were present and were

identified by some witnesses. They, how-

ever, did not testify or say anything

througnout the hearng.

(f) Mr. Farmer never suggested or ar-

gued that there was insufficient evidence to

continue to hoid each defendant in custo-

dy—the issue in a genuine committai hear-

ing.

Petitioner was never tried for kidnapping

with bodily injury. Instead, he was indict-

ed in Lanier County Superior Court in Au-

gust, 1976, for murder. After his indict-

ment the court on August 12, 1976. appoint-

ed Reese Franklin, 2 Nashviile, Georgia at-

torney who formeriy served as an Assistant

United States Attorney in this court. to

represent petitioner on the indicted murder

charge, and because of Mr. Franklin's dis-

qualification on August 24, 1976, appointed

Edward Parrish to also represent petitioner

A-34

FLEMING v. ZAN 53]

Cite as 560 F.Supp. 525 (1983)

on the murder charge. At about the same

time petitioner's mother engaged Benjamin

Zeesman, a Cordele, Georgia experienced

lawyer, to also represent petitioner. There-

after Mr. Parrish and Mr. Zeesman very

ably represented petitioner.

At his December 13, 1976 arraignment

petitioner pled not guilty. His trial started

January 24, 1977 and ended January 26,

1977 with a finding of guilty and sentence

of death.

On appeal to the Supreme Court of Geor-

gia petitioner’s attorneys, Messrs. Parrish

and Zeesman, succeeded in overturning the

death penalty because of prejudicial, im-

proper prosecutorial argument and causing

a sentencing re-trmal. In its opinion affirm-

ing the conviction and reversing the death

sentence the Supreme Court of Georgia

fairly summarnized the evidence presented

at trial as follows:

“This is the direct appeal of the convic-

tion and death sentence of Son H. Flem-

ing, who was convicted of the murder of

: ~y P Y- = fa } . + vw Cl¢w

Police Chief James Giddens of Ray City,

Berrien County

“nm,

The state presented evidence from

which the jury was entitled to find th

following:

“Appellant borrowed a red and white

Ford car from a friend on February 11,

1976. Around 10 or 10:30 p.m. that day a

grocery store in Adel (Cook County) was

robbed by two biack males identified as

Larry Fleming (appellant’s nephew) and

Henry Willis. One robber was armed

with a nickel-plated .22 caliber gun. The

stolen money was stuffed in a paper sack,

and a carton of Kool cigarettes was also

stolen.

“The red and white Ford (apparently

occupied by two biack males) passed

through Ray City shortly after the rob-

very, and aroused the suspicion of Chief

Giddens, who had heard of the robbery

ver his radio. Chief Giddens pursued

the car, and reported a description (in-

studing the license plate number) of it by

radio. Minutes later Giddens’ police car

was found abandoned by a friend with

whom he had been talking prior to the

A-35

pursuit. Giddens’ disappearance was re-

ported, and at 12:30 a.m. the red and

white car was stopped; its three black

male occupants (appellant, his nephew,

and Willis) were arrested. Giddens’ .357

magnum pistol, a nickel-plated 22 revoiv-

er, a brown sack of money, and a carton

of Kool cigarettes were found in the car.

“Giddens’ body was found in a pond in

Lanier County. He had been shot several

times. Powder burns and the patterns of

ratshot from the .22 pistol indicated that

some of the wounds were made at a

range of less than 18 inches. One bullet

recovered from the body was fired from

Giddens’ gun.

“After his arrest appellant made a

number of statements. He initially stat-

ed that his nephew and Willis had bor-

rowed the car from him before the rob-

bery, and that he did not see them again

until they picked him up shortly before

the arrest.

“His next statement indicated that he

had been picked up after the robbery, but

before the pursuit by Chief Giddens. He

Stated that the three of them were

stopped by Giddens, and when the police-

man attempted to search the car he was

overpowered and abducted by the other

two. Appellant claimed that he was

forced to drive the car while his nephew

and Willis held Giddens at gunpoint. Af-

ter Giddens toid them of his report of the

license number of the car, they drove to a

remote area and let him out. When Gid-

dens ran in an attempt to escape, both

Larry Fleming and Willis shot at him.

Giddens fei] wounded into the nearby

lake; Larry Fleming and Willis followed

him there. Appellant heard additional

shots. This statement also indicated that

appellant begged the other two not to kill

Giddens, and that he acted only out of

fear of them.

“The testimony of a fellow inmate at

the Cook County Jail indicated that ap-

pellant admitted driving the car while the

others robbed the store, and that it was

appellant who first shot at Giddens as he

ran. At all times appellant has denied

532 560 FEDERAL SUPPLEMEN1

having shot Giddens as he stood helpless

in the water. Appellant denied making

this last statement to the fellow inmate.

“Appellant’s only evidence in defense

was his own testimony, in which he re-

turned to his first story. In the sentenc-

ing phase his counsel presented no addi-

tional evidence of mitigating circum-

stances, relying on the evidence at the

guilt phase. Appellant’s personal history

sheet shows no convictions for serious or

violent crimes, and a long history of em-

ployment (more than twenty years) in

various jobs. He was 46 at the time of

the murder.” Fleming v. State, 240 Ga.

142, 240 S.E.2d 37 (1977).

Because of a motion for change of venue

made by petitioner's attorneys, Messrs.

Parrish and Zeesman, the sentencing retrial

was held in the Superior Court of Cook

County instead of in Lanier County. The

jury again imposed the death penalty, and

upon appeal by Messrs. Parrish and Zees-

man it was affirmed. Fleming v. State, 243

Ga. 120, 252 S.E.2d 609 (1979). Certiorari

was denied by the United States Supreme

Court following which petitioner then rep-

resented by mew pro bono counsel filed a

petition for a writ of habeas corpus in Tatt-

nall Superior Court. Following a hearing

and written denial of said petition and un-

successful appeal and application for writ of

certiorari in the Supreme Court of the Unit-

ed States, this proceeding was commenced

by a second set of new pro bono counsel.

THE MAGISTRATE’S

RECOMMENDATION

Among the many constitutional issues

raised by counsel in the state habeas pro-

ceeding, and likewise raised in this court, is

whether or not petitioner Son Fleming’s

Sixth Amendment right to the effective

assistance of counsel was denied him during

the May 14, 1976, “so-called” committal

hearing, and, assuming it was, whether or

not his conviction must be overturned and a

new triai ordered.

[1] Contrary to the magistrate’s pro-

posed findings. this United States District

Judge finds that petitioner Son H. Flem-

ing’s court-appointed counsel, Edward Parr-

ish, was notified of said May 14, 1976, “so-

called” committal hearing and as a matter

of trial strategy decided that it would not

be beneficial to his preparation of Son

Fleming’s defense of the indicted charge of

kidnapping with bodily injury to participate

with Millard Farmer in said hearing. Con-

sidering that petitioner’s appointed counsel!

and Mr. Zeesman succeeded upon initial di-

rect appeal and that Mr. Farmer, even with

the aid of all that came out during said

hearing, did not prevail for his clients, Wi/-

lis v. State, 243 Ga. 185, 253 S.E.2d 70,

Fleming v. State, 246 Ga. 90, 270 S.E.2d

185, this trial strategy can hardly be ques-

tioned. While petitioner's court-appointed

counsel was present as an observer, neither

he nor petitioner participated in said hear-

ing. Petitioner was physically present, lis-

tened and was identified, but his mere pres-

ence did not constitute participation. Peti-

tioner’s mere presence is consistent with his

court-appointed counsel's tral strategy de-

cision not to participate in said hearing.

See, Wiliiams v. Beto, 354 F.2d 698 (5th

Cir.1965); Tuttle v. Decker. 386 F.2d 814

(Sth Cir.1967); Worts v. Dutton, 395 F.2d

341 (5th Cir.1968); Fitzgerald v. Estelle, 505

F.2d 1334 (5th Cir.1975); Jackson v. Estelle,

548 F.2d 617 (5th Cir.1977); Ford v. Strick-

land, 696 F.2d 804 (11th Cir.1983).

[2] The “so-called” committal hearing

that petitioner’s attorney elected not to par-

ticipate in was not in reality a committal

hearing. Petitioner had been held from

February 17, 1976, until the date of the

hearing on a capital felony—kidnapping

with bodily injury—indictment. Under

Georgia law “the duty of the court of in-

quiry is simply to determine whether there

is sufficient reason to suspect the guilt of

the accused [who has been arrested with or

without a warrant having issued and who

has not been indicted], to require him to

appear and answer before the court compe-

tent to try him: and whenever such proba-

ble cause exists, it is the duty of the court

to commit.” 1983 Ga.Code Ann. 27-407.

Once an indictment has been returned judi-

cial oversight of the decision to arrest and

“To compare

FLEMING v. ZANT 533

Cite as 560 F.Supp. 525 (1983)

prosecute ends, and there is neither a re-

quirement nor a purpose for a 1933 Code

§ 27-407 committal hearing. The indict-

ment by the grand jury is the finding of

probable cause and the committal that

would otherwise be the Code of 1933

§ 27-407 court responsibility. Bridges v.

State, 154 Ga.App. 811, 270 S.E.2d 60 (1980).

By indictment for kidnapping with bodily

injury this petitioner had been committed

on and since February 17, 1976. Those

charges by indictment being outstanding

and untried, petitioner was not legally or

constitutionally entitled to a hearing to in-

quire into the question of whether or not

the state tad evidence of the crime for

which he stood indicted or of other crimes

for whicn he would or could be indicted.

See Pitts v ey 402 F.Supp. 119, 122

N.D.Ga.1974), aff'd 520 F.2d 941 (Sth Cir

1975). The fact that the prosecuting attor-

ney and Mr. Farmer agreed and stipulated

to hold a hearing and called a portion of ita

committal hearing does not alter its true

nature and purpose—an agreed upon dis-

covery conference—or convert it into some-

thing not autnormzec or contempiated

drenrsannd vigorousiy dif

conclusions agen ber the sake of ar-

gement that they are ounded, petitioner

yverlooks the fact that the transept of the

May 14, 1976, hearnng shows clearly that

regardiess of whether or not petitioner

asked Mr. a to represent him dumng

the hearing, Mr. Farmer elected to do so

and very capably did represent him along

with Larry Donnell Fleming and Henry

Wiilis, II]. Mr. Farmer, without court re-

juest or appointment, came from Atlanta

and assumed the responsibility for repre-

senting Henry Willis and Larry Donnell

Fleming. Nothing said then by Mr. Farm-

er, petitioner, Larry Donnell Fleming, or

Henry Willis indicated that Mr. Farmer had

not also agreed to represent petitioner. Mr.

Farmer's conduct on that occasion implied

that he represented petitioner Son Fleming,

Larry Donnell Fleming, and Henry Willis

se . .

«. In spite of the fact that petitioner was present

‘Or his state habeas heamng and afforded an

Opportunity to testifv, petitioner did not state

Mr. Farmer repeatedly referred to “the de-

fendants” and never limited his remarks or

contentions to “defendants Larry Donnell

leming and Henry Willis.” If Mr. Farmer

did not then represent all three defendants,

it was his responsibility as a member of the

State Bar of Georgia and an officer of the

court, having vast experience in defending

criminals, to advise the court that he repre-

ented some but not all defendants; with-

out such notice the court could hardly be

expected to advise the petitioner that he

was entitled to be represented bv a lawyer

appointed by the court and to determine

whether or not petitioner desired appointed

counsel as to possible additional charges.

The fact that Mr. Farmer, some six years

later, testifies in this court that he did not

also represent petitioner does not alter the

fact that his transcribed words and conduct

indicated he did on May 14, 1976. The

justice of the peace conducting the heamng

was entitled to assume that Mr. Farmer

represented all defendants, including peti-

tioner. Neither petitioner* nor Mr. Farmer

are entitled at this late date to “sand bag”

the courts of this State by changing the

facts surrounding the heamng that

fas arranged by AGREEMENT OF COUN-

The agreements of counse! stated in

ypen court were and are binding upon ail

who participated in that hearing, inciuding,

but not limited to, petitioner

The Supreme Court of the United States

in 1967 in ~~ case of Chapman v. re

nia, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed2

705, considered r questions of “whether

there can ever be harmiess constitutional

error and whether the error here [in Chap-

man v. Californi was harmiess 7

386 U.S. at p. 20, 87 S.Ct. at p. 826. In

answering those questions the Court first

held that federal law governs and, having

done so, stated:

‘We are urged by petitioners to hoid

that ail federal constitutional errors, re-

gardless of the facts and circumstances,

must always be deemed harmful. Such a

that he was without the benefit of a lawver

dumng the May 14. 1976, hearnng.

534

holding, as petitioners correctly point out,

would require an automatic reversal of

their convictions and make further dis-

cussion unnecessary. We decline to adopt

any such rule. All 50 States have harm-

less-error statutes or rules, and the Unit-

ed States long ago through its Congress

established for its courts the rule that

judgments shail not be reversed for ‘er-

rors or defects which do not affect the

substantial mghts of the parties.’ 28

U.S.C. § 2111. None of these rules on its

face distinguishes between federal consti-

tutional errors and errors of state law or

federal statutes and rules. All of these

rules, state or federal, serve a very useful

purpose insofar as they block setting

aside convictions for small errors or de-

fects that have little, if any, likelihood of

having changed the result of the trial.

We conclude that there may be some

constitutional errors which in the setting

of a particular case are so unimportant

and insignificant that they may, consist-

ent with the Federal Constitution, be

deemed harmiess, not requiring the auto-

matic reversal of the conviction.

al-error rule, we must recognize that

harmiess-error ruies can work very unfair

and mischievous results when, for exam-

ple, highly important and persuasive evi-

dence, or argument, though legaily for-

bidden, finds its way into a trial in which

the question of guilt or innocence is a

close one. What harmiess-error rule ail

aim at is a rule that will save the good in

harmiess-error practices while avoiding

the bad, so far as possible.

“The federal rule emphasizes ‘substan-

tial rights’ as do most others. The Cali-

fornia constitutional rule emphasizes ‘a

miscarrmage of justice, but the California

courts have neutralized this to some ex-

tent by emphasis, and perhaps overem-

phasis, upon the court's view of ‘over-

wheiming evidence. We prefer the ap-

proach of this Court in deciding what was

harmiess error in our recent case of Fahy

v. Connecticut, 375 US 85, 11 L ed 2d 171,

84 $ Ct 229. There we said: ‘The ques-

tion is whether there is a reasonable pos-

560 FEDERAL SUPPLEMENT

sibility that the evidence complained of

might have contributed to the conviction.’

Id., at 86-87, 11 L ed 2d at 173 [84 S.Ct.

at 230]. Although our prior cases have

indicated that there are some constitu-

tional rights so basic to a fair trial that

their infraction can never be treated as

harmiess error, this statement in Fahy

itself belies any belief that all trial errors

which violate the Constitution automati-

cally call for reversal. At the same time,

however, like the federal harmiess-error

statute, it emphasizes an intention not to

treat as harmiess those constitutional! er-

rors that ‘affect substantial rights’ of a

party. An error in admitting piainiy rei-

evant evidence which possibly influenced

the jury adversely to a litigant cannot,

under Fahy, be conceived of as harmiess.

Certainly error, constitutional error, in

illegally admitting highly prejudic:al evi-

dence or comments, casts on sonieone oth-

er than the person prejudiced by it a

burden to show that it was harmiess. It

is for that reason that the orginal com-

mon-iaw harmiess-error rule put the bur-

den on the beneficiary of the error either

to prove that there was no injury or to

suffer a reversal of his erroneousiy

obtained judgment. There is little, if

any, difference between our statement in

Fahy v. Connecticut about ‘whether there

is a reasonable possibility that the evi-

dence compiained of might have contrib-

uted to the conviction’ and requimng the

beneficiary of a constitutional error to

prove beyond a reasonabie doubt that the

error complained of did not contribute to

the verdict obtained. We, therefore, do

no more than adhere to the meaning of

our Fahy Case when we hold, as we now

do, that before a federal constitutiona/

error can be heid harmiess, the court

must be able to deciare a belief that it

was harmiess beyond a reasonabie doubt.

While appellate courts do not ordinarily

have the orginal task of appiying such a

test, it is a familiar standard to ail courts,

and we believe its adoption will provide a

more workable standard, aithough

achieving the same result as that aimed

at in our Fahy case.” (emphasis added).

a ne meme re

“=o

FLEMING v. ZANT 535

Cite as 560 F.Supp. 525 (1983

[3] Assuming for the sake of further

argument that contrary to this judge's find-

ings and conclusions this petitioner was de-

nied his Sixth Amendment right to assist-

ance of counsel at the May 14, 1976, hear-

ing, it would be the responsibility of this

court, utilizing the Supreme Court's answer

to the first question, to decide whether the

error in denying petitioner the assistance of

counsel was harmless.

Having carefully read and analyzed the

entire transcript of the May 14, 1976, hear-

ing and of the petitioner’s trial and retrial,

and having read and analyzed everything

else that is included in this habeas proceed-

ng, it is this judge's firm conclusion that

the possible error of not affording someone

yiher than, and in addition to, Millard

Farmer as counsel for petitioner during the

May 14, 1976, hearing was “harmless be-

yond a reasonabie doubt.” Unlike the c

cumstances of Coleman v. Alabama, 399

U.S. 1, 90 S.Ct. 1999, 29 L.Ed.2d 387 7

is heamng was held by agreement of

sounsei some three months after indict-

ent. Mr. Farmer, an experienced crimin

awvyer, appeared and represented petition-

appointed or retained to aiso represent

the peace had n

luthomty to then refuse to bind over the

licted petitioner. The investigation of

the cmmes in question had been completed

ng bdelore May 14, and, as is generally

true in smail communities, local lawyers

aiready knew the details: only out-of-town

sounse! needed a discovery hearing. The

evidence produced during the hearing was

nothing more than an inventory of the com-

pieted investigation; it was nothing more

than would have been revealed by the usual!

voluntary, informal discovery conference

While such a hearing, if it had been con-

jucted soon after petitioner's arrest, may

have Deen a “critical stage” of Georgia's

criminal process against petitioner, State

”» 4 ~ —r)9 oo << 4 79 107°C

— 74 ~ he | 7

iTOUSTON, “Jt 2a (—ae A S joo AU LJio "

the tnree-months-after-indictment heamng

arrangec ior OV agreement of counse!

the purpose of discover" was not a “critical

stage in the cmmunal process against this

neti? Dp \ —_ Ly

petitioner. Yarapnrasing Mr. Justice Har

lan, mere speculation that separate defense

counsel for petitioner might have been able

to do better at trial had he been present

with Mr. larmer during the May 14, 1976,

hearing, should not suffice to vitiate—make

legally defective or invalid—petitioner’s

conviction. 399 U.S. at p. 20, 90 S.Ct. at p.

2009, 26 L.Ed.2d at p. 408. This petitioner

has simply not alleged, testified, stated, or

shown that anything that happened during

the May 14, 1976, hearing turned out to be

critical to the fairness of his trials. See,

Mr. Justice Stewart's dissent 399 U.S. at p

25, 90 S.Ct. at p. 2011, 26 L.Ed.2d at p. 406

Holloway v. Arkansas 435 U.S. 475, 98 S.Ct

1173, 55 L.Ed.2d 426 (1978), speaks to a

totally dissimilar set of circumstances and

joes not, in this judge's opinion, begin to

require a different result in petitioner's

case

Even if petitioner was technically denied

his Sixth Amendment right to counse/ at

the May 14, 1976, hearing, this court with-

jut any hesitation is able to declare its

belief that such denial was harmless beyond

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CLAIMS

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Sivrh 4m noment Probe ts EB ffants:

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Assistance of Counse:

Petitioner contends that he was denied

his Sixth Amendment guaranteed nmght to

the effective assistance of counse/ not only

during the already discussed May 14, 1976

hearing but also dumng his trial for murder

and durmng his sentencing re-trial. He as-

serts specific alleged deficiencies too nu-

merou

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