# Appendix — Fleming v. Kemp, Warden > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0217%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1986 - **Citation:** 475 U.S. 1058 ## Text EDITOR'S NOTE THE FOLLOWING PAGES WERE POOR HARD COPY AT THE TIME OF FILMING. IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED. 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 c 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 t E S L a e 6 lA) « yn 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., v. 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 l4 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. 5 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 f- 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 of ith at 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’ 4 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 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 cx “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 , hes : mes ie te 7 aes “, y Tae ashy i Co oe Cate! - , aahnL-D: its pet Wel ; a. 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 C. 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 Vv 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]. A. {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 A Y 7 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 © participate 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- v 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 c The district court's finding ‘nat Farmer 4. 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~ 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 y 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 B 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 A » = 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!'> a. 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. 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 a. 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 D 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 — 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- th 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 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 my 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. 2 {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 3. 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 ee + - ee ——_ —— 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 I] 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) 28 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 am 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! oe 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 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 a. "? {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 fn 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-.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 uc 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 \f alm i must estaoiisn ‘nat ingermineda proper inse -unctoning sariai that as Naving produced a onst.Amend. 6 process rai cannot ust 1] 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- > e non-frmvolo | wh 7 | ae | , 2; Who presented th same us 1ofone > *nhart — . a nran > ‘rr acienses al “nat time as presented nis > ae . > > T > > A119 we) hae nA 2 se UPL. sraveiers nas not acted wilnou roacny r 30 aT nr nv " rr 7 Casonadie uUIcalion n any a I on + 229 9 we slaiww Dlaine #4 —_— _ = . Widilibais DS s@iill. A s@idivaia SO SU UCSL a. rho’ °"faeac¢ HH ’ e ‘ene ~~ E -/ —s® ~~ " ~ ? nr 7 ’ A errr al € ‘ € ici AL Lit "> .irrrer r 17 mn \ aed rrr nr = Yr “aa Mays 4Au.e So JivdioY 4 —? * Ad m ata thhake - ne — - nm ”" mmo nr ai @NU L/ lose Add al Lust Tilt $ > a“ - , tho 4 maaan ie . > Relea nro ne lelencant ,ne .raveiers ANSUPANICE mrrmont ™mrmeo — nr rival ilitial 4Uke iT1e 7 — RATT ee ” - e - » - r ive. ¥ a 4 ai . nt he r™monr r Pr . - ‘ . - > iv ATLA . _— ~ in i °s y ‘ vor alne eNom “~« minor ds ar ’ >. Yrmonr nr r 7 4 ™ it : ss : - € > . . ~~ 7? nm rain . , nrean —_ ia Al AP alNS. i¢ IWant bow i ; pOCUICa : i . ail ’ iit cut ai > > - > — — a nies . ra volierc moh ZOvernment UUICC.L iraveiel : subrogation when piaintill is paid such ben- Sts wn ° an Ls. yy nr 7 ) u} eo - > e 2i110U Deo ey) ‘ sah . » re "? ho ; . aaa wae ™on x e € “ g aid eaica 4 am Rureh V . : qT 4 i . ri pal ( , 7 > _— LJ , racuale S i SU 4 . ‘ ’ Peirce = € P ‘ 4 a ” ‘ > -? c e:endan J¢ ea . i ran remont ~~ t Yr) in ; ‘ - ye rc Ee ‘ , r ~ . - ad 2 é : al a ~ } } ” er + hl ‘ ~ . r oe i ~> es at & ~~” . , ’ " - —_— _— ee vr - ~ — son H. FLEMING, Petitioner T, Warden. Respondent , " 7 4 _ No sl—55. \ 7m - PR ‘- - .« y ePOrnsa . "a cTs a" i a — = * > —_ ‘ rola foal ner P - - Dea - = mie er ok al inc ente nr Z 6 it = er irt. vyens ‘ cg ‘ at etitioner was n jenied — ™ e as La yi ‘ ence w@ lI: en stair r r iy eorma ea er atu Va in n 4 i " on e . . 7 1%," 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 ee ee 8 een Ree oa © eo Oe oe 6 — * : * *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 " . ed r , ~ > > > : = , ror . . no ro ’ wry IO ynere evicence rocucec ,Ul — _ . ‘ ™ = as rReR - — nm “"? - eamng was notnin g more 1a! — —_ . aweetane nel se nnthine . . eter estigactior ind Was rag noe « ~ ie | a . r Fort ? , ~ re an VOuUIC lave ee evealet — ~~ = norrece t'. as sch a ¥¥ LD D€ a > 2 ~ nror ? —, t1¢ ated nr ar. amduci eereae Fi hae lai CISC e s ro r rp ° r rer oo ert e a i c at t ey u — = ro ~ + > a ro ~ ~ ence. UL.5.C.a.Lonst. Amend ront : » fe —_—— nates g ix a " . 7s 5 1. Crimina w See Lloic rt for vert r - - = — —— — han = ee i a> webs si\4s Ul i . 4 . = 4 . s 4 . Le ; . = - ad t eee | iC use Vu € i os = - a, r ~ ~ _ _ = a — _~ ~ s . - c _ > —_ a — 7 > = nm - col ° , co , re ian ha rr al - i « Ve ie ‘ t ©€S5 4 a Ai i- —eo = - - - nae » ta — - a e as ak j e | 4 i rr PO na nce an - io > we “ od ——-) > - ; = ,USE Vneimin g t iva ic dOeas 4s « r a) r ° 4 nal - r ’ soc 1c Pre ¥ s+ -~* “ 4 _ ry **oror or + cf a ee ** ** 9 ms * ms as Ad - situ Vi aad mi € . ,02aLi a SIS LS y , Au.cea . > , ° + ar . . ” “ane rrer y vabbalea rh ? “or? act " > . a7" soon “or. e€ assisiance ounse OUWILASTANCING lat e SION 13 ow/ ew ONNCSI gn e a . _ . _ = lath. ? ne "rte ” of, sh ro, —— nr r * 5 nro spBenrnn . - y qagetencants successful liienge irra sOner ff .emin e 2 3€. Ol ™ = . = - P 7 ‘> errr , ~ r -* Ta — ~ n su ent renrecen r aoeas att e aryve Als ~ j 2 1 i ) 7 —_—~ — - men DECK ert e! evera ais addea no TaTea 2) , Seo nn o« ~ . ; . — + 4s as C aJt a> : COeCuilik .* s CLs uct - ' » Urminai Law 241.15/, , tachni lewed canetitutic — ‘ s -ECANnICI&/ di1e€g UU NSLILULIONa! er: ‘ _/* os ls hat he Mmiecor _- sec > ron ee . " . ase ae t/ ib weed sa :-« ‘ ‘ . ae ‘ ‘ . -_, an +. aoe “rT “ rr ort °c? — a _ +‘? servadie ONIV Witla perect Vision nad oav- > co . os > 7 nm nn” > veda Shc « & ce. of ~}- 4X. 4a "no AD 2ST" arr non * mer: T yi)? nr - 2 Cy. UVON e Sut ai wi _ — - - _ = onde — one eS. | ~ ” , ~ nm ~- mine “ort ha os os Se etcu « . . ess i on Ff .emin =! r 3en- satine — ee . ™ “ atom . a4 ~ “ aaa ence e iSiCe S inc sentence . - re “Por Cc ia ne ‘orc _ - sae a » - ~ awe ‘ _ 7 . . . ~ ‘ a Lmminai Law 956.2! | Atre “SFancerent of Set itioners state ener swede wmssedWNes ~ © > : ‘ . oe a ial ro on - - - ~ ‘* . i — woe y - by ™ a = 4 cee gS ra t \ » oe Oe La> eanree ‘Ff omsemetanene _ — - ee . oe oe . d J 2mmnS$ wa 4 i = ee SUOM1L.ec e € ave evs ~~ x lal _— ~ + _ _ > _ . - > . ro = rT? - r _ S re . ~ ry n "err > "9 - Ar af ot . iccuse ece g e! ss et SUtUtIONai € I c-ec. anc - >" nr me r re sanranced . ’ ; re oe Bel & bbe *a eva ~ . envencec .0o gdje UL ence Nnciuc > = and = 7” , -_ 7” . * as ne - > " ue > ot ~sucre.a ee) Ww 4nsoiicitec a too : ¥ «= c 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 . noc Un ©. ‘yiddens, and nat ic 1d no re rT Aet.T ta rr : ‘ahs Darvicipate n we yet OLIN, —_ Ek rar 6 , = 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 7 | + ‘ 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 . : : 7 * t > ‘ 8 ee ee ee eee + ee meee - —— os ~* r* CLAIMS et haa Sivrh 4m noment Probe ts EB ffants: 4/ OIALda AMeOCnNaGMent AIWNL oO EjTective 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- merous to list in this opinion. They begin on page 9 of petitioner's brief filed July 13, 1982, and continue through page 32. As the Eleventh Circuit Court of Appeals recently stated in Goodwin v. Baikcom, 684 F.2d 794 at pp. 804-05 (llth Cir.1982 rhe oft-ited constitutional standard by which counsel's assistance is evaluated s well established. The sixth amend- ment, through the fourteenth, entitles a state criminal defendant the mght to 539 counsel reasonably likely to render and rendering reasonably effective assistance. See, e.g., Baty v. Balkcom, 661 F.2d 391 (5th Cir.1981); Nelson v. Estelle, 642 F.2d 903 (5th Cir.1981); Herring v. Estelle, 491 F.2d 125 (5th Cir.1974). Effective assist- ance does not mean errorless assistance, nor counsel judged ineffective by hind- sight. See, eg. United States v. Bur- roughs, 650 F.2d 595 (5th Cir.1981); Clark v. Blackburn, 619 F.2d 431 (5th Cir.1980); Easter v. Estelle, 609 F.2d 756 (5th Cir. 1980). ‘Rather, the methodology for ap- plying the standard involves an inquiry into the actual performance of counsel conducting the defense and a determina- tion of whether reasonably effective as- sistance was rendered based upon the to- tality of circumstances and the entire rec- ord.’ Nelson, 642 F.2d at 906 (emphasis in original). See also United States v. Gibbs, 662 F.2d 728 (11th Cir.1981) (deter- mination must come from entire record rather than specific actions). In applying this standard, no distinction is to be drawn bet veen retained and appointed counsel. Cuvier v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). “Every case involving a constitutional claim of ineffective assistance of counsel! turns on the facts and the conduct of those involved. King v. Beto, 429 F.2d 99}, 222 n. 1 (5th Cir.1970). While coun- sel's performance need not be erroriess, it must ‘fail within the range of competency generally demanded of attorneys in crimi- na! cases.. Mylar v. State, 671 F.2d 1299, 1301 (llth Cir.1982). See also, Beckham v. Wainwright, 639 F.2d 262, 267 (Sth Cir.1981). The determination of whether the assistance rendered by counsel! is rea- sonably effective, however, is not to be based solely upon his performance at tn- al. Consideration of the ‘totality of cir- cumstances’ encompasses the quality of counsel's assistance from time of appoint- ment or retention through appeal. At the heart of effective representation is the independent duty to investigate and prepare. ‘{Clounsel have a duty to inter- view potential witnesses and “make an independent examination of the facts, cir- A FEDERAL SUPPLEMENT cumstances, pleadings, and laws in- volved.” Rummel! v. Estelle, 590 F.2d 103, 104 (5th Cir.1979), quoting Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L.Ed. 309 (1948). Thus, ‘{aJn attorney does not provide effective assistance if he fails to investigate sources of evidence which may be heipful to the defense.’ Davis v. Alabama, 596 F.2d 1214, 1217 (5th Cir.1979), vacated as moot, 446 U.S. 903, 100 S.Ct. 1827, 64 L.Ed.2d 256 (1980). ‘{Tyhe cornerstones of effective assistance of counsel’ are the {ijnformed evaluation of potential de- fenses to criminal charges and meaning- ful discussion with one’s client of the realities of his case.’ Gaines v. Hopper. 575 F.2d 1147, 1149-50 (5th Cir.1978). “The assistance rendered may be deemed ineffective although the proceed- ings were not a farce or a mockery. Her- ring, 491 F.2d 125, 128 (5th Cir.1974). Nevertheless, federa/ habeas corpus reiief is proper only where a showing of preju- dice accompanies the initial and distinct determination of ineffective assistance. This is true even in those cases where counsel's preparation and investigation have been adjudged woefully inadequate. Washington v. Watkins, 655 F.2d 1346, 1356 [5th Cir.1981] " (emphasis add- ed). The proper standards for evaluating claims of ineffective assistance of counsel and the showing of prejudice that a habeas petitioner must make has recently been con- sidered in Washington v. Strickland, 693 F.2d 1243 (5th Cir. Unit B en banc, 1982), in which the en banc court stated: " the petitioner has the burden of persuasion to demonstrate that the inef- fective assistance created not only ‘a pos- sibility of prejudice, but that [it] worked to his actual and substantial disadvan- tage. See United States v. Frady, 456 U.S. 152. 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982) (emphasis in original). If he successfully satisfies this burden, the writ must be granted uniess the state proves that counsel’s ineffectiveness was harmiess beyond a reasonable doubt. See A-40 veut FLEMING v. ZANT 537 Cite as 560 F.Supp. 525 (1983, Chapman v. california, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) : 693 F.2d at 1258. Petitioner was represented by court ap- pointed and retained counsel. By hindsight petitioner's habeas counsel (who advised this court he has never tried a criminal case) has catalogued an almost endless list of things counsel could have but allegedly did not do. In evaluating these alleged deficiencies this court has read the entire record; considered the totality of circum- stances; held two evidentiary hearings at which petitioner's attorneys, Edward Parr- ish and Benjamin Zeesman, and the prose- cuting attorney testified and petitioner af- ter being advised he could testify as to anything his lawyers were asked to do but did not do, elected on each occasion not to testify; appraised the extensive briefs sub- mitted by counsel; and carefully analyzed and considered appiicabie appeilate deci- 310Ns. In the real world that this petitioner com- mitted murder and was tmed and convicted n, lawyers—appointed or retained—are supposed to make an informed evaluation yf potential > cmminal charges and to engage in a meaningful discussion of the realities of his case with the cmminal jefendant. This criminal defendant—the petitioner—has never suggested that his ap- pointed and retained lawyers did not en- gage in a meaningful discussion of the real- ities of his case with him. When Mr. Parr- ish and Mr. Zeesman testified in this court, habeas counse! did not even attempt to prove a failure to engage in such meaning- ful discussion > lefenses [4] What potential defenses were there to the crime of murder? In view of peti- tioners proven admissions to a fellow in- mate in which he recited details that only a participant could have known and that were corroborated by independent evidence, counsel had the unenviabie task of defend- ng an almost hopeless case. [it was almost hopeless because viewed realistically the di- rect and circumstantial evidence estabiisned lefendant’s guilt beyond a reasonabie joubt. Messrs. Parrmsh and Zeesman never- theless did a superb job of trying to con- vince two juries to spare petitioner's life. They rendered more than the effective as- sistance of counsel that he was constitution- ally entitled to. In this court’s considered judgment his arguments to the contrary are not valid. There is always room for a difference of opinion as to whether or not counsel ren- dered the constitutionally required effective assistance of counsei. Without in any way suggesting there is a valid basis for such a difference of opinion in this case, those con- sidering the contentions aad arguments of petitioner should note that petitioner even though aware of Washington v. Strickland, supra, before said evidentiary hearings. has not—in this court’s j}udgment—demonstrat- ies of his law- ed that the alleged deficien yers “worked to his actuai and subdstantia! disadvantage.” Even if he had so demon- strated, this mountainous record of evi- dence proving petitioner's guilt would de- mand a finding that counsel’s ineffective- was reasonable ness Narmiess vDevond a [5] Subsequent to ndict- ment and tmai the grand jury array was successfully challenged by counse! for Hen- ry Willis because of an insufficient repre- sentation of women. Henry Willis was then reindicted by a new grand jury, tned, convicted and sentenced to die. The chai- lenge to the grand jury is just one of many technical objections interposed by counse! for Henry Willis that counse/l for petitioner elected not to file or pursue. Though given the opportunity to do so before this judge, petitioner's verv capable habeas attorneys did not even question Mr. Parrish or Mr Zeesman as to their failure to challenge the composition of the grand or petit jury list. They simply rely on the fact that counsel for Henry Willis successfully challenged the same jury lists at a later time and suggest that Mr Parrish and Mr. Zeesman should have done the same. Petitioner has not petitioner $3 begun to carry his burden of persuasion on 538 560 FEDERAL SUPPLEMENT this issue. Viewed in the light of the al- ready stated standard for evaluating and judging the effective assistance of counsel, the failure to challenge the grand jury ar- ray did not amount to ineffective assistance of counsel. (c) Failure to Investigate and Present Evidence of Mitigating Circumstanc- es. [6] Counsei for petitioner has examined Messrs. Parrish and Zeesman as to their efforts made to investigate and present evi- dence of mitigating circumstances and has suggested that their lack of effort and fail- ure to present such evidence demonstrates ineffective assistance of counsel “that worked to his [petitioner's] actual and sub- stantial disadvantage.” To demonstrate the possibilities petition- er on February 22, 1983, filed affidavits signed by persons who state they were not asked to testify but would have willingly testified as to petitioner Flemming’s non-vi- lent, good character and his hard work for and devotion to his family. Beamng in mind that Son Fleming has resided in Moul- trie, Georgia, for years, the affidavit of Mathis Rawls who resides in Rochelle. Geor- >~—some sixty miles away—is of his per- sonai good opinion of petitioner: the affida- vit of the Chief of the Moultrie Fire De- partment is that when petitioner worked for him in the 1950s petitioner “was a trust- ed employee and a good worker.” He “had always known him to be a non-violent per- son.” Other than the affidavit of a retired Rochelle, Georgia, school teacher who taught petitioner's sisters and has been a family neighbor in Rochelle, the other affi- davits are from a sister, sister-in-law, and sister, each of whom would have told peti- toner's life history favorabiy to petitioner. While all affiants asserted that petitioner's awyers did not contact them or ask them to testify, petitioner given two evidentiary hearing opportunities to do so has not testi- fied that he told his lawyers of the non- family affiants or asked them to permit family members to testify. Mr. Zeesman testified that he investigat- ed petitioner's alibi witnesses and found they did not support petitioner's assertion that he remained in Valdosta while Larry Fleming and Henry Willis robbed. kid- napped, and then murdered. He aiso inves- tigated character witnesses but did not find them to be disposed to testify favorably. Wisely he did not call those he interviewed. On March 17, 1983, respondent submitted the affidavits of five witnesses who could have been called to rebut testimony of peti- tioner’s good character. To say the least they demonstrate that four Moultrie. Coi- quitt County law enforcement officers and an employee of Georgia Hide and Fur Com- pany would have testified in no uncertain terms to petitioner’s bad character and rep- utation for violence. [7] This court is concerned over the question of what are mitigating circum- stances. Petitioner's attorneys suggest it is petitioner's life history and that counsel! is ineffective unless petitioner's life history is investigated and presented to the jury What is the answer to the question: What are mitigating circumstances to be present- ed to a jury in a Georgia death penaity i] case The most appropriate definition of miti- gating circumstances is found in Bouvier's Law Dictionary, 3rd Edition, under mitiga- tion: “MITIGATION. Reduction; diminu- tion; lessening of the amount of a penai- ty or punishment. Circumstances which do not amount to a justification or excuse of the act com- mitted may yet be proper!y considered in mitigation of the punishment: as, for ex- ample, the fact that one who stole a loaf of bread was starving.” Particularly appropriate is the example giv- en—"the fact that one who stole a loaf of bread was starving.” This suggests that mitigating circumstances include circum- stances surrounding the commission of the crime as contrasted with the life history of the petitioner preceding the period of time possibly relevant to the commission of the offense in question. This is consistent with A-42 = ——- 2 ee ee —— es —_ — FLEMING v. ZANT 059 Cite as 560 F Supp. 525 (196 the enumeratio., of possible mitigating cir- cumstances in the Model Penal Code and quoted in fn. 44 of the Supreme Court's opinion in Gregg v. Georgia: “"(4) Mitigating Circumstances. ‘(a) The defendant has no significant history of prior criminal activity ‘b) The murder was committed while the defendant was under the influence of extreme menta! or emotional disturbance. c) The victim was a participant in the iefendan [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0217%3A3. Public record. Not legal advice.