Reply Brief — Petree v. Georgia

FOP 9Ee

. IN THE’ Se

Sebieme Court of the United States

OCTOBER TERM; 1971

NO. 71-1121.

RICHARD A. PETREE, SR.

NS a ORME I

THE STATE OF GEORGIA

BRIEF IN

RESPONSE TO PETITION FOR THE WRIT OF

CERTIORARI TO THE COURT OF APPEALS

: OF GEORGIA

Lewis R. SLATON

‘ District Attorney

. Atlanta Judicial Circuit .

3rd Floor, Fulton County CARTER GOODE

Courthouse ‘ sarap

136 Pryor Street, S\W. Assistant District Attorney

Atlanta, Georgia 30303 = Jon M. FELDMAN’

(404) 572-2598 ’. Assistant District Attorney

oe inemeqmenanenenceniannnan OEE MER IIIS a

REPS RER:

SUBJECT INDEX

SIIIIIIIN cecicsciicascctatieaesl Recateettieiecttiaci Salonga tartare caiamenaee a

Constitutional Provisions and Statutes Involved 2

Statement of the Case

Argument ___- Ne NT

I. Was any substantial federal question presented

to or decided by the state court? 3

II. is Dunn v. United States good law since Ashe

v. Swenson was decided? _......__.-_-_ >>>» 8

a Sa

TABLE OF CASES

Ashe v. Swenson,

397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed. 2d

469( 1970) _. Ee $$$ ____— 2,9

Benton v. Maryland,

397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed. 2d

I cima 0

Coleman v. Alabama,

399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed. 2d 387(1970) 5

DeBacker v. Brainard,

396 U.S. 28, 90 S.Ct. 163, 24 L.Ed. 2d

EE 2,7

Dunn v. United States, .

284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356( 1932) 2,8

Gillars v. United States,

Se ny I secre @

Murdock v. City of Memphis,

_ 20 Wall. 590, 22 L.Ed. aaa iS ea

People v. Amick,

20 Cal. 2d 247, 125 p. 2825(1942) _... => SSS 10

Steckler v. United States,

7 eee eee ee Oe on @

Taylor v. State,

42 Ga. App. 443, 156 S.E. 623 (1931) ___-__ —

Taylor v. State,

44 Ga. App. 387, 161 S.E. 793 (1931) _____ . 6

United States v. Abrams,

427 F.2d 86 (2nd Cir. 1970) - 6

ii

TABLE OF CASES—continued

‘ Page

United States v. Fox, -

Se P20 ize ac. aoe)... i)

‘United States v. Panzavecclina,

446 F.2d 1293 (Sth Cir. 1971) 9

United States v. Smallwood,

443 F.2d 535 (8th Cir. 1971) _..__ 9

Wolfe v. State of North Carolina,

364 U.S. 177, 80 S.Ct. 1482,

4 L.Ed. 2d 1650 (1960) __ 1

STATUTES

Chapter 26-23,

Criminal Code of Georgia ___ 6

Section 26-2301

Criminal Code of Georgia ___. 3, 4, 6,7

Section 26-2304

Criminal Code of Georgia __ 3, 4

Georgia Laws 1968, p. 1249 _ 6

MISCELLANEOUS

Committee Notes, Chapter 23-26,

Criminal Code of Georgia (Pamphlet), p. 147___. 6

9

18 ALR 3rd 259 (1968) _____

IN THE

Supreme Court of the United States

OCTOBER TERM, 1971

NO. 71-1121

RICHARD A. PETREE, SR.

VS.

THE STATE OF GEORGIA

BRIEF IN

RESPONSE TO PETITION FOR THE WRIT OF

CERTIORARI TO THE COURT OF APPEALS

OF GEORGIA

JURISDICTION

Jurisdiction is not conceded. The respondent contends

that the judgment of the Georgia Court of Appeals of

which review is here and now sought rests on inde-

pendent and adequate state substantive grounds (Mur-

dock v. City of Memphis, 20 Wall. 590, 22 L.Ed. 429

(1874); Wolfe v. State of North Carolina, 364 U.S.

177, 80 S.Ct. 1482, 4 L.Ed. 2d 1650; rel. den. 364 U.S.

856, 81 S.Ct. 29, 5 L.Ed. 2d 80 (1960) ).

While perhaps not strictly jurisdictional it would seem

1

4 De eres eee fee ee nS es

2

that, as was the situation in DeBacker v. Brainard, 396

U.S. 28, 90 S.Ct. 163, 24 L.Ed: 2d 148 (1969), this

case does not present a factual situation sufficient as a

basis for the ruling the Court is invited to make. In other

words, the Petiticner’s problems are not of true consti-

tutional dimensions.

CONSTITUTIONAL PROVISIONS AND STATUTES

| INVOLVED

The Petition contains all such that are deemed ap-

plicable.

QUESTIONS PRESENTED

I. :

WHETHER ANY SUBSTANTIAL FEDERAL QUES-

TION WAS PRESENTED TO OR DECIDED BY THE

STATE COURT.

Il.

WHETHER THE RULE OF DUNN V. UNITED

STATES, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed.

356, (1932), THAT CONSISTENCY BETWEEN

VERDICTS OF ACQUITTAL AND OF CONVIC.

TION ON COMPANION COUNTS OF AN INDICT-

MENT RETURNED BY A SINGLE JURY IS NOT

NECESSARY, HAS BEEN ERODED COMPLETELY

OR IN PART BY THE RULINGS IN ASHE V. SWEN.-

SON, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed. 2d.

469 (1970) THAT COLLATERAL ESTOPPEL IS

PART OF THE DOUBLE JEOPARDY GUARANTEE,

AND ITS APPLICATION A MATTER OF “CONSTI- |

TUTIONAL FACT”.

STATEMENT OF THE CASE

Petree, an Atlanta Alderman, and Ansley, an attorney

of the Atlanta bar, were jointly indicted and tried upon

a two-count indictment charging violations of two dif-

ferent provisions in the Criminal Code of Georgia pen-

alizing misconduct by public officials and their confed-

erates.

The trial judge refused to require an election between

the counts by the prosecution, but in his instructions

required the jury in the event of a finding of guilt on

either count to acquit on the other. Both were acquitted

on the first count, both convicted on the second.

Petree has been unsuccessful in getting his conviction

overturned by the Georgia Court of Appeals or Su-

preme Court and now petitions this Court for the Writ

of Certiorari to the Georgia Court of Appeals.

ARGUMENT

lL

WAS ANY SUBSTANTIAL FEDERAL QUESTION

PRESENTED TO OR DECIDED BY THE STATE

COURT?

As to repugnancy and inconsistency of the verdict the ~

State Court held:

“7. Finally, we reach the contention that the

verdicts of not guilty of Count One and guilty of

Count Two are repugnant and inconsistent. Ob-

viously the indictment purports to allege aspects

of the same conduct to state two offenses based on

the same transaction, the first under Code Sec. 26-

2301(2) and the second sae Code Section 26-

2304(b).

4

The meaning of-the offense set forth in Code Sec.

26-2301(2) is dependent upon the language of

Code Sec. 26-2301(1) with respect to the purpose

for which the person ‘solicits or receives’ and is

thus restricted to ‘influencing him in the perform-

ance of any act related to the functions of his of-

fice or employment’ (emphasis added) whereas the

purpose under Sec, 26-2304(b) is ‘an agreement

to procure or attempt to procure the passage or

defeat the passage of any legislation’ which in-

cludes solicitation for the sale of influence by the

perpetrating officer or employee, who might or

might not be a member of the legislative body, on

others, members of the legislative body, to assure

the passage or defeat of legislation. Thus to the

extent that it is alleged under Count One that

Petree, with Ansley as his abettor, solicited the

sale of his own vote as a member of the legislative

body, the alleged transaction is an offense under

Code Sec. 26-2301(2), but should it appear that

the solicitation was for an agreement, expressed

or implied, to procure or attempt to procure the

passage or defeat of legislation, it involves the at- -

tempted sale of his influence on other members of

the legislative body, and comes under Code Sec.

26-2304(b). In brief, we see a distinction in ac-

cusing Petree, in conjunction with Ansley, of so-

liciting the sale of his own vote, and in accusing

him in conjunction with another, of soliciting the

sale of: his influence in procuring favorable legisla-

tive action, which might or might not include his

own vote. Thus, from the standpoint of conviction

and acquittal, an acquittal under Count One of the

indictment as alleged is not, as a matter of law,

inconsistent and repugnant to a simultaneous con-

viction of Count Two. Accordingly, the rule in

Kuck v. State, 149 Ga. 191 (99 SE 622), and

similar cases is inapplicable to the present case. See

Blair v. State, 81 Ga. 629 (7 SE 855). ~

5

We recognize further that the trial judge, having

refused to require the State to eléct upon which

count it would proceed, acted favorably to the de-

fendants in requiring the jury in the event of a

finding of guilt on one count, to acquit on the other.

~ Even if two separate offenses were alleged, for rea-

sons already stated, the‘action of the trial judge is

consonant with the guidelines stated in Code Sec.

26-506(a) which protect an accused from a con-

viction ‘of more than one crime if (1) one crime is

included in the other, or (2) the crimes differ

only in that one is defined to prohibit a designated

kind of conduct generally and the other to prohibit

a specific instance of such conduct.”

This construction of the Georgia Criminal Code is

binding upon this Court. Coleman v. Alabama, 399

US. 1, 90 S.Ct. 1999, 26 L.Ed. 2d 387 (1970).

The State Court has simply held that by two separate

provisions the Georgia General Assembly has made penal-

the selling by a municipal legislator of his own vote on

a particular measure and the selling by the same legis-

jator of his influence on his fellow members, which as a

practical matter amounts to selling his vote on past and

future measures in which his fellow members have been

and will be interested. .

In view of the magnitude of the evil inherent in venal-

ity on the part of public officials no reason appears why

one could not be convicted and punished under either or

both provisions for the same transaction. In a small leg-

islative body there is no reason whatever why a mem-

ber can not procure the passage of a measure without

himself voting for it, or even when he himself votes

against it. His fellow-members would readily understand

that he could feel compelled to vote and vote against

Ww

6.

that which he was personally for because of the strong

feelings against of a majority of his constituents.

The verdict was not necessarily inconsistent, either

logically or legally. In United States v. Abrams, 427

F.2d 86 (2nd Cir. 1970) it was held that an acquittal

on a related count could not undermine the correctness

of a conviction on another count where there was no

more than possible inconsistency in the jury verdict.

Dunn was cited as authority. Certiorari was denied, 400

U.S. 832, 91 S.Ct. 64, 27 L.Ed.

The Criminal Code of Georgia was revised and re-

_ enacted by Georgia Laws 1968, pp. 1249 et seq., effec-

tive July 1, 1969. The committee notes to Chapter 26-

-- 23, which contains both sections referred to by the Geor-

gia Court of Appeals, state that Section 26-2301 re-

places a dozen sections of the former Criminal Code de- |

fining bribery, essentially originating in the common law.

As to Section 26-2304, paragraph (a) had its origin in

a 27-Section “Honesty in Government” statute enacted

in 1958, applicable primarily at the state level, while

paragraph (b) had its origin in the local government

counterpart of the “Honesty in Government” law, en-

acted in 1964. Committee Notes, Chapter 26-23, Abuse

of Governmental Office, Criminal Code of Georgia, 1971

Revision (Pamphlet) pp. 147, 148.

The Georgia Court of Appeals had held in Taylor v.

State, 42 Ga. App. 443 (156 S.E. 623) (1931), and

Taylor v. State, 44 Ga. App. 387 (161 S.E. 793) (1931),

that the procuring of the passage and adoption of an

ordinance of the Atlanta City. Council by the Clerk of

_ that body for pay was not an offense under the then

existing bribery laws (principal progenitors of present

7

Section 26-2301 and couched in similar language).

There was a special concurrence in the first decision,

a dissent to the latter.

The rationale of the Court in the two cases involving

Taylor and in Petree’s case is the same.

It thus appears that there can be no pretense that the

state court adapted its view in order to evade a consti-

tutional issue. The case having been decided upon

grounds that have no relation to any federal question,

this Court accepts the decision whether right or wrong.

(Wolfe v. State of North Carolina, supra).

In addition, the Georgia Court approved the action

of the trial judge in requiring an acquittal upon either

count of the indictment in the event of a conviction upon’

the other. This appears to be all that Ashe v. Swenson,

supra, could require, and to eliminate any vestige of a

federal question.

In DeBacker v. Brainard, 396 U.S. 28, 90 S.Ct. 163,

24 L.Ed. 2d 148 (1969), this Court declined to con-

sider whether the preponderance of evidence standard

in a Nebraska statute relating to Juvenile Court proceed-

ings satisfied Fourteenth Amendment due process re-

quirements, finding consideration not appropriate in the

circumstances of the case. The circumstances pointed

out were that the juvenile’s counsel at the juvenile court

hearing finding the juvenile to be a delinquent child did

not object to application ‘of the preponderance of evi- .

dence standard, and admitted in ora] argument before

this Court that the evidence would have been sufficient

to support a finding of delinquency even under a rea-

sonable doubt standard.

Petree was tried one time, convicted of ‘one offense,

and has received one sentence. Thus far there has been

no question as to the sufficiency of the evidence. It would

seem most inappropriate from these facts as a base to go

into consideration of complicated questions of collateral

estoppel and double jeopardy.

The first question should be answered in the negative.

IL.

IS DUNN V. UNITED STATES GOOD LAW SINCE

ASHE ¥. SWENSON WAS DECIDED?

Although not expressed, Petitioner obviously contends

that when Benton v. Maryland, 395 U.S. 784, 89 S.Ct.

2056, 23 L.Ed. 2d 707 (1969) made the fifth amend-

ment double jeopardy provision applicable to the states

through the Fourteenth Amendment it made applicable

also the federal court decisions on former jeopardy, and

that these decisions support his position. With this last

we take issue.

This Court, speaking through Mr. Justice Holmes, in

Dunn v. United States (284 U.S. 390, at p. 393) held

that consistency in a verdict is not necessary and quoted

with approval from Judge Learned Hand's opinion in

Steckler v. United States, 7 F.2d 59, 60 (2nd Cir. 1925):

*““The most that can be said in such cases is that

the verdict shows that cither in the acquittal or

the conviction the jury did not speak their real con-

clusions, but that does not show that they were not

convinced of the defendant's guilt. We interpret the

acquittal as no more than their assumption of a

power which they had no right to exercise, but to

which they were disposed through lenity.’ ”

There was a vigorous dissent by Mr. Justice Butler

Yoommencing at p. 394).

9

What should be required is consistency within in-

dividual counts and an ample evidentiary base for con-

viction. (Gillars v. United States, 182 F.2d 962, 966 .

(D.C. 1950) ).

Dunn has been followed and is being followed in all

of the circuits. See the three pages of citations in the

annotation in'18 ALR 3d 259, Sec..3, commencing at

p. 274, and in the same section in the current pocket

supplement, also United States v. Smallwood, 443 F.2d

535, 543 (8th Cir. 1971); United States v. Panzavec-

clina, 446 F.2d 1293, 1296 (Sth Cir. 1971); United

States v. Fox, 433 F.2d 1235 (D.C. 1970). In Fox, Chief

Judge Bazelon in a special concurrence (433 F 2d at p.

1239) suggests that there is a question whether Dunn

has survived Ashe v. Swenson, 397 U:S. 436, 90 S.Ct.

1189, 25 L.Ed. 2d 469.

In so far as Dunn rests on the proposition stated in the

opinion that cach count is regarded as a separa‘c indict-

ment, and if the indictments had been separatc!y prose-

cuted on the same evidence, an acquittal on one count

would not have been res judicata on the others, the

“same transaction” test in Ashe, along with the doctrine

of collateral estoppel, probably would leave Duna emas-

culated. But Dunn does not depend entirely. of even

principally upon application of the “same evidence”

rule.

Of equal or greater importance in Dunn is the quota-

tion from Steckler v. United States, recognizing that a

jury is not a computer or a calculator or even an adding

machine. Juries are composed of men, and as such cap-

able of being influenced by emotion as well as by reason.

It recognizes also something that seems to be overlooked

because an acquittal by a jury is not appealabic. that in

~—

10

cases such as we are now discussing it could be argued

with equal force and logic that the verdict of acquittal

is void for inconsistency because the guilty verdict estab-

lishes the existence of all necessary facts and that the

jury believed them proved beyond a reasonable doubt.

This may be another instance of the difficulty of apply-

ing the doctrine of collateral estoppel in criminal pros-

ecutions, alluded to by the Chief Justice in his dissent in

Ashe.

It would appear that the practicalities favor taking

jury verdicts on multiple count indictments at face value

without attempting to harmonize or reconcile the find-

ings. As far as the defendant is Concerned, the acquittals

are then acquittals and the errorless convictions are

then convictions, ne ee ae Cae p>

vided by law.

The ALR annotation to which we have already re-

ferred was prepared in 1968. In 136 pages it treats the

subject of inconsistency in criminal verdicts exhaustively.

It appears that a decision by some Appellate Court can

be found in support of any conceivable position. How-

ever, the rule in Dunn appears unquestionably to be the

majority rule. In California the rule appears to be statu-

tory. People v. Amick, 20 Cal. 2d 247, 125 p. 2d 25

(1942).

mises actiiadien dus ssenis eneaten

should be answered in the negative.

3rd Floor, Fulton County

Courthouse

136 Pryor St., S.W.

Atlanta, Ga. 30303

(404) 572-2598

11

CONCLUSION

The writ should not be granted.

Respectfully submitted,

Lewis R. SLATON

District Attorney .

Atlanta Judicial Circuit

CARTER GOODE

Assistant District Attorney

JorL M. FELDMAN

.Assistant District Attorney

Of Counsel for Appellee

12

CERTIFICATE OF SERVICE

I, Carter Goode, hereby certify that I have this day

deposited three copies of the within and foregoing brief

in response to petition for the writ of certiorari in a

United States mail box, with first class postage prepaid,

addressed to Thomas H. Antonion, Esq., counsel of rec-

ord for Richard H. Petree, Sr., petitioner, at his address

of record, 1421 Candler Building, 127 Peachtree Street,

N.E., Atlanta, Georgia 30303.

This day of May, 1972.

~ CARTER GoovE

Of Counsel for Appellee