Appendix — Dutton v. Evans

INDEX Page

1. Chronological list of pleadings, hearings,

orders, etc. l

2. Relevant portions of Appellee Evans’ “Applica-

tion for Writ of Habeas Corpus,” filed in the

United States District Court for the Southern

District of Georgia on December 14, 1966. 4

3. Order of the United States District Court for

the Southern District of Georgia dated December

14, 1966, directing Appellant Dutton, Warden,

Georgia State Prison, to make his return and show

cause why the Writ of Habeas Corpus should

not be issued 13

4. Return and Answer of Appellant Dutton filed

on or about December 30, 1966 (excluding

exhibits) 15

5. Order of the United States District Court for the

Southern District of Georgia dated May 2, 1967,

transferring the case to the Northern District of

Georgia 19

6. Order of the United States District Court for the

Northern District of Georgia dated September 6,

1967, denying Appellee Evans’ application for a

Writ of Habeas Corpus 21

7. Judgment entered by the United States District

Court for the Northern District of Georgia dated |

September 6, 1967, in favor of Appellant Dutton,

Warden and against Appellee Evans____________.. 26

8. Order of the United States District Court for the

Northern District of Georgia dated September

21, 1967, allowing Appellee Evans’ application

for an appeal in forma pauperis__..____________________- 27

i

pepe TOT PLOT AO POLE LO NE BIT

10.

11.

12.

INDEX—continued

Page

Opinion of the United States Court of Appeals

for the Fifth Circuit dated September 16, 1968,

reversing the decision of the United States

District Court for the Northern District

of Georgia 28

Judgment of the United States Court of Appeals

for the Fifth Circuit dated September 16, 1968,

reversing the judgment of the United States Dis-

trict Court for the Northern District of Georgia_39

Appellant's “Notice of Appeal” to the Supreme

Court of the United States filed in the United

States Court of Appeals for the Fifth Circuit

on September 26, 1968 4]

Relevant excerpts from the transcript of evidence

adduced at Appellee’s trial for murder in the

State trial court and introduced into evidence

and made a part of the record during the hearing

on Appellee’s application for a Writ of Habeas

Corpus before the United States District Court

for the Northern District of Georgia

1. Chronological List of Dates of Pleadings, Hear-

ings, Orders, etc.

A. The Original Trial and Direct Appeals

l.

April 17, 1964 — Discovery of bodies of

three murdered policemen.

. August 23, 1965 — Indictment of Evans for

the murder of one of the police officers.

. October 18-21, 1965 — Trial of Evans in

the Gwinnett County (Georgia) Superior

Court.

October 21, 1965 —Return of “guilty”

verdict by jury and sentence of the trial

court.

. July 7, 1966 — Judgment of trial court af-

firmed by the Supreme Court of Georgia.

. November 14, 1966 — Denial of Certiorari

by the Supreme Court of the United States.

B. The Present Habees Corpus Proceeding

1.

be)

December 14, 1966 — Application of Ap-

pellee Evans to the United States District

Court for the Southern District of Georgia

for a Writ of Habeas Corpus.

. December 14, 1966 — Order of the United

States District Court for the Southern Dis-

trict of Georgia, directing Appellant, A. L.

Dutton, Warden, Georgia State Prison, to

make his return and show cause why the

application should not be granted.

l

10.

11.

2

. December 30, 1966 — Return of Appellant

Dutton filed.

. April 25, 1967 — Hearing before the United

States District Court for the Southern Dis. |

trict of Georgia.

- May 1, 1967 — Order of the United States

District Court for the Southern District of

Georgia transferring the case to the United

States District Court for the Northern Dis.

trict of Georgia.

. May 19, 1967 — Hearing before the United

States District Court for the Northern Dis.

trict of Geergia.

. September 6, 1967 — Order of the United

States District Court for the Northern Dis-

trict of Georgia denying Appellee Evans’ ap-

plication for a Writ of Habeas Corpus.

. September 6, 1967 — Judgment entered by

the United States District Court for the

Northern District of Georgia in favor of Ap-

pellant Dutton and against Appellee Evans,

. May 9, 1968 — Hearing before the United

States Court of Appeals for the Fifth Circuit.

September 16, 1968 — Opinion of the

United States Court of Appeals for the Fifth

Circuit reversing the decision of the United

States District Court for the Northern Dis-

trict of Georgia.

September 16, 1968 — Judgment of the

rer

12.

13.

14.

3

United States Court of Appeals for the Fifth

Circuit reversing the judgment of the United

States District Court for the Northern Dis-

trict of Georgia.

September 26, 1968 — “Notice of Appeal”

to the Supreme Court of the United States

filed by Appellant Dutton in the Court of

Appeals.

December 13, 1968 — Jurisdictional State-

ment filed in the Supreme Court of the

United States by Appellant Dutton.

February 24, 1969 — Probable jurisdiction

noted by the Supreme Court of the United

States.

—

4

2. Relevant portions of Appellee Evans’ “Applica.

tion for Writ of Habeas Corpus,” filed in the

United States District Cour: for the Southern Dic.

trict of Georgia on December 14, 1966.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

UNITED STATES OF >

AMERICA ex rel.

ALEX S. EVANS

v. S

A. L. DUTTON, WARDEN NO. 2072

of the State Prison at

Reidsville, Georgia J

CIVIL ACTION

APPLICATION FOR WRIT OF HABEAS CORPUS

TO THE HONORABLE FRANK SCARLET,

JUDGE OF THE UNITED STATES DISTRICT

i; COURT FOR THE SOUTHERN DISTRICT OF

GEORGIA:

The petition of Alex S. Evans respectfully shows this

Court the following facts:

a.

Petitioner is unlawfully imprisoned and detained by

A. L. Dutton, Warden of the State Prison at Reidsville,

Georgia.

2.

Petitioner is unlawfully imprisoned and detained by

the said A. L. Dutton under and by virtue of a judg-

5

ment, sentence and order passed by the trial judge of

the Gwinnett Superior Court.

-3-

Petitioner was indicted, tried and convicted of the

offense of murder without a recommendation of mercy

by the jury in Gwinnett Superior Court. The said ver-

dict was entered on October 21, 1965 and petitioner was

sentenced to death by electrocution on October 21, 1965

by the trial judge.

-4-

Petitioner has appealed to the Georgia Supreme

Court and the decision of the trial court was affirmed on

July 7, 1966. A motion for rehearing was denied by the

Georgia Supreme Court on July 21, 1966. The Supreme

Court of the United States denied certiorari on Novem-

ber 14, 1966. Petitioner has exhausted his state remedies.

Copies of the opinions rendered by the Georgia Supreme

Court are attached hereto and marked Exhibit “A” and

made a part hereof.

5.

The facts and law relied upon by petitioner in bring-

ing this application will be fully set out herein but

petitioner's basic contention is that he is unlawfully de-

tained because fundamental rights granted him by the

Constitution of the United States have been violated.

The indictment on which Petitioner was tried and

convicted was returned by the Grand Jury of Gwinnett

County, Georgia, as a true bill on August 24, 1965. This

indictment was one of a series of indictments growing

out of the murder of three Gwinnett County police offi-

cers which occurred on April 19, 1964. It charged Peti-

6

tioner jointly with Venson Eugene Williams with the

murder of officer Jerry S. Everett. In all, nine indict.

rents had been returned by this Grand Jury. Three

were returner’ on July 1, 1965, charging three defen.

dants, Petitioner, Williams and Wade L. Truett, with

the murder of each of the three officers. Three were

returned on August 24, 1965, again charging all three

defendants with the murder of each of the three officers,

On the same date, the Grand Jury returned three addi-

tional indictments, charging only Petitioner and Wil-

liams with the murder of each of the three officers.

Indictment No. 7284, in which only Petitioner and

Williams were charged with the murder of Officer Ever-

ett was scheduled by the State for initial prosecution.

Trial of Petitioner on this indictment followed a week

after the trial of Williams on the same indictment. Prior

to arraignment and trial, Petitioner filed several motions,

including motion for severance. This motion was

granted. In addition, he filed a motion to produce and

divulge information and motion to produce certain docu-

ments. These motions were overruled. In the selection

of the trial jury, defendant objected to the disqualifica-

tion of jurors who stated on voir dire that they were

conscientiously opposed to capital punishment. He

further objected to the placing on him as a juror one

Hubert H. Higgins, for the reason that said juror would

not state that his verdict would not be affected by his

relationship to one of the deceased officers.

During the course of the trial, the testimony of one

Lynwood Shaw was offered by the State and admitted

over objection of Petitioner with respect to a statement

made to him by co-defendant Williams. Wade L. Truett,

————————————

7

a co-defendant, was offered as a witness by the State.

Prior to the introduction of his testimony, Petitioner

filed a written motion and made an oral motion to ex-

clude the testimony. These motions were likewise over-

ruled. In the process of this witness’ testimony, it was

revealed that he made a statement which was recorded

by tape recording and also a written statement. An oral

motion to require the State to produce this testimony

for examination by the defense was overruled.

Petitioner was placed on trial on October 18, 1965,

and the verdict, without recommendation of mercy, was

returned October 21, 1965. The death sentence was im-

on the same date. A motion for new trial was

timely filed and thereafter the same was overruled on

May 1, 1965. Subsequent appellate proceedings and the

results thereof are stated under Section (b) above. Pe-

titioner hereinafter specifies the stages in the proceed-

ings in the court of the first instance and in the Appellate

Court and in which manner the questions sought to

be reviewed were raised, the method of raising them and

the way in which they were passed upon by the courts.

Pertinent quotations of portions of the records will be

supplied.

* * #

During the course of the trial, Lynwood W. Shaw

was called as a witness (R. pp. 129-168). As Shaw had

testified at the earlier Williams’ trial, Petitioner's coun-

sel could anticipate his testimony. Accordingly when

the witness was asked by the prosecutor about a con-

versation which had transpired between the witness and

Williams, Petitioner objected in the following language:

“MR THOMPSON: If it please the Court, we

8

object to any conversation had between this witness

and Wiliams, any other party out of the presence

of the defendant as being hearsay.

THE COURT: Objection overruled.

MR. THOMPSON: If it please the Court, we

have a further objection, we would like to make

and feel probably should be made out of the pres-

ence of the jury.

THE COURT: I will ask you to retire to your

Jury Room, Gentlemen. All right, state your objec.

tion.

MR. THOMPSON: If it please the Court, we ob-

ject to this witness testifying as to any conversation

had with the defendant Williams out of the presence

of the defendant on the grounds that such evidence

such testimony would be hearsay, that this defen-

dant is entitled to be confronted with the witnesses

who testify against him under the provisions of the

United States Constitution and under the Consti-

tution of the State of Georgia, and to permit this

witness to testify as to what somebody else told him

would be in substance to permit the testimony of

anether witness or another party to testify through

this man’s lips and to deny the defendant the right

of confrontation guaranteed by Article 1, Paragraph

5 of the Constitution of the State of Georgia of 1945,

Georgia Code Section 2-105 and of the Constitu-

tion of the United States, Sixth Amendment, Sec-

tion 1-806 of the Code. We are aware of the fact

there is a statute of the State of Georgia which pro-

vides, that is Georgia Code Section 38-308 — 306,

which provides that after the fact of conspiracy shall

9

be proved the declarations by any one of the con-

spirators during its pendency of the crime the crim-

inal project shall be admissible against all. We sub-

rit that if the Statute is construed by this Court

to permit hearsay testimony under the circumstances

present here, that it would be a violation of the

two sections of the Constitution that we have re-

ferred to above. Just one moment.

If it please the Court —

THE COURT: Anything further in your motion?

MR. THOMPSON: Yes, sir, further objection, we

urge that in order for a — statement ex parte, that

is hearsay statement, that is a statement made out of

the presence of the defendant to be admissible

against the other defendant on trial, the same must

be made during its pendency of the conspiracy and

in furtherance of the conspiracy. Now, on the three

nds that we have stated, we submit that the

testimony that this witness is about to give is not

admissible and perhaps in some respect, our objec-

tion and motion might be premature, but we sub-

mit if the witness is permitted to testify as we an-

ticipate, he will — having heard his testimony on

the prior trial, it will be so prejudicial — it will so

prejudice the minds of the Jury that to make an

objection subsequently and to make these objec-

tions, I should say subsequently, would be of little

avail even though the Court should sustain them

and would withdraw the testimony or the evi-

dence from the Jury's consideration. So we are mak-

ing this motion at this time prior to the introduc-

tion of the testimony. .. .” (R. 141-143)

———

10

~N

“THE COURT: Gentlemen, the Court is ready

to rule on the thing. I don’t want to cut off further

argument, the motion is in the record. It is the

opinion of the Court that the conspiracy prima facie

has been established by the testimony in this case

and it now becomes a question of the Jury and the

Court must submit it to the Jury the question

whether or not the conspiracy has or has not been

established, and if the Jury should find a conspiracy

has been established, then the testimony or state-

ments or acts of any one connected with the con-

spiracy during its continuance, before or conceal-

ment after the crime, I think would be admissible

against all who participated therein. The Court

therefore overrules your objection, Mr. Thompson,

and will allow the answer.” (R. 147-148)

Following this ruling of the Court, the witness Shaw

was permitted to testify that he had had a conversation

with Williams following the latter’s arraignment on the

murder charge in Gwinnett County. He testified further:

“Q. Asked him — speak a little louder.

A. I went to his room in the hospital and asked him

how did he make out in Court.

. Asked him how did he make out in Court?

How did he make out in Court.

. What was his response?

He said, ‘if it hadn’t been for that dirty-son-of-

a-bitch, Alex Evans, we wouldn’t be in this now.’ ”

(R. 148)

> O - 0

Following the above testimony, Petitioner renewed

ll

the objection previously made and moved the Court to

exclude the testimony quoted above. The Court over-

ruled these motions. (R. 149) .

§-

Petitioner was denied due process of law on the record

hereinbefore recited for the reasons:

(e) He was denied confrontation and the right to

cross-examine a witness whose testimony was used

against him, in violation of the due process clause of the

Fourteenth Amendment to the United States Consti-

tution and as guaranteed him under Article I, Paragraph

V of the Constitution of the United States. (Brookhart

v. Janis, U.S. _.; 16 LEd2d 314).

(f) There was yermitted to be used against him at

the trial hearsay testimony of an alleged co-conspira-

tor, admitted in evidence pursuant to Ga. Code Section

38-306, which Code Section, as applied in this case, is

unconstitutional and violative of the due process clause

of the Fourteenth Amendment to the United States Con-

stitution.

ef

By reason of each of the foregoing grounds, and all

of them collectively, the conviction, sentence and im-

prisonment of Petitioner as aforesaid are unlawful and

in violation of the Constitution of the United States of

America.

12

WHEREFORE, Petitioner prays that a writ of hab.

eas corpus issue to the said A. L. Dutton, Warden of

the State of Georgia Prison at Reidsville, Georgia, re.

quiring him to produce the body of your petitioner

before this court at some convenient time to be therein

designated, there to abide what shall be awarded by the

court in the premises, and that Petitioner be discharged

from said imprisonment; that a stay of execution be

granted by this court pursuant to 28 USC 2251; and

that the stay of execution remain in force throughout the

proceeding in this Court and throughout any appeal

that may lie from the decision of this Court.

Respectfully submitted,

P.O. Box 679 /s/ Rosert B. THOMPSON

Gainesville, Ga.

Rosert B. THOMPSON

/s/ E. C. BRANNON, JR.

E. C. BRANNON, JR.

Attorneys for Petitioner

(Jurat and Opinion of the Supreme Court of Georgia

attached as Exhibit “A” to Application omitted in

printing)

13

3, Order of the United States District Court for the

Southern District of Georgia dated December 14,

1966, directing Appellant Dutton, Warden, Geor-

gia State Prison, to make his return and show

cause why the Writ of Habeas Corpus should not

be issued.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

UNITED STATES OF ,

AMERICA ex rel.

ALEX S. EVANS

vs.

A. L. DUTTON, WARDEN,

GEORGIA STATE PRISON,

REIDSVILLE, GEORGIA.

i CIVIL ACTION

NO. 28?

4

ORDER

Good cause appearing therefor, and upon reading the

verified petition in the above stated case, and after due

deliberation thereon, it is upon consideration,

ORDERED that the Respondent make his return and

show cause within twenty (20) days from the date on

which this Order is filed with the Clerk, pursuant to the

provisions of 28 U.S.C. 2243, why a Writ of Habeas Cor-

pus should not be issued herein, as prayed for; and

FURTHER ORDERED that, in compliance with

this Order to show cause, the Respondent make his re-

turn as directed above and include therein any affidavits,

court records, or other documents showing why the Writ

14

of Habeas Corpus should not be issued, together with a

proposed order in the matter; and

FURTHER ORDERED that the Respondent retain

custody of the Petitioner until further order of this

Court; and

FURTHER ORDERED that the Clerk of this Court

serve copies of this Order, together with a copy of the

petition, on the Petitioner, the Respondent, and the At-

torney General of the State of Georgia, as Counsel for

the Respondent.

This 14th day of December, 1966.

/s/ F. M. ScaRLetr

F. M. ScaRLETT

United States District Judge

15

4, Return and Answer of Appellant Dutton filed on

or about December 30, 1966 (excluding ex-

hibits).

(Title omitted in printing)

RETURN AND ANSWER

Comes now A. L. DUTTON, Warden of the Georgia

State Prison at Reidsville, Georgia, respondent in the

above-styled case, and makes this his Return and Answer

to the Petitioner's Application for Writ of Habeas Cor-

pus, showing the Court as follows:

FIRST DEFENSE

The Petitioner is not entitled to the writ because his

Application does not present any substantial federal

question for determination by this Court.

SECOND DEFENSE

The Petitioner is not entitled to the writ because he

has failed to state a claim against Respondent upon

which relief can be granted.

THIRD DEFENSE

The Petitioner is not entitled to the writ because of

the following facts and circumstances:

1. The merits of the factual disputes and contentions

upon which Petitioner relies in his averments that vari-

ous rights secured to him by the United States Constitu-

tion have been violated were resolved during the state

court proceedings;

9. The state factual determinations are fairly sup-

ported by the record as a whole;

16

3.. The fact-finding procedure employed by the state

court was adequate to afford a full and fair hearing;

4. There is no allegation of newly discovered evi-

dence;

5. The material facts were adequately developed

during the state court proceedings; and

6. It does not appear, for any reason, that the state

court proceedings in which the facts were developed

did not afford Petitioner a full and fair hearing.

In support of this defense, Respondent, at the time

of the hearing on Petitioner’s Application for Writ of

Habeas Corpus, will tender into evidence the complete

transcript of the state court proceedings.

FOURTH DEFENSE

Respondent answers the specific factual allegations set

forth in Petitioner’s Application for Writ of Habeas Cor-

pus as follows:

1. Respondent admits the allegation of paragraph

one of the Application that Petitioner is imprisoned and

detained by Respondent but denies that such imprison-

ment and detention is “unlawful.”

2. Respondent admits the allegation of paragraph

two of the Application that Petitioner’s imprisonment

and detention by Respondent is by virtue of a judgment,

sentence and order passed by the trial judge of the Gwin-

nett Superior Court, but denies that such imprisonment

and detention is “unlawful.”

8. Respondent admits the allegations of paragraph

three of the Application.

17

4, Respondent admits the allegations of paragraph

four of the Application and further shows the Court that

the opinion of the Supreme Court of Georgia is set forth

in the official reports as Evans v. The State, 222 Ga. 392

(1966) .

5, Paragraph five of the Application covers approxi-

mately thirty pages thereof, setting forth both Petition-

er’s view of the facts of the case and various legal con-

tentions regarding the facts alleged. While Respondent

deems the factual allegations of paragraph five to be

somewhat incomplete, Respondent does not dispute the

substantial accuracy of the same except to the extent that

in the last sub-paragraph of said statement Petitioner in-

correctly implies that the testimony of Petitioner's ac-

complice and co-conspirator, Wade L. Truett, was un-

corroborated. Such testimony was, in fact, corroborated

by physical evidence, as well as the evidence of other

witnesses. See Evans v. State, 222 Ga. 393, 403-407

(1966) .

6. Paragraph six of the Application sets forth Peti-

tioner’s legal contentions as to why the writ should be

granted which requires no answer except that Respon-

dent denies that such contentions are valid or meritor-

ious.

FIFTH DEFENSE

Answering further, Respondent shows the Court that

each and every contention of Petitioner respecting the

alleged violation of rights secured to him under the

United States Constitution has been fully, fairly, prop-

erly and correctly disposed of in the state court proceed-

ings and that none of such contentions present a sub-

stantial federal question for determination by this Court.

— ——— ines ;

18

SIXTH DEFENSE

Answering further, Respondent shows the Court that

Petitioner is lawfully imprisoned and detained by Re.

spondent pursuant to a valid indictment, plea, verdict

and sentence, certified copies of which are attached as

Exhibit “A” hereto and incorporated by reference

herein,

WHEREFORE, having fully made this Return and

Answer, Respondent prays:

(a) That Petitioner’s Application be denied;

(b) That the Writ of Habeas Corpus not issue;

(c) That the Petitioner be remanded to the custody

of the Respondent; and

(d) That Respondent have such other and further

relief as to the Court may seem just and proper.

ARTHUR K. BOLTON

Attorney General

Haron N. HI, Jr.

Assistant Attorney General

P, O. Address:

132 Judicial Bldg. ALrrep L. Evans, Jr.

40 Capitol Square Assistant Attorney General

Atlanta, Georgia Attorneys for Respondent

(Exhibits, jurats and certificate of service omitted in

printing)

_-

19

5. Order of the United States District Court for the

Southern District of Georgia dated May 2, 1967,

transferring the case to the Northern District of

Georgia.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

UNITED STATES OF )

AMERICA, ex rel.

ALEX S. EVANS, APPLICATION

FOR WRIT OF

Petitioner \ HABEAS CORPUS

vs

A. L. DUTTON, Warden, CIVIL ACTION

Georgia State Prison, NO. 2072

Defendant

4

ORDER

It appearing that the petition for writ of habeas cor-

pus was filed in the United States District Court for the

Southern District of Georgia by the petitioner, Alex S.

Evans; It further appearing that there are matters in

the case which should be decided by the United States

District Court for the Northern District of Georgia; It

further appearing that there are common issues in the

above styled cause and in the petition for writ of habeas

corpus as filed by Venson Eugene Williams against A.

L. Dutton, Warden, Georgia State Prison, being Civil

Action No. 2057, in the United States District Court for

the Southern District of Georgia; It further appearing

that counsel for petitioner was engaged in the United

States District Court for the Middle District of Georgia

20

on April 25, 1967, when the above styled case and the

case filed by Venson Eugene Williams were sounded for

hearing; It further appearing that the two cases should

be heard together; It further appearing that this Court

has discretion under Title 28 USCA §2241 to transfer

the above styled case to the Northern District of Georgia;

IT IS HEREBY ORDERED AND ADJUDGED that

the application for writ of habeas corpus as filed in the

United States District Court for the Southern District

of Georgia be and is hereby transferred for hearing and

final determination to the United States District Court

for the Northern District of Georgia, Atlanta Division;

IT IS FURTHER ORDERED that all of the pleadings

and record as heretofore filed in this Court be and are

hereby transferred to the United States District Court

for the Northern District of Georgia, Atlanta Division;

and, IT Is FURTHER ORDERED that the deposition

of James H. Stanley as filed in this Court be and is

hereby transferred to the United States District Court

for the Northern District of Georgia, Atlanta Division;

IT IS ALSO ORDERED that the stay of execution as

previously granted by this Court is in full force and

effect as previously granted and the said transfer does not

in any way affect the said order staying the execution.

This Ist day of May, 1967.

/s/ Hitt HEWLETT

Hitt HEWLETT

Judge, U. S. District Court

Southern District of Georgia

21

6. Order of the United States District Court for the

Northern District of Georgia dated September 6,

1967, denying Appellee Evans’ application for a

Writ of Habeas Corpus.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION.

UNITED STATES OF 7

AMERICA, ex rel.

ALEX S. EVANS

vs.

A. L. DUTTON, Warden,

Georgia State Prison,

Reidsville, Georgia 7

: CIVIL ACTION

NO. 10923

ORDER OF COURT

The petitioner in the above styled case is under a

death sentence. The case was transferred to this district

under 28 U.S.C., §2241 (d) (1966) which allows a state

prisoner seeking a federal habeas corpus to proceed in

the district court for the district in which he was sen-

tenced instead of the district in which he is confined. It

was originally brought in the Southern District where

the petitioner is confined in Reidsville State Peniten-

tiary.

The petitioner was tried for the murder of the Gwin-

nett County policemen whose bodies were found hand-

cuffed together on the morning of April 17, 1964. The

charges against the petitioner were first made public

over a year later, on July 1, 1965.

case

22

The petitioner Evans was found guilty on October

21, 1966 and was sentenced to death the same day. The

appeal to the Supreme Court of Georgia resulted in

affrmance of the trial court, Evans vs. The State, 222

Ga. 392, and certiorari to the United States Supreme

Court was denied on November 14, 1966, 385 U.S., 953,

The district judge for the Southern district where this

case was originally filed entered an order staying the

execution of Evans on December 14, 1966. The order

of transfer to this district specified this last mentioned

order would remain in effect.

The State does not take the position in its reply that

all state remedies have not been exhausted. It contends,

however, that the state court determination on these

questions is correct and that no substantial federal ques-

tion is presented. It is said that a full and adequate

hearing was had on all factual questions in the state

court proceedings and that the factual determinations

made by the state court are fairly supported by the rec-

ord as a whole. Respondent expressly admits that peti-

tioner’s motions relating to his constitutional conten-

tions were made and disposed of during the state court

proceedings (see page 3, paragraph 6 of the response).

Thus it appears state remedies have been exhausted so

as to entitle this Court to assume jurisdiction. See Brown

v. Allen, 344 U.S. 343 (1953); Whippler v. Balcom (5

Cir. 1965) 342 F.2d 388; Rogers v. Davis (5 Cir. 1963)

323 F.2d 653.

The petitioner Evans raises the same contentions as

the petitioner Williams in Civil Action No. 10924 with

one addition which will be discussed below. The Court

adheres to its rulings made in the Williams case in re-

23

gard to pre-trial discovery, trial discovery, exclusion of

jurors opposed to capital punishment, and the use of

testimony from an accomplice who was given immunity.

A careful review of the Evans record shows no abuse of

discretion in denial of the motion for a change of venue.

The failure to exclude the juror Higgins caused no in-

jury to the petitioner’s rights because this juror was

later challenged preemptorily by one of the nineteen

strikes exercised out of an available twenty.

In addition to the grounds raised by Williams the

petitioner Evans also contends he was denied his con-

stitutional right to confront a witness whose testimony

was used against him. At the trial a witness on behalf

of the state, Lynwood Shaw, testified that he was a fellow

inmate at the Atlanta Penitentiary with Evans’ co-in-

dictee Williams when the latter was arraigned under the

murder charge. He stated that Williams stated to him

after his return from court that

“If it had not been for that dirty son-of-a-bitch Alex

Evans, we wouldn't be in this now.”

While it may be slightly confused from the record, it

appears that petitioner's real contention is the petition-

er’s right to confrontation and cross-examination per-

tains to Williams, the co-conspirator who made the above

statement. The same complaint was made to the trial

judge and before the Georgia Supreme Court which held

the evidence admissible, citing Ga. Code Section 38-306

which provides,

_ after the fact of conspiracy shall be proved,

the declarations by one of the conspirators during

the pendency of the criminal project shall be ad-

missible against all.”

24

Citing a Georgia case the Supreme Court stated further,

“The rule is that so long as the conspiracy to con-

ceal the fact that a crime has been committed or

the identity of the perpetrators of the offense con-

tinues, the parties to such conspiracy are to be con-

sidered so much a unit that the declarations of

either are admissible against the other.”

The Court stated,

“The defendant, and his co-conspirator Williams,

at the time this statement was made, was still con-

cealing the identity, keeping secret the fact that they

killed the deceased, if they had, and denying their

guilt.” See Evans vs. The State, 222 Ga. 392 (6) at

page 402.

Among cases cited by petitioner’s counsel is the case

of Pointer vs. Texas, 380 U.S. 400, wherein the Court

points out the value of the right of confrontation guar-

anteed under the Sixth Amendment and covered by the

Fourteenth Amendment. However, the Court points out

exceptions to the nécessity of confrontation stating,

“This Court has recognized the admissibility against

an accused of dying declarations and of testimony

of a deceased witness who has testified at a former

trial. There are other analogous situations which

might not fall within the scope of the Constitutional

rule requiring confrontation of witnesses.” See 13

Led 2nd at page 928.

Professor Wigmore in discussing the right of confron-

tation and cross-examination refers to such exceptions to

the hearsay rule and in connection therewith he points

out, “Others might be expected to be developed in the

future.” He stated “The Constitution does not prescribe

what kinds of testimonial statements shall be given infra-

judicially,—this depends on the law of Evidence for the

time being,—but only what mode of procedure shall be

followed.” See Wigmore on Evidence, Vol. V, page 131.

It is well established under Federal law that statements

by co-conspirators are admissible against other conspira-

tors if made during pendency of the conspiracy or while

it was being concealed. There was other evidence that

petitioner Evans was a conspirator. The evidence was

admissible under Georgia law and did not violate any

Constitutional right of petitioner. In a habeas corpus

proceeding by a state prisoner if there is error it must

amount to a deprivation of a constitutional right. Com-

monwealth of Pennsylvania vs. Maroni, 348 F2nd 22

and cases cited.

After a careful examination of the entire record in

the state court this Court can find no denial of a con-

stitutional right which would entitle the petitioner

Evans to a writ of habeas corpus from this Court. The

relief prayed for is DENIED and the Clerk is directed

to enter a Judgment in accordance herewith.

The stay of execution, heretofore entered, is ordered

to continue in effect thirty (30) days from the date of

this Order so that counsel may move the appellate court

for further relief if they deem such action appropriate.

This the 6th day of September, 1967.

/s/ Frank A. HOOPER

Frank A. HOoPER

Senior District Judge

7. Judgment entered by the United States District

Court for the Northern District of Georgia dated

September 6, 1967, in favor of Appellant Dutton,

Warden and against Appellee Evans.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF a

AMERICA, ex rel.

ALEX S. EVANS

vs. .

A. L. DUTTON, Warden | CIVIL ACTION

Georgia State Prison,

Reidsville, Georgia J

JUDGMENT

The Court, Honorable Frank A. Hooper, United

States District Judge, by order of this date having denied

the petition for writ of habeas corpus,

JUDGMENT is hereby entered in favor of the re-

spondent and against the petitioner.

Dated at Atlanta, Georgia, this 6th day of September,

1967.

NO. 10923

Craupe L. Goza, Clerk

By: /s/ Rospert J. TIDWELL

Deputy Clerk

Filed and entered in

Clerk’s Office this

September 6, 1967

Ciaupe L. Goza, Clerk

By: RJT

Deputy Clerk

27

8. Order of the United States District Court for the

Northern District of Georgia dated September 21,

1967, allowing Appellee Evans’ application for an

appeal in forma pauperis.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF 7

AMERICA, ex rel.

ALEX S. EVANS CIVIL ACTION

vs.

A. L. DUTTON, Warden

Georgia State Prison,

Reidsville, Georgia. :

NO. 10923

CERTIFICATION ON APPLICATION FOR

AN APPEAL IN FORMA PAUPERIS

After careful consideration the Court hereby certifies

that the petitioner's application for an appeal in forma

pauperis is taken in good faith and the same is hereby

ALLOWED.

At Atlanta, Georgia, this the 21st day of September,

1967.

/s/ Frank A. HOOPER

Frank A. HOoPER

Senior District Judge

28

9. Opinion of the United States Court of Appeals

for the Fifth Circuit dated September 16, 1968,

reversing the decision of the United States District

Court for the Northern District of Georgia.

United States Court of Appeals

FOR THE FiFTH CIRCUIT

No. 25348

ALEX S. EVANS,

Appellant,

VERSUS

A. L. DUTTON, Warden, Georgia State Prison,

Reidsville, Georgia,

Appellee.

Appeal from the United States District Court for the

Northern District of Georgia

(September 16, 1968)

Before GEWIN and THORNBERRY, Circuit Judges,

and EDENFIELD, District Judge.

GEWIN, Circuit Judge: A year and a half ofter

three police officers were found shot to death in Gwin-

nett County, Georgia, appellant Evans was tried before

29

a jury and convicted of the murder of one of the officers.

Since the jury did not recommend mercy, the Gwinnett

County Superior Court sentenced him to die in the

electric chair. Having exhausted his state remedies,’

Evans filed a petition for a writ of habeas corpus in the

United States District Court for the Northern District

of Georgia, alleging that his conviction had been ob-

tained in violation of his sixth and fourteenth amend-

ment rights. The district court denied the petitioned

relief and Evans has appealed to this court. We have

determined that Evans was denied his sixth and four-

teenth amendment right to be confronted by the wit-

nesses against him. We therefore reverse the judgment

of the district court.

This case was argued before this court with Williams

vy. Dutton? which was the appeal of an alleged cocon-

spirator of Evans. The relevant background facts are

set forth in Williams and we will not repeat them here.

In addition, most of the issues raised are common to

both cases. Since we must reverse on the confrontation

question, we do not reach Evans’ other contentions.’

However, we should point out that many of the same

issues will arise upon the retrial of this case and, in the

interest of sound judicial administration, we commend

1The Georgia Supreme Court affirmed Evans’ conviction, Evans v. State,

299 Ga. $92, 150 S.E.2d 240 (1960), and the United States Supreme Court

denied his petition for a writ of certiorari. Evans v. Georgia, 385 U.S. 953

(1966) .

2 F.2d (Sth Cir. 1968) [No. 25349, August 20, 1968].

8The other contentions concern the availability and extent of discovery to

a criminal defendant against the state; the qualification of jurors; the

admissibility of the testimony of a witness who has been granted immunity

from prosecution; and the availability of discovery in a federal habeas

corpus proceeding.

30

a reference to the treatment in Williams of those con-

stitutional questions.

The facts upon which Evans’ sixth amendment con-

tention rests are not in dispute. During Evans’ trial a

witness, one Shaw, testified that Williams had stated to

him that “if it hadn’t been for that dirty-son-of-a-bitch,

Alex Evans, we wouldn’t be in this now.” According to

Shaw, Williams made this statement the day after his ar-

raignment in Gwinnett County on the murder charge

and in response to Shaw’s inquiry as to how Williams

had made out in court. At the time of the alleged state-

ment, both Williams and Shaw were serving sentences

for unrelated crimes in the federal penitentiary in At-

lanta, Georgia.*

Evans’ counsel made a timely and vigorous objection

to the statement attributed to Williams, arguing that it

was inadmissible under both state evidentiary law and

the sixth amendment. The trial court overruled coun-

sel’s objection, holding the statement admissible in evi-

dence under a Georgia statute which provides:

4Shaw’s testimony was somewhat incredible. He testified that Williams was

talking to him in a normal voice through a ten-by-ten plate-glass window

in a prison hospital door, while Williams was lying on a bed in the room

and Shaw was standing in the hall. Shaw had stated in the Williams trial

that the window was coyered only by wire mesh. The fact that it was cov-

ered by a pane of plate glass was brought out in Evans’ trial. Moreover,

evidence was submitted but rejected by the trial court which tended to

show that Shaw’s testimony may have been compensation for a respite from

the dull routine of prison life.

In spite of its basic incredibility, we are convinced that it cannot be

called harmless. See Chapman v. California, $86 U.S. 18, 24 (1967): “[B]efore

a federal constitutional error can be held harmless, the court must be able

to declare a belief that it was harmless beyond a reasonable doubt.” In his

dissenting opinion, Justice Quillian of the Georgia Supreme Court stated

that Shaw’s “testimony . . . obviously was prejudicial to the defendant.”

Evans v. State, 222 Ga. $92, 400, 150 S.E.2d 240, 251 (1966) .

$1

After the fact of conspiracy shall be proved, the

declarations by any one of the conspirators during

the pendency of the criminal project shall be ad-

missible against all.°

The Georgia Supreme Court upheld the ruling of the

trial court, stating:

The defendant [Evans], and his co-conspirator, Wil-

liams, at the time this statement was made, were

still concealing their identity, keeping secret the

fact that they had killed the deceased, if they had,

and denying their guilt. There was evidence suf-

ficient to establisk a prima facie case of conspiracy

to steal the automobile and the killing of the de-

ceased by the conspirators while carrying out the

conspiracy, and the statement by Williams made

after the actual commission of the crime, but while

the conspiracy continued was admissible.®

The confrontation clause of the sixth amendment pro-

vides: “In all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses

against him.” In the early case of Salinger v. United

States the Supreme Court stated:

The right of confrontation did not originate with

the provision in the 6th Amendment, but was a

common-law right having recognized exceptions.

The purpose of that provision, this court often has

said, is to continue and preserve that right, and not

to broaden it or disturb the exceptions.’

Thus the fact that the framers of the Constitution did

8Ga. Code Ann. § 38-306 (1954 rev.).

6Evans v. State, 222 Ga. 392, 400, 150 S.E.2d 240, 248 (1966) .

1272 US. 542, 548 (1926). See Dowdell v. United States, 221 US. 325, 330

(1911) ; Kirby v. United States, 174 US. 47, 61 (1899); Robertson v. Bald-

win, 165 U.S. 275, 281-82 (1897); Mattox v. United States, 156 U.S. 237,

243 (1895) .

32

not intend to exclude hearsay evidence appears to have

been viewed as having ossified the rule as then developed.

This is a regrettably shallow assessment of the wisdom

and foresight of those responsible for the destiny of this

nation.* But this view of the confrontation clause pre-

sented no difficulty so long as the clause was applicable

only in the federal courts, because the conirontation-

hearsay rule was then, for all practical purposes, a single

principle in federal criminal cases.° History complicated

the role of the federal judiciary, however, when the

fourteenth amendment was adopted and the federal con-

stitutional standard of due process of law was imposed

upon the states, Since many of the rights and privileges

embodied in the Bill of Rights had long been regarded

as fundamental to any concept of ordered liberty, they

were expectably enforced against the states under the

due process clause of the fourteenth amendment.”* The

enforcement of the confrontation clause against the states

now requires the application of a none-too-concrete stan-

dard to state hearsay rules which have experienced a

various and even erratic evolution.” Thus the duty of

this court is not only to interpret the framers’ original

8See Frankfurter, John Marshall and the Judicial Function, 69 Harv. L.

Rev. 217, 229 (1955): “No doubt, these provisions of the Constitution were

not calculated to give permanent legal sanction merely to the social ar-

rangements and beliefs of a particular epoch. Like all legal provisions

without a fixed technical meaning, they are ambulant, adaptable to the

changes of time. That is their strength... .”

®See cases cited in note 7 supra.

10See, e.g., Malloy v. Hogan, 378 U.S. 1 (1964) (fifth amendment privilege

against self-incrimination); Gideon v. Wainwright, 372 U.S. 335 (1963)

(sixth amendment right to counsel); Mapp v. Ohio, 367 U.S. 643 (1961)

(fourth amendment right against unlawful search and seizure). See

generally Henkin, “Selective Incorporation” In the Fourteenth Amendment,

73 Yale L.J. 74 (19638).

11McCormick, Evidence § 230 (1954).

a

33

concept in light of historical developments,” but also to

translate into due-process terms the constitutional boun-

daries of the hearsay rule.”

In applying the confrontation clause to the states, the

Court in Pointer v. Texas stated:

It cannot seriously be doubted at this late date

that the right of cross-examination is included in the

right of an accused in a criminal case to confront the

witnesses against him. And probably no one, cer-

tainly no one experienced in the trial of lawsuits,

would deny the value of cross-examination in €x-

posing falsehood and bringing out the truth in the

trial of a criminal case. . . . The fact that this right

appears in the Sixth Amendment of our Bill of

Rights reflects the belief of the Framers of those

liberties and safe-guards that confrontation was a

fundamental right essential to a fair trial in a crim-

inal prosecution.”

However, neither Pointer nor any subsequent decision

adequately explains how and when a state hearsay rule

exceeds permissible constitutional bounds. In spite of

the Court’s effusive language, the confrontation clause is

certainly not violated merely because the defendant is

not permitted to confront and cross-examine a witness

against him. The Court has approved the admission,

under a recognized exception to the hearsay rule, of a

statement by a witness who is unavailable at the time of

trial despite the fact that the right of confrontation is

a

12See Cardozo, The Nature of the Judicial Process 51-97 (1949) .

18But see Note, Confrontation and the Hearsay Rule, 75 Yale LJ. 1434

(1966) , in which the writer argues against this approach to the confronta-

tion clause.

14380 U.S. 400, 404 (1965) .

34

lenied." In explaining a previously ee

tion to the right of confrontation, the Court in Barber

v. Page stated:

It is true that there has traditionally been an ex-

ception io the confrontation requirement where a

witness is unavailable and has given testimony at

revious judicial proceedings against the same de-

ndant which was subject to cross-examination. . . .

This exception has been explained as arising from

necessity and justified on the ground that the right

of cross-examination initially afforded provides sub-

stantial compliance with the purposes behind the

confrontation requirement.**

Generally but not unexceptionally, some evidence is

better than none at all. Thus when rational substitutes

for the benefits of confrontation actually exist, there is

no reason to exclude hearsay evidence. Although we

express no view as to the constitutional validity of any

exception to the confrontation requirement which has

not been ruled upon, it is important to point out that

generally recognized exceptions to the hearsay rule have

developed from a painful process of rationalizing the

denial of confrontation."

The Supreme Court has now made clear that the ra-

tionale of hearsay exceptions in criminzi cases must

be continually scrutinized and reevaluated. In Barber

the trial court had admitted in evidence the transcript

of testimony given at a prior trial upon the prosecu-

tor’s showing that the witness was outside the state.

15Pointer v. Texas, 380 U.S. 400, 407 (1965). See Bruton v. United States,

86 US.L.W. 4447, 4449 n.3 (U.S. May 20, 1968). Also see the pre-Pointer

cases cited in note 7 supra.

1636 U.S.L.W. at 4330.

1TSee 5 Wigmore, Evidence §§ 1420-27 (Sd ed. 1940).

According to the traditional view, the evidence was ad-

missible because a witness outside the jurisdiction is

beyond the compulsory process of the court."* The Su-

preme Court rejected this justification, stating:

Whatever may have been the accuracy of that

theory at one time, it is clear that at the present time

increased cooperation between the States themselves

and between the States and the Federal Government

have largely deprived it of any continuing validity

in the criminal law.”

We therefore think it clear that, if an accused is to be

deprived of the right to confront and to be confronted by

the witnesses against him, there must be salient and

cogent reasons for the deprivation. A criminal defendant

cannot, consistent with the confrontation clause, be con-

victed upon the testimony of phantom witnesses whose

credibility is unknown and unknowable by the trier

of fact.

Appellee in this case states that Evans “demonstrates

a rather basic confusion” in contending that his right to

confrontation was infringed because witness Shaw did

in fact appear in court and. testify. However, we think

the confusion is appellee's. The testimony objected to

was not Shaw’s but that attributed by Shaw to Williams

who was not in court and who did not testify. Appellee

further argues that the Supreme Court authority cited

by Evans involved written evidence and that those cases,

therefore, do not control the oral statement involved

here. Since appellee has shown no basis for justifying

18See McCormick, Evidence § 234, 1954; 5 Wigmore, Evidence § 1404

(8d ed. 1940).

1936 U.S.L.W. at 4880. The Court held that, unless the prosecutor has made

a good-faith effort to secure the witness’ presence at the trial and failed,

the witness cannot be regarded as unavailable.

36

a different treatment of written and oral evidence, we

reject the distinction as untenable.

We have searched in vain for a reason to justify the

abridgment of the right to confrontation which ob-

viously occurred in this case. Appellee merely points to

Georgia’s coconspirator sfatute which, rather sphinx.

like, answers all but the questions we ask. The admis.

sion in evidence of the statement attributed to Williams

occurred in circumstances which offered no rational sub-

stitute for confrontation.” In Douglas v. Alabama™ the

state called as a witness against the defendant one Loyd,

who had already been convicted on the same charge.

When Loyd refused to answer questions, the prosecutor

proceeded to read a confession, allegedly made by Loyd,

which incriminated the defendant. As he read, the pros-

ecutor would pause occasionally and ask Loyd if he had

made the statement read, but Loyd refused to answer any

questions, The Supreme Court held that the prosecu-

tor’s ventriloquistic performance had violated the de-

fendant's sixth amendment right to confrontation. A sub-

stantially similar attempt was made in this case to put

words into the mouth of Williams who would doubtless

have spit them out if he had testified.”

In support of the constitutional validity of the Georgia

statute under which Williams’ alleged statement was

admitted, appellee argues that the statute is identical in

20Appellee has argued in his brief that the trend in the law today is to

reject the hearsay rule “as a senseless anachronism.” Whatever may be

the trend of the law of evidence in civil and administrative proceedings,

the trend of the criminal law is subject to a different set of circumstances,

not the least of which is the sixth amendment.

21380 U.S. 415 (1965).

22Since Williams pleaded not guilty and subsequently appealed his convic-

tion, it is almost certain that he would have denied making the statement

even if he had agreed to testify.

37

principle to rules in both federal and state courts. Since

the denial of confrontation in the present case is without

rational justification, we need not consider the implica-

tions of a general judicial acceptance of such a rule. How-

ever, we should point out that the statute involved here,

as interpreted by the Georgia Supreme Court goes far

beyond the traditional coconspirator exception to the

hearsay rule.” The crime had been committed well over

a year before the statement was allegedly made. More-

over, all three of the alleged conspirators were at that

time in prison serving sentences for other crimes. With

all due respect to Georgia's highest tribunal, it is incon-

ceivable that the statement attributed to Williams was

made “during the pendency of the criminal project.”**

The authorities relied upon by appellee* make clear

that the recognized exception relates only to statements

actually made while the criminal conspiracy remained

alive.**

——

28See, ¢.g., Fiswick v. United States, $29 U.S. 211, 216-17 (1946); 4 Wigmore,

Evidence § 1079 (8d ed. 1940) ; Annot., 4 ALA3d 684 (1965); 16 Am.Jur.2d

Conspiracy § 40 (1964).

“The Georgia Supreme Court conceded that Williams’ alleged statement

was “made after the actual commission of the crime.” Evans v. State, 222

Ga. 392, 397, 150 S.EQd 240, 248 (1966). Additionally, contrary to the

state court's finding that the coconspirators were still concealing their

identity, the appellee in his brief to this court admits that the statement

attributed to Williams was “a statement which implicated Evans.” In Fis-

wick v. United States, $29 U.S. 211, 217 (1946), the Supreme Court stated:

“[C]onfession or admission by one co-conspirator after he had been ap-

prehended is not in any sense a furtherance of the criminal enterprise. It is

rather a frustration of it.”

2%Schine Chain Theatres, Inc. v. United States, $84 U.S. 110, 116-17 (1948) ;

United States v. United States Gypsum Co., 333 U.S. 364, 393 (1948) ;

Hitchman Coal & Coke Co. v. Mitchell, 245 US. 229, 249 (1917); S1A CJS.

Evidence § 362 (1964). Also see authorities cited in note 23 supra.

26We think it indicative of the evidentiary quality of the statement at-

tributed to Williams that it would not, under generally recognized rules of

evidence, have been admissible even if Williams had testified. We know

38

As construed by the Supreme Court of Georgia, the

statutory coconspirator exception to the hearsay rule

authorizes practices repugnant to the sixth amendment

under the facts and in the circumstances presented in

this case. As applied in this case, the statute collides with

Evans’ sixth amendment right of confrontation. Since

appellant Evans’ right to confront the witnesses against

him was infringed, it is clear that he is entitled to a new

trial within a reasonable time. Accordingly, the judg-

ment of the district court is reversed and the case is

remanded for further proceedings not inconsistent with

this opinion.

REVERSED AND REMANDED.

of no rule of evidence which would permit a witness to testify to an in-

criminating extrajudicial statement made by him sometime in the past.

$9

10. Judgment of the United States Court of Appeals

for the Fifth Cireuit dated September 16, 1968,

reversing the judgment of the United States Dis-

trict Court for the Northern District of Georgia.

United States Court of Appeals

FOR THE FIFTH CIRCUIT

October Term, 1967

No. 25348

D. C. Docket No. CA 10923

ALEX S. EVANS,

Appellant,

VERSUS

A. L. DUTTON, Warden, Georgia State Prison,

Reidsville, Georgia,

Appellee.

Appeal from the United States District Court for the

Northern District of Georgia.

Before GEWIN and THORNBERRY, Circuit Judges,

and EDENFIELD, District Judge.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Northern District of Georgia, and was argued by coun-

sel;

40

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the same

is hereby reversed, and that this cause be, and the same

is hereby remanded to the said District Court for further

proceedings not inconsistent with the opinion of this

Court;

It is further ordered and adjudged that the appellee,

A. L. Dutton, Warden, Georgia State Prison, Reidsville,

Georgia, be condemned to pay the costs of this cause in

this Court for which execution may be issued out of the

said District Court.

September 16, 1968

Issued as Mandate:

11. Appellant’s “Notice of Appeal” to the Supreme

Court of the United States filed in the United

States Court of Appeals for the Fifth Cireuit on

September 26, 1968.

(Title omitted in printing)

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that A. L. DUTTON, Warden,

Georgia State Prison, Reidsville, Georgia, the appellee

in the above styled proceeding, hereby appeals to the

Supreme Court of the United States from the final judg-

ment of the United States Court of Appeals for the

Fifth Circuit reversing the judgment of the United

States District Court for the Northern District of Geor-

gia. Said judgment of the United States Court of Ap-

peals for the Fifth Circuit was entered in this action on

42

September 16, 1968 and this appeal is taken pursuant

to 28 U.S.C. § 1254 (2).

ArTuHuR K. Botton

Attorney General

ALFreD L. Evans, Jr.

Assistant Attorney General

Marion O. Gorpon

Assistant Attorney General

Post Office Address:

Matuzw Roms SS

Room 132 ;

State Judicial Bldg. Assistant Attorney General

Atlanta, Ga. 30334 Counsel for Appellee

(Certificate of service omitted in printing)

48

12. Relevant excerpts from the transcript of evi-

dence adduced at Appellee’s trial for murder

in the State trial court and introduced into evi-

dence and made a part of the record during the

hearing on Appellee’s application for a Writ of

Habeas Corpus before the United States District

Court for the Northern District of Georgia.

STATE OF GEORGIA 3 GWINNETT

SUPERIOR COURT

No. 7284

ALEX S. EVANS,

Deliient | CHARGE OF MURDER

* ™ *

Transcript of evidence of the above captioned matter,

hearing held in Lawrenceville, Georgia, October 18, 19,

20, 21, 1965, sentence of the Court on October 21, 1965,

before HONORABLE CHARLES C. PITTARD,

Vv.

Judge, Gwinnett Judicial Circuit.

* * *

Appearances:

For the STATE OF GEORGIA :

Reid Merritt, Esquire

Solicitor-General, Gwinnett

Judicial Circuit

and,

Luther Hames, Esquire

Special Ass’t. Atty. General

For the DEFENDANT

ALEX S. EVANS :

MR. ROBERT THOMPSON

and,

MR. E. C, BRANNON

OFFICIAL TRANSCRIPT

44

INDEX

Witness:

States: Direct Cross Redirect Recross

Lawrence H. Hartman 5 9 —- =

Clyde Pruitt li Wwd- —

Ray Sexton 565 26 —- —

M. J. Vandiver 40 - —- —

Dr. Larry Howard 45 - —- —

Recalld 324

Paul E. Meier 52 —- —- =

Henry A. Stephens, Jr. 58 - -— =

George B. Newsome, Jr. 62 - —- —-

Henry Lee Price 65 69 -—- —

Edward Willing 69 - —- —

William L. Bohannon 74° #77 -—- =

Mildred (Mrs. Tom) Stephens 81 82 — —

Marion Calvin Perry 85 105 136 137

138

Lynwood W. Shaw 139 149 161 162

James H. Stanley 164 174 —- —

Wade L. Truett 182 231 317 —

Carmen David Mabry 330 336 -— —

Defendants:

Mr. Merrill 337 343 -— —

Calvin Perry 345 346 -— —

45

INDEX—continued

Witness:

Defendants: Direct Cross Redirect Recross

Alex Evans, Jr. ee ae ee

Mrs. Jewell Evans 350 352 —- —

Deft. Alex Evans, Unsworn Statement, Page 354

Rebuttal by State:

Tommy Short

Randolp Harper

Kelley Everett

Charge of Court, Page 406

Verdict of Jury, Page 422

Sentence by Court, Page 422

* * *

[139] with Alex Evans about an Oldsmobile switch?

A Yes, sir, I did.

MR. MERRITT: You can come down.

MR. THOMPSON: Does Counsel imply by that

this is in the record there?

MR. HAMES: We didn’t want to wait any longer,

we think it is.

THE COURT: Who do you wish next, Mr. Mer-

ritt?

MR. MERRITT: Mr. Shaw.

LYNWOOD W. SHAW, having been first duly

sworn, testified as follows:

46

DIRECT EXAMINATION

BY MR. MERRITT:

Q

A

OPH FH PLO

>

Give the Court and Jury your full name, please, sir?

Lynwood W. Shaw.

Where are you originally from, Mr. Shaw?

Florida.

What part of Florida?

Tallahassee.

Do you know Venson Eugene Williams, Mr. Shaw?

Yes.

Did you have an occasion to have a conversation with

him this year?

Yes, sir.

When was that conversation?

It was in July.

July of which year?

Of this year.

Yes.

Can vou recall more specifically anything about when

it was?

It was on Saturday.

First or latter part or middle part of July?

47

A It was on or about the 11th, I think, 10th, some-

where it was on the weekend, it was Saturday.

Q Could you speak up a little louder.

A It wason Saturday after he had been to Court, to the

hearing.

Q Been to Court?

A Yes.

Q Do you know anything about that appearance?

A Beg your pardon?

Q Do you know anything about that appearance?

A I believe it was for arraignment hearing.

Q That Mr. Williams had?

A Yes, sir.

Q Doyou know where it was held?

MR. THOMPSON: If it please the Court, we

submit that the witness hasn’t been identified but

from prior knowledge we know he is in the United

States Penitentiary.

THE COURT: Wait just a minute, Mr. Thomp-

son. He has been identified as to name and been

sworn and whatever else you wish to bring out

you may do so, or the State may do so, but this is

no proper way [141] to do it.

BY MR. MERRITT:

Q You say this was on Saturday after he had been to

a hearing?

A Yes.

48

Q Do you know where the hearing was?

A Gwinnett County; I am not sure of the town, but it

was at the hearing, I was under the impression.

All right, speak up a little louder if you would.

Yes, sir.

Did you discuss this with him —

With —

OF? OF HD

Did you discuss this with him and if so what did you

say and what was his response?

MR. THOMPSON: IE it please -he Court, we ob.

ject to any conversation had between this witness

and Williams, any other party out of the presence

of the defendant as being hearsay.

THE COURT: Objection overruled.

BY MR. MERRITT:

Q Tell us what this conversation consisted of, Mr.

Shaw?

MR. THOMPSON: If it please the Court, we

have a further objection, we would like to make

and feel probably should be made out of the pres-

ence of the Jury.

THE COURT: I will ask you to retire to your

Jury Room, gentlemen.

(Whereupon the Jury was retired from the Court-

room.)

THE COURT: All right, state your objection.

49

[142]

MR. THOMPSON: IE it please the Court, we

object to this witness testifying as to any comver-

sation had with the defendant Williams out of the

presence of the defendant on the grounds that such

evidence, such testimony would be hearsay, that

this defendant is entitled to be confronted with the

witnesses who testify against him under the pro-

visions of the United States Constitution and un-

der the Constitution of the State of Georgia, and

to permit this witness to testify as to what some-

body else told him would be in substance to per

mit the testimony of another witness or another

party to testify through this man’s lips and to deny

the defendant the right of confrontation guaran-

teed by Article 1, Paragraph 5 of the Constitution

of the State of Georgia of 1945, Georgia Code Sec-

tion 2-105 and of the Constitution of the United

States, Sixth Amendment, Section 1-806 of the

Code. We are aware of the fact there is a statute

of the State of Georgia which provides, that is

Georgia Code Section 38-308 — 306, which pro

vides that after the fact of conspiracy shall be

proved the declarations by any one of the con-

spirators during its pendency of the crime the

criminal project shall be admissible against all.

We submit that if the Statute is construed by this

Court to permit hearsay testimony under the cir-

cumstances present here, that it would be a vio

lation of the two [143] sections of the constitu-

tion that we have referred to above. Just one

moment.

50

If it please the Court —

THE COURT: Anything further in your motion?

MR. THOMPSON: Yes, sir, further objection,

we urge that in order for a — statement ex parte,

that is hearsay statement, that is a statement made

out of the presence of the defendant to be admis

sible against the other defendant on trial, the same

must be made during its pendency of the con.

spiracy and in furtherance of the conspiracy. Now,

on the three grounds that we have stated, we sub-

mit that the testimony that this witness is about

to give is not admissible and perhaps in some re

spect, our objection and motion might be prema-

ture, but we submit if the witness is permitted to

testify as we anticipate, he will — having heard his

testimony on the prior trial, it will be so prejudical

— it will so prejudice the minds of the Jury that

to make an objection subsequently and to make

these objections, I should say subsequently, would

be of little avail even though the Court should sus.

tain them and would withdraw the testimony or

the evidence from the Jury's consideration. So we

are making this motion at this time prior to the

introduction of the testimony. Now, we do have

the transcript of this witness’ testimony at the

prior trial, we might state in [144] substance,

state in effect what we expect the answer to the

question to be, concerning his conversation and

that is this, the witness on the prior trial was asked

the question and the only thing pertinent to this

trial of this case, actually, in what statement did

Mr. Williams make to you and in response to your

51

uestion, how did you make out and his answer

he said, “If that dirty S.0.B. Alex Evans hadn't

shot Everett, we wouldn't be in this mess.” We

submit to permit the witness to testify to that be-

fore the Jury could not be corrected by motion or

objection made after his testimony, and therefore

we make the objection at this time, and move that

his testimony in that regard to excluded.

THE COURT: I will hear from you, Mr. Hames.

MR. HAMES: May it please the Court, I’m not

sure, but I think the exact question that he raises

with reference to the confrontation has already

been passed on in the case of Rawlins versus the

State, to my recollection, it's in that case, I was

jooking for it here in making a response to the

question, but be that as it may, the Code Section

says that once the conspiracy is established, the

defendant — that the testimony of the acts and

declarations of one conspirator out of the presence

of the other is not hearsay and he said if this Court

construes that to mean that it would be unconsti-

tutional, the Court of Appeals of Georgia in 90

Georgia Appeals, [145] Page 797, Spradling

versus the State, it is already construed the Code

Section in holding that it is not hearsay, it says

the declarations and conduct of brother defendant

immediately before the fatal shooting was prop-

erly admitted by the Court to explain conduct and

sustain motives, not as hearsay, but as original evi-

dence for the reason set forth in the corresponding

division of the opinion. That — in qhet it says

Code Section 138-302 provides when a legal in-

52

vestigation, information or conversation, and also

applies to similar evidence or facts to explain con.

duct and ascertain motives, they shall be admitted

in evidence, not as hearsay but as original eyj-

dence. Code Section 38-306 provides that after the

fact of a conspiracy shall be proved, that the

declarations by any one of the conspirators during

its pendency of the criminal project shall be ad-

missible against all. The defendant here and read.

ing from the facts of this opinion, the defendant

here on trial for murder, which reason it wa:

proper for the State to introduce evidence tend.

ing to show premeditation and malice on his part,

since no case will be murder without malice, ex-

pressed or implied, the conspiracy existence or

agreement between two or more persons to do an

unlawful act, and may be shown by acts and con-

duct as well as by proof or express agreement.

Breedlove versus State 84 Georgia Appeals, 370,

the fact the party [146] is — parties received in-

formation on which he acted is admissible, not to

establish the truth of the information but to ex-

plain the conduct of the party. It says following

from above, and this is Judge Townsend, certainly

one of the most liberal judges of the Court of

Appeals to have — to speak for the Court, follows

from above, while the Court should be careful to

exclude evidence as to hearsay as to the defendant,

such declarations of others not named in his pres-

ence, such evidence is sometimes admissible and

when as here it is so closely connected with the

events leading up to the criminal transaction as to

have probative value, bearing upon the motive

and conduct of the defendant, the declarations of

another, even when made outside the presence of

the defendant, may be relevant if so closely con-

nected with the crime itself as to have probative

State 51 Georgia Appeals, 560, headnote 2 in the

case of Garrett versus the State in 157 Georgia on

page 817, reading from headnote 1 of that opinion

while hearsay testimony is generally inadmissible,

when information, conversation or similar evi-

dence is pertinent to explain conduct or ascertain

motive such evidence so far as these purposes are

concerned, [147] changes in character from hear-

say to original evidence, to throw light on the con-

duct or motive. Now, with reference to the con-

spiracy remaining open, I had the Rawlins case,

Your Honor, 124 Georgia on Page $1, reading

from the body — headnote 12 on Page $2 when in

the trial of a murder case there is evidence tending

to show the accused on trial entered into a con-

spiracy to slay the deceased, and others, the acts

and conduct and sayings of any of the conspirators

while the conspiracy was in progress and before

the crime was committed, are admissible as evi-

dence as weil as acts of conspirators, other than the

accused, after the commission of the crime, when

the act sought to be proved was contemplated by

the terms of the conspiracy to be performed after

the perpetration of the crime was completed, and

this case was Appealed to the United States Su-

preme Court and it was affirmed in 201 Georgia —

ola

54

201 U. S., 638, and reported in 26 Supreme Court,

560, and also cited in 50 law edition 899.

THE COURT: Gentlemen, the Court is ready

to rule on the thing. I don’t want to cut off

further argument, the motion is in the record. It

is the opinion of the Court that the conspiracy

prima facie has been established by the testimony

in this case and it now becomes a question of the

Jury and the Court must submit it to the Jury the

question whether or not the conspiracy has or

has not been [148] established, and if the Jury

should find a conspiracy has been established, then

the testimony or statements or acts of anyone con-

nected with the conspiracy during its continuance,

before or concealment after the crime, I think

would be admissible against all who participated

therein. The Court therefore overrules your ob-

jection, Mr. Thompson, and will allow the answer.

Call the Jury back.

(Whereupon the Jury was returned to the Court-

room.)

THE COURT: You may proceed.

BY MR. MERRITT:

Q Mr. Shaw, at the time you mentioned earlier in your

testimony that you had a conversation with Venson

Eugene Williams, tell us what that conversation was?

A This conversation took place, as I stated, on Saturday,

on or about the 11th of July. This was the day after

Venson Williams had been to Court in Gwinnett

County. I went to his room, asked him how did he

make out.

Q Asked him —speak a little louder.

A I went to his room in the hospital and asked him how

did he make out in Court. ;

Q Asked him how did he make out in Court?

A How did he make out in Court.

Q What was his response?

A Hesaid, if it hadn’t been for that dirty-son-of-a-bitch,

Alex Evans, we wouldn’t be in this now.

[149]

MR. MERRITT: He is with you.

MR. THOMPSON: If it please the Court, we

object on the grounds previously stated, we move

the Court to exclude the testimony just given.

THE COURT: Mr. Thompson, the Court has

already ruled, overruled that.

MR. THOMPSON: I know the Court ruled. We

wanted to perfect the record in case, the witness

has now testified, if the previous motion is held

premature, we wanted to make sure —

THE COURT: State your motion.

CROSS EXAMINATION

BY MR. THOMPSON:

Q Mr. Shaw, this conversation you are relating now,

took place where?

A Beg your pardon?

Q Where did this conversation you just related take

place?

56

A In the hospital.

Q In the hospital at the United States Penitentiary a

Atlanta?

A Yes.

Q You were in custody of the United States Attorney

General at that place, is that correct?

A That's right.

Q What were you doing in the hospital?

A_ I worked there.

Q What are your duties?

A Doctor’s clerk.

Q Doctor’s clerk?

[150]

A Yes, sir.

Q Exactly what does that require you to do?

A It requires maintaining records, just most anything

that practically — anything that a female secretary

would ordinarily do in performing her duties for the

doctor on the outside.

Q Now, the doctor’s office in which you work is on the

first floor of that hospital building is it not?

A That’s correct.

Q And the second floor is where some of the patients

are located?

A Yes, sir.

Q At the time of the conversation you just referred to,

where was Venson Williams?

57

A Where was he at the time this conversation. took

place?

Q Yes, sir.

A It took place in Room 4 or 5 on C Ward; I am in-

clined to believe it was 4, C Ward is the only ward we

have a B, C, and D, and E, and the ward —and T

Ward. C Ward is a long ward which has private

rooms. D Ward has some private rooms.

Q Yes, sir. Where did this conversation take place?

A On C Ward.

Qc Ward?

A Yes.

Q And you think this was Room 4 of C Ward?

A Room 4 or 5, as I said, I am inclined to think it

was 4.

Q Could you locate the room by referring to some-

thing else there in the building?

A Yes, I can. It is nearly directly off to the right, ap-

proximately, maybe four or five feet across the hall

from the [151] technicians’ office.

Q That is the MTA office?

A Yes, sir, the office would be here and the room is

about like that.

Q Yes, sir, then, if it is Room 4 across from that office

it would be Room 4 you are talking about, in Ward

C?

Yes, sir.

Q And that is the second floor of the building you work

in?

Yes, sir.

Do you remember, — do your duties take you up to

that floor, Mr. Shaw?

Yes, sir.

Are you frequently up there?

Any time that I wanted to go.

What functions do you perform on the second floor?

Well, I make the rounds with the doctor, if I want

to find out anything from a patient, if the doctor

wants to know anything from the patient he will send

me up to find it out or if he wants a chart and no

one available to bring it down, I will go up and

get it.

Then you are permitted freely to go up on the second

floor any time you want to?

Yes.

How long had you known Venson Williams at that

time, Mr. Shaw?

How long had I known him?

Yes.

I had only known Venson from the time he entered

the hospital, [152] Venson was brought in the hos-

pital from an accident, I presume, the records would

show that.

How long would this be, Mr. Shaw, that you have

known him?

59

A Oh, well —I couldn’t give you the exact time, but

it was — I was one of the first to talk to Venson when

he entered the hospital. By that I mean, they

brought him in on the ambulance and carried him

to the emergency room.

Q Was this a week, two weeks, month or how long?

A No, sir, it was longer than — you mean that I had

known him?

Q Yes, sir.

A It was longer than a month.

Q Longer than a month?

A Yes.

Q Was it two months?

It could have been, yeah.

In the area then of two months that you had known

him?

Yeah.

Had you been real close to him, Mr. Shaw?

Well, no, I wouldn’t exactly say close, I would say

we had talked on several occasions.

Did he discuss his private affairs with you on these

occasions?

Not then.

Q Now — what are you presently serving time in the

penitentiary for

I am presently serving time in the penitentiary for

60

possession of counterfeit money and possession of

U-Drive-It automobile.

Q Is that interstate transportation of stolen motor ve.

hicle?

[153]

A Yes, sir, that’s right.

Q Those the only two offenses you are presently serving

time for?

Presently serving, yes — two charges of counterfeit.

Yes, sir.

But it is — counterfeit.

Did you go on trial on those two cases or did you

plead guilty?

A I went on trial on one in Alabama and plead guilty

of the other.

That the counterfeiting case in Alabama?

Yes, sir.

Did you testify in that case?

Did I testify?

Yes, sir.

I did, sir.

You were placed under oath, were you not?

Yes, sir.

And you testified under oath?

>OrOrOPrFOr?O

Yes, sir.

61

Q Did you testify in that case that you were guilty of

the offense for which you were convicted?

A Certainly did.

Q You testified you were guilty?

A Yes, sir.

Q But you plead not guilty and went on trial?

A Yes, sir. Would you like to know —

Q No, sir.

[154]

MR. HAMES: Your Honor, I think he has a

right —

THE COURT: He has a right.

THE WITNESS: Gentlemen, the reason I plead

not guilty to the charge, there were two co-defen-

dants in this counterfeit conspiracy, one plead

guilty, Mr. Fox, plead guilty. The girl I was with

plead not guilty and I plead not guilty to try to

get — which the girl was not guilty and I plead not

guilty and I got on the stand and told the Jury

that I wasn’t up there trying to plead not guilty,

I had offered to plead guilty, but they wouldn’t

drop the charges against her and I would plead not

guilty and —

BY MR. THOMPSON:

Q The Jury found you guilty and you were sentenced

on that?

A Yes, sir.

Q You ever been convicted of any other_felony?

> OF OD PY

> OM - ©

62

Yes, sir.

What was that for?

Moonshine whiskey.

When was that, Mr. Shaw?

I don’t — couldn't give you the dates, I will say this

though, I have a record — I can’t give you dates,

but I have a record of worthless checks, moonshine

whiskey, counterfeiting and automobile.

And what is your age, Mr. Shaw?

Beg your pardon?

What is your age?

Thirty-eight.

[155]

Q

A

> O F&F OD FO

How much of that time have you spent in jail?

How much of that time?

Yes, sir.

Well, I would say, I would say approximately, now

this is approximately, I would say approximately six

years. Did I understand you correct, in jail.

Yes, sir. Where are you from, Mr. Shaw?

I am from Florida.

What part of Florida?

Tallahassee.

That Leon County?

Yes, sir.

63

Q How long have you lived in Leon County?

A

Q

A

Q

A

Q

A

Q

A

Q

A

How long?

Yes, sir.

Off and on all my life, I lived up —

What kind of work do you follow at home?

Well, I was assistant manager of finance company

and as I said, I bootlegged a little, and I worked as

a cook, drove a taxi.

Mr. Shaw, on the date that you had the counversa-

tion with Mr. Williams, did you have any particular

purpose for being up on the second floor in Ward C?

No, no more than I would have any other time, I was

just there. This was on Saturday morning and as a

rule on the weekend, I would go over to the office

and catch up on my work that may be backlogged

from the week. There was nothing pressing, I didn’t

have to go but I believe the [156] record will show

that I spent most of my weekends at the office, more

or less to break the monotony of the time.

What time of day was it you talked with him?

It was the morning part of the day.

Now, when you had this conversation with Mr. Wil-

liams, where was he inside of Room 4?

Yes.

What size room is that?

I don’t exactly know, I don’t have it — never meas

ured the room, it is — maybe I would say the room

Or>O>O> LO > ©

>

> ©

64

is approximately, maybe twice as long as that tabk

and approximately twice as wide.

Well, you have never had any occasion to measure it,

would you say it is in the neighborhood of 12 fee

deep and 8 or 9 feet wide?

I would say it’s approximately that.

It has a full size hospital bed in it at that time did

it not?

It has a regular hospital bed which is —

Well, regular size hospital bed?

Yes, uh’huh.

Mr. Williams on the bed or sitting up there?

He was on the bed.

Is the head of the bed toward the wall or toward

the door?

Is the head — now, I don’t know which you would

call the head, if you are familiar with the hospital

beds, either end could be used as the head, which

they are, and the particular instance you are asking

about, you are wanting [157] to know which end

his head was at, it was at the end facing the door -

not facing the door, and toward the door, he was

facing the wall.

He was facing the wall?

His head, if he was looking out the window, he would

be looking this way and his head was at this end of

the bed.

Was he looking toward — what window, the outside

window?

65

A Window here at the time the door — the door is here

which is a wooden door, the door is here and he was—

Q Justa moment please. Let me ask you — would you

draw a diagram of that door for us, please. The door

you are speaking of opens into a hall, is that correct?

A Opens into a hall.

Q Yes.

A The door opens into the room.

Q Well, it opens off of the hall then?

A Yes, sir.

Q And opens into the room then?

A Yes, sir, it’s a long corridor.

Q And if you had walked into that room, Room 4,

Ward CG, the bed at that time would have been on the

right hand side of the room as you face toward the

outside window, is that correct?

Yes, sir.

And it would have been up in that right hand cor-

ner of the room?

Yes, sir.

Q And ran lengthwise along the right hand wall?

[158]

A Yes, sir.

Q Now, you state, Mr. Williams’ head was toward the

door at the time?

A Yes.

Q Was he in position where he was looking at you,

where you were talking at him?

> 0

©

or OF OP

66

Yes, sir, he was looking back — you have to log

back, Mr. Williams had only been out of the cast,

short time.

Was the door opened or closed when you were talk.

ing to him, Mr. Shaw?

The door was closed.

You talked to him through the door?

No, sir, I talked to him through an opening whid

is approximately, well, I would say maybe ten by

ten, something, which is an opening in the door

about like this.

Yes, sir, is that opening just a wide opening or does

it have glass or a grill or anything in it?

No, sir, that opening has a piece of plate glass, win.

dow glass, just ordinary window glass, and a piece

of steel mesh. It is no regular screen wire, it is some.

thing a little heavier than screen wire, and which

has holes in it.

Yes, sir. Does this impede talking through the door

at all?

Beg your pardon?

Does this impede or interfere with your talking

through the door?

No, sir.

You just talk in a normal voice when you talk

through that [159] door?

Yes.

One would not have to raise his voice to hear through

that?

67

No.

You state it has a piece of plate glass in the window

_ in the opening, is that correct?

Yes.

When you testified before, it did not have such a

glass in it?

No, sir, It didn't.

MR. THOMPSON: Mark these please.

(Whereupon Defendant's exhibits 1, 2, and 3 were

marked for purposes of identification by the

Court Reporter.)

BY MR. THOMPSON:

Q I hand you what the Clerk has identified — the Re-

porter identified as D-1 and ask you if that is a pic-

ture of that door, Room 4?

I would say it looks like the door of Room 4.

That picture does have No. 4 to the left of the door

does it not?

Very faint.

Q Does that picture fairly disclose or represent the

door as it existed at the time you are talking about?

Yes, sir, it looks similar to it.

Q That picture taken from the outside or inside of the

room, can you tell?

I would presume from looking at the picture it was

taken from the outside.

68

[160]

Q Would you say that fairly portrays and depicts th

scene of Room 4 of Ward C, showing the opening

in the door?

If this is not it, it is a good imitation.

Very much like it, anyway?

Yes, sir.

I hand you what has been identified as Defendant;

Exhibit No. 3, and ask you if — that might be the

inside of the door or does that fairly portray the in.

side of the door?

Well, those rooms is more — I couldn’t say that this

was Room 4, I can say this, it could be Room 4.

Or OH Pe

>

That does — it does portray the type door we are

talking about does it not?

Well, —

It shows the grill work that you mentioned?

Uh’huh.

Now, your conversation that you have testified to

was carried on through that closed door?

That’s right.

Are you talking now at the voice you normally talk

to — when you are talking through the door?

A Yes.

Q You talk about the tone and velocity you are speak

ing now?

Or OP NHK OO

A Well, I might vary a little, I wouldn’t say this is the

exact tone, I will say it is near the tone I would talk in.

69

Q How far would you say Mr. Williams’ head was from

where you were when you were talking to him?

A I would say his head was no more — pardon me, no

more than the distance of this — this piece here.

[161]

Q What distance would you say that is, about five feet,

four feet?

A Three or four feet, yes, sir.

MR. THOMPSON: You want to see that?

MR. HAMES: No.

MR. THOMPSON: You can come down.

MR. MERRITT: One further question.

REDIRECT EXAMINATION

BY MR. MERRITT:

Q You mentioned glass being in that opening, could

you describe that glass a little better?

A Yes, sir, it is glass — it is glass, it is a protective —

Q I don’t mean the purpose, nature of the glass.

A It isa piece, 1 would say it is no more than a piece

of window pane, it’s in this mesh I was telling you

about.

Q Yes. How would you compare it to a normal window

pane?

A I never measured but I say certainly no bigger than

the normal window pane.

Q Bigger?

ty

70

A It wouldn't be any smaller or bigger, I would say

it’s about those window panes there, look to be ap

proximately the size of it.

Q How else could you describe it and compare it with

the window pane?

A Well, if I may — what are you referring to?

Q Would it be thicker or thinner?

A I would say it wouldn’t be any thicker, no, sir, it’s

just [162] regular piece of —.just a regular piece of

glass, it is not a glass that you could break — you

could break it if you hit it very easily, they have been

broken by — maybe people wanted to push some.

thing in one of those rooms, they had isolated.

MR. MERRITT: All right, sir, come down.

MR. THOMPSON: I have a few more questions.

RECROSS EXAMINATION

BY MR. THOMPSON:

Q Mr. Shaw, when did you first officially call this in-

formation to anybody’s attention?

A When did I recall it to anybody’s attention?

Q Yes, sir, this conversation you had, when did you

first call it to somebody’s attention?

A Oh, let’s see, I don’t know the exact date that I called

it to anyone’s attention, I didn’t agree —I didn't

agree to testify until Thursday before the case started

on a Monday.

Q Who did you tell about this conversation?

71

A Who did I tell about it?

Q Yes, sir, who did you first tell about it?

A The Deputy Marshall.

Q Deputy Marshall?

A Yes.

Q Didn't call it to the attention of any of the officials at

the United States Penitentiary?

A That I did not.

Q What Deputy Marshall was this?

[163]

A Mr. Herndon.

Q Do you have any detainers against you?

A That I do.

Q Just what is a detainer?

A It isa detainer for a worthless check.

Q What is the detainer?

A It is another charge.

Q Charge pending against you, and you can’t get out

of jail on parole unless it's disposed of?

A No, sir, that is wrong.

Q What —

A You can — the Attorney General has at his discretion,

he can turn you over to a State that has a detainer, if

he so desires. The State can request you or the parole

board can parole you at any time. As a matter of

> ©

[422]

72

fact, they are paroled a lot to the States now, peopl

that have detainers.

Then, if you had some high spot in your prison life

you might even get paroled with a detainer?

As far as parole is concerned, if you will check the

record, I have waived parole the first time, not the

fact I didn’t want parole, but I waived parole the

first time and I went back up and the parole wa

denied. I don’t know what reason — as far as parole

is concerned, I am not even interested in parole.

You are not interested in parole?

No.

MR. THOMPSON: You can come down.

(Whereupon the Jury was retired from the Court.

room.)

(Whereupon, the Jury was returned to the Court.

room.)

THE COURT: Gentlemen of the Jury, have you

arrived at a verdict in this case?

JURY FOREMAN O. T. KITCHENS, JR., We

have, Your Honor.

THE COURT: Before this verdict is received,

let the Court caution the audience that there shall

be no show of emotion and no outbursts of any

kind.

Mr. Solicitor, you may receive the verdict.

MR. MERRITT: “We, the Jury find the defen-

dant guilty. O. T. Kitchens, Jr., Jury Foreman,

October 21, 1965.”

THE COURT: Let that verdict be received.

Court will remain in session.

I will be out for about 15 or 20 minutes.

Mr. Thompson, is there any reason why sen-

tence should not be imposed in this case?

MR. THOMPSON: No, sir.

THE COURT: Let the Defendant stand.

Mr. Evans, the Jury has found you guilty in

this case without a recommendation, it therefore

becomes mandatory upon this Court as a matter of

law to impose the following sentence.

The State of Georgia versus Alex S. Evans, No.

7984, Gwiunett Superior Court, September Term,

1965, charge of murder.

Whereupon, the Jury in the above stated case hav-

ing returned the following verdict, “We, the Jury

find [423] the defendant guilty. O. T. Kitchens,

Jr., Foreman, October 21, 1965”.

It is considered, ordered and adjudged by the

Court that the defendant, Alex S. Evans, be taken

from the bar of this Court to the common jail of

Gwinnett County or to some other safe and secure

place under such guard and protection as may be

deemed necessary where he shall be safely and

securely kept until his removal therefrom to the

custody of the Director of the State Department of

Corrections, for the purpose of the execution of

this sentence in the manner prescribed by law.

74

It is further ordered and adjudged by the C

that on the 30th day of November, 1965, that ¢

defendant, Alex S. Evans, shall be executed by the

Director of the State Department of Corrections :

at such penal institution as may be designated by

said Director, and witnessed only by the executing

officer, defendant's relatives, counsel and such

clergymen and friends as he may desire.

It is further ordered that the Sheriff of Gwinnett

County together with such Deputies as he may

deem necessary, the number of guards to be ap.

proved by the presiding Judge or Ordinary of said

County, shall convey and deliver the said Alex

S. Evans to the said Director of State Department

of Corrections at such penal institution as may

be designated by [424] said Director not more

than 20 days and not less than 2 days prior to the

time fixed herein for the execution of said con-

demned person.

And there delivered into the custody of the said

Director.

And it is further ordered that the said defendant,

Alex S. Evans, on the day fixed herein between

the hours of 10:00 o'clock a. m., and 2:00 o'clock

p. m., be by the Director of the State Department

of Corrections electrocuted at the time and place

and in the manner herein provided by law.

And may God have mercy on your soul.

Signed this 21st day of October, 1965.

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