Petition — Henry A. Drake v. Walter Zant (1979)

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

IN THE SUPREME COURT OF THE UNITED &

4 HENRY ARTHUR DRAKE,

Petitioner,

79-6615

eb CASE NUMBER

WALTER ZANT, WARDEN,

Georgia Diagnostic &

Classification Center,

Respondent.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

The Petitioner, HENRY ARTHUR DRAKE, who is now confined in

—

——a

the Georgia Diagnostic Center in Jackson, Georgia, under a sen-

tence of death, asks leave to file the attached Petition for Writ

of Certiorari to the United States Supreme Court without pre-

payment of costs and to proceed in forma pauperis pursuant to

Rule 53.

The Petitioner's Affidavit in support of this motion is

attached hereto.

Respectfully submitted,

GARLAND, NUCKOLLS, KADISH,

MARTIN & CATTS, P.C.

" - * , A 4. iz, is -

BY ddicaiad WIA NG uf Arkdl bn

EDWARD T. M. GARLAND, Esq. .

sy Mini NU i bo

MARY ‘J. (WILKES, Esq.

1012 Candler Building

Atlanta, GA 30303

(404) 577-2225

. MAY 19 1980

: fice OF THE

IN THE SUPREME COURT OF THE UNITED STAT OF REME COURT, U.S,

HENRY ARTHUR DRAKE,

Petitioner, : 4 9 a 66 ] 5

-v- : CASE NUMBER __

WALTER ZANT, WARDEN, $

Georgia Diagnostic & :

Classification Center, :

Respondent. 3

AFFIDAVIT IN SUPPORT OF MOTION FOR LEAVE

TO PROCEED IN FORMA PAUPERIS

STATE OF GEORGIA )

COUNTY OF BUTTS ; hs

I, HENRY ARTHUR DRAKE, Petitioner, hereby state under oath,

the following:

l. I am a citizen of the United States of America and the

Petitioner in the above-entitled action.

y I desire to seek a review of the judgment entered by

the Supreme Court of Georgia on February 19, 1980, denying a

rehearing of a Certificate of Probable Cause which was itself

denied on January 25, 1980, pursuant to 28 U.S.C. Sec. 1257 (3),

but because of my poverty, I am unable to pay the costs of such

a review or to provide security.

3. I believe I am entitled to the redress I seek by such

a review, and that such a review presents substantial issues of

deprivation of rights secured by the Constitution of the United

States.

The nature of the questions to be presented upon such a

review are set out in the accompanying Petition for Writ of

Certiorari.

a ht of

nae

I contend that the Supreme Court of Georgia erred in re-

fusing to grant my Certificate of Probable Cause.

WHEREFORE, Petitioner respectfully prays that he may have

leave to proceed in this Court on Petition for Writ of Certiorari

in forma pauperis.

FURTHER AFFIANT SAYETH NOT.

any Lerutter Dache

HENRY“ARTHUR DRAKE

| sworn TO Tae coe Go BEFORE

ME THIS DAY OF MAY 1980.

NOTARY PUBLIC STATE OF GEORGIA

AT LARGE

My Commission Expires:

Notury Public, Georgie Stote et Large

My Commission Expires Jan, 12, 1982

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

~__%9-6615

HENRY ARTHUR DRAKE,

Petitioner,

Vv.

WALTER ZANT, WARDEN,

GEORGIA DIAGNOSTIC AND

CORRECTIONAL CENTER,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

EDWARD T. M. GARLAND

MARY J. WILKES

GARLAND, NUCKOLLS, KADISH,

MARTIN & CATTS, P.C.

1012 Candler Building

127 Peachtree Street, N.E.

Atlanta, GA 30303

404/ 577-2225

dw @ladee aot ae Whe. 14. 3 ——_ i Se ie a. wee, | ne nee

A ae i 3) a ae. 7 -s ak ee

TABLE OF CONTENTS

Me MOM Mok ane ns sce sppndiese dan cep ceed ccnh Cesk, wh

SINUS Eid Ub os o's Un aggtbsc bane vob owbeoeeees vabickcn.

Questions Presented for MOUS S < i albes CMM UD 66. ned bonds see

Constitutional Provisions and Statutes RUGS Ws wid Gabeocbic

Statement of the SON An bo Adis 6b bed dc obhhee od Pee KCRD bee thee

a) DCMEA MeN CU SiNiGa kins 4 bs bees od tba wa Whee asecknk

b) How the Federal Questions were Raised oT a

Reasons for Granting the PEN. aes wetesew he ies cdeede'd iw ele

THE PETITION PRESENTS THE FOLLOWING SUBSTANTIAL

FEDERAL QUESTIONS WHICH HAVE NOT HERETOFORE BEEN

DETERMINED BY THIS COURT AND ARE OF SUCH GRAVE

CONSTITUTIONAL IMPORT THAT THEY SHOULD NOW BE

DECIDED:

II.

Ill.

WHERE THE FACTS OF THE CASE WERE SUCH THAT ONLY

ONE PERSON COULD HAVE BEEN THE ACTUAL PERPETRATOR

OF THE KILLING AND THE SPECIAL PROSECUTOR HAD

PREVIOUSLY OBTAINED A DEATH SENTENCE IN THE

SEPARATE TRIAL OF THE CO-DEFENDANT BY REPRESENTING

TO THE JURY IN THAT CASE THAT IT WAS THE CO-DEFEN-

DANT WHO WAS THE ACTUAL PERPETRATOR OF THE KILLING,

WHETHER IT WAS A VIOLATION OF PETITIONER'S DUE

PROCESS RIGHTS FOR THE SAME SPECIAL PROSECUTOR TO

REPRESENT TO THE JURY AT PETITIONER'S LATER TRIAL

THAT IT WAS THE PETITIONER AND NOT THE CO-DEFENDANT

WHO WAS THE ACTUAL PERPETRATOR OF THE KILLING.

WHETHER PETITIONER'S RIGHT TO DUE PROCESS OF

LAW WAS VIOLATED BY THE PROSECUTOR'S USE OF

PREJUDICIAL AND INFLAMMATORY ARGUMENT IN THE

PRESENCE OF THE JURY UNDER THE GUISE OF THOSE

COMMENTS BEING DIRECTED TO THE COURT.

WHETHER ONE OF THE STATUTORY “AGGRAVATING CIRCUM-

STANCES" UPON WHICH THE JURY RELIED IN DECIDING

UPON DEATH IS SO OVBRBROAD AND VAGUE THAT PETI-

TXJONER'S SENTENCE BASED UPON THTS STATUTORY

PROVISION WAS UNCONSTITUTIONAL?

wy NP NUR

‘, 27 =e a. « oe ’* Fz ~~ # * a. fe wer Uy

ee, ome a o wa are Pee ee Pe ee ee ee, 4

Pes, tee ee oe. ee stat

THE PETITION ALSO PRESENTS THE FOLLOWING SUBSTAN-

TIAL FEDERAL QUESTION WHICH WAS DECIDED BY THE

GEORGIA COURTS IN A WAY NOT IN ACCORDANCE WITH THE

APPLICABLE DECISIONS OF THIS COURT:

IV. WHETHER IN ORDER FOR A JURY CHARGE TO BE UNCON-

STITUTIONALLY BURDEN-SHIFTING UNDER SANDSTROM V.

MONTANA, U.S. , 61 Led 2d 39, 99 5S. CEL,

, THE CHARGE MUST CREATE A CONCLUSIVE

PRESUMPTION. 23

OTM ae da uKde 0nd baesGeadstes i ockdar duviveboeeciick 27

Certificate of DOSER « 60% dhudwbweetevcad kbd daceéwee ceca 28

RPPORESE Bec cccccveccocccccvcceses

ceeeeweeeaeeeeeeeeeeeeeeeee A-l

PERE Do ceecoseccvadeccrestsedsercocovscen

re et B-1

Appendix Sted e Codecnec'vedtedssadtave bed cbodewudocccecudiwlns C-1

Appendix i abla eo tie

eeeereeeeeeeeeeeeeeeeeeeeeeseeseeeeeeseese D-1

Appendix Meus te dows Gceg Oh cet ennedekbccde bees bcd cd cviveddba E-1l

Appendix TEwews dots doce segs o6 Gees th ceueosdeadeb obese sveccs dea P-1l

Appendix vats cbawds s ost edad tahoe ctvn ee

eee @® ee eee eee G-l

PC NT ie ee Re.

TABLE OF AUTHORITIES

Cases Page

Banks v. State, 237 Ga. 325 (1976) 22

Berger v. United States, 295 U.S. 78 (1935) 15

Berkowitz v. United States, 213 F.2d 408 (Sth Cir. 1953) 24

Beto v. Stacks, 408 F.2d 313 (5th Cir. 1969) 12

Block v. United States, 221 F.2d 786 (4th Cir. 1955) 24

Chappell v. United States, 270 F.2d 274 (4th Cir. 1959) 24

Davis v. State, 140 Ga. App. 890 (1977) 24

White v. State, 243 Ga. 250(1979) 17

Drake v. State, 241 Ga. 583 (1978) 8, 12, 14, 18

Eberhart v. State, 47 Ga. 598 (1873) 15, 16, 17

Furman v. Georgia, 408 U.S. 238 (1972) 22

Gardner v. Florida, 430 U.S. 349 (1977) 22

Gatlinn v. State, 236 Ga. 707 (1976) 24

Gigho v. United States, 405 U.S. 150 (1972) 14

Godfrey v. Georgia, 243 Ga. 302 (1979) 21, 23

Green v. Georgia, U.S. sy oh 60 L.Ed.2d 738 (1976) 22

Gregg v. Georgia, 428 U.S. 153 (1976) 19, 20, 22

Hall v. State, 272 So.2d 590 (1973) 24

16, 18

Hawes v. State, 240 Ga. 327 (1977)

Hawkins v. State, 25 Ga. 207 (1857) 17

Hill v. State, 236 Ga. 703 (1976) 24

Imbler v. Craven, 298 F.Supp. 795 (C.D.Col. 1969) 14

United States v. United States G Sum, 438 U.S. 422(1978) 25

iii.

+ ¢+e> 6 pee, An gp OF. VEO > net, Die ee 1 ae ee, eee

VS «ame | mine’, >. > een Che Pes awl E44, woe xv, es. ail “Wt te | oh 483 A

iB Malley v. State of Connecticut, 414 Fed.Supp. 1115(D Conn. 1976) 13

Kramer v. State, 230 Ga. 855 (1973) 24

Lamb v. State, 241 Ga. 10 (1978) 16

Lewis v. Clark, 408 F.2d 1209 (D.C.Cir. 1967) 13

Mann v. United States, 319 F.2d 404 (5th Cir. 1963) 24

Morisette v. United States, 342 U.S. 358 (1952) 24, 25

Mullaney v. Wilbur, 421 U.S. 684 (1975) 24, 26

Napue v. Illinois, 360 U.S. 264 (1959) 14

Patterson v. New York, 432 U.S. 197 (1972) 24

Sandstrom v. Montana, U.S. __s_, 61 L.Ed.2d 39, 99 S.Ct. (1979)

State v. Warbritton, 214 Kans. 506 (1973) mvt taped ae at map

Thomas v. State, 234 Ga. 615 (1975) 17

Tiller v. State, 224 Ga. 645 (1968) 17

United States v. Anderson, 574 F.2d 1347 (5th Cir. 1978) 14

United States v. Wharton, 433 F.2d 451 (D.C.Cir. 1970) 24

Wardlaw v. United States, 203 F.2d 884 5th Cir. 1953) 24

STATUTES

28 U.S.C. §1257(3) 2

Ga. Code Ann. §26-501 24

Ga. Code Ann. §26-604 23

Ga. Code Ann. §27-2534.1(b) (7) 21, 22

3 Ga. Code Ann. §27-2537(c) (1) 16, 19

Ga. Code Ann. §70-207 17

Ga. Code Ann. §2-101 23, 3

Constitutional Provisions

Sth Amendment, U.S. Constitution..........seeseecccececees 23, 3

8th Amendment, U.S. CREM 605 50's 00 066 6 ve bu ben ciddiouk 3

14th Amendment, U.S. CONBEACUCION. occ ccvcccccccccccccccces 39239 8bs ae

Article I, Section I, PK 66 Sends eoeeccesetocktueae 3

Georgia Constitution

iv.

IN THE

MAY 19 1980

OFFICE OF THE

SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

~ 29-6615

HENRY ARTHUR DRA’ E,

Petitioner,

vs.

WALTER ZANT, WARDEN,

GEORGIA DIAGNOSTIC AND

CORRECTIONAL CENTER,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

Petitioner HENRY ARTHUR DRAKE respectfully prays that a Writ

of Certiorari issue to review the judgment of the Supreme Court of

Georgia denying an application for a Certificate of Probable Cause

from the denial of his Petition for a Writ of Habeas Corpus by the

Superior Court of Butts County, Georgia said Habeas Petition

having been filed to seek review of his conviction of murder and

armed robbery.

OPINIONS BELOW

In June of 1978 the Supreme Court of Georgia issued an

opinion at 241 Ga. 583, affirming Petitioner's convictions of

murder and armed robbery. (Copy attached as Appendix A).

December 14, 1979 the Superior Court of Butts County, Georgia

entered an Order denying a State Petition for Writ of Habeas Corpus.

(Copy attached as Appendix B).

On January 25, 1980 the Georgia

Supreme Court issued an Order denying the application for a

Certificate of probable cause from the Habeas decision (copy

attached as Appendix C); and on February 19, 1980 the Georgia

Supreme Court issued an Order denying a Motion for the Rehearing

of that Application for Certificate of Probable Cause. (Copy

attached as Appendix D).

JURISDICTION

Jurisdiction of the appeal is grounded in the December 14,

1979 order of the Superior Court of Butts County denying the

Petition for Writ of Habeas Corpus; the denial of the Application

for a Certificate of Probable Cause by the Georgia Supreme Court

on January 25, 1980; and the February 19, 1980 denial of a Motion

for Rehearing of that Application by the Georgia Supreme Court.

The jurisdiction of the Supreme Court is invoked pursuant to

this Court's ability to review and decide any title, cight,

privilege or immunity specifically set up or claimed under the

Constitution of the United States. 28 U.S.C. §1257(3).

IONS PRESENTED FOR REVIEW

I. Where the facts of the case were such that only one

person could have been the actual perpetrator of the killing and

the special prosecutor had previously obtained a death sentence in

the separate trial of the co-defendant by representing the jury in

that case that it was the Co-Defendant who was the actual

perpetrator of the killing, whether it was a violation of

Petitioner's Due Process Rights for the Same special prosecutor to

represent to the jury at Petitioner's later trial that it was the

Petitioner and not the Co-Defendant who was the actual perpetrator

of the killing.

II. Whether Petitioner's right to due process of law was

violated by the prosecutor's use of prejudicial and inflammatory

argument in the presence of the jury under the guise of those

comments being directed to the court.

2. es)

III. Whether one of the statutory “aggravating circumstances"

upon which the jury relied in deciding upon death is so overbroad

and vague that Petitioner's sentence based upon this statutory

provision was unconstitutional?

IV. Whether in order for a jury charge to be unconstitutionally

burden-shifting under Sandstrom v. Montana, U.S. , 61 L.Ed.

2d 39, 99 S. Ct. (1979), the charge must create a conclusive

presumption.

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

The case involves the Fifth and Eighth Amendments and the

first section of the Fourteenth Amendment to the Constitution of

the United States which provide as follows:

Amendment V:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

Amendment VIII:

Excessive bail shall not be required nor excessive

fines imposed, nor cruel and unusual punishments in-

flicted. —

Amendment XIV (Section 1):

All persons born or haturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor sall any State deprive any person of

life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

The case involves Article 1, Section l, Paragraph 1 of the

Constitution of Georgia of 1976 which provides as follows:

Art. I, Sec. I, Paragraph I: (Ga. Code Ann. §2-101)

No person shall be deprived of life, liberty, or

property, except by due process of law.

3. ]

This case also involves Sections 26-501, 26-604, 27-2534.1(b) (7),

27-2537(c) (1) and 70-207 of the Georgia Code Annotated, which

provide as follows:

Section 26-501, Presumption of innocence and proof beyond

reasonable doubt:

Every person is presumed innocent until proved

guilty. No person shall be convicted of a crime

unless each element of such crime is proved beyond

a reasonable doubt.

Section 26-604, Consequences presumed intended:

A person of sound mind and discretion is presumed

to intend the natural and probable consequences of

his acts, but the presumption may be rebutted.

Section 27-2534.1, Mitigating and aggravating circumstances;

death penalty:

(b) In all cases of other offenses for which the

death penalty may be authorized, the judge shall

consider, or he shall include in his instructions

to the jury for it to consider, any mitigating

circumstances or aggravating circumstances otherwise

authorized by law and any of the following statutory

R aggravating circumstances which may be supported by

the evidence:

(7) The offense of murder, rape, armed robbery, or

kidnapping was outrageously or wantonly vile, horrible

or inhuman in that it involved torture, depravity

Pe. of mind, or an aggravated battery to the victim.

Section 27-2537, Review of death sentences:

(a) Whenever the death penalty is imposed, and

: upon the judgment becoming final in the trial court,

the sentence shall be reviewed on the record by the

Supreme Court of Georgia. The clerk of the trial

3 (a)

oe —— dunes ” ——

5: Ben cc tens ene. dna 2. oe ——s - — ns a

— —- _ - _—_—_ — - - — ————

court, within 10 days after receiviog the transcript,

shall transmit the entire record and transcript to

the Supreme Court of Georgia together with a notice

prepared by the clerk and a report prepared by the

trial judge. The notice shall set forth the title

and docket number of the case, the name of the

defendant and the name and address of his attorney,

a narrative statement of the judgment, the offense.

and the punishment prescribed. The report shall be

in the form of a standard questionnaire prepared

and supplied by the Supreme Court of Georgia.

(b) The Supreme Court of Georgia shall consider

the punishment as well as any errors enumerated by

way of appeal.

determine:

(1) Whether the sentence of death was imposed

under the influence of passion, prejudice, or any

other arbitrary factor, and

>) eg a

Section 70-207, Requests to charge; time for objections;

time for presentation of request; disposition of refused

requests; appellate review of erroneous charges with or

without objection:

(a) Except as otherwise provided in this section,

in all civil cases, no party may complain of the

giving or the failure to give an instruction to the

jury, unless he objects thereto before the jury

returns its verdict, stating distinctly the matter

to which he objects and the grounds of his objection.

Opportunity shall be given to make the objection

out of the hearing of the jury, and objection need

not be made with the particularity of assignments

3(b)

of error (abolished by this law) and need only be

as reasonably definite as the circumstances will

permit. The provisions of this section shall not

apply in criminal cases.

(b) In all cases, at the close of the evidence or

at such earlier time during the trial as the court

reasonably directs, any party may present to the

court written requests that it instruct the jury on

the law as set forth therein. Copies of requests

shall be given to opposing counsel for their consideration

prior to the charge of the court. The court shall

inform counsel of its proposed action upon the

requests prior to their arguments to the jury, but

shall instruct the jury after the arguments are

completed. The trial judge shall file with the

clerk all requests submitted to him, whether given

in charge or not.

section, the appellate courts shall consider and

review erroneous charges where there has been a

substantial error in the charge which was harmful

as a matter of law, regardless of whether objection

was made hereunder or not. (Emphasis added)

3(c)

PREFATORY STATEMENT

All references to the trial transcript in this case will be

preceded by the capital letter "T" followed by the page reference,

e.g. "T.3". All references to the transcript of the Co-Defendant's

trial will be preceded by the capital letters "CT" followed by the

page reference, e.g. "C.T. 3". All references to the appendices

will be preceded by the capital letter of the particular appendix

followed by the page reference, e.g. A-3.

STATEMENT OF THE CASE

Petitioner HENRY DRAKE was tried and convicted for the armed

robbery and murder of a 74 year old barber. Petitioner was 33

years old at the time the barber was killed. (T. YoY ).

a) Pacts

On the evening of December 5, 1915, Petitioner,

accompanied by his girlfriend Mary Carruth and acquaintance,

William Campbell, a man in his sixties who was living with Drake

and Carruth at the time (T. 157-159) drove from Madison, Georgia,

where the three were living at the time into Colbert, Georgia (T.

161-162) where Petitioner's mother and other family members

resided. (T. 407). Petitioner and his girlfriend let Campbell out

across from the barbershop in Colbert so that he could get a

haircut (T. 161-162 and T. 380, 409) while they continued on to

Petitioner's mother's house (T. 410-411).

At about 5:00 p.m. Campbell was observed leaning on a car

outside the barbershop (T. 283-284). At 6:00 p.m. he was no longer

outside but the lights in the barbershop were on. (T. 284).

At 9:00 p.m, that evening Mr. C. E. Eberhart, age 74, was

found lying critically wounded on the floor of his barbershop. (T.

290). He had received blows to the head from a claw hammer and a

stab wound. (T. 149-150). The floors and walls of the barbershop

were smeared with blood as though an extended struggle had taken

place. (T. 290, T. 307). Mr. Eberhart was hospitalized but

remained in a coma until his death several months later on March

23, 1976. (?. 152-155).

Several days after the attack on Mr. Eberhart law enforcement

officers went to the home of Petitioner Drake, where Campbell had

been staying, to search for Campbell and possible evidence. (T.

122, 309, 358, 360). Campbell was gone but a watch later

identified as belonging to Mr. Eberhart was found in Campbell's

room in a dresser with Campbell's clothes and papers. (T. 129,

133, 322). Subsequently Petitioner was arrested. Campbell was

also arrested after he was located in Virginia. He had been

arrested there for shooting a woman during a robbery (only one week

after the attack on Mr. Eberhart. (T. 195, 197).

Petitioner Drake was originally indicted along with Campbell

but due to a challenge to the Grand Jury made by Drake's appointed

attorneys he was reindicted and his case did not go to trial until

one yea" after Campbell had been tried and convicted of the murder

and armed robbery of Mr. Eberhart.

At his own trial Campbell claimed that he was innocently

getting a haircut from Mr. Eberhart on the night Eberhart was

wounded when Petitioner came in and began beating the barber over

the head with a hammer. The jury apparently disbelieved Campbell's

version of the events as they convicted him of both the murder and

armed robbery of Mr. Eberhart, recommending the death sentence

for the murder. Nevertheless, one year later the state called

Campbell as their key witness in the trial of Petitioner and had

him reiterate this same story before Petitioner's jury. (T. 167-

170, 188).

Campbell was the only witness who connected the Petitioner

with the crimes against Mr. Eberhart. Petitioner, Mary Carruth,

Petitioner's mother, brother-in-law, and brother all testified that

Petitioner spent the evening at his mother's home. (T. 381-382,

410, 429, 432, 434). Petitioner and Mary Carruth further testified

that they picked Campbell up across the street from the barbershop

on their way out of town (T. 410-411) and he told them he had been

in a fight with the barber. (T. 352, 422).

The general theory of the state in both cases was apparently

that Drake and Campbell probably planned the robbery together.

However, the State, headed by the same special prosecutor in each

case, made directly contradictory and preclusive representations as

to which of the two did the actual killing.

In the Campbell case the prosecutor vehemently represented

that Campbell was the “actual slayer” (T. 342-343). A year later

in Petitioner's case the State deliberately pursued the opposite

presentation of the facts alleging Petitioner to have been the

actual slayer. (T. 477-478, App. F).

After the evidence in the case was concluded the trial judge

instructed the jury that “murder is the intentional killing of

another human being without justification or mitigation. . . " (7.

485). However, the court also instructed the jury that “a person

of sound mind and discretion is presumed to intend the natural and

probable consequences of his act." (T. 484) although this presumption

may be rebutted.

After six hours of deliberation the jury convicted Petitioner ah

of both the armed robbery and murder of Mr. Eberhart. (T. 500).

During the sentencing phase of the case the prosecutor quoted

from and attributed to Justices of the Georgia Supreme Court

inflammatory passages from very early Georgia cases. Geant natheu it, i kre |

Seck¥.on IL of Reasons Lor

These passages are set out in . The prosecutor

also made a questionable reference to the execution of Gary Gilmore

(T. 514-515) which was objected to by defense counsel as an attempt

to inflame the passions of the jury (T. 525-526).

During the charge to the jury during the sentencing phase the

court instructed the jury that they could consider the follewing

circumstances in mitigation:

1) “that the murder was committed while the offender was engaged

in the commission of another capital felony, to wit, armed

robbery." (T. 523)

2) “that defendant committed the offense of murder for himself or

another for the purpose of receiving money or any other thing

of value", and, (T-523)

3) “that the offense of murder by the defendant was outrageously

or wantonly vile, horrible, or inhumane in that it involved

torture, depravity of mind, or an aggravated battery to the

victim." (T. 524)

The jury subsequently returned a sentence of death and finding

that the lst and 3rd aggravating circumstances were present. (T.

529)

b) How the Federal Questions were Raised Below

The Petitioner appealed his convictions and sentences to

the Supreme Court of Georgia specifically raising the issue of

improper prosecutorial remarks during argument in the sentencing

phase. While noting that reading to the jury from the very passages

which the prosecutor recited had already been condemned by that

Court in an earlier case the Georgia Supreme Court nevertheless

affirmed Petitioner's conviction and sentence, distinguishing

Petitioner's case from the earlier one condemning the remarks on

the grounds that in Petitioner's case the prosecutor was addressing

himself to the Court and not the jury. Drake v. State, 241 Ga. 583

(1978) (App. A, 4-5).

A Petition for Writ of Certiorari was filed by Petitioner's

trial counsel in this court raising the issue of the prosecutor's

remark but certiorari was denied.

Subsequently other counsel filed a Petition for Writ of Habeas

Corpus on Petitioner's behalf in the Superior Court of Butts County,

Georgia, raising each of the issues presented in this Petition for

Certiorari along with several other issues.

On December 14, 1980 the Petition for the Habeas Corpus was

denied by the Superior Court.

In his order (attached as Appendix B) the Superior Court Judge

held that since the issue as to the prosecutors reading of preju-

dicial excerpts from old Georgia caselaw had already been decided

by the Georgia Supreme Court he was bound by the law of the case

Be).

As to Petitioner's contention that the trial judge's instruction

during the guilt phase that “the law presumes that a person intends

the natural and probable consequences of his acts... " violated

due process and Sandstrom v. Montana, 61 L.Ed.2d 39 (1979), because

it shifted the burden to the defendant on the element of intent the

habeas judge held that in order to be burden-shifting a charge must

create a conclusive presumption. Since the trial judge told the

jury that the burden could be rebutted the habeas judge ruled that

the charge was not burden-shifting. (B-9)

Petitioner's contention that the contradictory presentations

of who killed Eberhardt by the state violated rudimentary demands

of justice and thus due process was dismissed by the habeas judge

in a peculiar way. The judge opined that it was the co-defendant

William Campbell whose rights were violated by this tactic but that

Petitioner's rights were not violated (B - 10-12).

Finally as to Petitioner's contention that the aggravating

circumstances “that the murder was outrageously or wantonly vile,

horrible or inhumane” was overbroad and vague so as to allow the

imposition of death in an arbitrary fashion. The habeas judge

ruled that as the law stands now that contention is without merit.

He further opined that since the jury also found the existence of

another aggravating circumstances even if the objectionable cir-

cumstances were deemed unconstitutional there would be no ground

for relief. (B-12).

Petitioner sought review of the Superior Court judges denial

of his habeas petition by filing an Application for a Certificate

of Probable Cause in the Georgia Supreme Court. This application

was denied with two justices dissenting on January 24, 1980. (Order

attached hereto as Appendix C) On February 19, 1980 a Motion for

Reconsideration of Said Application was also denied with two

justices dissenting. (Order attached hereto as Appendix D).

It is from the denial of his Petition for Writ of Habeas

Corpus and from the denials of his application for a Certificate of

Probable Cause that Petitioner now seeks review in this Court.

10.

REASONS FOR GRANTING THE WRIT

THE PETITION PRESENTS THE FOLLOWING SUBSTANTIAL FEDERAL

QUESTIONS WHICH HAVE NOT HERETOFORE BEEN DETERMINED BY THIS COURT

AND ARE OF SUCH CONSTITUTIONAL IMPORT THAT THEY SHOULD NOW BE

DECIDED:

I. WHERE THE FACTS OF THE CASE WERE SUCH THAT ONLY

ONE PERSON COULD HAVE BEEN THE ACTUAL PERPETRATOR OF

THE KILLING AND THE SPECIAL PROSECUTOR HAD PREVIOUSLY

OBTAINED A DEATH SENTENCE IN THE SEPARATE TRIAL OF THE

CO-DEFENDANT BY REPRESENTING TO THE JURY IN THAT CASE

THAT IT WAS THE CO-DEFENDANT WHO WAS THE ACTUAL

PERPETRATOR OF THE KILLING, WHETHER IT WAS A VIOLATION

OF PETITIONER'S DUE PROCESS RIGHTS FOR THE SAME

SPECIAL PROSECUTOR TO REPRESENT TO THE JURY AT

PETITIONER'S LATER TRIAL THAT IT WAS THE PETITIONER

AND NOT THE CO-DEFENDANT WHO WAS THE ACTUAL

PERPETRATOR OF THE KILLING FOR THE PURPOSE OF OB-

TAINING A CONVICTION AND DEATH SENTENCE IN PETI-

TIONER'S CASE AS WELL.

The State indicted both Henry Drake and William Campbell for

the murder and robbery of E. C. Eberhart. The two defendants were

tried separately with Campbell being tried first.

The State's representation in the Campbell case was that

Campbell actually committed the murder and that Drake was an aider

and abettor to both the murder and armed robbery. This theory of

the facts was made crystal clear to the jury in the special

prosecutor's closing argument in Campbell's trial (CT 342-44, See

App. G) in which he vehemently represented that Campbell was the

"actual slayer" (CT 343). He represented that although Campbell

was smaller than Eberhart, “he was drinking, and his adrenalin

glands were working, because he was smaller, and that is why he

took the knife and stuck it in him and it weakened the old man and

they fought" . . . “he is not as big a man as Mr. Eberhart and

that is why they had one hellacious struggle." (CT 342).

By urging that Campbell was the actual perpetrator of the

gruesome killing, the prosecutor was not only able to convict him,

ll.

| aa

but was also able to convince the jury that he should be sentenced

to death.

When Petitioner Drake was tried a year later, the State

decided to utilize the same tactics to get the jury to impose the

death sentence on Drake. Having already secured a death penalty

conviction on Campbell, the State deliberately pursued the

opposite presentation of the facts in Drake, representing that

Drake was the actual perpetrator of the crime. To bolster their

new version of the truth, the State introduced the testimony of

Officer Stone (which Petitioner contended in his habeas corpus

Petition to be inadmissible evidence) to the effect that, based on

his brief observation, Campbell would not be capable of hard

physical labor. In addition, they introduced testimony from

Campbell himself that he suffered from emphysema and asthma.

(T.234) In closing argument in Drake, the prosecutor utilized

these pieces of evidence to forcefully argue that Drake must have

committed the murder because Campbell was not physically able to

do so. (T 477-78, App. F). By urging that Drake was the actual

slayer, the State was able to obtain a conviction and secure the

death penalty in his case just as they did in the Campbell case.

Petitioner contends that the actions of the State in pursuing

an approach in Drake directly contradictory to their approach in

Campbell was a breach of the prosecutorial obligation of good

faith which resulted in a denial of Petitioner's due process

rights to a fair trial.

It is an unquestioned principle of our system of justice that

the State must act with the utmost integrity and good faith in

pursuing corrections. Beto v. Stacks, 408 F.2d 313 (5th Cir.

1969). Similarily, it is well recognized that misconduct on the

12.

a ee —_—

part of a prosecutor can rise to the level of a constitutional

deprivation. Malley v. State of Conn., 414 F. Supp 1115 (D Conn.

1976); Lewis v. Clark, 408 F.2d 1209 (D.C. Cir. 1967). As the

court in Lewis, supra., noted prosecutorial misconduct which

violates civilized notions of fairness taints the entire criminal

process.

The methods utilized by the State in pursuing the convictions

and death sentences in the cases of William Campbell and Henry

Drake violated basic notions of fairness and justice. No doubt

the violent way in which Eberhart was killed (by blows to the head

with a claw hammer) had a tremendous impact on the jurors’ minds

in each case in determining whether to give the death penalty. It

is also virtually certain under the evidence that only one of the

two defendants, Drake or Campbell, could have done the actual

killing even if it were true that they were both involved in the

robbery. It, therefore, violates the rudimentary concepts of

justice for the State to deliberately seek out two death sentences

in the manner that they did when they knew that only one of the

defendants actually committed the act which the prosecution deemed

deserving of the death penalty.

Furthermore, the representation by the prosecution at Peti-

tioner's trial that Co-Defendant Campbell could not have committed

the killing because he was too frail physically was no doubt

extremely damaging to Petitioner with respect to whether he had

anything at all to do with the crime. Petitioner testified at

trial that he was never in the barber shop and had nothing to do

with either the robbery or the killing. The representation by

the State that Petitioner must have been involved because Campbell

was physically unable to have killed the victim was critical to

13.

Petitioner's claim of innocence and unjustly so since the State

led the jury to believe something that the State obviously

believed to be false, since they took the position in Campbell's

case that he was physically capable of having committed the

killing all by himself. It cannot be argued that the actions of

the State were not deliberate because the same prosecutor was

involved in the trial of both cases.

Petitioner urges that in addition to violating general

notions of fairness, the conduct of the prosecutor in the Drake

case also constituted the more specific misconduct of knowingly

using false or perjured testimony. It is a well-established

principle that the knowing use by a State prosecutor of per jured

testimony ordinarily results in a deprivation of fundamental due

process, violating the Fourteenth Amendment and requiring a new

trial. Napue v. Illinois, 360 U.S. 264, 269, 271-72 (1959);

Giglio v. United States, 405 U.S. 150, 153 (1972); United States

v. Anderson, 574 F.2d 1347 (Sth Cir. 1978). This rule has also

been held applicable where the prosecutor allows the jury to be

presented with a materially false impression (see Anderson,

Supra.) and where the prosecutor allows his witness to give false

testimony the accuracy of which he has reason to doubt. Imbler v.

Craven, 298 F. Supp 795 (C.D. Cal. 1969). As the prosecutor

established on the record (T 188), the testimony of Campbell at

Drake's trial was substantially the same as that given in his own

trial. Since the jury in Campbell's own trial convicted him, they

must have found that his story was largely false. And yet, the

prosecutor utilized this false testimony to convict Henry Drake

and to sentence him to death. The knowing use of this false

testimony violated Petitioner's due process rights.

In sum, whether the conduct of the prosecutor is considered

14.

as the knowing use of perjured testimony or only as a general act

of trial strategy, that conduct was violative of constitutional

due process standards. As the United States Supreme Court held in

Berger v. United States, 295 U.S. 78 (1935), it is as much a

prosecutor's duty to refrain from improper methods calculated to

produce a wrongful conviction as it is to use every legitimate

means to bring about a jst one.

The Court should accept Cert on this issue so that it may

more clearly define the basic due process parameters of acceptable

trial tactics for the prosecution of criminal cases.

II. WHETHER PETITIONER'S RIGHT TO DUE PROCESS OF LAW

WAS VIOLATED BY THE PROSECUTOR'S USE OF PREJUDICIAL

AND INFLAMMATORY ARGUMENT IN THE PRESENCE OF THE

JURY UNDER THE GUISE OF THOSE COMMENTS BEING DIRECTED

TO THE COURT.

After obtaining Petitioner's conviction by using the

Jekyll and Hyde tactics outlined in issue I above the special

prosecutor utilized a highly inflammatory and emotional appeal

to the passions and prejudices of the jury to obtain the death

sentence.

In his argument during the sentencing phase of Petitioner's

trial, the prosecutor quoted from and attributed to the Justices

of the Georgia Supreme Court the sentiments expressed in the

following passage from Eberhart v. State, 47 Ga. 598, 610 (1873):

We have, however, no sympathy with that sickly

sentimentality that springs into action whenever

a criminal is at least (sic) about to suffer for

a crime. It may be a sign of a tender heart, but

it is also a sign of one not under proper regula-

tion. Society demands that crime shall be

punished, and criminals warned, and the false

15.

humanity that starts and shudders when the axe

of justice is ready to strike is a dangerous

element for the peace of society . .. we have

had too much of this mercy. It is not true

mercy. It only looks to the criminal, but we

must insist upon mercy to society.

The prosecuting attorney then went on to quote the Court in

Eberhart as saying that:

a stern, unbending, unflinching administration

of the penal laws, without regard to position

Or sex, that it is the highest mark of civili-

zation, and it is also the surest mode to prevent

the commission of offenses.

(T. 513-514, *Appendia—“e*,—2.2_).

In reviewing another death case involving the use in

argument of this same passage to determine “whether the sentence

was imposed under the influence to passion, prejudice, or any

other arbitrary factor", (Ga. Code Ann. §27-2537(C)(1)), the

Georgia Supreme Court held that:

The District Attorney's attribution of these

sentiments to a justice of this Court with

the object of influencing the jury to impose

the death penalty was improper and is disapproved.

Hawes v. State, 240 Ga. 327 at 336 (1977); and see Lamb v.

State, 241 Ga. 10, 15 (1978) (also holding such argument improper).

The passions of the jury were further aroused when the

16.

prosecutor similarly read the following inflammatory excerpt

from Hawkins v. State, 25 Ga. 207 (1857):

Human life is sacrificed at this day, through-

out the land, with more indifference than that

of the life of a dog, especially if it be a

good dog. Cain was the first murderer, but who

is the last is known only to those who have

read the morning papers . . . If this crime goes

unpunished, let our skirts, at least, be free

from the stain of blood-guiltlessness.

(T. 513, Appr—s——2—)_

Petitioner's trial counsel specifically objected to

the

of the Jury. (T. 525-526, -ppe—#). No such specific objection

was made to the reading of the excerpts from Eberhart and

Hawkins, however, under Georgia statutory and case law no

objection is required to preserve the issue of an improper

charge in a criminal case. (Ga. Code Ann. §70-207; Thomas v.

State, 234 Ga. 615 (1975); White v. State, 243 Ga. 250 (1979);

Tiller v. State, 224 Ga. 645 (1968).

The use by the prosecuting attorney of the reference to

Gary Gilmore, of the passage from Hawkins and of the previously

cited passage from Eberhart to unduly influence the jury to

give the death penalty violated defendants' due process rights

and should have resulted in the setting aside that sentence.

This is particularly true in a case such as this where the

evidence against the defendant is so threadbare and dubious

that it took the jury six hours to reach a verdict, because it

reference to Gary Gilmore as an attempt to inflame the passions”

is in this sort of case that it can be said that the reading

to the jury from these cases in all likelihood did cause or at

least significantly contribute to the sentence of death.

The Georgia Supreme Court did not grant Petitioner relief

based on this claim on direct appeal. In Drake v. State, 241

Ga. 583, 587 (1978), the Court said:

- « the prosecutor in this case read

- « « from. . . Eberhardt (sic) .. . This

practice was condemned in Hawes (cit.) when

used for the purpose of persuading the jury

to impose the death penalty, but as in

Campbell v. State, supra, (240 Ga. 352), the

prosecutor in this case was addressing not

the jury but rather the court. We held in

Campbell that the presence of the jury during

such arguments did not bring the argument with-

in the scope of Hawes, though it would be pre-

ferable if such arguments were conducted out-

side the jury's presence.

The Court held the improper and highly inflammatory argument

by the prosecutor not to be reversible error in Drake because

they found that the prosecutor was addressing the Court and not

the jury. The danger of such a rule is that it permits prosecutors

to bypass constitutional restraints on comments made to improperly

influence the jury by simply prefacing those comments with a

phrase such as ‘may it please the court’! This technique was

masterfully employed by the special prosecutor in this case.

Apparently the Court made their decision that the prosecutor was

addressing the Court based on the fact that he prefaced each

18.

excerpt with the phrase “If your Honor please." A reading of

the prosecutor's full argument on the sentencing phase makes

clear that he was couching a series of inflammatory and emotional

arguments to the jury in language which would convey on paper a

sham pretext of addressing the Court. One specific indication

of that fact is found on page 511 of the trial transcript +See

Appendin-—A) where the court prefaces the District Attorney's

entire argument with the following statement:

The Court recognizes Mr. Huff now for

any remarks he wants to make to the jury.

(Emphasis added).

On Habeas review the trial Court had before it on this

issue not only the transcript of the prosecutor's sentencing

argument, but also : sworn affidavit from Mr. Andrew Hill, Jr.

ee. @); Petitioner's trial counsel, stating that the prosecutor

was, in fact, physically addressing himself not only to the Court,

but also to the jury.

Even if the prosecutor had, in fact and not just in form,

been reading to the court the prosecutor's comments would still

require a reversal of the death sentence.

Under Ga. Code Ann., Sec. 27-2537, (c)(1), the Supreme

Court of Georgia is to consider whether any sentence of death

was imposed under the influence of passion, prejudice, or any

other arbitrary factor. This procedure is part of that sentencing

procedure approved by this Court in the case of Gregg v. Georgia,

428 U.S. 153 (1976) wherein the entire procedure for applying

the death penalty in Georgia was approved. The Georgia Supreme

Court abdicated its duty under §27-2537 by its opinion and

19.

reasoning affirming petitioner's convictions and sentences and

rejecting this enumeration of error.

The procedure approved by this Court in the Gregg case,

Supra, provides that the Supreme Court of Georgia will act as a

guardian of the rights of a defendant by seeing that a sentence

of death is not imposed under the influence of any passion,

prejudice, or other arbitrary factors. By the Georgia Supreme

Court's making such a distinction as addressing one's comments

"to the court" and "to the jury", when the jury is present at

all times and hears all the comments, the Georgia Supreme Court

has abdicated its duty as the guardian of this petitioner's

rights, and has in fact deprived this petitioner of his rights

to due process of law. With the jury being present in the

courtroom throughout this entire argument made "to the court",

it was as if this argument was being directly made to the jury.

The jury heard every quote read and attributed to a justice of

the Georgia Supreme Court; it also heard that "Gary Gilmore, if

Your Honor please, will never ever kill anyone else again."

There is no way that a jury could impose a death penalty

after having heard the excerpts and the reference to Gary

Gilmore without having some prejudice against the petitioner

or having their passions inflamed against him. It is under the

watchful eye of the Georgia Supreme Court that a death penalty

is to be imposed, and yet it is by a process and procedure now

approved by the Georgia Supreme Court that petitioner contends

he was deprived of that degree of fundamental fairness guaranteed

by the due process rights clause of the 14th Amendment. This

Court should grant Certiorari in order to prevent this deprivation

20.

of constitutional rights by the Georgia Courts under the rule

which the Ga. Supreme has created with regard to prejudicial

argument made in the presence of the jury but "directed to"

the court.

III. WHETHER ONE OF THE STATUTORY "AGGRAVATING CIRCUMSTANCES"

UPON WHICH THE JURY RELIED IN DECIDING UPON DEATH

IS SO OVERBROAD AND VAGUE THAT PETITIONER'S SENTENCE

BASED UPON THIS STATUTORY PROVISION WAS UNCONSTITUTIONAL?

The jury was instructed during the sentencing portion of

appellant's trial that they could consider several possible

aggravating circumstances in order to justify imposing the death

sentence in the case. Among the aggravating circumstances charged

was Ga. Code Ann. §27-2534.1(b)(7)--that the offense "was

outrageously or wantonly vile, horrible or inhumane in that it

involved torture, depravity of mind or an aggravated battery to the

victim". This aggravating circumstance was ultimately relied upon

by the jury in recommending the death sentence. (T. p. 529)

On October 9, 1979, this court granted certiorari in the case

of Godfrey v. Georgia, 243 Ga. 302 (1979), No. 78-6899, to consider

whether or not the above cited aggravating circumstance is overly

broad and vague and thus violative of the Eighth and Fourteenth

Amendments. It is the appellant's contention that Code Section 27-

2534.1(b)(7) provides virtually no guidance whatever to a jury in

making their sentencing determination in a death case because any

murder could be said to involve torture, depravity of mind, or an

aggravated battery to the victim. By its very nature, the offense

of murder virtually without exception involves one or more of these

three "factors". Thus, under Code Section 27-2534.1(b) (7), every

murder could be considered outrageously, or wantonly vile, horrible

or inhumane behavior meriting the death sentence. Thus, the

aggravating circumstance set out in §27-2534.1(b)(7) is an uncon-

ase

stitutionally overbroad and vague standard which cannot reasonably

guide a jury's decision of when to impose the penalty of death for

the offense of murder.

In Furman V. Georgia, 408 U.S. 238, 33 L.Ed.2d 346 (1972), the

Supreme Court held that the death penalty could not be imposed

under a sentencing procedure in which there was a substantial risk

that it would be inflicted in an arbitrary and capricious manner.

Gregg v. Georgia, 428 U.S. 153, 49 L.Ed.2d 859, 883 (1976).

In Banks v. State, 237 Ga. 325, 331 (1976), Hill, J. dissenting,

it was stated:

"In my view, the majority . . . has now adopted an open-ended

construction of ground 7 and has placed at least that ground

of our statute in peril of being held invalid as being vague

and overbroad and thus capable of capricious and unconstitutional

application.

A statute vague and overbroad invites arbitrary and capricious

application and in light of the stringent due process analysis

applied in death penalty cases, is clearly unconstitutional. See

Green v. Georgia, U.S. , 60 L.Ed.2d 738 (1979), Gardner v.

Florida, 430 U.S. 349 (1977).

It is true that in appellant's case the jury also found as an

aggravating circumstance that the murder was committed while the

offender was engaged in the commission of an additional capital

felony, to wit, armed robbery. However, the jury is not required

to recommend death where an aggravating circumstance is found.

Since it cannot be determined at this point the effect that

consideration of the Code Section 27-2534.1(b) (7) charge had on the

jury's recommendation of the death sentence, and there is a

reasonable chance that the unconstitutional charge affected this

22.

recommendation, the sentence should be reversed.

Appellant urges that this Court accept certiorari on the issue

presented here as it did in Godfrey v. Georgia, supra.

THE PETITION ALSO PRESENTS THE FOLLOWING SUBSTANTIAL FEDERAL

QUESTION WHICH THE GEORGIA COURTS HAVE DECIDED IN A WAY NOT IN

ACCORD WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT:

IV. WHETHER IN ORDER FOR A JURY CHARGE TO BE UNCONSTI-

TUTIONALLY BURDEN-SHIFTING UNDER SANDSTROM V. MONTANA,

U.S. , 61 L.Ed.2d 39, 99 S.Ct, ’

CHARGE MUST CREATE A CONCLUSIVE PRESUMPTION.

In Petitioner's case, after all of the evidence was heard, the

trial court instructed the jury that a person commits murder when

he unlawfully and with malice aforethought, either express or

implied, causes the death of another human being (T. 485). The

eourt went on to define legal malice as “the intention to

unlawfully kill a human being without justification or mitigation .

- «" (T. 485). “In other words," the Court stated, “murder is the

intentional killing of another human being without justification or

mitigation.” (T. 485). However, the court also instructed that "a

person of sound mind and discretion is presumed to intend the

natural and probable consequences of his act." (T. 484). Peti-

tioner contends that this instruction and the presumption stated

within it had the effect of shifting the burden of proof on the

question of malice onto the Petitioner so that the State was no

longer forced to prove malice beyond a reasonable doubt and that,

as a result, Petitioner's due process rights under Art. I, Sec. I,

Para. I of the Georgia Constitution, (Ga. Code Ann. §2-101); and

the fifth and Fourteenth Amendments to the Federal Constitution

were violated.

The instruction on the presumption of intent given by the

Court was taken directly from Ga. Code Ann. §26-604 which codifies

23.

this often used phrase. The presumption being founded in the law

of the State, the Georgia Court have routinely upheld instructions

based on it as not shifting the burden of proof in violation of Ga.

Code §26-501, the Georgia Constitution or the Fourteenth Amendment.

Hill v. State, 236 Ga. 703, 224 S.E. 2d 907 (1976); Gatlin v. State,

236 Ga. 707, 225 S.E.2d 224 (1976); Kramer v. State, 230 Ga. 855,

199 S.E.2d 805 (1973); Davis v. State, 140 Ga. App. 890, 232 S.E.2d

164 (1977).

On the other hand, both federal and other states courts have

held, for a variety of reasons, that the giving of an instruction

similar to that challenged by Petitioner is fatal to the validity

of a criminal conviction. (See Chappell v. United States, 270 F.2d

274 (9th Cir. 1959); Block v. United States, 221 F.2d 786 (9th Cir.

1955); Berkowitz v. United States, 213 F.2d 408 (Sth Cir. 1954);

Wardlaw v. United States, 203 F.2d 884 (Sth Cir. 1953); Mann v.

United States, 319 F.2d 404 (5th Cir. 1963) cert. denied, 375 U.S.

986 (1964); State v. Warbritton, 214 Kans. 506, P.2d 1152 (1973);

Hall v. State, 272 So. 2d 590, 593 (Ala. Ct. Crim. App. 1973). See

also United States v. Wharton, 139 U.S. App. D.C. 293, 433 F.2d 451

(1970).

This court has repeatedly condemned as violative of the Due

Process Clause, the practice of shifting the burden of proof to the

Defendant in criminal prosecutions by presuming an ingredient of an

offense upon proof of other elements of the offense. Mullaney v.

Wilbur, 421 U.S. 684, 44 L.Ed.2d 508, 95 S.Ct. 1881 (1975).

Morisette v. United States, 342 U.S. 358 (1952), and Patterson v.

New York, 432 U.S. 197 (1977). And finally in the case of

Sandstrom v. Montana, U.S. , 61 L.Ed.2d 39, 99 S.Ct.

24.

—— =>

F -

(1979) involving a murder conviction, the Court held that the trial

court instruction to the jury that "the law presumes that a person

intends the ordinary consequences of his voluntary acts" which was

almost identical to the charge given in this case violated the

Fourteenth Amendment requirement that the State prove every element

of a criminal offense beyond a reasonable doubt, and was therefore

unconstitutional.

In denying Petitioner a Writ of Habeas Corpus on this issue

the trial court held that Sandstrom, supra, only applies where the

charge creates.a conclusive presumption and that since the court

instructed the jury that the presumption could be rebutted (T. 484)

the charge was not burden-shifting (see order at RB. 99 Fhe Georgia

Supreme Court allowed this interpretation of Sanstrom, supra, to

stand by refusing to grant a Certificate of Probable Cause).

The trial court clearly misinterpreted the Sandstrom decision

for in that case the court noted that the danger of such a charge

was that there was a possibility that the jury may have interpreted

the instruction in either of two ways:

First, a reasonable jury could well have interpreted the

presumption as "conclusive" that is, not technically as a

presumption as all, but rather as an irrebuttable direction by

the court to find intent once convinced of the facts

triggering the presumption. Alternatively, the jury may have

interpreted the instruction as a direction to find intent upon

proof of the defendant's voluntary actions (and their

ordinary” consequences), unless the defendant proved the

contrary by some quantum of proof which may well have been

considerably greater than "some" evidence -- thus effectively

shifting the burden of persuasion on the element of intent.

Sandstrom v. Montana, 61 L.Ed.2d at 46-47. The Court then

held that because the jury may have interpreted the challenged

presumption as conclusive, like the presumption in Morisette v.

United States, supra; and United States v. United States Gypsum,

25.

i rin ee

Supra; or as shifting the burden of persuasion, like that in e

Mullaney v. Wilbur, 421 U.S. 684 (1975) and because either inter-

pretation would have violated the Fourteenth Amendment's

requirement that the State prove every element of a criminal

offense beyond a reasonable doubt, the instruction was

unconstitutional.

Even though the jury in Petitioner's case was instructed that

the presumption could be rebutted they could have reasonably

interpreted the instruction to direct that they find intent upon

proof of Defendant's voluntary acts, unless the Defendant proved

the contrary. Such an interpretation would have shifted the burden

of proof to Petitioner on the issue of intent.

This court should grant Certiorari on this issue to correct

the misapplication of Sandstrom, supra, by the Georgia Courts

before it becomes precedent-setting.

26.

CONCLUSION

Based on the foregoing reasons, Petitioner contends that the

Georgia Supreme Court erred in refusing to grant his application

for Certificate of Probable Cause from the denial of his State

Petition for Writ of Habeas Corpus. Therefore, a Writ of Certiorari

should issue to review the judgment of the Superior Court of Butts

County denying Petitioner habeas corpus relief.

Respectfully submitted,

Eoburrick J. 1h ortandl sp

EDWARD T. M. GARLAND

1012 Candler Building

127 Peachtree Street

Atlanta, GA 30303

(404) 577-2225

27.

APPENDICES

. 7 4 ”

-_ - = a ts “ a ayet - * |

Nr E Benet; MET ee ee eT pen b

; Se TATE ed i SO eS = s.

eT ee AE tee Cae SS eee ea “te oS ee ES thee steel

eeu rae

a i yy -

fapoetmeem: ue ee enema niece.

a cro To, Sege heen ee oe CTA Ld ervey - ee * RT Nahe (ne ee ae ae =

Sam See Sa Ba eae RY“ eter ae eee TE: La = , - om SS ‘ a

jhcchaephedariaclaRiaaibeh teantmenbiios + ERENT at wrets

; :

“ipl eit LLY Mamta teers

APRIL TERM, 1978. _ 583

440.370 and the ‘sufficiency of notarized affidavits ”

supporting arrest warrants in pre-conviction extradition == -

cases. vite 23 Tete i zr tga ao Se? vate hle oo. egg igrts. >

‘> The admission into evidence of the unsworn 1968 os

‘Kentucky Parole Board warrant directing that petitioner >

_ be returned from Indiana was not error because it also :

appears as one of the documents accompanying the

renewed sha ves for extradition by the Governor of

- Kentu erred to above. Baker-v. Smith, 233 Ga. 644

(1) (212 819) (1975). © ares etme.

oH Petitioner argues that the trial judge's statement See ep

that he was not going to hold the previous Indiana See Seren ne eT

judgment to be res judicata so far as extradition is 3 SS

concerned constituted an expression of opinion in

violation of Code § 81-1104. This case was tried without a

jury and Code § 81-1104 is not applicable. See Code Ch.

81-11, “Charge of the Court.” See also Garrick v. Tidwell,

151 Ga. 294 (6) (106 SE 551) (1920).

Judgment affirmed. All the Justices concur.

Susserrep Apri. 11, 1978 - - Decipen June 27, 1978 —

REHEARING DENIED Jury 20, 1978.

Habeas corpus; extradition. Coweta seein Court.

ws Judg* Knight.

eC. Rosenzweig, for appellant.

in ers, Mottola, Haugen, Goodson & Odom,

Charles Van S. Mottola, C. Bradford Sears, Jr., for .

appellee. :

$3463. DRAKE v. THE STATE

241 Ga. 583 (1978)

HALL, Justice.

Henry Arthur Drake was convicted of the murder

and armed robbery of C. E. Eberhart, and sentenced to

death for the murder, and to life imprisonment for the

armed gore + . This is the direct appeal of these con- SRL

victions, and the death sentence. Soret aeereeas Se

Prior to this trial William Campbell was also Hats Se

convicted of the murder of C. E. Eberhart, and was

sentenced to death for the murder, and to life im-

APPENDIX "A"

: OMS SOR ORR? ewe

al was es

"s trial.

Colbert in the late afternoon of the day of the offenses,

where Campbell got out in front of the victim's

Op, and proceeded to get a haircut. According to

Campbell’s testimony, Drake entered the barbershop

wearing a black wig while Campbell was still in the

s chair. Drake was carrying a claw hammer, and

struck the victim with it. Campbell poteates, telling

Drake not to hit “the old man,” at which point Drake

struck Campbell with the hammer. -Drake continued to

Struggle with the victim unti] Eberhart passed out from

the blows to his head. The victim was also stabbed.

hart died severa) months later from the head

wounds. Approximately three hundred dollars was

stolen.

The state’s case rested largely on Campbell's

testimony, since there was no other direct evidence, and

little circumstantia) evidence of Drake’s participation in

the crime. Campbell's testimony was impeached by proof

of prior inconsistent Statements and prior fe ony

convictions. The testimony was corroborated in a variety

of particulars by Mary Caruth's testimony, Drake’s own

testimony, and some physica] evidence, including a knife

found at the scene which matched the description of a

The victim was over 70 years old, but he was healthy

and there was evidence of a tremendous struggle in the

. Campbell was in his sixties, and suffered so

severely from asthma and emphysema that he could not

strenous)

exert himself y. Drake, on the other hand, was

healthy and in his thirties. From this the state argued

that Drake must have been the one who actually beat the

victim.

Mary Caruth's testimony in genera] supported

ree

a *

) sade , - : hte

| = B D* oes a et TRE 2 ee Ce YZ ‘fe Segre, aie)

- - _ an eta ‘——. . sing , S +2 see |

_ Ts . ‘ Late ES ee eee Ti ae Se oiste. Tad ethene. a

| PSs 5. SS ee ee a ee eee 3 Shi See |

. - Kae = ee ote ne PET ke me Ret os r > ie

ee et ee eRe te ee ee ee Rf Pe teed PROS. es tpg

Ps tlc. oe 2 ees ite er eng NY ook eS sd ope Site

“ ~~ ,

* Soaps vag?

.* ; ptt Veg o UHR SD

: Ga)

Drake's alibi defense that he was at his mother’s house in

Colbert at the time of the offense. However, Caruth’s

testimony was impeached by prior inconsistent

statements. Drake and his mother also testified in support

1. The denial of a new trial by the trial court on the

grounds that the verdict of the jury was contrary to

' evidence and the principles of justice and equity, Code

: § 70-202; and that the verdict was decidedly and strongly

: against the weight of the evidence, although there may

appear to be slight evidence in favor of the verdict, Code §

70-206, is enumerated as error. We do not have the

discretion to grant a new trial on these grounds; we can

only review the evidence to determine if there is any

evidence to support the verdict. Campbell v. State, supra.

In determining whether there is any evidence to

support the verdict we resolve all conflict in the evidence

to favor the verdict. Eubanks v. State, 240 Ga. 544, 546

(242 SE2d 41) (1978). The credibility of Campbell's

testimony was for the jury to decide. Code § 38-1895. This

testimony was ample to support the denial of a new trial.

Campbell v. State, supra, at 355.

2. Appellant also contends that his conviction rested

entirely on circumstantial evidence which did not exclude

every other reasonable hypothesis except that of guilt.

Code § 38-109. We disagree. Campbell's testimony was

direct evidence of Drake’s guilt.

3. A third related contention is that there was no

corroboration of Campbell’s testimony, and since he was

an accomplice, appellant's conviction was barred by Code

§ 38-121. We first note that there is no dispute that

Campbell was an accomplice under the state’s theory of

the case, and that there was evidence to support this

position.

Appellant does not argue that there was insufficient

eneral corroboration of Campbell's testimony. Rather,

e argues the second test, i.e., whether there was

“independent corroborating evidence which tends to

connect the accused with the crime.” West v. State, 232 Ga.

861, 865 (209 SE2d 195) (1974); Birt v. State, 236 Ga. 815,

825 (225 SE2d 248) (1976). The test is whether the

testimony of the accomplice was corroborated by “facts or

er wey ° >

“2. s.. S23: +.

_— - ov dg > «"<

oe as -

~ . ~~ > “eae Sine See

Orme eS mS os TT 32* a a a .

heres ree ee . = pen ayer Stee < ~

SOME Peres, Lee 7 +n lara Th oerg a

yet” ast ae oe ee yf

- ~sig 8 — . . i a Pane foe =. ~tes aor

6 sthage PEGI * SII, =. pS es: = SS

erg? PMS ASS. «rah Ba ras

ony on oo. ageiAe ® - la a en ne

oy .

circumstances which, in themselves and independently of

the testimony of the accomplice, directly connect the

defendant with the crime, or lead to the inference that he

is guilty, and more than sufficient to merely cast on the

defendant a grave suspicion of guilt.” Price v, State, 208

Ga. 695, 696 (69 SE2d 253) (1952); Smith v. State, 238 Ga.

. 640, 642 (235 SE2d 17) (1977).

The necessary corroboration may consist entirely of

circumstantial evidence, and evidence of the defendant’s

conduct before and after the crime was committed may

give rise to an inference that he participated in the crime.

Williams v. State, 222 Ga. 208, 220 (149 SE2d 449) (1966).

Appellant was connected to the crime by the distinctive

pocketknife found at the scene which matched the

description of appellant's knife. In addition, it was

established without dispute that appellant and Mary

Caruth drove Campbell to the barbershop, drove him

home with them after the robbery, and later drove him to

Atlanta so that he could flee the state even though by that

time Drake admittedly knew of Campbell's involvement

in the crimes. This evidence was sufficient corroboration

of Drake’s involvement in the crimes. See Birt v. State, 236

Ga. at 825.

4. Appellant alleges that he was denied an impartial

jury because of the relationship of a juror to the deceased.

During the trial ajuror learned for the first time (from his

wife) that his wife’s sister's husband was the victim's

great uncle.’ This information was made known to the

court and counsel, but appellant’s motion to strike the

juror was denied when the juror stated that this

relationship would not affect him in any way, and that he

remained impartial. There was no evidence of any

mepog thus it was not error to deny the motion. The

act that appellant states he would have used a per-

emptory strike to remove the juror had the relation-

ship been disclosed during voir dire does not change

the fact that he had an impartial jury.

* Appellant does not contend the juror was

' disqualified under the relevant Statutes. See Code §§

59-716, 59-804 (4).

wesceeseecsesesesees:

_ ry

. PPOs ie : aoe any” : ; tis @ of

_ ‘= +. aot S-eighoe ete em recat tien Meas ope . . Lees Se eet ee 5 bee ee uae ou. 7

- * ~ . = +o” . - © 2 ‘oe + ee ~ - eee wot * " rym ye.

ann en Sein, FSS ge oe RTE SE REP ERE | ek ee tT tt 2 ae es ak bh tal Dee ree

| e, * wet e's ior oN ugg <a an o tL ewe tie. aceon sere 2 Te vee FN ee Pee een

Tatas oe ETE pe we ee bay 2 eee mest: Ltn to San ot” Ren SPR on eet yee near

oe u os = YP ee ——_ nt a

“e's ° o> 0 ae ne ee ae ee

— ae, . : 7 “om , : °

_—_ -—+ = —_se* J “ar

eos p+ .° 5

o 8 . ae ee ty axe

oes ene SE eee SSeS aE Se Eee estes eeerieesres

Ga) APRIL TERM, 1978.

. ; : Death Sentence Review.: =" .. ~

'. The remaining enumerations of error are best

covered in our review of the death sentence under Code §

27-2537 (c) (2). ee ee or Sink:

5. Appellant complains that the argument of the

district attorney in the penalty stage resulted in the

imposition of the death penalty under the influence of

passion, prejudice, and other arbitrary factors. More

specifically, the prosecutor read dicta from cases, in-

cluding Eberhardt v. State, 47 Ga. 598, 609 (1873). This

practice wes condemned in Hawes v. State, 240 Ga. 327,

336 (240 SE2d 833) (1977), when used for the purpose of

persuading the jury to impose the death penalty, but as in ———

Campbell v. State, supra, the prosecutor in this case was sauna aan

fe addressing not the jury but rather the court. We held in Peseta ee

Campbell that the presence of the jury during such

arguments did not bring the argument within the scope of

Hawes, though it would be preferable if such arguments

were conducted outside of the jury’s presence. See also

Presnell v. State, 241 Ga, 49, 62 (243 SE2d 496) (1978)

(holding that such arguments may be harmless error).

Appellant also complains of a brief reference to Gary

Gilmore? in the prosecutor’s arguments. We agree that

the reference was improper, but it too was made to the

trial court. Moreover, this reference was not likely to

inflame the passions or prejudices of the jury.

6. We find no error in the trial court’s charge to the

jury relating to the sentencing phase of the trial. The

appellant’s fourth and sixth enumerations of error are

without merit. Spivey v. State, 241 Ga. 477 (1978).

7. After reviewing the entire record and transcript Sinaia

and considering the foregoing enumerations, we conclude 3

that the sentence of death imposed on Henry Arthur

Drake was not imposed under the influence of passion,

prejudice, or any other arbitrary factor.

The jury found the ea statutory aggravatin

circumstances: (1) “The offense of murder was commi

while the offender was engaged in the commission of an

? Gilmore was the first person executed in the United

States since revised death penalty statutes were enacted.

Stee eeeee

Sroterrrsy

SSTESSTL TASTER Eat:

Te ne LY ent

ton - at =

= e euees Pinay ee, Sets 423 bee

+. 6" tan € Pers. , ~ sir “

—— St og Tg > ne ee ee oe ee

ge gi megs > = ear! ‘SD + ae Sere? igo or Riel. fn Se

“ — en a OO het 5 geet SSS! a eos “2. os.

- se. te ee ee a . Se eS ers

: Lies a Se +> ir Reese eh

- _ Stes Pe Fite - m as

ween Tae ee 68 ees ese = viet

RBs a oe <n = Seiki J ww ee ee

* po ots ee ee ow °

ms" a ree oe ae ee eee a A phism -r. eee! oe enw tame Toe

- =~ x lt neetherneer heeled -

4 - . - ee eS : . _*

ab as - < ot ob a rind “a - aS. . hits

é a -_—- -

Bic : ; ce eae z

- ’ ¢ .

SS Sreccascesesborees

<--->

SSS F3-} a

Susessss Ssssccess secesecsecesseoceeeetertee Tae PeEEE IE

Sires SSS eSESSSSS SSS Se ae aes as

588 DRAKE v. STATE. (241

additional capital felony, to-wit: the armed robbery of

C. E. Eberhart.” Code Ann. § 27-2534.1 (b) (2). (2) "The

offense of murder was outrageously and wantonly vile,

horrible, an{d) inhuman in that it involved torture to

ant.” Code Ann. § 27-2534. (b) (7). These statutory

8. In reviewing the death penalty in this case, we

have considered the cases appealed to this court since

January 1, 1970, in which a death or life sentence was

imposed for murder, and we find the Similar cases listed in

the appendix Support affirmance of the death penalty.

Henry Drake’s sentence to death for murder is not

verdict is factually substantiated.

udgment affirmed.’ All the Justices concur, except

Hill, J., who also concurs, except that he does not concur in

cll that is said in Divisions 1 and 6 of the opinion.

ARGUED May 9, 1978 — Decwep June 27, 1978 —

G DENIED JuLy 20, 1978,

Murder, etc. Madison Superior Court. Before Judge

Grant.

Andrew J. Hill, Jr., Andrew J. Hill, Ill, for

2ppellant.

Bryant Huff, District Attorney, Arthur K. Bolton,

Atto General, Daryl A. Robinson, Assistant Attorney

Generel for appellee.

* Including the cases decided today there have been

74 capital felony cases in which the death penalty was

imposed and reviewed by this court pursuant to the

Georgia Death Statute. 53 have been affirmed and 21

have been reversed by this court. With respect to race, the

cases involved 31 defendants who were white and 43 who

were black. Of the 21 cases reversed, 8 were white and 13

were black. 5 of the 53 affirmed Cases were reversed by the

Supreme Court of the United States.

fg Sa EO

sR a

CSpot +.

on 8. 0s ene

- 0 68 weet eats wwe

peeebbbesteeetetioions 3

pe eee

sees ween ee Ses

sildsiatiawws

Moree ph

AA Ss roe i

-_ al

: os *@tfews. © oe ne 662

PS Ae ee eee a ne — “* = . _* . e

ge, = SS f 2s . ae Nth ae roetewen «eine Fie = oo le : ,

— ; we PSG “ae Boao oh eat wake FS RT Ne nee Eid ate tn Mc AN fete

Fr -- e ree = FER he Bye erate, al Wn ae RE Bie. im de, amet OS ex

= : = $e % a . Od tal A oe 2 eee Buy =, os

‘ rae

—_

ao ead

eteaninnd

See Se

- vee a we

pom < :

Pelle a Rowe eetns, ome 159s? de>

LF the ye er ae ee

= eeee not *

; DU sake vrs. + ome ae See. + wr es - a <

Cn eee eet i Ce ae So last eibes as: ot Se eis 1"

“Symone He tere -— ~ ~ et Se ee . ‘ br :

cP SE te agi et tert or ey ee

aes

+o dee Pl fe he © a ‘ :

one nie Son >= Mesiern” *

. =. .

APRIL TERM, 1978.

: APPENDIX = sc

: Gregg v. State, 233 Ga. 117 (210 SE2d 659) (1974);

Moore v. State, 233 Ga. 861 (213 SE2d 829) (1975); Floyd v.

State, 233 Ga. 280 (210 SE2d 810) (1974); Jarrell v. State, a a

234 Ga. 410 (216 SE2d 258) (1975); Mitchell v. State, 234 eee

Ga. 160 (214 SE2d 900) (1975); Berryhill v. State, 235 Ga. =

549 (221 SE2d 185) (1975); Dobbs v. State, 236 Ga. 427

(224 SE2d 3) (1976); Goodwin v. State, 236 Ga. 339 (223

SE2d 703) (1976); Pulliam v. State, 236 Ga. 460 (224 SE2d

8) (1976); Birt v. State, 238 Ga. 402 (233 SE2d 362) (1976);

Pryor v. State, 238 Ga. 698 (234 SE2d 918) (1977); Young

v. State, 239 Ga. 53 (236 SE2d 1) (1977); Corn v. State, 240

Ga. 130 (240 SE2d 694) (1977); Campbell v. State, 240 Ga.

352 (240 SE2d 828) (1977).

33472. MELTON v. PACIFIC SOUTHERN

MORTGAGE TRUST et al.

Hx, Justice. .

In 1973, plaintiff Melton contracted with National

Community Builders, Inc. (NCB), a California con- pees

struction and land development corporation, to fur- ee

nish labor and materials to NCB to improve certain co

property in Fulton County owned and being improved by

NCB. When NCB ceased work on its property, Melton

placed a materialman’s lien on it in February of 1974,

in the amount of $32,407.61. Unbeknownst to Melton,

on March 1, 1974, NCB transferred the property to anoth- sae

er California corporation, U. S. Guaranty Capitol

; Corporation. U. §. Guaranty and NCB then each filed

Chapter XI bankruptcy proceedings in the U. S. District

Court for the Southern District of California, on August 2,

1974, and September 24, 1974, respectively.

Melton filed a claim in the NCB bankruptcy in

December, 1974; because he was not notified that this

claim had been received, he filed a duplicate claim in

January, 1975. The first claim was disallowed as

duplicative; the second was allowed as an unsecured

claim, the property subject to the lien having been

pierererrss

IN THE SUPERIOR COURT OF BUTTS COUNTY

STATE OF GEORGIA

HENRY ARTHUR DRAKE,

PETITIONER

vs. CIVIL ACTION NO. 4246

WALTER ZANT, WARDEN, GEORGIA HABEAS CORPUS

DIAGNOSTIC AND CLASSIFICATION

CENTER, °

RESPONDENT

ORDER

Petitioner: was convicted of Murder and Armed

Robbery in the Superior Court of Madison County. He

was sentenced to death for the murder, and his conviction

and the imposition of the death penalty were affirmed

by the Supreme Court of Georgia. Drake v. State, 241

Ga. 583 (1978). This Petition for Habeas Corpus attacks

the legality of Petitioner's conviction and the imposition

of the death penalty on twenty-six grounds. Although

héinetne was held on the Habeas Petition, the only

evidence presented de hors the record and transcript of

the trial is an affidavit by Petitioner's trial counsel,

The Court will address the allegations of the Petition

in paragraphs which correspond to the numbered paragraphs

in thé’ Petition.

I. (COUNT ONE)

Counts One and Twenty of the Petition, as amended,

allege that Petitioner was denied his Sixth and Fourteenth

Amencment rights to the effective assistance of counsel.

Count Twenty enumerates nine different instances in which

APPENDIX “B"

B-1

Petitioner claims that his trial counsel committed

acts or omissions amounting to a deprivation of his

Sixth Amendment right to the effective assistance of

counsel.

fa)

Petitioner alleges that trial counsel was

ineffective for failing to introduce evidence on

Petitioner's Motion for Change of Venue. A Motion

for Change of Venue and the issue of whether a fair

and impartial jury can be obtained are, in reality,

the same issue. In this case, the trial court reserved

ruling on the Motion for Change of Venue until the

voir dire had been concluded. Petitioner's trial

counsel asked extensive questions of prospective jurors

on voir dire and the responses given indicate that it

was possible jet obtain a jury without preconceived

notions about the case. Petitioner does not specify

what evidence his trial counsel should have or could

have introduced in Support of the Motion for Change of

Venue. Accordingly, Petitioner has shown nothing to

support his allegation that crial counsel was ineffective

in this regard.

(b) (c)

Petitioner alleges that his trial counsel was

ineffective for failing to object to certain testimony

which Petitioner Claims was inadmissible and harmful to

his case. First, there was testimony that some beer

bottles were found at the cemetery and two were admitted

into the evidence. Petitioner says that his trial counsel

was ineffective for failing to object to the admission

of these beer bottles because they tended to corrohorate

B-2

— a

the testimony of William Campbell, the main witness

against Petitioner. Petitioner says that, if proper

‘ objection had been made, the Court would have excluded

the beer bottles because there were many other beer

bottles around the cemetery and these two beer bottles

could not possibly be identified as the ones left there

as Campbell testified. The Court does not agree with |

Petitioner that this evidence would necessarily have

"been excluded had Petitioner's trial counsel objected

to it. While of questionable probative value, the trial *

court in all likelihood would have admitted the evidence

_ for whatever weight the jury wanted to give it. Purther,

Petitioner's trial counsel might well have concluded that

an objection to this weak evidence would do more harm to |

the mind of the jury than to let it be admitted without

protest. This is a matter of strategy, and trial counsel

cannot be said now to be ineffective because another

lawyer might have handled the matter in a different way.

Next, Petitioner alleges that trial counsel was ineffective

for failing to object to the following testimony of Agent

Stone: "...he wouldn't be capable of any hard physical : |

labor. " (T. 362). Petitioner says that this statement

amounted to an inadmissible opinion and that it was extremely

prejudicial to defendant because the state's strategy was

that William Campbell, who was convicted and sentenced

to death prior to Petitioner's trial, was too weak to have

committed the murder himself. Petitioner's ground is not

good for the reason that an objection to this statement

would almost certainly have been overruled. An opinion of

a lay witness is admissible if a proper foundation is laid

for it, and that was done in this situation. Ga. Code $38-1708.

B-3

(a) (e) (£) (g) (h) (4)

Petitioner has presented nothing in support of

these alleged instances of ineffective assistance.

The standard used by the Supreme Court of Georgia

for an alleged Sixth Amendment violation is whether

defense counsel is capable of and did in fact render

reasonably effective assistance of counsel. Trial

counsel in this case did render reasonably effective

assistance of counsel, and that aspect of the habeas

petition alleging a deprivation of Sixth Amendment

rights is without merit. |

TWO, THREE, FOUR AND FIVE

Petitioner presented no evidence and no argument

in support of these counts in the Petition. Accordingly,

they are considered to have been abandoned and to be

without merit.

’ ‘ g2x

“In Count Six of the Petition, it is alleged that

Petitioner was denied due process of law in that he was

‘convicted on evidence which was so insufficient as to

violate due process of law. The Supreme Court of Georgia

found that the evidence in Petitioner's case did support

the verdict. Drake v. State, supra, at p. 585. But

Petitioner argues that the Supreme Court used the "any

evidence” test and that the law now requires that the

review be based on the standard of whether a rational trier

;

of fact could have found the Petitioner guilty beyond a

reasonable doubt. Jackson v. Virginia, U.S. ,99 S.Ct. P

B-4

De nnsenhene oem es

61 L.Ed.2d 560 (197). It has long been the rule that

sufficiency of the evidence is not an issue in a State

habeas corpus proceeding. Fryer v. Stynchcombe, 228 Ga.

576. (1972). While it could be, as Petitioner asserts,

that Jackson v. Virginia now requires a different

standard, it is inconceivable that the Supreme Court

of the United States would require the appellate courts

of every state to relitigate the issue of sufficiency

of the evidence in every conviction in which a prisoner

is still under restraint. But regardless of this practical

problem which would be involved in applying such a new

standard to Petitioner's case, it is the view of this

Court that there was evidence from which a rational trier

of fact could have found Petitioner guilty beyond a

reasonable doubt. The State had an eye witness who

testified that Petitioner beat the victim to death with

a claw hammer. The fact that Petitioner now does not

consider that witness (William Campbell) credible is

irrelevant to the inquiry made by a habeas court. The

jury apparently believed Mr. Campbell's testimony, and

Jackson v. Virginia, supra, has nothing to do with

the traditional notion that credibility of witnesses

is for the jury to determine. The allegations of Count

Six are without merit.

fi SEVEN

* In Count Seven, Petitioner alleges that the trial

court instructions to the jury failed to provide the

jury with guidelines as to how to apply and weigh aggravating

and mitigating circumstances; that the trial court's

instructions were misleading and left the jury with the

B-5

impression that the trial court had already found aggravating

circumstances to exist. The Supreme Court has already reviewed

the Court's charge in this regard and found it to meet the

test laid down in Spivey v. State, 241 Ga. 477 (1978); see

Drake v. State, supra, at p. 587.

EIGHT, NINE, TEN AND ELEVEN

These counts were not mentioned by Petitioner

at the hearing or in his brief, and they are deemed to

be abandoned.

TWELVE

The Sppreme Court ruled in Drake v. State, supra,

at p. 587, that the death sentence in this case was not

imposed under the influence of passion, prejudice, or

any other arbitrary factor. Accordingly, the allegations

of count twelve have already been decided adversely to

Petitioner. oy

THIRTEEN

In count thirteen, Petitioner alleges that the

Supreme Court of Georgia did not properly review the

death sentence and did not follow the mandate of the

statute in this regard. The report of Petitioner's case

indicates that the Supreme Court, in division eight of

its opinica, did fulfill the duty of comparing Petitioner's

case with other, similar cases and listed them in an

appendix. Accordingly, count thirteen is without merit.

FOURTEEN

In count fourteen, Petitioner alleges that he

has been denied various Constitutional rights by the

failure of the State to pay the costs incident to pursuing

this habeas petition. The law does not require that such

expenses be paid by the State, Ross v. Hopper, 240 Ga. 369

(1977). And Petitioner has pointed out nothing that would

3-6

_ i EE ee eee ae eee :

law. House v. Stynchcombe, 239 Ga. 222, 226 (1977). It

indicate that he was denied any expense money for any

particular purpose. This claim is without merit.

' FIFTEEN :

In count fifteen, Petitioner claims that he was

sentenced to die by a jury that did not believe that

he would in fact be executed and that his Constitutional

rights were violated thereby. This allegation is unsupported

by fact and has been specifically rejected as a matter of

seems to the Court that this argument misses the mark.

Most audi ies may well have the idea that one sentenced ;

to death may never actually have that fate visited upon

him, but this feeling would result from the inability

of our judicial system to finalize such sentences so that

ieee

they may be carried out. This Court knows of no credible

? ~

evidence that juries cavalierly pass down death sentences

merely because they do not really believe the sentence

will be carried out. Certainly, Petitioner in this

proceeding has produced no evidence of any such feeling

among those who sat on his jury. By ;

' SIXTEEN

Petitioner has presented no evidence or argument

in support of count sixteen, and it is found to be without

merit.

SEVENTEEN - NINETEEN

Counts seventeen and nineteen both allege that

Petitioner was denied due process of law because of the

prosecutor's closing argument during the penalty phase of

the trial in which he quoted from Eberhart v. State,

47 Ga. 598 (1873) and Hawkins v. State, 25 Ga. 207 (1858).

In support of this ground, Petitioner produced an affidavit

B-7

of his trial counsel indicating that, when this argument

was made, the prosecutor was facing the jury, and not

the Court. The purpose of this affidavit was to combat

the presumption of fact indulged in by the Supreme Court

in reviewing Petitioner's case that the prosecutor was

addressing not the jury but the Court when he quoted

from these old cases. See Drake v. State, 241 Ga. 583,

587 (1978). On direct appeal, the Supreme Court held

that this argument did not violate Petitioner's right

to due process because the prosecutor was addressing

the Court, and not the jury. The Court said that it

would be preferable if such arguments were conducted

outside the jury's presence but that there was no

prejudice to the defendant if the prosecutor was

addressing the Court with the jury present. The

Supreme Court knows that the prosecutor was making those

remarks for the benefit of the jury and not the judge.

Accordingly, the affidavit of Petitioner's trial counsel

Goes not make any difference because the Supreme Court

has already decided that no due punsees *danee were

violated by allowing this argument to be made in the

presence of the jury. While this Court does not agree

with the ruling of the Supreme Court on this issue,

it has already been decided adversely to Petitioner

by the highest Court in this State and until and

unless changed by that Court, it will remain the

law of this case.

EIGHTEEN ;

In count eighteen, Petitioner claims that the

trial court committed error in instructing the jury

that "...the law presumes that a person intends the

natural and probable consequences of his acts..." (T. 484).

This is a result of the Sandstrom v. Montana,

U.S. __, 61 L.Ed 24 39, 99 S. Ct. (1979) case

where a Montana conviction was reversed because the

trial court had given a charge that the Supreme Court

felt shifted the burden of proof to the defendant.

In this case, the Court charged that this presumption

eoulé be rebutted and that a person will not be presumed

to act with criminal intention. (T.484) .This clearly

Gistinguishes the charge in this case from the one in

Sandstrom, and it does not appear that a reasonable

juror could have interpreted the charge in this case

as meaning that there was a conclusive presumption so

as to shift the burden of persuasion to the Petitioner.

It was the conclusiveness of the presumption in Sandstrom

that offended the Constitution. That is not present

in the charge in this case, and the claim by Petitioner

that his Constitutional rights were violated thereby

is without merit.

TWENTY

See paragraph one.

TWENTY-ONE, TWENTY-TWO, TWENTY-THREE

These counts were abandoned by Petitioner, but they

have been examined by the Court and found to be without merit.

B-9

In trying Petitioner's case, the Court followed the

Ga. statute providing for the imposition of the death

penalty, and this statute has been declared constitutional.

Gregg v. Georgia, 428 U.S. 153 (1976).

TWENTY-FOUR

Petitioner presented no evidence in support of count

twenty-four where he claims that his constitutional rights

were violated by the exclusion from the jury of those

having conscientious scruples against the death penalty.

it has been held that this claim is without merit. Spinkellink

v. Wainwright, 578 F. 2d 582 (5th Cir. 1978).

TWENTY-FIVE

In count twenty-five, Petitioner makes an int@Pesting

claim that the "rudimentary demands of justice” were violated

by the State pursuing inconsistent theories in prosecuting

him and the alleged coperpetrator of the crime. Willdam

Campbell was tried for the same murder approximately»

‘one year before Petitioner was convicted and given a death

"ee

sentence. Campbell's case was affirmed by the Supiteme

Court. Campbell v. State, 240 Ga. 352 (1977). Petitioner

points out that, in Campbell's case, the prosecution Claimed

that Campbell had committed the murder. Then in Petitioner's

trial, the State argued that Petitioner must have been

the one who actually beat the victim to death because

Campbell was too old and weak and sick to have done it.

See Drake v. State, 241 Ga. 583, 584 (1978).

The State did exactly what Petitioner says. The

only issue is whether the pursuance by the

State of inconsistent approaches in cases of this kind

B-10

violates the constitutional rights of either or both

of the defendants. In Support of this argument,

Petitioner cites cases holding that there is a prosecutorial

obligation to act in good faith and that prosecutorial

misconduct can amount to a constitutional deprivation.

In response, the Respondent asserts that the prosecution

of the two cases was not inconsistent but conveniently

moves on quickly to another subject without saying why.

The fact is that the prosecutions were inconsistent..—

The issue is whether the constitution requires that the

State employ basic honesty in prosecuting those accused

of crime or whether it can join in the game of seeking

@ result without much regard for the tactics. The

Court does not make this observation lightly and recognizes

that the horrible murder of the victim in these cases

would likely nave moved any community and any prosecutor

to do whatever was necessary to bring the responsible

parties to justice. The Cour+ seriously doubts, however,

that the Constitution can stand many cases where the

expedient of exacting justice overpowers completely all

sense of fairplay. In this situation, it is actually

Mr. Campbell (see Campbell v. State, Supra) and not

Petitioner who has the superior right to complain about

the tactics of the State because Mr. Campbell was

convicted and sentenced to death by a prosecution that

contended on another day that he was too old and sick

and weak to commit the crime.

In Petitioner's case, no real prejudice resulted

from the earlier inconsistent approach taken in the

Campbell case. One wonders why Mr. Campbell was tried

first with nothing but circumstantial evidence and then,

B-11

while under a death sentence, called to testify and

provide the only direct evidence to convict the Petitioner

in this case. But given the reports of the two cases

(and this Court has previously heard the habeas corpus

petition of Mr. Campbell), the Court has concluded

that the argument made by Petitioner in this case

that his constitutional rights were violated by this

duplicitious prosecution is without merit because it

was Campbell, and not Petitioner, whose rights were

probably violated by the approach taken by the State.

’ TWENTY-SIX

In Count Twenty-Six, Petitioner alleges that

subsection (7) of Ga. Code Ann. §27-2534.1(b) is

unconstitutionally overbroad and vague and thereby

violative of the Eighth and Fourteenth Amendments.

He says that the Court charged and the jury found that

this aggravating circumstance could be used to support

a death penalty in his case. He says that the Supreme

Court of the United States has granted certiorari in

a case (Godfrey v. Georgia, 243 Ga. 302 (1979)) to

consider whether this aggravating circumstance is

unconstitutionally broad.

Petitioner concedes that the present state of

the law is such that this contention is without merit.

But even should the Supreme Court decide in the Godfrey

case that this aggravating circumstance is unconstitutional,

this would not provide grounds for any relief to Petitioner

because the jury in his case also found that he committed

the offense of murder while engaged in the commission

of an additional capital felony, to-wit, the armed

robbery of C. E. Eberhart (T. 529). Accordingly,

B-12

Count Twenty-Six of the amended petition is without merit.

THEREFORE, having all of the counts and allegations

of the Petition for Habeas Corpus, as amended, having

been found to be without merit, the Petition, as amended,

is denied.

This 14th day of December, 1979.

° EX CR » JUDGE SUPERIOR

COURTS, FLINT JUDICIAL CIRCUIT

B-13

‘Application Ne, 1129

SUPREME COURT OF GEORGIA

ATLANTA, January 25, 1980

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

HENRY ARTHUR DRAKE V. WALTER ZANT, WARDEN

Upon consideration of the application for a certificate

of probable cause to appeal filed in this case, it is ordered

that it be hereby denied ° All the Justices concur,

except Hill and Bowles, JJ., who dissent.

SUPREME COURT OF THE STATE OF GEORGIA,

Cuerk’s Orrice, ATLANTA, —

° 1 certify that the above is a true extract from the minutes

of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto affixed

the day and year last above written.

% Py aes

APPENDIX "C* Vole 5. \hetbeasen/ bie:

C-1

SUPREME COURT OF GEORGIA

ATLANTA, February 19, 1980

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

HENRY ARYHUR DRAKE WALTER ZANT, WARDEN

Vv.

Upon consideration of the Motion for Reconsideration

filed in this application, it is ordered that it be hereby

denied. All the Justices concur, except Jordan and Hill,

JJ., who dissent.

SUPREME COURT OF THE STATE OF GEORGIA,

CLERK’s OFFICE, ATLANTA,

I certify that the above is a true extract from the minutes

of the Supreme Court of Georgia.

Witness my signature and the sea! of said court hereto affixed

the day and year last above written. :

ment Gps A phaad

STATE OF GEORGIA )

COUNTY OF FRANKLIN ) APFIDAVI?

Personally appeared before the undersigned attesting

officer, ANDREW J. HILL, III, who after being duly sworn, |

dopense and states on oath as: follows: : .

* peponent ‘i ‘andrew J. sii, III, who is an | attorney ,

a law, ‘practicing on 144 Vickery Street, Lavonia, Georgia

30553. se

| 2.

Deponent understands that this Affidavit will be used

in the habeas corpus hearing of Henry Arthur Drake; said

hearing being held following the said Henry Arthur Drake's

conviction for the offenses of murder and armed robbery.

Deponent states that he was one of the attorneys

representing Henry Arthur Drake at his trial for the offenses

of murder and armed robbery in the Superior Court of Madison

County, Georgia, wherein the said Henry Arthur Drake was

found guilty of both offenses; said conviction being appealed

to the Georgia Supreme Court which affirmed his conviction

and sentence of life for armed robbery and death for murder

on June 27, 1978.

The purpose of this Affidavit is to relate facts known

by the Deponent insofar as facts pertain to the trial court's

allowance and the District Attorney's reading of certain case

law and also certain remarks made by the District Attorney

during the sentencing phase of Henry Arthur Drake's trial in

the Superior Court of Madison County, Georgia.

ey s.

Deponent states that during the sentencing phase of

Henry Arthur Drake's trial the District Attorney, in the

presence of the jury and within their hearing, read excerpts

APPEgix —

‘

from two prior Georgia Supreme Court decisions, said cases

being Hawkins v. State, 225 Ga. 207, 211 (1858) and Eberhart v.

State, 47 Ga. 598, 609 (1873).

Said case law was read by the District Attorney from

the speaker's earns. which was situated approximately two to

three feet from the jury box, said ‘podium being positioned

: AFM ree um ‘

between the jury box ‘and the: trial’ “Judge on the bench. That .

ye Hae Ve. RA

‘said law was a yy, the District ‘Aetorney with such emphasis

have been to isfivsnce, the passions ‘end prejudices of the

+ a7 ia

jurors that were sitting on said case.

The District Attorney also speaking to the court but

in the presence of the jury and from the podium during the

sentencing phase of Henry Arthur Drake's trial, made a reference

to Gary Gilmore, the first person executed in the United States

since the death penalty statutes of various states had been

revised.

Deponent further states that from his recollection of

the proceedings of the trial in Madison County, Georgia, when

the District Attorney was reading the case law to the court

in the presence of the jury and also making the statement as

to Gary Gilmore, that he would from time to time glance at the

jury during this presentation.

This 24th day of July, 1979.

Sworn to and subscribed

before me, this 24th day

of July, 1979.

Notary Al: 3

Notary Public, Georgia. State et Lerge

My Commission Expires Juty 27, 1982

| a

ereié

“Distvier Fone $ Closing Fora wren -

show you some of these pictures. This, of course, is the

barber shop. This is another view or shot of it.from anothes

view, what it looked like from the road. There's the old

dump - Sewek; there was Sees smeny about the hammer being re-

covered from it. “mat's the door or the entrenseway into ite—

BE ice the vent emere the A was recovered.” Look at the

“wall, just on ‘the inside. See how it had been smeared? 4

scuffle hed taken place. If you would please, just pass

‘those around. Look at the blood on that lavatory. Look a¢

the blood all around thet barber's chair. Look at that pic-

ture.

Now ladies and Bentlemen, I want to talk to you abdout

one other facter. We saw Campbell; you saw him testify,

and he talks like this (Mr. Huff is whispering); and the

reason he talks like this is a combination of three factors.

It's true he lost his false teeth and I think thas probably

would have helped some. The other is his extreme ecphyseza

that he has. According to officers, that he Can't--walk ever

&@ distance that he doesn't tire and have to sit down and

bend over and heave, because when he exerts himself to the

least amount, he is exhausted. And of course, the other rea-

son that he is so used to. talking low,.it's true, he has

spent so many years in prison and that's the way they talk.

They don't talk out loud in the prison System. They whisper.

He doesn't hardly know how to talk loud, only in a whisper.

» APPENDIX °F"

F-1

APPENDIX F |

And I submit to you that Mr; Eberhart, even though he was

Seventy Something years Old, that he was a big mar,,. Close to

200 pounds, in good health, vigorous, and the testinony was

that he led a very active life. sna you look at those Pic~

tures, and you look what & terrific scuffle took Place, and

I say to you that sallow this evidence, William Bill Campbel1

could not have Gone all that was done thet night. Just

that high. Just that high. Ana Ir Suggest to you, under.al}

that physical evidence, that it took more than little Campbel

to have done Old Mr, Eberhart in; because we Can tell-that

the old iia fought, anda he fought, and he foughse for his

life. And Campbell would have fallen Out from sheer exhaust

and emphysema long before those mortal blows woulda have been

Cone.

Now lad‘es and Bentlemen, this case rests in your hands,

the case of the State or Georgia versus money Drake--not

Bryant Huff, not the family of C. E. Eberhar:s. Whatever de.

Cision you have in this case will meet with my approval. fr

SUBBeSt to you that under the evidence in this case, the Ste

has met its burden of Proving beyond @ reasonable Goubt--not

every doubt, not all doubt, because that's not the require.

ments of the law; only beyond a reasonable doudt. Only mo

gest to you under the evidence that the State has met that

burden and we ask you to return a verdict of Guilty on both

ons . . ee

—F = - EO a

Now, Henry Drake, Mary Carruth anc 8i11 Campbell all living

‘ together, none of them working, doing no thing, and that is net

what I say, that is what he pate, these three people doing aothis

Who went ‘in there and Belles Mr. Eberhart? Did both of shen

ao “it, or did Campbell | 40 it: ‘alone, oF co Drake go it- -alone?

‘Well, you see crimes ‘like this are seldom ever- commited in the

ss Ce ee. ee, eee ee

presence of witnesses. I think that. you know the ‘People in your

ak: , =e Faerie. pepe

“coemni ty and 3 ‘think ‘that ae evidence. ‘shows ‘hiss that | D=ake' s

ae: te: a

mother “lives over here and over here te the wax Shop and

Campbell came and lived with Drake sdk Hary and ‘they weren' t

making anything, not working and they knew that Mr. Eberhart

hac some money on him. I have never been in a Barber shop in

my life that the barber cidn't have some money. You have been,

lots of you, and you know they always have change. I think this

evidence reflects and vou can so find that Drake was pretty

well known around Colbert and Canpbell poe to bis os man to. call

oe ene I have no doubt in my ming that he probably hei ped

om « ' ° (eee

Mr. Eberhart sweep the floor anc he probably left and welinn

around and came back, probably real close, where he waited

around there and then came back and Mr. Eberhart was fixing to

close and Mr. Eperhart opened that door back up and letting

on da. ff think that right there is eeebebiy when he stuck

thet knife in him and that is when the wespeste began. _ Yes,

he is not as big a man ‘as Mr. ‘ghierhart and that is why they

had one hellacious weiaete. Ee was drinking, and his: adrenalin

glands were working, because he was smaller, and that is why

he took the knife and stuck it in hia ané it weakened the old

and they fought, ané Tan sure that Mr. Eberhart knew that

the hammer was back there with some more tools and he got the

Naser ‘and hit Mr. Campbell over the head with this hammer and

APPENDIX G G-1

Pit oj e

rt > ie 7 at? & £0 Dy of & »

ea aaa aeaacaaaaaca acca

3 on there and he aie not get

os that blood is. ‘on the’ outside of that door, was af ter ie was

all « over ané os was given out and he was “eirea and ‘i was out

~“@ida't have anything,” didn't work for~anything-—Ee-is the guy—

that is why that Type A blood was right there on that hammer ang

found other places there, because that is the type blood Canpbeli

has got. Ycu may say, Why, Mr. Huff, peal t he take it and his

‘him Like that, vat you have to hiceaidiss thet he had this knife ~

in him and they had stuck him end that is probably he was just

»%

to 9 good a ‘hit on hia, ‘but that is,” :

- RE

~1 tes

> - i. =

there and I am sure he was stooping over and that is when that

lady came by and saw the man sitting there ané I guarantee yeu

that that is when his head bumped on the side, outside of that

Coor. I. don't think it takes anybody with super intelligence

to see and un¢erstand that. Now, whodd it, Campbell, Drake,

and you know what I say on this evidence, does it really matter

hich one, or the two, cr it they were in it together. I+ is

my thoughts on this evidence-that <his is the actual slayer,

M=. Campbell is, of Mr. Eberhart, because vou see that ko one

knew who Campbell was, except some of the Deputy Sheriffs and

very few people. You see Campbell told the Gar Agent, "Yeah,

I threw the hammer". Now, why would he tell this, because he

knew that he had handled that hammer and he felt like that there

might be a fingerprint on it, and that was the way he was

covering his tracks, to say that, Yes, I handled the hammer. .

The Barber Tools, he also stated that he handled those also,

and he was covering his tracks again. Would you look at those

poor little 014 berber tools. Who on earth would kill a man for

a few little old barber tools. Look at that. Fere they are,

G-2

ge : a@ cease of this nature that that is al) that is, is sorkaal

a eee any man that woulde carry those little clid>ers outros there:

Anyone that had gene through all of this ane kill somebody

had to wash up and all, who after setting the money would sax

ie: time to oe to steal e few iittle old barber tools, exe

someone like Willian aay) Campbe11 that you have er seen,

: nobody, nobody. | You know, ‘the first thing we shave to do is

we have + £o get the defendant present and put a motive’ “ha |

ena then we put him running. Campbell adnits the entire case

againat hin except that he didn't do it, that Drake 4id it.

I don't believe that you lacies and sentlemen are SOing to

that kind of story and say that, "You are right", and set hip

free. What would he S@y on Drake's trial? Well, he would be

free. They a=e both a part of this crime of robbery and meré

anc there is no mistake abou+ it, under the evidence. You -

= even got down to where even Campbell admits that tha: watch

came into the household that Fridey night, no Coubt about Pe

anc right over there in Madison, Georgia where they moved to.

There is evidence in this case, that they took him to Atlanta

and told hin to ‘Clear out and he went on to Norton, Virginia,

My daddy ran @ grocery store over there in Lawrenceville ali

his life and I can remember the old ice box where we kept the

ice ‘ia things in and that was my favorite sitting place. fr

was @ small boy end didn't go about much until I got out os. *

highschool and I can remember sitting on that old ice box

in che store and I heard my daddy Say one time, and that has

been almost thirty seven years ago, and he saic, "You know. the

| Bible says, ‘the guilty fleeth when no icin foreseeth'.. Alrigh

oo | flight-is evidence. of. Subit-ané-stact_that_you-nay-consiées

| the trial of this case. You see, you have got motive, you ¢

opportunity; you have SOR presences You FAVE BSE Slight ané

Piety he Was vy

- -e- * my < o4,

eee ewe.

‘When Drake sets up here before another jury ané states that

it for Drake to drive through and let hin out to get Mr.

ee Eberhart's money and then he would pick him back up end one is

just as guilty as the other. You might say, "Why did they xill

him in the first place", and as Mr. Huff said to you we have got

rules that we Rave to go by ia presenting the evidence. 2 man

has the right to get on the s tand and take the fifth azendaent

and Fefuse to answer ‘that ‘nisin on the Srounds that it would

tend ‘to isestedaate him, ana vou can't make him answer, and

I écn't know whether Grake would have Gone this or not, Sut I

¢o know this that under the rules of law, that when you put a

witness on the stand, that vou are bouné by what he says, ané if

we haé put Drake on the stand then we would be bound by whet

he said when we went to try him. Now, Ladies and Gentlemen,

Gon't let Mr. Campbell hoodwink ycu by saving that he had nothi

to Go with it ané shat Drake ¢id i+ ané@ don't so out there and

| Sy that he is not guilty because you Selieve what Campbell saié

Campbell cic it then that jury could say that nen saié that

Campbell cic it so it must be so and just turn him loose.

Lacies anc Gentlenen , this is your County and it is a good

County and + hove alseys found that Madison County juries will

Go the right thing and I know that you don't want these pecple

coming in here and killing and robbing your good citizens ané

get away with it. As Mz. Huff has said, the object of all |

legal investigations is the discovery of the truth and the ereta]

has come out here on this trial. The only thing that we are

interested in in trying to prosecute for the people in these

rininel cases is fez you to do” Justice: I say th zo

has come out thet this man is guilty as charged and now let's

va tt = |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.