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IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1979 

No. A-907 

  

WARREN McCLESKY, 

Petitioner, 

bn ¥ dha 

STATE OF GEORGIA, 

Respondent. 

  

  

PETITION. FOR WRIT OF CERTIORARI 

TO THE SUPREME COURT OF GEORGIA 

  

  

ROBERT H. STROUP 

1515 Healey Bldg. 
57 Porsyth St., N.W. 
Atlanta, Georgia 30303 

JACK GREENBERG 

JAMES M. NABRIT, III 
JOHN CHARLES BOGER 

10 Columbus Circle 

New York, N.Y. 10019 

ATTORNEYS FOR PETITIONER 

 



  

TABLE OF CONTENTS 
  

  

Citation £0 Opinion Bo loW... ovine esse sice sivas geiiiy 

JU ISAICTION. cv vo nv vin Fn al Ri ONE SI ee EE TT 

Constitutional and Statutory Provisions Involved....2 

Statement Of the Case. ued cer iin onsyin Ginsis tevin 

How the Federal Questions Were Raised And 
Decided Below. . cco. sve desis, Na RT aS rR ope 6 

Reasons For Granting The Writ: 

1. THIS COURT SHOULD GRANT CERTIORARI TO 
CONSIDER WHETHER GEORGI2Z'S RULE REGARD- 
ING THE ADMISSIBILITY OF OTHER ALLEGED 
ACTS OF CRIMINAL CONDUCT BY THE PETITIONER 
HAS BEEN SO BROADLY CONSTRUED BY THE GEORGIA 
COURTS SO AS TO DENY PETITIONER HIS 
FOURTEENTH AMENDMENT RIGHTS TO DUF PROCESS OF 
LAW. «vv» ARE OE Do DUBE rR ey a Ry 

A. Historical Basis in Anglo-American 
Jurisprudence For Exclusion of Evidence 
of Other Acts of Alleged Criminal 
CONIA CE cc tet aie tine ts snenine vais vs iy rn «dS 

B.: Evolution Of the Georgia Rule............ 8 

C. The Pule in Other Jurisdictions......ii.. 9 

I1. THE COURT SHOULD GRANT CERTIORARI TQ CONSIDER 
WHETHER PETITIONER'S RIGHT TO DUE PROCESS OF 
LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT 
TO THE CONSTITUTION OF THE UNITED STATES WAS 
INFRINGED BY THE GEORGIA PRACTICE OF GIVING 
THE JURY BROAD AND ALMOST UNLIMITED DISCRETION 
IN ITS USE OF EVIDENCE OF OTHER CRIMINAL ACTS 
AT BOTH THE GUILT AND SENTENCING PHASE OF A 
CAPITAL FPRILONY TRIAL. eee eiivednes set ses veinnivedld 

A. Instruction At Guilt Phase. ..... ovoid 

B. Instruction at Sentencing Phase .......... 

C. Conflict With Other State Court Decisions.l6 

III. THE DELIBERATE WITHHOLDING CF A CONFESSION, 
ALLEGEDLY MADE TO A GOVERNMENT INFORMER 
WHILE PETITIONER WAS INCARCERATED AND 
AWAITING TRIAL, DENIED PETITIONER DUE -PROCESS 
RIGHTS GUAPANTEED BY THE FOURTEENTH AMENDMENT 
TO THE. UNITED STATES CONSTITUTION. .v.i dees ove 

Asst RL he UE RO a SNE STE i 

Appendix A: Decision in McCleskv v. State, 245 Ga. 108, 
; SeBe28 YL IT80) rr eer: cn diese AL-ALD 
  

Appendix B: Decision in Fair v. State, Ga. 
  

No. 35701 (Ga., April 9, 1930).... Bl1-B21l 

 



    

  

  

  

  

TABLE OF AUTEORITIES 
  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

page (s) 

CASES 

Allanson v. State, 235 Ga. 584 GURL DE EE Ee Len 9 

Bacon'y. State, 200 Ga. 261 (1952)... 0. iversnnan, 9 

Bobo vy, State, 324 So.-24 336 (Ala, 1975... ... vu. 10, 13 

Brady v, Marviand, 373 U.S. 83 (1963). cove iuiies in 18 

Bullard v. United States, 395 F. 2d 658 {5th Cir. 
LL ERG Ce Rt Rh Ga 10 

Campbell vy, State, 234 Ga, 130 (1978) vevicy ussnsin 9 

CiucCli v. Illinois, 356 U.S. 571 LIOS8Y om es eine te 12 

Coley Vv, State, 231 Ca. 829 (XO74Y. vue oui vuiivs. sib. 15 

Commonwealth v. Connolly, 269 A. 2d 390 
SUURER LE LR TE a Ra CR NG 11, 14 

Cozzolino v. State, 584 S.W. 24 765 (Tenn. 1979)..... 16 

Drew v. United States, 331 F. 24 85 

(De Co CY: 1076), stevens tes ve sit nnins ni isan: 10 

Elledge v. State, 346 So. 2d 998 (Fla. 1977). sei in 16 

Fair v. State, Ga. - ', No. 35701 
(GR yADTIY 0,7 T0080) ies” x vse ssnnnnens sic ssas li 9 

Paretta v. California, 422 U.8. 806 (1975) cu vuvsuii. 12,14 

Pears Vv, State, 236 Ga. 660 (1976) ...4. seis 9 

Pleming v. State, 240 Ga. 142, 240 S.¥. 24 37 
(EY ieee e rs sivis ts sinsisasinne ss sinsnenasennsvive otis 7 

FOX V. State, 491 P, 24 721 (Nev, 1971)... dvavessi 10, 13 

Gardner v. Florida, 430 U.8. 349 (1977) avi ienesia 12 

Godfrey v. State of Georgia, U.8., - 
48 U.8.L.W. 4521 (May 18, A080). vou usu ils 7, 14; 

Green v. State of Georgia, U.S. 
BOL. Bo. 20 738 (1870). seo venisoioy, PERS 2,:14 

Gregg v. Georgia, 428 U.8. 153 (1976)... vues. 15, 16 

Hamilton wv, State, 239 Ga. 72 (1977)... 0s ERE 9 
Harris v. United States, U.s. .", No, 79-121 

(une 16, GY, cer srs vrs dl a 18 

Hawes v., State, 240 Ga. 327, 240 S.E.2a 844 {1978)...7   

Howard v. State, 
  

211:Ga, 186 (1954), ues cvivninnnisivi 9 

ii 

15 

 



  

  

  

  

  

  

  

  

  

  

  

  

CASES 
Johnson v. State, 509 5.W.28 639 (Tex. 1974)... cruivi 14 

Jones v. State, 481 S.W.2d 900 (Tex, 1972). cccavecees 10 

Ring vy. Statep 253 Ark. 614 (1972) csv svn rvensneinviens 13 

Lockett v. Ohio, 438 U.S, 586 (1978) uveveneerrasnsnivs 12, 15 

Mamming v. Pose, 507 FP. 2d 889 (6th Cir. 1974) .cusnvrs il 

Martin v. State, 346 A. 24 158 (Del. 1975) cave eesveos 13 

McClesky v. State, 245 Ga. 108 (1980) .suinvevnvavsnnny 1,9 

McElroy v. United States, 164 U.S. 76 (1896). ..vav uss 8 

McKelver v. Pennsylvania, 403 U.S. 528 (1971) cues ne 12, 14 

Michelson v. United States, 355 U.S. 469 (1948)...... 32 

Nami vv, State, 77 S.B. 28 528 (Pex. 1934) 4 icoicasis esas il 
  

People v. Castronova, 354 N.Y. 24 250 (N.Y. 1974)....11, 14 
  

People v. Flansburger, 180 N.W. 24 373 
  

  

  

  

  

  

  

  

  

  

  

  

  

    

  

  

  

{MIC L070 ie vs nn it cvtis van verti sr vs ins ntteivenvenens 10 

People v. Gay, 104 Cal. Rptr. 812 (1972). cue vuenesves 10 

People v. Heiss, 30 Mich. App. 126 (1971) cues cvnnean 13 

People v. Perez, 117 Cal. Rptr. 195 (1974)... causes 13 

People v. Romero, 334 N.E.2d4 305 (111. 1975) ..ccuvnvn 10, 13 

People v. Stanworth, 457 P.24 889 (Cal. 1969) ...4404044 11 

Presnell v, Georgia, 439 U.8. 14 (1978) scenes nsnsinn 12 

Proffitt v.iFlorida 428 U.S. 242 £1976) cv eve viunnnns 15 

POSborough Vv. State, 209 Ga. 362 (1954) cv eine evisevs 9 

Snyder v. Massachusetts, 291 U.S. 97 (1934). .vveccsves 12, 14 

Spenceyr v. Texas, 385 U.S. 564 (1967) au esvvnncssnnnive 12 

State v. Billstyom, 149 N.W.24 281 (Minn. 1967)...... 0, 11,13 

State v. Bly, 523 P,24 397 (Kan. 1974) .csvscvsntnrssr 10, 13 

State v, Cote, 235 A. 24 111 (N.H. 1967), cert. denied 
350 0.5, 1025 £19068) suisse svvansstsvvererinnsnninens 10, 13 

State v, Choram, 290 So, 24.830 (La, 1974)... vers rave 13 

State v. Hernandez, 437 P.24 952 (Ariz. 1968): civeeee 10, 11,:13 

State v., Holliday, 159 Conn. 169 (1970) cscens servers 13 

State v. Lombardi, 319 A. 28 346 (R.1., 1974)... ceenven 13 
  

iii 

 



  

Page (s)   

CASES 
  

State v. McCardle, 194 S.E. 284 174 (Wi. Va. 

LOT 3) cae vers viting ces eiens ss tiinnieiaie retinas samanns 14 
  

State v. McCormick, 397 N.E. 24 276 (Ind. 1979).16   

State v. Patterson, 443 s.W.24 104 (Mo., 1969)..13 
  

State v. Redford, 496 P.2d4 834 (Utah, 1972)..... 14   

State v. Smalls, 194 Ss. E.24 188 (5.C., 1973)....14   

State v. Stevens, 238 N.W.2d 251 (N.Dakota,   

State v. Stollings, 212 8.2.28 745. .(w. Va. 1975)11   

  

  

  

  

  

  

  

State v. Watson, 252 N.E.2d 305 (Ohio, 1969)....10, 

State v. Whalon, 464 P. 28 730 (Wiash. 1970). .... 10, 

Stull v, Peoples, 344 P. 24 455 (Colo. 1955)..... 13 

Taglianetti v. United States, 394 U.S. 316 
ODD) yes vw an vie vo dineiavesnidie ens on snes srs 18 

United States v. Fierson, 419 F. 2d 1020 
(TEN CIC. L070) sev vee veenesniitnivitessvvnnensie 10 

United States v. Klemons, 503 F. 24 486 
503 F. 20. 486 (8th Cir. 1974). .vevecnnivsonces 11 

Wilson v. State, 212 Ga. A412 (1956)... coe nnsnis 0 

WOO Vv. State, 224 Ca. 121 {1968) ..ccevvsers sevens 9   

Woodson v. North Carolina, 428 U.S. 280 

1D 70) ss vie sion vo sssaneisnonnennsssnninnnntdsninnenis 15 
  

iv 

14 

 



  

STATUTES 
  

Ga. Code Ann. §38-202 . . . ie Nie he eile aE 

Ga. Code Ann. 8§27-2534.1 . 'v o.oo Li ae 

Ga. Code Ann. '§27=2537(c). vv . io Lil 

28. UB.C.a8I2587(3) , on vi ud Nl i, 

OTHER AUTHORITIES 
  

H. Calven & HEH. Zeisel, The American Jury (1966). .. 
  

"Constitutional Problems Inherent in Admissibility 

of Prior Record Conviction Evidence," 37 U. Cin. 

Le Rev, T1688 (1968)... +, oy Jl, I jm ines 

McCormick, PFvidence, 2nd Pdition . . . . . Jo. 
  

Weilnstein's Evidence . i.) . pogiing FEE ST 
  

Wiomore, Fvidence (1954) uv uv il ui Silla 
  

"Other Crimes at Trial," 70 Yale 1.7. 763 (1961) .. 

  

 



  

IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1979 

  

NO. A-907 

  

WARREN McCLESKY, 

Petitioner, 

Versus 

STATE OF GEORGIA, 

Respondent. 

  

PETITION FOR WRIT OF CERTIORARI 

TO THE SUPREME COURT OF GEORGIA 
  

Petitioner, WARREN McCLESKY, prays that a Writ of Certio- 

rari issue to review the judgment of the Supreme Court of 

Georgia entered on January 24, 1980. 

CITATION TO OPINION BELOW 
  

The opinion of the Georgia Supreme Court is reported at 

245 Ga. 108, S.E. 28 , (1980) and is set forth in 

Appendix A hereto, pp. Al-A1l0, infra. 

JURISDICTION   

The judgment of the Supreme Court of Georgia was entered 

on January 24, 1980. By order dated April 23, 1980, Justice 

Lewis F. Powell granted an extension of time for filing a writ 

of certiorari, to and including June 22, 1980. Jurisdiction of 

this Court is invoked under 28 U. 8. C. §1257(3), petitioner 

having asserted below and asserting here deprivation of rights 

secured by the Constitution of the United States. 

QUESTIONS PRESENTED   

l. Whether, in the context of a capital felony trial, 

Georgia has so broadly construed its rule regarding the ad- 

missibility of other alleged acts of criminal conduct by the 

 



  

petitioner so as to deny petitioner his right to due process 

of law as guaranteed bv the Fourteenth Amendment to the 

Constitution of the United States; 

2. Whether, in the context of a capital felony trial, 

the instructions given to the jury regarding the use which they 

might make of evidence of other alleged acts of criminal con- 

duct by the petitioner, at both the guilt and sentencing phase, 

denied petitioner's right to due process of law as guaranteed 

by the Fourteenth Amendment to the Constitution of the United 

States; 

3. Whether the deliberate withholding from petitioner of 

an alleged confession by petitioner to a overnment nformer 

while petitioner was incarcerated and awaiting trial denied 

petitioner's right to due process of law as guaranteed by the 

Fourteenth Amendment to the Constitution of the United States. 

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 
  

l. This case involves the Eighth and Fourteenth Amendments 

to the Constitution of the United States. 

2. This case also involves the following provisions of 

Georgia Code Annotated: 
  

§38-202 

"The general character of the parties, 
and especially their conduct in other tran- 
sactions, are irrelevant matter, unless the 
nature of the action involves such character 
and renders necessary or proper the investiga- 
tion of such conduct. 

$§27-2534.1 
  

"(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 in- 
structions to the jury for it to consider, any 
mitigating circumstances or aggravating circum- 
stances otherwise authorized by law and any of 
the following statutory aggravating circumstances 
which may be supported by the evidence: . . . 
(2) the offense of murder, rave, armed robbery, 
or kidnapping was committed while the offender was 
engaged in the commission of another capital 
felony, or aggravated battery, or the offense of 
murder was cormitted while the offender was engaged 
in the commission of burgulary or arson in the 
first degree. . : 

 



  

(8) the offense of murder was committed against 
any peace officer, corrections employee or fire- 
man while engaged in the performance of his of- 
ficial duties. 

* * * 

(c) the statutory instructions as determined by 
the trial judge to be warranted by the evidence 
shall be given in charge and in writing to the 
jury. The jury, if its verdict be a recommenda- 
tion of death, shall designate in writing, signed 
by the foreman of the jury, the aggravating 
circumstance or circumstances which it found 
beyond a reasonable doubt. Except in cases of 
treason or aircraft hijacking, unless at least 
one of the statutory aggravating circumstances 
enumerated in §27-2534.1(b) is so found, the 
death penalty shall not be imposed." 

STATEMENT OF THE CASE 
  

Petitioner, WARREN McCLESKY, was indicted on June 13, 1978 

for the murder of Frank Schlatt, an officer with the Atlanta 

Bureau of Police Services, during the course of a robbery of the 

Dixie Furniture Store in Atlanta. Petitioner was also indicted 

on two counts of armed robbery. 

The charges against petitioner were tried before a jury on 

October 9-12, 1978 and he was convicted on all three counts. In 

a separate sentencing phase, the jury imposed the death penalty 

for the murder conviction and imposed two consecutive life 

sentences for the armed robbery conviction (Tr. 1031). 

The Court ordered that petitioner be executed by electrocu- 

tion on November 22, 1978 (Tr. 1036). His execution has been 

stayed pending appeal. McClesky's conviction was appealed to the 

Supreme Court of Georgia which upheld his conviction and sentences 

on January 24, 1980. 

Petitioner was convicted of murder on the State's theory that 

he was the trigger man in the robbery. The State did not intro- 

duce the murder weapon and no one testified that they saw petitioner 

shoot Officer Schlatt. In addition to certain testimony regarding 

the Dixie Furniture Store robbery, the State introduced evidence 

 



  

regarding two armed robberies which had occurred six weeks 

prior to the Dixie Furniture Store robbery (Tr. 673, et seq.; 

Tr. 884, et seq.). Although the State contended that petitioner 

had participated in those robberies, he had been neither convicted 

nor indicted for those robberies. No instruction was given to the 

jury regarding what standard of proof the State bore in proving 

petitioner's participation in those robberies. During the 

course of the trial, the State also introduced evidence of prior 

convictions or guilty pleas of the petitioner for armed robberies 

which had occurred seven or eight years earlier (Tr. 1066-1078). 

Petitioner was cross-examined by the State regarding the details 

of each of the robberies which were the basis for the prior con- 

victions or guilty pleas (Tr. 843-849). 

At trial, the State presented testimony by five witnesses 

(other than petitioner's co-defendant) who stated that they saw 

petitioner participate in an armed robbery. Of these five 

witnesses, however, only two identified petitioner as a partici- 

pant in the Dixie Furniture Store robbery. The other three 

_ witnesses testified to details of petitioner's alleged participa- 

tion in other robberies not closely connected in time or place 

with the Dixie Furniture Store robbery. 

The introduction of evidence of other robberies not closely 

related to the Dixie Furniture Store robbery was introduced over 

the objection of defense counsel (Tr. 668-671). With respect to 

the introduction of such evidence, the Court gave the jury the 

following instruction at the time of its admission: 

"Ladies and Gentlemen, in the prosecution for 
a particular crime, evidence which in any 
manner shows or tends to show that the accused, 
that is, the defendant in this case, has commit- 
ted another transaction, wholly distinct, 
independent and separate from that for which he 
is on trial, even though it may show a transac- 
tion of the same nature, with similar methods, 
in similar locations, it is admitted into 
evidence for the limited purpose of aiding in 
identification and illustrating the state of mind, 
plan, motive, intent and scheme of the accused, 

if, in fact, it does to the jury illustrate those 
matters. 

 



  

Now, whether or not the defendant was 
involved in such similar transaction is a 
matter for you to determine, and the Court 
makes no intimation in that regard. 

Furthermore, if you conclude that the 
defendant now on trial was involved in a 
similar transaction or these similar tran- 
sactions, you should consider it solely with 
reference to the mental state and intent of 
the defendant insofar as applicable to the 
charges in the indictment, and the Court in 
charging you this principle of law in no way 
intimates whether such transaction, if any, 
tends to illustrate the intent or state of 
mind of the defendant. That is a question 
for the jury to determine, but this evidence 
is admitted for the limited purpose mentioned 
by the Court, and you will consider it for no 
other purpose except the purpose for which it 
is admitted. All right, proceed" (Tr. 673-674). 

The Court repeated this charge almost verbatim in its instruc- 

tions to the jury just prior to its deliberation with respect to 

petitioner's guilt (Tr. 992-993). 

After the jury returned verdicts of guilty on all three 

counts, the Court gave the jury instructions regarding its 

sentencing deliberations. No instruction was given that the jury 

should disregard the "other acts" evidence presented at the trial. 

No instruction was given regarding what weight, if any, the jury 

should give to the evidence presented regarding other alleged acts 

of criminal conduct by the defendant. Rather, the Court instruct- 

ed the jury that all the evidence presented at the guilt phase 

could be considered at the sentencing phase. The verbatim in- 

struction given to the jurv was as follows: 

"In arriving at your determination of which 
penalty shall be imposed, you are authorized 
to consider all the evidence received here in 
court, presented by the State and the defendant 
throughout the trial before vou" (Tr. 1028). 

One of the other alleged robberies was offered for impeachment 

purposes (Tr. 884), and at the time of its introduction, the Court 

gave a cautionary instruction (Tr. 885). Ko cautionary or limiting 

instruction regarding the use of such evidence was given as part 

of the general instructions to the jury prior to deliberating 

either as to guilt or the sentence. The broad general instruction 

which was given regarding the use of evidence of other criminal acts 

-5- 

 



  

(supra, at 4-5), invited the jury to use this evidence for 

purposes other than those for which it was offered. 

At trial, the defendant testified and on direct examination 

the fact of prior armed robbery convictions was elicited (Tr. 8053). 

On cross-examination, the State offered copies of prior indictments 

and convictions (Exhibits 8-32 - S$-35); (Tr. 1066-1078). The 

State also examined petitioner in detail regarding the acts which 

were the basis for those prior convictions seven to eight years 

prior to the Dixie Furniture Store robbery (Tr. 843-849). 

No instruction was given to the jury at either the guilt or 

the sentencing phase to channel the jury's discretion regarding 

its use of the evidence of prior convictions. 

The State also introduced into evidence the testimony of 

Offie Gene Evans, a prisoner and informant, who testified regard- 

ing an alleged confession by petitioner which he elicited from 

petitioner while both were incarcerated at the Fulton County Jail 

(Tr. 869-871). This statement had not been provided to petitioner 

prior to trial, and petitioner denied making any such confession 

(Tr. 826-34). 

HOW THE FEDERAL QUESTIONS WERE RAISED AND DECIDED 

BELOW. 
  

I. In the Court below, petitioner contended that the intro- 

duction of evidence of other acts of alleged criminal conduct was 

error. Briefs submitted to the Georgia Supreme Court cited 

authority which was based upon the federal constitutional protections 

assured by the Fourteenth Amendment. The Georgia Supreme Court 

rejected petitioner's claim that the evidence was erroneously 

omitted, 245 Ga., at 114. 

II. In the proceedings below, the Georgia Supreme Court passed 

upon the adequacy of the jury instructions as part of its statutory 

duty imposed by Ga. Code Ann. §27-2537(c) (1-3), and concluded 

1/ 
that the instructions were adequate, and that the sentence of death 

  

"The Georgia Supreme Court stated, at 116: 

-6- 

 



  

was not imposed under the influence of orejudice or any other 
2/ 

arbitrary factor. The Court did so although petitioner did 

not expressly challenge the adequacy of the instructions below. 

IIT. In the Court below, the petitioner contended that 

the admission into evidence of an oral statement deliberately 

withheld from the petitioner after filing a Brady motion denied 

him his due process rights. The Georgia Supreme Court rejected 

vetitioner's claim. 

REASONS FOR GRANTING THE WRIT 
  

I. THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER 
GEORGIA'S RULE REGARDING THE ADMISSIBILITY OF OTHER 
ALLEGED ACTS OF CRIMINAL CONDUCT BY THE PETITIONER HAS 
BEEN SO BROADLY CONSTRUED BY THE GEORGIA COURTS SO AS 
TO DENY PETITIONER HIS FOURTEENTH AMENDMENT RIGHTS TO 
DUE PROCESS CF LAW. 
  

This Court has recently considered due process requirements 

in the context of state evidentiary rules applicable to the 

sentencing phase of capital felony trials. Green v. State of 
  

Georgia, U.S, ; 60. L. Bd. 24 738 (1979). The Court has 
  

also recently considered the requirements of the due process 

clause in the context of jury instructions which failed to 

adequately limit the discretion of the jury in a sentencing 

phase. Godfrey v. Georgia, U.S. : 48. U, 8. 1. Wi. A541 
  

(May 19, 1980). This case presents questions regarding due 

  

1/ Continued:   

"We have thoroughly reviewed the instructions of 
the trial court during the sentencing phase of 
the trial and find that the charge was not 
subject to the defects dealt with in Fleming v. 
State, 240 Ga. 142 (240 S.E.24 37) {1978}, and 
Hawes v. State, 240 Ga. 327 (240 S.E.2d4 833) (1978)." 

  

  

2/ 
~ The Georgia Supreme Court further stated, at 115: 

"As required by Ga. IL. 1973, p. 159, et seq. (Code 
(Code Ann. §27-2537(c) (1-3)), we have reviewed the 
death sentence in this case. We have considered 
the aggravating circumstances found by the jury, the 
evidence concerning the crime, and the defendant 
pursuant to the mandate of the statute. We conclude 
that the sentence of death imposed in this case was 
not imposed under the influence of passion, prejudice, 
Or any other arbitrary factor." 

  

 



  

process standards applicable to the admissibility of evidence 

OF other acts of alleged criminal conduct by the defendant 

during the guilt phase of a capital felony trial and the due 

process standards applicable to jury instructions regarding 

the use which the jury may make of that evidence consistent 

with the due process clause of the Fourteenth Amendment. 

A. Historical Basis in Anglo-American Jurisprudence 
For Exclusion of Evidence of Other Acts of Alleged 
Criminal Conduct. 
  

It ‘has long been the rule in Anglo-American jurispru- 

dence that the State should not introduce evidence of other 

acts of criminal conduct of the accused to prove a predis- 

position for crime. 1 Wigmore, Evidence, 4455-57; McCormick 
    

On Evidence, 24 Ed. §190; "Other Crimes At Trial," 70 Yale Law 
3/ 

  
  

Journal 763 (1961) The reason for the distrust of evidence 

of other acts of criminal conduct is the belief that the jury 

will convict not because of guilt for the crime charged, but 

rather because of the belief that the defendant is a bad man 

and should be convicted regardless of guilt for the offense for 

which he is at trial. 1 Wigmore, Evidence, .§57; 37 U.Cin. L. Rev. 
  

  

168 "Constitutional Problems Inherent in the Admissibility of 

4/ 
Prior Record Conviction Evidence," 1968, at 172. 

B. Evolution of the Georgia Rule. 
  

Georgia has until relatively recent time, followed the 

common law rule which generally prohibited the introduction of 

evidence of other criminal conduct. The leading statement of 

  

a 
“This Court noted many years ago the related principle, long 
established in Anglo-American law, that a defendant should be 
tried for a single criminal act. McElroy v. United States, 
164 U.8. 76, at 79-80 (1896) (". . .1TI}t is {thel well settled 
rule in England and many of our States, to confine the indict- 
ment to one distinct offense or restrict the evidence to one 
transaction. ") 

4/ 
“Contemporary studies have shown the longstanding common law rule 
was justified in fact. Recent studies have shown that evidence 
of prior convictions is a potent factor in influencing the 
judgment of judges and jurors.  H. Calven and H., Zeisel, The 
American Jury, 122, 147, 389 (1966). TL 

  

  

 



  

the rule favoring exclusion of such evidence is found in 

Bacon v. State, 209 Ga. 261 (1952), Since that decision,   

however, the Georgia courts have moved away from the Anglo- 

American tradition to the point where evidence of independent 

crimes or alleged crimes is admitted freely. This change 

in the Georgia rule is traced by former Justice Ingram of the 

Georgia Supreme Court in his dissent in Hamilton v. State, 239 
  

Ga. 72, at--77=-78 (1977): 

"I dissent to the judgment of the Court in this 
case primarily because, without expressly say- 
ing so, the majority has greatly weakened the 
doctrine of Bacon v, State, supra. . .I cannot 
honestly say that this jury was not significant- 
ly influenced by the illegal admission of this 
evidence of an independent crime. If you doubt 
that the Bacon doctrine is being erroded, read 
the following cases. Cf. Rosborough v. State, 
209° Ga. 362 (2) (72 5.¥%.28 717) (195%; Howard 
VY. State, 211 Ga, 186 (3) (84 S.E.24 455Y(1653); 
Wilson v. State, 212 Ga. 412 (2) (93 8.7.24 334%) 
{1956%; Wood v. State, 224 Ga, 121 (5) (160 s.EL. 
24 368) (1968) with Campbell v. State, 234 Ga. 
130 (214 5.E.24 656) (1975); Allanson v. State, 
235 Ga. 584 (1) (221 S.E.24 3) (1975): and Tears 
Y. State, 236 Ga. 660 (1) (225 5.R.284.4) (19763. 
These cases show a remarkable trend, in my judgment, 
towards the liberal admission into evidence of 
independent crimes. If this is to be the new rule, 
why not just say, boldly and plainly, that the 
barrier has been lifted and defendants will now be 
tried on their record irrespective of any connection 
with the alleged crime on trial." 2 

  

  

  

  

  

  

  

  

C. The Rule In Other Jurisdictions. 
  

The majority of American jurisdictions, both State and 

Federal, do not apply the relaxed standards regarding admissi- 

bility as is followed by the Georgia courts. In most of these 

jurisdictions, the courts have developed strict standards which 

must be met prior to the evidence of independent criminal 

conduct being admitted to the jury. 

  

5/ 
“The following cases exemplify the relaxed standards apovlied by 
the Georgia Court in admitting evidence of other criminal con- 
duct: In Hamilton v. State, supra, an armed robbery trial, the 
Court approved introduction into evidence of testimony of four 
witnesses regarding three other acts of armed robbery for which 
the defendant was not on trial and had not been indicted or con- 
victed. Of the four witnesses to the three other acts, three 
were unable to identify defendant as one of the persons who 
had robbed them. In Fair v. State, Ga. + NO. 35701 (Ga. 
April 9, 1980), (a decision citing McClesky V. State, 245 Ga. 108 
(1980) as authority), the Court authorized admission into evidence 

  

  

  

Qu 

 



  

Among the safeguards which the other jurisdictions 

generally impose are the following: 

(1) The State must make a clear showing of the 

probative value of the evidence to an element 
6/ 

of the crime charged; 

(2) The evidence will not be admitted if offered 

for proof of an element of the crime which is 

not contested, or is duplicative of other 

evidence on that Sans 

(3) In cases where the evidence of independent al- 

leged criminal acts is offered to show the 

identity of the perpetrator of the crime [such 

as was apparently the case in petitioner's trial 

herein], a high degree of similarity between the 

8/ 
other acts and the act being tried must be shown; 

  

5/ Continued: 
  

of another act of murder even though the defendant was subse- 
quently acquitted of that other murder charge. A copy of that 
unpublished decision is attached as Exhibit B, PP. Bl-B2l, infra, 

6/ 
“State v. Hernandez, 437 P.2d 952 (Ariz. 1968); state v. Bill- 
strom, 149 N.W. 2d 281 (Minn. 1967); State v. Stevens, 238 
N.W.2d 251 (N. Dakota 1975); State v. YWatson, 252 N.E.24 305 
(Chilo, 1969); State v, Whalon, 264 B.39 730 (Wash,, 1970); 
Bullard v. United States, 395 PF. 2d 658 {5th Cir. 1068); 2 
Weinstein's Evidence, ¢404[08]. 

  

  

  

  

  

  

T State v, Bly, 523 P.24:397 (Xan., 1974); People v. Gay, 104 
Cal. Rptrxr. 8l2, 28 C.A.3vd 661 (19732); People v. Flansburgh, 
180 N.W. 2d 373 (Mich., 1970); Jones v. State, 481 S.wW.2d 900 

  

  

  

  (Tex., 1972); United States v. Fierson, 419 F.2d 1020 {7th Cir. 
1970); 2 Weinstein's Evidence, at 404-45; Fox v. State, 491 P. 
  

  
  2d 721 (Nev.,, 1971). 

~ State v. Hernandez, supra. n. 6; People v. Romero, 334 N.E.2d 
305 (111. 1975); State v. Billstrom, supra, n. 6; State v. 
Stevens, supra, n. 6; Bobo Vv. State, T2400. 24 33E (Ala, 
Court of Crim. App., 1975); State v. Watson, supra, n. 6; 
Drew y. United States, 331 ¥. 24 55 {D.C.Cir., 1976); Mc- 
Cormick Evidence, 2d Ed. 9190 ("The device used must be so 
unusual and distinctive as to be like a signature.") 

  
  

  
  

  

  

    

  

  

=] 

 



  

(4) The evidence regarding the independent acts nust 

prove criminal conduct of the defendant by clear 

and convincing evidence or beyond a reasonable 
9/ 

doubt. 

(5) Evidence of other convictions are admissibly only 

by way of record evidence of the convictions them- 

selves rather than testimony regarding the other 
10/ 

acts. 

The Georgia rule regarding admissibility of independent acts of 

criminal activity contains none of these safeguards. The Georgia 

rule denied petitioner a fair trial in contravention of the due 

process clause of the Fourteenth Amendment. The State should not 

have been permitted to introduce evidence of alleged crimes which 

were not sufficiently related to the crime for which petitioner was 

tried so as to be probative of the question of his guilt for that 

crime. The effect of the broad Georgia rule was, in petitioner's 

case, to permit the State to put before the jury cumulative 

evidence designed to create in the jury's mind the impression that 

petitioner was a bad person. The end result was the likelihood 

that the jury convicted petitioner not because of the jury's 

determination regarding his participation in the Dixie Furniture 

Store robbery, but rather because of the jury's determination with 

respect to whether or not he was a bad person or a person with a 

  

9/ 
“People v. Stanworth, 457 P. 2d 889 (Cal. 1969); Nami vy. State, 
77 8. UW. 28 528 (Tex., 1934); State v. Hernandez, supra, n. 6; 
State v. Billstrom, supra, n. 6; gtate v, Steyens, supra, n., 6; 
Manning v. Rose, 507 F. 2d 889, 892 (6th Cir. 1974) ("American 
jurisdictions nearly universally have rules somewhat similar to 
the Tennessee common law rule allowing 'clear and convincing’ 
evidence of other crimes to establish identity"); United States v. 
Rlemons, 503 FF. 24 486, 490 (8th Cir. 1974). 

  

  

  

  

  

  

  

10/ 
T State 'v. Stollings, 212 8.'E, 24 745 vw. Va., 1975); Commonwealth 
V. connally, 263 A. 24 390 (Pa., 1970); People v, Castronova, 354 
  

  

  

  

N.Y.5. 24 250 (M.Y., 1974); State v. Cote, 235 A. 34 111 (N.H,, 1967), 
  

cert. denied, 390 U.S. 1025 (1968). 
  

“lle 

 



  

criminal propensity. This was heightened by the absence of 

proper limiting instructions to the jury to guide its discre- 

tion (see Part II, infra). And, as one scholarly commentator 

has noted, the prejudice to petitioner was "particularly 

damaging" because the jury determined both questions of guilt 

and the sentence to be imposed. 70 Yale Law Journal, supra, at 
  

763. 

The fact that a large number of other jurisdictions do not 

follow the Georgia practice regarding admissibility of other 

acts evidence [see further citation of cases from other juris- 

dictions, infra, at 13], is indicative that the Georgia practice 

offends principles of justice rooted in the tradition and conscience 

of the American people in contravention of Fourteenth Amendment 

rights. Snyder v. Massachusetts, 291 U. S. 97, 758 1... B44. 674 
  

(1934); McKeiver v. Pennsylvania, 403 U. S. 528, 29 L. Ed. 2d 647 
  

(1971); Paretta v. California, 422 U.S. 806, 45 1. E&. 24 526 
  

(1975). 

The constitutional requirements regarding admissibility of 

other acts evidence, particularly when it is to be relied upon 

by the jury in the sentencing phase, are heightened. Presnell v. 
  

Georgla, 439 U, S. 14, 16 (1978); Gardner v. Florida, 430 U. 8. 
  

349 (1977; Lockett v. Ohio, 433 U. S. 536, 57 1. Bd. 248 973, at 
11/ 

989 (1978). (See discussion, infra, Part II.) Therefore, the 

  

Court should grant certiorari to consider the constitutionality 

of Georgia's broad construction of its rules regarding admissibility 

-0f evidence of other acts of alleged criminal conduct in a capital 

felony trial. 

  

1 
~ In other contexts, this Court has also considered the propriety 
of admissibility of such evidence. Michelson v. United States, 
355 UC. S..469 (1948); cCiucci v., Illincis, 356 UG. &. B71 (1958) ; 
Spencer v. Texas, 385.0. S. 564 (1967). 

  

  

  

-12- 

 



  

II. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER 

PETITIONER'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED 

BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE 

UNITED STATES WAS INFRINGED BY THE GEORGIA PRACTICE OF 

GIVING THE JURY BROAD AND ALMOST UNLIMITED DISCRETION 

IN ITS USE OF EVIDENCE OF OTHER CRIMINAL ACTS AT BOTH 

THE GUILT AND SENTENCING PHASE OF A CAPITAL FELONY 

TRIAL. 
  

As noted above, the trial court instructed the jury just 

prior to its deliberations regarding petitioner's guilt that 

it could consider the evidence of other alleged acts of criminal 

conduct for the purpose of illustrating the state of mind, plan, 

motive, intent, and scheme of the accused as well as aiding in 

identification of the perpetrator of this crime (Tr. 993), and 

at the sentencing phase, the jury was instructed simply that "in 

arriving at vour determination of which penalty shall be imposed, 

you are authorized to consider all the evidence received here in 

court, presented by the State and the defendant throughout the 

trial before you" (Pr. 1028). 

These broad instructions to the jury at both the guilt and 

sentencing stage permitted the jury to use the evidence of other acts 

at the whim and discretion of the jury without effective limi- 

tations. A number of American jurisdictions have expressly dis- 

approved such sweeping instructions to the hos re nearly every 

American jurisdiction requires a very narrow instruction to the 

jury limiting the use that the jury may make of other acts 
13/ 

evidence which has been presented to the jury. 
  

  

12/ 5 = 

= People v. Pomero, 334 N.E.24:305 (I11., 1975): State v. Bly, 523 
P.28 397 (Kan., 1974); State v. Whalon, 464 r.24 730 (wash., 1970 ). 
    

  

213/ : 
TT Bobo'v. State, 324 S0.24 336 (Ala. Court of Crim. App., 1975); 
State v. Hernandez, 7 Ariz. App. 200, 437 P.24 1952 (1968); Ring 
V. State, 253 Ark,, 614, 487 S.W.24 596 (1972); People Vv, Perez, 

117 Cal. Rpty. 195, 42 C.A,.3xrd 760 (1974); Stull v, Pecple, 344 Pp, 
2d 455 (Colo., 1955); state v. Holliday, 159 Conn. 169, 268 A.24 
368 (1970); Martin v. State, 346 A,.2d 158 (Del., 1975); People v,. 
Romero, supra, fin. 12; State v. Bly, supra, fn. 12; State .v. Ghoram, 
290 So.2d 850 (La., 1974): People. v. Heiss, 30 Mich. App. 126, 186 
N.W.24 63 (1971); State v. Billstrom, 276 Minn. 174, 149 N.W.24 281 
(1967); State v. Patterson, 443 5.¥W.24 104 (Mo., 1969); Fox v. State, 
491 P. 24 721 (Nev, 1971): State y. Cote, 108 N.H, 290, 235 A,2d 111 

  

  

  

  
  

  

  

  
  

    
  

  

  

  
  

  

i} Sen 

 



  

A. Instruction At Guilt Phase. 
  

The instructions given to the jury at the guilt phase 

of the trial, rather than restrictively limiting the jury in 

its use of the evidence, invited the jury to use it for the very 

purposes for which limiting instructions in the other juris- 

dictions are given to prohibit its use. The instruction given 

in Georgia in this case invited the jury to consider the other 

acts evidence to conclude that petitioner was a bad person, where- 

as, in other jurisdictions, the instructions to the jury are very 

carefully worded to prohibit such use. This substantial devia- 

tion from long established practice in American jurisdictions 

contravenes petitioner's due process rights assured by the Four- 

teenth Amendment. Snyder v. Mass.; supra, McKeiver v. Pennsylvania, 
    

supra; Faretta v. California, supra. 
  

B. Instruction at the Sentencing Phase. 
  

The Court should also grant certiorari to review the 

failure of the Georgia Courts to provide proper limiting instruc- 

tions regarding the use the jury may make of evidence of other acts 

in determining whether to impose the death penalty. The broad 

instruction given to the jury at the sentencing phase - simply 

that it was authorized to consider all evidence received in court - 

left the jury with unbridled discretion regarding the use of such 

evidence. 

This Court has recently considered the applicability of 

Fourteenth Amendment protections to the sentencing phase. Green v.   

  

State of Georgia, U.S. 60 L. Bd. 24738 (1979): Gardner 

Vv, Florida, 430 U.S, 349, 51 L. Fd. 24 393, at 404 (1977). As   

  

13/ Continued: 

(1967), cert. den. 390 U.S5.1025 (1968): People v. Castronova, 354 

N.Y.85.24 250. (1974); State v. Stevens, 238 N.¥%7.2d 251 (N.D., 1975); 
State v, Weston, 20 Ohio App. 24 115, 252 N.E.24 305 (1969); 
Commonwealth v. Connolly, 269 A.24 390. .(Pa., 1970); State v. Lombardi, 

319-A.24 346. ({R.I., 1974); State v. Smalls, ‘194 S.E.24 188 (s.C., 
1973); Johnson v. State, 509 &£.W.2d4 639 (Tex., 1974); State v. Red- 
ford, 496 P,.24 584 (Utah, 1972); State v, Vhalen, 1 Wash.App. /385, 
464 P,24 730 (1970): State v. McCardle, 194 S.F.24 174 (w.Va., 1973). 

  

    

  

  

    

  

    

  

wld 

 



  

the Court noted in Lockett v. Ohio, 438 U,B8. 586, 57 L. Fd4.248 
  

973, at 989: "We are satisfied that this qualitative difference 

between death and other penalties calls for a greater degree of 

reliability [with respect to the exercise of the jurv's discre- 

tion] when the death sentence is imposed." 

The failure to properly limit the exercise of the jury's 

discretion in the sentencing phase is contrary to the heart of 

the Supreme Court's decisions in Gregg v. Georgia, 428 U.S. 153, 
  

49 1..Ed.2d4 859, at 887, n. 47 (1976) ("Where the ultimate 

punishment of death is at issue, a system of standardless jury 

discretion violates the Eighth and Fourteenth Amendments"); Godfrey 

"vv, Georgia, u.8, ; 48 U.S.L.W, 4541 (May 19, 1980), In 
  

Godfrey, the Court made clear that in order to meet constitutional 

requirements: 

"It, [the State] must channel the sentencers' 5/ 
discretion by 'clear and objective standards'" 6/ 
that provide 'specific and detailed guidance,'™ 
and that 'make rationally reviewable the process 
for imposing a sentence of death. '"L/ 

5/ 
“Gregg v. Georgia, supra, 428 U.S., at 198, quoting 
Coley v. State, 231 Ga, 829, 834, 204 8.2.28 612, 
(1974). 

6/ 
Proffitt v. Florida, supra, 428 U.S., at 253 
(Opinion of Stewart, Powell, and Stevens, JJ.) 

7/ 
“Woodson v. North Carolina, . supra, 428 U.S., at 303 
(Opinion of Stewart, Powell, and Stevens, JJ.)." 

  

  

  

  

48 U.S. L. WW, , at 4534, 

The standardless instruction to the jury in this case 

—- permitted the jury to use the evidence of other criminal acts in 

a matter that is simply a "subject of sheer speculation" just as 

was the jury's interpretation of the statutory language found 

defective in Godfrey, supra. While the Georgia statutory scheme 
  

upheld in Gregg, supra, expressly limits imposition of the death 
  

penalty to a jury finding of a statutorily-defined aggravating 

circumstance, the jury in this case was not instructed to assure 

that it was not motivated by aggravating factors such as petitioner's 

-]15- 

 



  

prior convictions or his alleged participation in other criminal 

acts for which he had not been indicted or convicted, which are 

not a part of the statutory scheme, 

C. Conflict With Other State Court Decisions. 
  

Therefore, the instruction given to the jury authoriz- 

ing them to consider all the evidence received in court permitted 

the jury to recommend the death penalty because of the evidence 

offered by the State regarding other alleged acts of criminal 

conduct. At least three other State Supreme Courts have 

condemned the practices followed by Georgia herein. In State v. 
  

McCormick, 397 N.E.2d 276 (ind., 1979), the Court held that due 
  

process rights of the defendant were contravened when the State 

relied upon evidence of other criminal acts for which defendant 

had not been convicted as a basis for a finding of aggravating 

circumstances justifying the death penalty. 

In Cozzolino v. State, 534 S.W.24 765 (Tenn., 1979), the 
  

Tennessee Supreme Court held that defendant's due process rights 

were violated byithe State's introduction of evidence that 

defendant committed crimes subsequent to the murder for which he 

was on trial. Just as in the case herein, such evidence was not 

relevant to the proof of any aggravating circumstances submitted 

to the jury. The Court stated: 

"When the statute is considered as a whole, 
it is clear that the only issues that the 
jury may properly consider in reaching a 
decision on the sentence to be imposed are 
whether the state has established one or more 
of the aggravating circumstances beyond a 
reasonable doubt. And, if so, whether any 

mitigating circumstances have been shown that 
would outweigh those aggravating circumstances. 
Any evidence that does not go to the proof of 
one or the other of those issues 1s irrelevant 
to the jury's deliberations. We cannot believe 
that the legislature intended that irrelevant 
evidence would be placed before the jury, fraught 
as such a procedure would be with the'substantial 
risk that (the death penalty) would be inflicted 

  

  

  

  

in an arbitrary and capricious manner.' Gregg Vv. 
Georgla, 425 U.S. 153, 188," (Emphasis supplied.) 

In Elledge v. State, 346 So0.24 998 (Fla., 1977), the Plorida 
  

-16- 

 



  

Supreme court held improper the admission of evidence of a 

robbery and second murder for consideration by a jury at the 

sentencing phase. 

Because this case presents substantial questions 

regarding the sufficiency of instructions given to the jury at 

the sentencing phase with respect to the proper use of evidence 

presented to the jury which may be viewed as an aggravating 

circumstance by the jury outside the scope of the statutory 

scheme, the Court should grant certiorari to determine the 

applicable due process requirement. 

IIT. THE DELIBERATE WITHHOLDING OF A CONFESSION, 

ALLEGEDLY MADE TC A GOVERNMENT INFORMER 

WHILE PETITIONER WAS INCARCERATED AND 

AWAITING TRIAL, DENIED PETITIONER DUE PROCESS 

RIGHTS GUARANTEED BY THE FOURTEENTH AMENDMENT 

TO THE UNITED STATES CONSTITUTION. 
  

At trail, petitioner was surprised by the introduction 

into evidence of an alleged confession by petitioner to a 

government informant named Offie Evans (Tr. 869-877). Evans 

was a prisoner in the Fulton County Jail, assigned to a cell 

in segregation adjacent to petitioner's (Tr. 869). Evans 

initiated conversation with petitioner regarding the Dixie 

Furniture Store robbery, and Evans testified at trial that 

petitioner confessed to the shooting, and also discussed with 

‘Evans other details of the robbery, and his state of mind at the 

time of the robbery (Tr. 870-71). 

Petitioner testified at trial that he had made no such 

statements to Evans (Tr. 826-34). sl 

Counsel for petitioner had filed a request for production 

of all statements, confessions or admissions by the defendant to 

any law enforcement agents, and for production of all information 

which was material to the defense, including impeachment material. 

Substantial portions of the alleged statement to Evans, 

which the State relied upon at trial, were different from the 

accounts by other State witnesses regarding the details of the 

- YT 

 



  

crime. The withholding of such statements from defendant 

contravened petitioner's due process rights. 

373 U.8.:83, 10 L..BFd.2 215 (1963). 

States, 394 U,.8., 316, 22 L.EA.24 302 (1969); 

Brady v. Maryland, 
  

Cf. Taglianetti v, United 
  

Harris wv. United 
  

States, U.S. ; ‘No. 79-121 (June 16, 1980). 
EE ——   

CONCLUSION. 
  

Petitioner prays that the Petition for Writ of Certiorari 

be granted. 

Respectfully submitted, 

  

-18~- 

ROBERT H. STROUP 

1515 Healey Bldg. 
57 Forsyth Street, N. W. 
Atlanta, Georgia 30303 

JACK GREENBERG 

JAMES M. NABRIT, I11 

JOHN CHARLES BOGER 

10 Columbus Circle 

New York, New York 10019 

ATTORNEYS FOR PETITIONER 

 



  

IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1979 

  

NO, 79-6830 

  

WARREN McCLESKY, 

Petitioner, 

Vo. 

STATE OF GEORGIA, 

Respondent. 

  

ON PETITION FOR WRIT OF CERTIORARI 
TO THE SUPREME COURT OF GEORGIA 

  

BRIEF FOR THE RESPONDENT IN OPPOSITION 

  

“ ARTHUR K. BOLTON 
Attorney General 

ROBERT S. STUBBS, II 

Please serve: Executive Assistant 
Attorney General 

NICHOLAS G. DUMICH 

132 State Judicial Bldg. DON A. LANGHAM 
40 Capitol Square, S. W. First Assistant 
Atlanta, Georgia 30334 Attorney General 
(404) 656-3499 

JOHN C. WALDEN 

Senior Assistant 
Attorney General 

NICHOLAS G. DUMICH 

Assistant Attorney 
General 

 



  

QUESTIONS PRESENTED . 

STATEMENT OF THE CASE 

REASONS FOR NOT 

A. EVIDENCE OF PETITIONER'S PRIOR CRIMINAL 
PROPERLY ADMITTED AT BOTH THE 

GUILT-INNOCENCE AND SENTENCING PHASES 
OF PETITIONER'S TRIAL 

ACTS WAS 

B. THE STATE WAS UNDER NO OBLIGATION TO 
DISCLOSE ITS POSSESSION OF INCRIMINATORY 
STATEMENTS MADE BY THE PETITIONER WHILE 
HE WAS INCARCERATED AND AWAITING TRIAL 

CONCLUSION . « v ‘va 

CERTIFICATE OF SERVICE 

LJ LJ 

Ld 

Ld Ld 

GRANTING THE WRIT 

Page 
  

i3 

14 

 



  

TABLE OF AUTHORITIES 
  

Cases cited: 
  

Brady v. Maryland; 373 U.5..83, 87 (1963) . . 
  

French v. State, 237 Ga. 620, 229 S.EB.24 
B10 (ITO. ce ei 0 a. vs ee as are 
  

Gates v, State, 244 Ga. 587, 595, 261 S.E.24 

S29 (1078) a 0 tn un tv vie ie a Wei 
  

Gregg Vv. Georgia, 428 U.S. 153, 189 (1975). . 
  

Hudson v. State, 237 Ga. 443, 444, 228 8.2.24 

B34 10706). « Wiles iv 1 Taide we NE ie 
  

Lisenba v. California, 314 U.S. 219, 227-228 

{1041). * - Ld eo . ° ° 0 © © Ld . » . Ld * - ° 

  

McClesky v. State, 245 Ga. 108, S.E.28 

(IOBO) 2 oi ats eis ee oe eee, 
  

McCormick, Evidence, 2d Ed., p. 447-448 (1972) 
  

Manning v. Rose, 507 F.2d 889, 892-895 (6th 

Clr. A074), a 10 vis i iu ili os ims wn 
  

Pennsylvania v., Ashe, 302 U.S. 51, 55 (1937). 
  

Powell v. State, 122 Ga. 571, 50 S.8. 361 (1905) 
  

Shaw v. State, 102 Ga. 660, 29 8.E. 477 (1897). 
  

Snyder v. Massachusetts, 291 U.S. 97, 105 
Bb EEE NEN, Wa ale RC 
  

Spencer v, Texas, 385: U.S. 554, 550-61 (19567) 
  

Spivey v. State, 241 Ga. 477, 246 S.E.2d 
288 HAO IS. ey aie Wie te ay eee ate ie Ye 
  

Stevens v. State, 242 Ga. 34, 36, 247 S.E.24 
B38 10D) ie ails ei vie so sie a idee a 
  

  

United States v. Augurs, 427 U.S. 97, 109-113 
(1976). . ® . eo‘ » » . » . » . » » » » . 

Statutes cited: 
  

Ga. Code AM. 'S 27=2503 . . i Jd iy ei 

Ga. Coc Anh. S$S27=2534,.1(b). . 4’ vis iii 

Ga. Code AM. '§ IB=1802 . . . WiieidBiy oi 80 

ii 

Page 

10 

12 

12 

 



  

IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1979 

  

NO. 79-6830 

  

WARREN McCLESKY, 

Petitioner, 

Vv . Rr 

STATE OF GEORGIA, 

Respondent. 

  

ON PETITION FOR WRIT OF CERTIORARI 
TO THE SUPREME COURT OF GEORGIA 

  

BRIEF FOR THE RESPONDENT IN OPPOSITION 

  

The State of Georgia, by and through the Attorney General 

for the State of Georgia, respectfully requests that this Court 

deny the petition for a writ of certiorari, which seeks review 

of the Georgia Supreme Court's decision in this case. That 

decision is reported as McClesky v. State, 245 Ga. 108, 
  

S.BE.28 (1980) . 

 



  

PART ONE 
  

QUESTIONS PRESENTED 
  

Whether evidence of the Petitioner's prior criminal acts 

was properly admitted into evidence during both the guilt-innocence 

and sentencing phases of his trial? 

Whether the State was under an obligation to disclose to 

the Petitioner its possession of incriminating statements made 

by said Petitioner while he was incarcerated and awaiting trial? 

 



  

PART TWO   

STATEMENT OF THE CASE   

Frank Schlatt an Atlanta Police Officer, was murdered while 

investigating an armed robbery at the Dixie Furniture Store .in 

Atlanta, Georgia on May 13, 1978. Petitioner was indicted, on 

June 13, 1978, for the aforesaid murder of Officer Schlatt and 

for two counts of armed robbery. He was tried before a jury 

on October 9-12, 1978, and was found guilty on all three charges. 

A separate sentencing phase of Petitioner's trial was 

conducted, resulting in the Petitioner receiving the death 

penalty on the murder conviction. He received two consecutive 

life sentences on the two counts of armed robbery. Petitioner's 

convictions and resulting sentences were subsequently upheld by 

the Georgia Supreme Court. McClesky v. State, 245 Ga. 108,   

S.E.2d (1980). 

At the guilt-innocence phase of the Petitioner's trial 

evidence of his prior participation in the robbery of the Red 

Dot Grocery Store was admitted for the purpose of showing identity, 

common plan or scheme, state of mind, motive and intent. {t*. 673~ 

674) On review, the Georgia Supreme Court found that, "[tlhere 

was evidence showing similar circumstances . . . from which the 

jury could have determined that the appellant [Petitioner] par- 

ticipated in a cantinuing scheme to commit multiple armed robberies 

in order to support himself." McClesky v. State, supra at p. 114.   

The jury was instructed to consider the evidence only for the 

aforesaid purposes for which it had been admitted. (T. 673-674, 

992-993). 

  

1/ References to the pagination of the Trial Transcript shall 
be referred to as T. ; references to the Official State   
Record shall be referred to as R. . 

 



  

Evidence was also admitted concerning Petitioner's partici- 

pation in the robbery of Dot's Produce (T. 885-896), after 

Petitioner had testified that he was not involved in the robbery 

and he "didn't know anything about it." (TT. 817). The jury 

was instructed to consider this evidence for impeachment purposes 

only. (T. 885, 990-992). Petitioner's other prior convictions 

were also admitted for purposes of determining Petitioner's 

credibility once he took the stand and placed his character in 

issue. (T. 843-849, 1066-1078). 

Relating to the final issue raised in the petition, the 

State presented at trial the testimony of Offie G. Evans, who 

related statements made by the Petitioner while he and the 

Petitioner were both incarcerated in the Fulton County jail. 

(T. 866-882). 

During the sentencing phase of Petitioner's trial, the 

court instructed the jury that it was authorized to consider 

all of the evidence which had been presented at the guilt—innocence 

phase. (T. 1028). Petitioner was specifically given notice 

prior to trial of a list of prior convictions which the State 

intended to use in aggravation of punishment. (R. 47). Prior 

to their deliberations, the jury was fully instructed on the 

proper consideration of aggravating and mitigating circumstances. 

(T. 1027-1029). The jury based its recommendation of death 

upon two statutory aggravating circumstanes, finding that: 

(1) the offense of murder was committed while the offender had 

been engaged in the commission of another capital felony, and 

(2) the offense of murder was committed against a peace officer, 

corrections employee or fireman while engaged in the performance 

of his official duties. (7. 1031, R. 58). 

 



  

PART THREE 
  

REASONS FOR NOT GRANTING THE WRIT 
  

A. EVIDENCE OF PETITIONER'S PRIOR CRIMINAL 

ACTS WAS PROPERLY ADMITTED AT BOTH THE 

GUILT-INNOCENCE AND SENTENCING PHASES 

OF PETITIONER'S TRIAL. 

I. GUILT PHASE. 
  

In Spencer v. Texas, 385 U.S. 554, 560-561 (1967), this 
  

Court summarized its view relating to the regulation of state 

evidentiary rules pertaining to evidence of prior offenses. 

This Court noted that: 

"Because such evidence is generally recognized 

to have potentiality for prejudice, it is 

usually excluded except when it is particularly 

probative in showin sich things as intent, . a . 

an clement in the crime, , ..- . identity, . . 

malice, . . . motive, . . . a system of criminal 

activity, . . . or when the defendant has 

raised the issue of his character, . . . or when 

the defendant has testified and the state seeks 

to impeach his credibility.” [Cases omitted]. 

Thus, in order to protect defendants from unfair prejudice, 

evidence of other criminal acts is generally not admissible 

to show that a defendant is likely to have acted in accordance 

with his criminal character, but "[t]lhere are some numerous other 

purposes for which evidence of other criminal acts may be offered, 

and when so offered the rule of exclusion is simply inapplicable.” 

McCormick, Evidence, 2nd Ed., p. 447-448 (1972). 
  

 



  

The Court further recognized in Spencer, supra, that states 
  

must be given discretion in determining the other purposes for 

which they will allow evidence of prior criminal acts. This 

deference to state decision making reflects the Court's practical 

realization that, "[t]o say that the United States Conatitation 

is infringed simply because this type of evidence may be prejudicial 

and limiting instructions inadequate to vitiate prejudicial effects, 

would make inroads into [the] entire complex code of state criminal 

evidentiary law, and would threaten other large areas of trial 

jurisprudence." Spencer v. Texas, 385 U.S. at p. 562. A state 
  

is free to regulate the procedure of its courts in accordance 

with its own conception of policy and fairness, unless in so 

doing it offends some principle of justice so rooted in the tra- 

ditions and conscience of our people as to be ranked as fundamental. 

Snyder v. Massachusetts, 291 U.S. 27, 105 (1934). It is clear 
  

that the admission of evidence of prior criminal acts to prove 

relevant factors other than a defendant's criminal propensity 

violates no such fundamental principles, and therefore is not 

in violation of the Fourteenth Amendment. See Lisenba v. California, 
  

314. U.S, 219, 227-228 (1941); Mamning v. Rose, 507 P.24 3889, B892~ 
  

895 {6th Cir, 1974). 

Accordingly, evidence of prior criminal acts was properly 

admitted into the present case not to show that the Petitioner was 

predisposed to the commission of criminal acts, but rather to 

establish identity, common plan or scheme, state of mind, motive 

and intent. The evidence was also properly admitted as rebuttal 

testimony after the Petitioner had placed his character in issue 

by taking the witness stand in his own behalf. 

Evidence of prior criminal acts to show a common scheme, 

motive, intent or design falls within a recognized Georgia exception 

 



  

to the general rule against the admissibility of other criminal 

activity, and since Petitioner was positively identified as the 

perpetrator of the Red Dot robbery (T. 666, 727, 747, 753), and 

since there was sufficient similarity or connection between 

the Red Dot robbery and the present case 2/ so that proof of 

the former tended to prove the latter, such evidence was properly 

admitted under Georgia law. McClesky v. State, 245 Ga. at Pp. 114 
  

(1980); see French v. State, 237 Ga. 620, 229 S.E.24 410 (1976). 
  

It should also be noted that the jury was carefully instructed 

to consider the evidence only for the limited purposes for which 

it had been admitted. (T. 673-674, 992-993). 

Evidence relating to the robbery of the Dot's Produce 

was also properly admitted since, "A witness may be impeached 

by disproving the facts testified to by him." Ga. Code Ann. 

§ 38-1802. Once the Petitioner took the stand and testified 

that he was not involved in the Dot's Produce robbery, and that, 

in fact, he "didn't know Anyi about it," evidence showing 

Petitioner's involvement in said robbery was properly admitted 

for the purposes of impeaching his credibility. In addition, the 

jury was carefully instructed by the trial court to consider the 

evidence for impeachment purposes only. (T. 885, 990-992). 

  

2/ The similarities included: (a) in both cases the robbers 
utilized similar pistols and threats; (b) in both cases 
Petitioner's vehicle was utilized; (c) three of the four 
robbers involved in the Red Dot robbery also participated 
in the Dixie Furniture Store robbery; (d) in both cases 
the victims were made to lie on the floor; (e) in both ~ 
cases the car was parked around a corner from the establishment 
robbed; (f) in both cases Petitioner entered the store prior 
to the robbery to "case" the situation; (g) in both cases 
some of the robbers used stocking masks in an attempt to 
conceal their faces. (T. 666-678, 723-727, 1739-752, 
199-206, 212-232, 265-273, 287-289, 511-530, 647-659). 

 



  

Finally, it is well settled under Georgia law that a 

witness' conviction for a crime involving moral turpitude 

may be considered in determining his credibility. Shaw v. State, 
  

102. Ga. 660, 29 S.%. 477 (1897); Powell v. State, 122 Ga. 571, 
  

50 S.E. 361 (1905). Evidence of Petitioner's prior armed robbery 

convictions were properly admitted since the Petitioner chose to 

take the witness stand, and place his credibility in issue. 

(T. 843-845). 

In the instant case, all evidence of Petitioner's prior 

criminal acts was admitted in conformance with the relevant 

rules of Georgia evidentiary law. Petitioner's rights were 

further protected by the limiting instructions to the jury which 

insured that the evidence of the other crimes was considered 

only for legitimate purposes. In the words of Justice Cardozo, 

a state's evidentiary rule, ". . . does not run foul of the 

Fourteenth Amendment because another method may seem to our 

[the Court's] thinking to be fairer or wiser or to give a surer 

promise of protection to the prisoner at bar." Snyder wv. 
  

Massachusetts, 291 U.S. at p. 105. 
  

The State of Georgia was well within its discretion in 

adopting the rules of evidence which are at issue in this 

case and therefore, Petitioner's rights have not been violated. 

 



  

II. SENTENCING PHASE.   

In Gregg v. Georgia, 428 U.S. 153, 189 (1976), quoting 
  

Pennsylvania v. Ashe, 302 U.S. 51, 55 (1937), the Court recognized 
  

that, "[f]lor the determination of sentences, justice generally 

requires . . . that there be taken into account the circumstances 

of the offense together with the character and propensities of the 

offender.” Accordingly, Ga. Code Ann. § 27-2503 provides for a 

presentence hearing in Georgia's bifurcated death penalty procedures 

which presents a defendant's history to the jury so that it may 

make the proper decision as to punishment. Gates v. State, 244 
  

Ga. 587, 595, 261 S.E.2d 349 (1979). Evidence presented by 

both sides during the guilt-innocence phase of the trial may 

be considered as well as such additional evidence in aggravation 

as the State makes known to the accused prior to trial. In the 

present case, Petitioner was given notice of the prior convictions 

which the State tendered in aggravation of the Petitioner's 

punishment. (R. 47). It is clear that such evidence constitutionally 

may be offered as a basis for imposition of an enhanced sentence. 

Spencer v. Texas, 385 0.8. 552, 560 (1967). 
  

Ga. Code Ann. § 27-2503 further provides that, "[u]lpon 

the conclusion of evidence and arguments, the judge shall give 

the jury appropriate instructions, and the jury shall retire 

to determine whether any mitigating or aggravating circumstances 

as defined in Section 27-2534.1 exists and whether to recommend 

mercy for the defendant." In order to guide the jury's deliberations 

Ga. Code Ann. § 27-2534.1(b) enumerates ten statutory aggravating 

circumstances which might justify imposition of the death penalty. 

The jury is permitted to consider any other appropriate aggravating 

 



  

and mitigating factors, but is not required to find any specific 

mitigating circumstances in order to make a recommendation of 

mercy and life imprisonment. The jury must find the existence 

of a statutory aggravating circumstance beyond a reasonable 

doubt before it may impose the death penalty. Ga. Code Ann. 

§ 27-2534.1(b). 

In the present case, the jury was carefully instructed 

on the proper consideration of aggravating and mitigating 

circumstances in accordance with Georgia law. (T. 1027-1029). 

The jury was also instructed that it might, "Consider all of 

the evidence received . . . 1n court, presented by the State 

and the defendant throughout the trial . . .." (T. 1020). 

This charge was consistent with the requirements of Georgia 

law since, 

"[A] reasonable juror, considering the charge 

as a whole, would know that he should consider 

all the facts and circumstances of the case 

as presented during both phases of the trial 

(which necessarily include any mitigating and 

aggravating facts), and then, even though he 

might find one or more of the statutory aggravating 

circumstances to exist, would know he might 

recommend life imprisonment." Spivey v. State, 
  

241 Ga. 477, 246 S.E.2d 288 (1978). 

Therefore, evidence of the Petitioner's prior criminal _ 

acts was properly considered at the sentencing phase of the 

Petitioner's trial. The trial courts instructions to the 

jury were not erroneous. 

TO 

 



  

B. THE STATE WAS UNDER NO OBLIGATION TO 

DISCLOSE ITS POSSESSION OF INCRIMINATORY 

STATEMENTS MADE BY THE PETITIONER WHILE 

HE WAS INCARCERATED AND AWAITING TRIAL. 

Although Petitioner claims that he "filed a request for 

the production of all statements, confessions or admissions 

by the defendant to any law enforcement agents, and for production 

of all information which was material to the defense, including 

impeachment material" (Petitioner's brief p. 17), the record 

reflects only a motion for a list of witnesses to all conversations 

between law enforcement officials and the Petitioner. (R. 29). 

It should be noted that the Petitioner was indeed supplied with 

a list of witnesses which included the name of Offie G. Evans, 

who later gave the testimony concerning Petitioner's incriminatory 

statement, which is now at issue. Thus, Petitioner had a full 

opportunity to question witness Evans concerning his prospective 

testimony. In addition, with the exception of Mr. Evans’ testimony 

and some grand jury material, the transcript clearly shows that 

Petitioner had full access to the prosecutorial files. (T. 176, 

831-832). 

Offie G. Evans was called as a rebuttal witness by the 

State, after the State had cross-examined the Petitioner concerning 

statements he had made to another individual in the Fulton County 

jail. Evans testified that the Petitioner had admitted participating 

in the robbery of the Dixie Furniture Store, and had admitted 

shooting Officer Schlatt. (T. 870). Evans also related information 

concerning Petitioner's use of makeup as a disguise during the 

Dixie Furniture robbery, and statements made by the Petitioner 

regarding the robbery, including Petitioner's claim that even 

if a dozen officers had been present, he would have shot his way 

out, “{7. 871, 880). 

wile 

 



  

While it is well settled that the prosecution may not 

suppress evidence which is favorable to the accused and material 

either to guilt or punishment, Brady v. Maryland, 373 U.S. 83, 
  

87 (1963), it is incumbent upon the accused to indicate the 

materiality and favorable nature of the evidence in question. 

Stevens v, State, 242 Ga. 34, 36, 247 S.E.24 838 (1978). The 
  

Petitioner has made no such showing. 

The instant case is similar to Hudson wv. State, 237 Ga. 443, 
  

444, 228 S.E.2d 834 (1976), where the Georgia Supreme Court 

properly refused to extend the Brady rule to cases involving 

unfavorable admissions by an accused. Not only was the taking 

of testimony not exculpatory, but: 

"[tlhe mere possibility that an item of 

undisclosed information might have helped 

the defense, or might have affected the 

outcome of the trial, does not establish 

'materiality' in the constitutional sense. . . 

if there is no reasonable doubt about quilt, 

whether or not the additional evidence is 

considered, there is no justification for a 

new trial." United States v. Augurs, 427 U.S. 
  

97, 109-113 (1976). 

The admission of evidence must be evaluated in the context 

of the entire record, and given the overwhelming evidence of 

Petitioner's guilt in the instant case, the statements as to 

which Evans testified to were simply not constitutionally material. 

Thus, Petitioner's right to a fair trial was not violated. 

12 

 



  

CONCLUSION   

Since no constitutional right of the Petitioner has been 

violated in this case, 

Court should deny the requested issuance of a writ of certiorari. 

Please serve: 

NICHOLAS G. DUMICH 

132 State Judicial Bldg. 

40 Capitol Square, S. W. 
Atlanta, Georgia 30334 
(404) 656-3499 

it is respectfully submitted that this 

Respectfully submitted, 

ARTHUR K. BOLTON 

Attorney General 

ROBERT S. STUBBS, 11 

Executive Assistant 

SER 

  

Bon, A. ARI 
First Assistant 
Attorney General 

JOHN C.™WALDEN 
Senior Assistant 

wo Thtouney Sener 1 

“hott. Lar 
  

NTCHOTAS G. DUMICH 
= Assistant Attorney General 

-]13- 

 



  

CERTIFICATE OF SERVICE 
  

I, John C. Walden, Attorney of Record for the Respondent 

and a member of the Bar of the Supreme Court of the United States, 

certify that in accordance with the Rules of the Supreme Court of 

the United States, I have this day served a true and correct 

copy of this Brief for Respondent in Opposition upon the Petitioner's 

attorney by depositing a copy of this Brief in the United States 

mail, with proper address and adequate postage to: 

Mr. Robert H. Stroup 
Attorney at Law 
1515 Healey Building 
57 Forsyth Street, N. W. 
Atlanta, Georgia 30303 

Mr. Jack Greenberg 
Mr. James M:. Nabrit, III 
Mr. John Charles Boger 
10 Columbus Circle 
New York, New York 10019 

1H rg 

vhis CH day of cS AN , 1980. 

i CNN \ 

TTR WN 
JOHN C.WALDEN joc 

~a 

  

  

-14- 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

WARREN MCCLESKEY, : 

PETITIONER : 
: HABEAS CORPUS 

VS. : CASE NO. 4909 

WALTER ZANT, : 
SUPERINTENDENT 3 
GEORGIA DIAGNOSTIC : 
& CLASSIFICATION : 
CENTER, : 

RESPONDENT : 

ORDER 
  

This habeas corpus challenges the constitutionality 

5 

of Petitioner's restraint and the imposition of the 

death sentence by the Superior Court of Fulton County. 

McCleskey was convicted of Murder and two Armed 

Robberies. He was sentenced to death for Murder and 

to life imprisonment for each Armed Robbery. His 

convictions and sentences were affirmed by the Supreme 

Court. McClesky v. State, 245 Ga. 108 (1980). 
  

Certiorari was denied by the Supreme Court of the 

United States. 

The Petition, as amended, contains 36 numbered 

paragraphs, 23 of which allege substantive claims for 

relief (10-27; 29-31; 36-36). The Court will rule on those 

paragraphs containing claims for relief by paragraphs 

corresponding numerically to the paragraphs in the Petition. 

 



  

The record in this habeas case consists of the 

transcript of proceedings before this Court on January 30, 

1981; the affidavits of Mrs. Emma Owens, Marie Lamar, 

Thomas Adger, Mrs. Thomas Adger, Myrtle Bates, Dr. 

William J. Bowers, Kelly Fite, and Russell Parker; 

the discovery file of the prosecution; and the 

transcript and record of Petitioner's trial in Fulton 

County Superior Court commencing on October 9, 1978. 

10. 

In Paragraph 10, Petitioner claims that the 

death penalty is applied arbitrarily, capriciously, 

and whimsically in the State of Georgia and thus 

violates his constitutional rights. 

In support of his contention, Petitioner has 

submitted the affidavit of William J. Bowers, 

sociologist and co-author of a study on the 

administration of capital punishment in Georgia. 

The Court has considered the evidence but declines to 

adopt Dr. Bowers' conclusion that the death penalty 

is applied in an arbitrary and discriminatory fashion. 

The proffered study does not take into account the 

myriad circumstances and unique characteristics of 

both offenses and defendants which provide impetus 

for sentences imposed. 

The Georgia capital statute has been declared 

constitutional. Gregg v. Georgia, 428 U.S. 153, 96 
  

S.Ct. 2909, 49 L.Ed.2d 859 (1976). The Georgia Supreme 

Court has already reviewed Petitioner's death sentence 

 



  

and found it was not imposed under the influence of 

passion, prejudice or any other arbitrary factor. 

McClesky v. State, supra at 115. Further, the Court 
  

found the sentence was not disproportionate considering 

the crime and the defendant. Id. 

Accordingly, the allegation in Paragraph 10 is 

found to be without merit. 

11. 

In Paragraph 11, Petitioner complains that the 

death sentence in Georgia is being exacted pursuant to 

a pattern and practice of Georgia officials to 

discriminate on the grounds of race, sex, and poverty 

in violation of Petitioner's constitutional rights. 

The Court is not persuaded by the report of Dr. 

Bowers. Accordingly, the allegation in Paragraph 11 

is found to be without merit. 

12. 

In Paragraph 12, Petitioner alleges that the death 

penalty is an excessive penalty which fails to serve 

any rational and legitimate social interests. 

The Court is not persuaded by the report of Dr. 

Bowers. Accordingly, this allegation is found to 

be without merit. 

13. 
In Paragraph 13, Petitioner contends the death 

sentence is cruel and unusual punishment in light of 

all factors relating to the offense and the offender. 

The Supreme Court has already decided this point 

 



  

adversely to Petitioner. McClesky v. State, supra, at   

115. Accordingly, the allegation in Paragraph 13 

is found to be without merit, 

14. 
In Paragraph 14, Petitioner complains of 

constitutional deprivation due to imposition of the 

death sentence stemming from allegedly unfair proceedings. 

The Georgia capital sentencing structure has been 

declared constitutional. Gregg v. Georgia, supra. 
  

Accordingly, this allegation is found to be without merit. 

15: 
In Paragraph 15, Petitioner claims he was denied 

his Sixth, Eighth, and Fourteenth Amendment rights 

because the jury that convicted him did not constitute 

ative cross-section .of the community. 

Specifically, Petitioner contends that two jurors were 

excused without cause because of their opposition to 

the death penalty. 

The Court has examined the voir dire examination 

of jurors Weston (T. 96-93%) and Cason (T. 128-130). 

The relevant portions are as follows: 

"QO Now, Miss Weston, are 
you conscientiously 
opposed to capital 
punishment? 

A Yes. 

Q Your opposition towards 
capital punishment, would 
that cause you to vote 

against it regardless of 
what the facts of the case 
night be? 

 



  

{T. 97-98). 

ow
 B

EI
 

gE
 

T
h
 

A 

{T. 129-130). 

Yes, I would say so, 
because of the doctrine 
of our church. We have 
a manual that we go by. 

Does your church doctrine 
oppose capital punishment? 

Yes. 

So you would oppose the 
imposition of capital 
punishment regardless 
of what the facts would be? 

Yes. 

You would not even consider 

that as one of the alternatives? 

No, I wouldn't. 

Mrs. Cason, are you conscientiously 

opposed to capital punishment? 

Yes. 

You are? 

Yes. 

If you had two alternatives 
in a case as far as penalties 
go, that is, impose the 
death sentence or life 
penalty, could you at 
least consider the 
"imposition of the death 
penalty? 

I don't think 86, no. I 

would have to say no. 

Under any circumstances 
would you consider it? 

No " 

Both jurors indicated they could not impose the 

death penalty, regardless of what facts might emerge 

 



  

in the course of tne trial. Thus, they were properly 

excluded under Witherspoon Vv. Illinois, 391 U.S.   

510, 88 S.Ct. 1770, 20 1.88.28 776 (1968), 

The allegation in Paragraph 15 is found to be 

without merit. 

16. 

The Patittones in Paragraph 16 charges that the 

jury which convicted and sentenced him was biased in 

favor of the prosecution. 

The Supreme Court of the United States has 

already rejected this "prosectuion prone" argument 

in Bumper v. North Carolina, 391 U.S. 543, 88 s.Ct. 
  

  1788, 20 L.E8.28 797 (1968). : See also Douthit v. 

State, 239 Ga. 81, 87 (1977); Hawes v. State, 240   

Cc 327{53{1I87 1 
No “i § 3 } / bl £0 Si TBO 0 BY uy [4

] 

» 

Accordingly, this allegation is found to be without 

merit. 

7. 

In Paragraph 17, Petitioner claims harm from the 

trial court's failure to instruct jurors with 

conscientious and/or religious scruples against 

capital punishment to subordinate their personal views 

rather than said jurors being excused. 

The Court has concluded that said jurors were 

properly excused. (See Paragraph 15). Accordingly, 

this allegation is found to be meritless. 

 



  

18. 

In Paragraph 18, Petitioner contends his 

constitutional rights were violated by the intoduction 

of his post-arrest statement given after an allegedly 

illegal arrest. 

There is no evidence to suggest Petitioner's 

arrest was illegal. Additionally, the Supreme 

Court has already decided Petitioner's statement 

was properly admitted. McClesky v. State, supra, 
  

at 112(3). Accordingly, this allegation is found to 

be without merit. 

19. 
See Paragraph 18. 

20. 
In Paragraph 20, Petitioner alleges violation of 

his constitutional rights because of the State's 

failure to disclose its arrangement with an informer 

who testified at Petitioner's trial. More specifically, 

Petitioner claims that the testimony of Offie Evans 

was given in exchange for a promise from an Atlanta 

Police Bureau detective that he would give a favorable 

recommendation for Evans who had federal escape charges 

pending. 

Mr. Evans at the habeas hearing denied that he 

was promised anything for his testimony. (H.T. 122), 

He did state that he was told by Detective Dorsey 

that Dorsey would "speak a word" for him. {(H.7. 122). 

The detective's ex parte recommendation alone is 

not sufficient to trigger the applicability of Giglio 

v. United States, 405 U.S. 150, 92 8.Ct. 763, 31 L.E3.248 
  

104 (1972). See Tamplin v. State, 235 Ga. 20(2) (1975). 
  

 



  

The prosecutor at Petitioner's trial, Russell J. 

Parker, stated that he was unaware of any understandings 

between Evans and any Atlanta Police Department 

detectives regarding a favorable recommendation to be 

made on Evans' federal escape charge. (Parker Depositicn, 

p. 9). Mr. Parker admitted that there was opportunity 

for Atlanta detectives to put in a good word for Evans 

with federal authorities. {I4., p. 19). However, he 

further stated that when any police officer has been 

killed and someone ends up testifying for the State, 

putting his life in danger, it is not surprising that 

charges, like those against Evans, will be dropped. (I8.). 

In the absence of any other evidence, the Court 

cannot conclude an agreement existed merely because 

of the subseguent disposition of criminal charges 

against a witness for the State. See Fleming Vv. 
  

State, 236 Ga. 434, 438 (1976). 

Accordingly, the allegation in paragraph 20 is 

found to be without merit. 

21. 

In Paragraph 21, Petitioner alleges that his 

Fourteenth Amendment rights were violated by the State's 

deliberate withholding of a statement made by Petitioner 

to Offie Evans. 

This claim has already been decided adversely to 

Petitioner. McClesky v. State, supra,at 112 (4). 
  

Therefore, the allegation is found to be without merit. 

 



  

In Paragraph 22, Petitioner claims he was denied 

his Sixth and Fourteenth Amendment rights by the 

trial court's failure to grant his Motion to proceed 

in forma pauperis and for funds to employ experts 

to aid in his defense. Specifically, Petitioner 

complains of harm from the lack of an investigator 

and of a ballistics expert. 

Petitioner charges that the need for an investigator 

became more critical when the State served him with an 

additional list of 96. "may call” witnesses approximately 

three weeks prior to trial. Defense Counsel Turner 

testified at the habeas hearing that the list was for 

all three defendants (H.T. 31) and the State did not 

call all of them. (H.T. 40) . Further, Counsel went 

over the list with Petitioner to learn whether Petitioner 

knew any of the witnesses or what their testimony could 

It is clear that defense counsel had access to the 

prosecution's discovery file which included statement= 

from all witnesses (except Evans) and investigative 

reports (H.T. 38; Parker Deposition, p. 4) and Georgia 

State Crime Laboratory reports (see Discovery File). 

While an investigator may have been helpful, the 

Court cannot conclude Petitioner was harmed by the 

failure of the trial court to appoint an investigator, 

especially in light of Petitioner's defense that he 

was not even present at the robbery. (H.T. 57; 58). 

 



  

As to a ballistics expert, the State's witness, 

Kelly Fite, testified that the murder weapon was 

probably a .38 Rossi, but no weapon was ever 

recovered or introduced at trial. (H.T. 44-45). 

Mr. Fite stated that his opinion was based on an 

accumulation of data for several years plus a check 

with the F.B.I. record file in Washington. (Fite 

Deposition, p. 4). Mr, Pite also stated that only 

two other type weapons were possibilities. (1a. Pe 7). 

Even if another expert had testified, it is doubtful 

that such testimony could have sufficiently refuted 

the totality of evidence against Petitioner. 

The appointment of expert witnesses lies within 

the discretion of the trial court. Westbrook v. State, 
  

242 Ga. 151 (1978); Crenshaw v. State, 244 Ga. 430 Lilia VY 
  

(1979). Denial of the Motion for the appointment 

of experts will not be reversed in the absence of an 

  

abuse of that discretion. Patterson v. State, 239 Ga. 

409 (1977); Westbrook v. State, supra. 
  

Here, Petitioner demonstrated no special need 

for the appointment of an investigator, nor did 

Petitioner request the appointment of a ballistics 

expert. In the absence of any evidence of abuse, 

the trial court's decision not to grant Petitioner's 

Motion appears to be a proper one. 

Accordingly, ihe allegation in Paragraph 22 is 

found to be without merit. 

23. 
EE 

In Paragraph 23, Petitioner claims that a highly 

ly 

 



  

suggestive line-up occurred prior to the commencement 

of his trial which violated his Sixth Amendment 

rights. 

This issue has already been decided adversely 

to Petitioner. McClesky v. State, supra, at 110(2). 
  

Petitioner has presented no new evidence to indicate 

that the Supreme Court's conclusion was in error. 

Accordingly, this allegation is found to be 

without merit. 

pay LP 
RE 

In Paragraph 24, Petitioner argues that the jury 

instructions concerning intent impermissibly shifted 

the burden of persuasion to Petitioner in violation 

of his Fifth and Fourteenth Amendment rights. 

The relevant portion of the jury charge is as 

follows: 

"Now, in every criminal 
prosecution, ladies and 

- gentlemen, criminal intent 
is a necessary and material 
ingredient thereof. To 
put it differently, a 
criminal intent is a material 
and necessary ingredient 
in any criminal prosecution. 

I will now try to explain 
what the law means by 
criminal intent by reading 
you two sections of the 
criminal code dealing with 
intent, and I will tell you 
how the last section applies 
to you, the jury. 

One section of our law says 
that the acts of a person 
of sound mind and discretion 
are presumed to be the 
product of the person's 
will, and a person of sound 

-11l~ 

 



  

mind and discretion is 
presumed to intend the 

natural and probable 

consequences of his acts, 

but both of these 

presumptions may be 
rebutted. 

I charge you, however, 
that a person will not 
be presumed to act 
with criminal intention, 
but the second code 

section says that the trier 

of facts may find such 

intention upon consideration 

of the words, conduct, 

demeanor, motive and all 

other circumstances 

connected with the act for 

which the accused is prosecuted. 

Now, that second code section 

I have read you has the 

term the trier of facts. 1In 

this case, ladies and gentlemen, 

you are the trier of facts, 

and therefore it is for you, 

the jury, to determine the 

question of facts solely irom 

your determination as to 

whether there was a criminal 

intention on the part of the 

defendant, considering the 
facts and circumstances 

as disclosed by the evidence 

and deductions which might 

reasonably be drawn from those 

facts and circumstances. " 

(T. 996-997). 

The jury instruction in this case clearly indicates 

that the presumption could be rebutted so that the 

presumption created was merely a permissive one. Such 

permissive presumptions have been held valid. ' Skine v. 
  

State, 244 Ga. 520 (1978); Moses V. State, 245 Ga. 180 
  

(1980). Sandstrom v. Montana, 242 U.S. 510, 99 8.Ct. 2450, 
  

61 L.Ed.2d 39 (1979), is readily distinguished on the 

YD 

 



  

ground that the jury "were not told that the presumption 

could be rebutted....” 61 L.Ed. 2d at 46. 

Accordingly, the allegation in Paragraph 24 is found 

to be without merit. 

Petitioner charges in Paragraph 25 that the 

prosecution impermissibly referred to the appellate 

process in his argument during the sentencing phase 

in contravention of Petitioner's constitutional rights. 

The relevant portion of the prosecutor's argument 

is set out in the Appendix. (See Appendix). 

Ga. Code Ann. 527-2206 prohibits counsel in a 
  

criminal case from arguing before a jury that a 

defendant, if convicted, may not be required to suffer 

the full penalty imposed because of the possibility 

of executive clemency. Here, the prosecution used 

the talismanic words "appellate process”, but it was in 

reference to a prior life sentence Petitioner had 

gotten reduced, not to the possibility that a life sentence 

could be reduced if the jury decided to impose such a 

sentence. Since the words referred to a past conviction, 

the Court cannot conclude that the words had the 

inevitable effect of encouraging the Jury to attach 

diminished consequence to their verdict and take less 

than full responsibility for determining life or death, 

an effect found improper in Prevatte v. State, 233 Ga. 
  

929(6) (1975). 

-13~ 

 



  

The prosecution may argue for a death sentence 

and offer plausible reasons for his position. Chenault 
  

V. State, 234 Ga. 216 (7)(1975)» Street v. State, 
  

  

237 Ga. 307, 315 (1976); Cates v. State, 244 Ga. 587, 595 
  

(1979). Here, the remarks of the prosecutor appear 

to be within the bounds of proper argument. 

Accordingly, the allegation in Paragraph 25 is 

found to be without merit. 

26. 
In Paragraph 26, Petitioner alleges that the trial 

court improperly admitted evidence of other robberies 

of which Petitioner had not been convicted and without 

adequate jury instructions which violated Petitioner's 

rights to due process of law. 

The Supreme.Court has already decided the issue of 

admissibility adversely to Petitioner. McClesky v. State, 
  

supra, at 114(b). In deciding that issue, the Court 

also noted that the trial court had charged the jury 

as to the limited purpose for which the similar crimes 

were admitted. In that the trial court cautioned the 

jury as to the limited purpose for which the acts were 

admitted at the time of admission (T. 673-674; 885) and 

repeated the same cautionary instruction in the jury 

charge at the end of the guilt/innocence phase (T. 992-993), 

the Court does not find Petitioner's rights were 

contravened in any way. 

Accordingly, this allegation is found to be without 

merit. 

wld 

 



  

217. 

In Paragraph 27, Petitioner claims violation of his 

rights guaranteed by the due process clause by the 

alleged overly-broad instructions regarding the use 

which the jury could make of the evidence of 

Petitioner's other acts in the guilt phase. 

See Paragraph 26. 

This allegation is found to be without merit. 

29. [sic]   

In Paragraph 29, Petitioner charges that the 

Georgia appellate review process denies him effective 

assistance of counsel, a fundamentally fair hearing 

and reliable determination of life or death, and the 

basic tools to prepare an adequate defense because of 

niv indioehey = 

The Georgia capital sentencing structure has been 

declared constitutional. Gregg v. Georgia, supra. 
  

Accordingly, this allegation is found to be 

without merit. 

30. 
petitioner claims in Paragraph 30 that the means by 

which the death penalty will be administered will inflict 

wanton and unnecessary torture upon him in violation 

of his Eighth and Fourteenth Amendment rights. 

The Georgia death statute nad been declared 

constitutional. Gregg v. Georgia, supra.   

Accordingly, this allegation is found to be without 

merit. 

-15~ 

 



  

3%.. 

In Paragraph 31, Petitioner claims that he was 

denied effective assistance of counsel in violation 

of his constitutional rights. 

At trial and on appeal, Petitioner was represented 

by John M. Turner. Mr. Turner has been serving as 

‘Assistant Distuiot Attorney in Fulton County since 

January 8, 1981. (H.P. 24). Prior to joining that 

staff, Mr. Turner was in private practice for 

appoximately five years (H.T. 24), a practice which 

consisted of roughly 80% criminal work wherein he 

tried approximately 30 murder cases (H.T. 82). 

Prior to entering private practice, Mr. Turner served 

as Assistant United States Attorney in the Northern 

District of Georgia for two years. (H.T. 24). He was 

retained to represent Petitioner a few days after 

Petitioner was initially arrested, about one week before 

Petitioner's preliminary hearing. (H.T. 26). 

The Court has reviewed the evidence and found the 

following allegations to be without merit: 

l.. Counsel failed to contact witnesses. Mr. Turner 

testified at the habeas hearing that he had had fairly 

extensive pretrial conversations with the prosecutor and 

had discussed a good bit of the information contained 

in the prosecutor's discovery file. (H.T. 29-30). 

He also had access to the discovery file which contained 

the statements of all witnesses except Offie Evans (H.T. 

and had an agreement with the prosecution to obtain copies 

vf actual statements of witnesses for cross-examination 

“1 

 



  

purposes.  {(H.T. 88). Mr. Turner testified that he 

did not interview any employees of the Dixie Furniture 

Store prior to trial because he had opportunity to 

cross-examine the three employees who testified at the 

preliminary hearing (H.T. 35) and that the other 

employees who testified at trial gave testimony periphereal 

to the main issue and Petitioner's defense at that point 

was that he was not at the store during the robbery. 

(H.T. 37). Counsel did not interview investigative 

officers because he had full access to their 

investigative reports contained in the prosecution's 

discovery file. (H.T. 37). FPurther, Counsel went 

over the witness list with Petitioner to see whether 

Petitioner knew any of the people or the type testimony 

they could give. (H.T. 34). Finally, Counsel asked 

Petitioner for the names of alibi witnesses, and 

Petitioner responded with one nickname of a person 

with whom he had been unable to get in touch. (H.T. 89). 

Decisions on which witnesses to call, whether and how 

to conduct cross—examinations, and all other strategies 

and tactical decisions are the exclusive province of the 

lawyer after consultation with his client. Reid v. 

State, 235 Ga. 378 {(0975). In light of all the above 

factors, the Court cannot conclude Counsel was 

ineffective merely pscnnie he did not physically 

pursue witnesses. Accordingly, this allegation is 

without merit. 

YF 

 



  

2. Counsel failed to seek a continuance when 

necessary to prepare adequately for trial. 

Counsel testified that he had "fairly extensive" 

contact with Petitioner prior to both the preliminary 

hearing and trial, meeting with Petitioner well over 

a dozen times, three times prior to the preliminary 

hearing. (H.T. 27). He also stated that from his 

extensive discussions with the prosecution, he had 

a "pretty good grasp of the facts." (H.T. 43). He 

also said that although he looked at the prosecution's 

discovery file only once, he got everything he needed. 

{H.7. 88). 

Effectiveness is not measured by how another 

lawyer might have handled the case. Estes v. Perkins,   

225 Ca. 268 (1968); Jones v. State, 243 Ga. 820 (1979).   

In addition, the issue of whether counsel should have 

moved for a continuance and for mistrial after an alleged 

suggestive line-up occurred on the morning Petitioner's 

trial began constitutes the kind of hindsight which has 

never provided the basis for ineffective assistance 

claims.  MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960); 
  

Pitts v. Glass, 231 Ga. 638 (1974). 
  

3. Counsel failed to object to improper 

instructions to the jury. 

The Court has concluded that the jury instructions 

were neither burden-shifting (see Paragraph 24) nor 

overly-broad (see Paragraph 27). Petitioner's claim 

is meritless. 

wl8~ 

 



  

4. Counsel failed to object to improper arguments 

to the jury. 

The Court has concluded that the prosecutor's 

remarks were not improper (see Paragraph 25). Petitioner's 

claim is meritless. 

5. Counsel failed to prepare adequately and 

present evidence at the sentencing phase. 

Counsel testified that prior to trial, he went 

over Petitioner's background with him, schools he had 

attended, who he knew. (H.T. 80). He also asked 

Petitioner if he had any witnesses or anyone to 

testify as to his character. He also discussed 

the same matters with Petitioner's sister, who 

declined to testify and told Counsel that her mother was 

not able to testify. (B.r, 80) . Counsel also 

testified that Petitioner refused to testify in 

his own behalf during the sentencing phase. (H.T. 94). 

Petitioner presented conflicting evidence to the 

extent that Petitioner's sister testified she was 

not asked to testify or to provide the names of potential 

character witnesses (H.T.136-137). Petitioner also 

presented the affidavits of five persons who indicated 

they would have testified for Petitioner had they been 

asked. 

Despite the conflicting evidence on this point, 

however, the Court is authorized in its role as fact 

finder to conclude that Counsel made all inquiries 

necessary to present an adequate defense during the 

sentencing phase. Indeed, Counsel could not present 

ww} 

 



  

evidence that did not exist. 

The Sixth Amendment right to counsel means 

"_ ..not errorless counsel, and not counsel judged 

ineffective by hindsight, but counsel reasonably 

likely to render and rendering effective assistance. 

MacKenna v. Ellis, supra; Pitts v. Glass, supra. 
  

  

Petitioner's trial counsel easily meets this 

test. He was experienced in the trial of criminal 

cases. He prepared for and advocated Petitioner’s 

cause in a reasonably effective manner. Counsel's 

testimony shows him to have been an intelligent and 

concerned defense lawyer. The effort he put forth 

for Petitioner was certainly reasonably effective within 

the meaning of the standard. 

Accordingly, .the allegations in Paragraph 31 

are found to be without merit. 

35. 

In Paragraph 35, Petitioner complains that the 

introduction of his statements made to Offie Evans 

were elicited in a situation created to induce 

Petitioner to make incriminating statements in 

violation of his Sixth Amendment right to counsel. 

The Supreme Court has already decided that the 

testimony of Evans was properly admitted. McClesky v. 
  

State, supra, at 112(4). This Court has concluded 

that there was no arrangement made for the testimony 

of Evans. (See Paragraph 20). Petitioner has presented 

no evidence tending to show that his statements were 

elicited in violation of his Sixth Amendment rights. 

Accordingly, this allegation is found to be without 

merit. 

-20- 

 



  

36. 

Petitioner claims in Paragraph 36 that the 

evidence upon which he was convicted was insufficient 

to show his guilt beyond a reasonable doubt in 

violation of his constitutional rights. 

The Supreme Court has already decided that the 

evidence supports the finding of. azaravating 

circumstances, the finding of guilt, and the 

sentence of death beyond a reasonable doubt. McClesky   

v. State, supra, at 115.   

Accordingly, this allegation is found to be without 

merit. 

WHEREFORE, all allegations in the Petition 

3 2 * £ 11 3 73 +} a d= 2 3 : x 3 having been found without merit, the Petition is denied. 

This 9 day of April, 1981. 

    
    

ALEX CRUMBLE 

JUDGE SUPERIOR COURTS 

FLINT JUDICIAL CIRCUIT 

  

   

 



  

APPENDIX 
  

Now, what should you consider as you are 

deliberating the second time here, and I don't 

know what you are going to consider. 

I would ask you, however, to consider several 

things. Have you observed any remorse being exhibited 

during this trial by Mr. McClesky? Have you observed 

any remorse exhibited while he was testifying? 

Have you observed any repentence by Mr. McClesky, 

either visually as you look at him now or during the 

trial or during the time that he testified? Has he 

exhibited to you any sorrow, both visually or during the 

time that he was testifying? 

Have you seen any tears in his eyes for this 

act that he has Gone? 4 

I would also ask you to consider the prior 

convictions that you have had with your in the jury room, 

and particularly the one where he got three convictions. 

I believe if you look at those papers carefully you 

are going to find, I think, on one of those he got three 

life sentences to begin with, and then there is a cover 

sheet where apparently that was reduced to what, eighteen 

years or fifteen years or something, which means, of 

course, he went through the appellate process and 

somehow it got reduced. 

Now, I ask you to consider that in conjunction 

with the life that he has set for himself. 

You know, I haven't set his goals, you haven't 

 



  

set his goals, he set his own goals, and here is a 

man that's served considerable periods of time in 

prison for armed robbery, just like Ben Wright said, 

you know, that is his profession and he gets in 

safely, takes care of the victims, although he may 

threaten them, and gets out safely, that is what he 

considers doing a good job, but of course you 

may not agree with him, but that is job safety. 

I don't know what the Health, Education and 

Welfare or whatever organization it is that checks on 

job safety would say, but that is what Mr. Ben Wright 

considers his responsibility. 

Now, apparently Mr. McClesky does not consider 

that his responsibility, so consider that. The life 

that he has set for himself, the direction that he has on
 

n 

set his sails, and thinking down the road are we going 

to have to have another trial sometime for another peace 

officer, another corrections officer, or some innocent 

bystander who happens to walk into a store, or some 

innocent person who happens to be working in the store 

who makes the wrong move, who makes the wrong turn, that 

makes the wrong gesture, that moves suddently and ends 

up with a bullet in their head? 

{T. 1019-1020). 

ii. 

 



CLERK'S OFFICE, SUPREME COURT OF GEORGIA 

  

Atlanta, 5-7-81 

Application No. 1648 
  

WARREN McCLESKEY 
  

Vv   

WALTER. ZANT... SUPT 
  

has been docketed in the Supreme Court today. 

MRS. JOLINE B. WILLIAMS, Clerk  



  

i
 

K
N
 

~~
 

O
O
 

  

SUPREME COURT OF 

['he Honorable Supreme Co 

”~ “ 'd 1 . 3 1 

I'he following order was passed: 

GEORGIA 

viianTA, June 17, 1981 

urt met pursuant to adjournment. 

WARREN McCLESKEY V. WALTER ZANT, SUPT. 

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 
  

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 seal of said court hereto affixed 

the day and year last above written. 

Cotriee 7 CIE Clerk. 

7 

 



   
JOHN R. MYER 

  

THOMAS A. BOWMAN 1515S HEALEY BUILDING 
57 FORSYTH ST., N.W. 

ROBERT H. STROUP ATLANTA, GEORGIA 30303 

GARY FLACK 404/522-1934 

ATTORNEYS AT LAW 

September 15, 1981 

Honorable Alexander E. Stevas 
Clerk, Supreme Court of the 
United States 

Washington, D. C. 20543 

Re: Warren McCleskey, Petitioner 

Walter Zant, Respondent 
  

Dear Mr. Stevas: 

Enclosed for filing please find an original and eight copies 
of the "Petition for Writ of Certiorari"in the above-referenc- 
ed action. 

Also enclosed for filing is the "Petitioner's Filing Statement," 
and a "Motion for Leave to Proceed In Forma Pauperis." The 
affidavit of petitioner to accompany the Motion for Leave to 
Proceed In Forma Pauperis will be mailed under separate cover 
within the next day or two. I was advised in a telephone 
conversation with a deputy clerk in your office that such a 
procedure would be permissible. 

  

  

Thank you for your courtesy. 

Very Ril yours, 

bert] H. Stroup 

RHS/1 

Fncls. 
cc: Nicholas G. Dumich, Esq. 

 



  

IN THE 

SUPREME COURT OF THE UNITED STATES ° 

OCTOBER TERM, 1981 

  

NO. 

  

WARREN McCLESKEY, 

Petitioner, 

VS. 

WALTER ZANT, Superintendent, 
Georgia Disgnostic & 
Classification Center, 

Respondent. 

  

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPERIOR COURT OF BUTTS COUNTY, STATE 

~ OF GEORGIA 
  

ROBERT H. STROUP 

1515 Healey Building 
57 Forsyth St., N. W. 
Atlanta, Georgia 30303 

JACK GREENBERG 

JOHN CHARLES BOGER 

10 Columbus Circle 

New York, New York 10019 

ATTORNEYS FOR PETITIONER 

 



  

iI. 

ITI. 

IV. 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1981 

  

NO. 

  

WARREN McCLESKEY, 

Petitioner, 

Versus 

WALTER ZANT, Superintendent, 
Georgia Disgnostic & 
Classification Center, 

Respondent. 

  

- QUESTIONS PRESENTED FOR REVIEW 
  

Whether the Georgia death penalty statute as applied in 

this case contravenes the Eighth and Fourteenth Amendments 

to the United States Constitution by failing to provide 

guidelines to the jury with respect to its use of certain 

"aggravating circumstance" evidence, namely evidence of 

other acts of alleged criminal conduct by the petitioner. 

Whether the imposition of the death penalty was in this 

case arbitrary and capricious in contravention of the 

Eighth and Fourteenth Amendments to the United States 

Constitution in that there is no rational way to distinguish 

this case from numerous other cases where the death penalty 

has not been imposed. 

Whether a police detective's promises of a favorable recom- 

mendation on a pending escape charge, made to a key 

prosecution witness and not disclosed at petitioner's trial, 

contravenes the due process clause of the Fourteenth 

Amendment. 

Whether petitioner's due process rights were violated by the 

trial court's failure to grant petitioner's motion to proceed 

in forma pauperis and for expenses for expert testimony with   

 



  

V1. 

Vil. 

Vill. 

respect to the identity of the murder weapon. 

Whether the trial court's charge to the jury with respect 

to the proof of intent necessary to show malice murder 

shifted the burden of pursuasion to the petitioner in 

contravention of the due process clause of the Fourteenth 

Amendment. 

Whether the prosecution's argument in the penalty phase 

regarding the appellate court's reduction of life sentences 

previously imposed against petitioner contravened the due 

process clause of the Fourteenth Amendment. 

Whether the petitioner was denied his Sixth Amendment rights 

  

by the failure of his trial counsel, inter alia, to interview 

witnesses, develop available defenses, move for a continuance, 

object to improper jury instructions, and prepare for the 

sentencing phase. 

Whether the trial court's exclusion of two prospective jurors 

after only a brief examination of their views on capital 

punishment was contrary to Witherspoon v. Illinois and its 
  

progeny. 

ii 

 



  

TABLE OF CONTENTS 
  

Page 

Questions Presented For Review.....eeeeee. «viva siaal 1 

Table Of Contents. voc ieinesseessnisnins He EI EIN eadid 

Table of Authorities... ccc... conse tins nerev nisms ress os ¥ 

Citation toOpinion BelOW.s sve esrvevvnsvrstenvrrerenss 1 

Jurisdiction. ce veo. NOIRE ES RI SE Gra, i he caine vis 1 

Constitutional & Statutory Provisions Involved........ 2 

Statement Of the Case... es vcsvv sass MERE I MEER 3 

Reasons For Allowance of the Writ....... cuales v's er a 7 

I. THIS COURT SHOULD GRANT CERTIORARI TO REVIEW AN 
IMPORTANT QUESTION OF FEDERAL LAW WHICH HAS NOT 
BEEN, BUT SHOULD BE, SETTLED BY THIS COURT, 
NAMELY, WHETHER THE GEORGIA DEATH PENALTY SCHEME, 
AS ADMINISTERED IN THIS CASE, CONTRAVENES THE 
EIGHTH AND FOURTEENTH AMENDMENTS BY FAILING TO 
PROVIDE ANY GUIDELINES TO THE JURY WITH RESPECT 
TO USE OF EVIDENCE REGARDING POSSIBLY AGGRAVAT- 
ING CIRCUMSTANCES cv cvs scree Aah e+ “tials n ois cies vf 

II. THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE 

WHETHER THE GEORGIA DEATH PENALTY STATUTE AS 

APPLIED HAS RESULTED IN THE IMPOSITION OF THE 

DEATH PENALTY IN AN ARBITRARY, CAPRICIOUS, AND 

WHIMSICAL FASHION IN CONTRAVENTION OF THE 

EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED 

STATES CONSTITUTION. ct ces ster srcssssosnscsvnssses 11 

III. THE COURT SHOULD GRANT CERTIORARI TO DETERMINE 

WHETHER THE STATE'S FAILURE TO DISCLOSE AN 

UNDERSTANDING BETWEEN A KEY PROSECUTION 

WITNESS AND A POLICE DETECTIVE REGARDING A 

FAVORABLE RECOMMENDATION THAT WOULD BE MADE ON 

PENDING ESCAPE CHARGES IN EXCHANGE FOR HIS CO- 

OPERATION CONTRAVENED THE DUE PROCESS CLAUSE OF 

THE FOURTEENTH AMENDMENT csi vie « in" o iendnnnssvssld 

IV. THE COURT SHOULD GRANT CERTIORARI TO DETERMINE 

WHETHER PETITIONER'S DUE PROCESS RIGHTS WERE 

* VIOLATED BY THE TRIAL COURT'S DENIAL OF 

PETITIONER'S MOTION TO PROCEED IN FORMA PAUPERIS 

AND FOR EXPENSES FOR EXPERT TESTIMONY WITH 

RESPECT TO THE IDENTITY OF THE MURDER WEAPON....15 

  

V. THE COURT SHOULD GRANT THE WRIT TO CONSIDER 

THE CONSTITUTIONALITY OF THE TRIAL COURT'S 

CHARGE WITH RESPECT TO PRESUMPTIONS ON 

INTENT. cceceacns tees sate ess devs ss esto vennennn ve 16 

VI. THE COURT SHOULD GRANT THE PETITION TO 

DETERMINE WHETHER THE PROSECUTOR'S ARGUMENT 

TO THE JURY REGARDING THE EFFECT OF POST- 

CONVICTION APPEALS UPON LIFE SENTENCES IMPOSED 

BY A PRIOR JURY CONTRAVENES THE DUE PROCESS 

CLAUSE OF THE FOURTEENTH AMENDMENT ...¢ccececeeee.n 17 

iii 

 



  

Page 

Vili. THE COURT SHOULD GRANT THE WRIT BECAUSE 
PETITIONER WAS DENIED EFFECTIVE 
ASSISTANCE OF COUNSEL IN CONTRAVENTION 
OF THE SIXTH AND FOURTEENTH AMENDMENTS......18 

VIII. WHETHER THE TRIAL COURT'S EXCLUSION OF 
TWO PROSPECTIVE JURORS, AFTER ONLY A 
BRIEF EXAMINATION REGARDING THEIR VIEWS 
ON CAPITAL PUNISHMENT, CONTRAVENED 
WITHERSPOON AND ITS PROGENY... vcr vrvnssnvsnse 20 

CONCISE AON en vias vn sins vos a hee ew ek sre nies wee v visi vivir dl 

Appendix 

iv 

  

 



  

TABLE OF AUTHORITIES 
  

CASES CITED 
  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

    

  

  

  

  

  

  

  

o Page 

Allanson V. State; 235 Ca. 5848 (1976) cuvievnvusncennise 9 

BACON VV. BSLate, 209 Ga. 261 (1952). cv ten cesses sensensie 9 

Bell vy, GCeOorglia, 554 F. 2d 1360 (5th Cir. 1977) veeceinn 20 

Bennetts v. State, 231 Ga. 458 (1973) cere venvininneceinn 11 

Bowden Vv. State, 239 Ga. 821 (1977) ..cunceveesomunnsinse }2 

Brown v. Blackburn, 625 F. 28 35 {5th Cir. 1980) ...... 20 

Burns v. Estelle, 592 F. 2d 1277, approved en banc, 
626 P. 28.396 {5th Clr, 1980) tere nnmoneionenoene sins 21 

Callahan v. State, 229068. 737 (1972) cc ercnesersvsvsin 33,12 

Campbell V. State, 2324 Ga. 130 £1075) ur evienacnins sein 9 

Coley vy. State, 23) Ga. B34 (19748). vues nvnesevesnnenes 10 

Collier vv. State, 244 Ga. 553 (1979). vcovnvrvvinnmennien 12 

Cozzlinoiv. State, 584 S. W.. 24 765 (Tenn., 1979)... 10 

Davis vy. Alabama, 596 PF. 28 1214 (5th Cir. 1979%.... 5%. 20 

DODDS vy. State, 236 Gh. 427 (1976) civ sinnveivednninnmy 12 

Elledge v. State, 346 So. 24 998 (Florida, 1977) ...... 10 

Pleming vy. State, 240 Ga, 142 -{1977) ces sverssinnnsvns 12 

Freeman v. State of Georgia, 599 F. 24 65 (5th Cir. 
1979) wun vies ven TV PURE OPe DADTEar 15 

Friedman v. United States, 588 F. 24 1010 (5th Cir. 
LL EI ONE NS el NESS SE 20 

Furman v. Georgia, 408 U., 8S. 238 (1972) uence 16,11,12,13,12 

Gaines v. Hopper, 575 FP. 24 1147 (5th Cir. 1978)...... 20 

Gideon Wy. Wainwright, 373 U. 8S. 335 (1963) ...vcvitnvnns 20 

Giglio v. United States, 405 U. 8S. 150 (1972) due ccvea 15 

Godfrey v. Georgia, 3,8." ,.64 L. Ed. 24 398 
(LTB) sev se reves sninanisssesvsrinsarnnswessiss 9,10,11,12,13 

Gregg v. Georgia, 428 U., S. 153, 49 L. E4. 24 858 
  

  

  

  

(1076) s'ennetsss sss Poneincseinnssesnnansnmnss rises 9,10,11,12,13 

Green. y, Georgia,  U. 8. , 60 L. Ed. 24 738 
COTO ee oie atieBe ngeioio suns sls Bins nobis w 0in su W v0  aiusinins sins 8 

Hamilton v. State, "239 Cae 72 (1977) cece sessvessesene 8 

Howard v. State, 211 Ga. 186 (1954) cv. vot. sie sais din sine 9 

JONNSOoNn vy. State, 226 Ga, 378 (1970) ves simuvvvnvsnvine vis 11 
  

  

 



  

  

  

  

  

  

  

  

  

  

    

  

Jurek v. Texas, 428 U. 8S. 269 11976) sce eveinnecen venal3 

Little vy. Streaker, ~~ U. 8.  ', 68 L. EQ. 24 627 

CEOTLY +s snenaeinvssvinsa vous mais vonnssunnnmens soins 16 

Lockett v, Ohio, 438 U. 5,586, 57. L. Bd. 24 973 
(1S78) enivinie ct esnernninsedssnvnvnssseevessniesnsnnis 9 

McCleskey v. Georgia, Uv. 8.  , 43 U.8.L.%, 
32 1980) svar rnc ev rote re sev insmsssrse ns novus 3 

Mullaney v.. Wilbur, 421 U., 8. 684 (1975) cevesveivees 17,19 

Powell v. 'Alabama, 287 U. SBS. 457{1932) si seni icets vives 20 

Presnell v. Georgia, 439 U. S. 14 (1978) ues vovnnes 9 

Proffitt v. Florida, 428 U. 8.7242 (1976) cea cvs vedians 10,13 

Pulliam v. State, 236 Gos A600 11976) ec vin cess na ninitios in 12 

Rosborough. V. State, 209 Ga. 362 (1958). caves onnsee 9 

Rummel v. Estelle, 590 F. 24 103 (5th Cir. 1979)..... 20 

Sandstrom v. Montana, 442 0. SS. 510 (1979) ic. cececess 17 
  

Schneider vy. Estelle, 552.7. 24 593 (5th Cir. 1977).15 
  

Smith v. Plorida, 410 F. 28 1349 (5th Cir. 1969)....15 
  

State v. McCormick, 397 N. EE. 24 276 (Indiana, 
  

  

  

  

  

  

  

  

  

OE EE EE RRR 10 

Tyler v. Phelps, 622 F. 24d 172, vacated on other 
grounds, 643 ¥,. 24:1095 (5th Civ. 1981) cave vs vnsins 17 

United States v. Sutton, 524 ¥. 24 1239 (4th Cir. 
JOO) ens nr ver sansne rns ren sa seen vee tiitin vies neni 15 

Whitlock v. State, 230 Ga. 700 £1973) cv cov tinosnsnin ais : 3 } 

Williame.v, Brown, 609 F. 24 216 {5th Cir. 1980)..... 15 

VWillisey., State, 243 8a. ‘185 (1973) cee vans vevinvrnn ine 12 

Wilson vv. State, 212 Ca. 412 (1056), ,.. vievwsessvnsne 9 

Witherspoon v. Illinois, 391 U. 8, 510 (1968)... 0iv ues 21 

Wood vv. :State, 224 Ga. 121 (1968) ie. ccs cnevsvinesnisinee 9 

Woodson 'v. North Carolina, 428 U. S. 280 (1976) ...... 10 
  

STATUTES CITED   

Ga, Code lAnn, §27=2537 (DI l2) aust varinnsnasvssvnmes es 2 

CaniCode Ann, $§27=2537 (DY (7) seer snvernsvivssnineevns 14 

Ga... Code Ann. §272537 (AD) {8) vvvrssnnsenr Cerrone 2 

Ga, Code Ann. 527-2537 {CY (2) sv snnsiee reece vesvnsnesn 3,14 

vi 

 



  

OTHER AUTHORITIES CITED   

  

  

Page 

McCormick On Evidence, 2nd Bd., $190... .c¢ 00ers 8 

"Other Crimes At Trial", 70 Yale Law 
Journal 763 (1901) ce vers snnnremveessinrarvstene 8 

l] Wigmore Evidence, Y55=57.cverensresvurns Pe 8 
  

vii 

 



  

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1981 

  

NO. 

  

WARREN McCLESKEY, 

Petitioner, 

Versus 

WALTER ZANT, Superintendent, 
Georgia Diagnostic & 
Classification Center, 

Respondent. 

  

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPERIOR COURT OF BUTTS COUNTY, STATE 

OF GEORGIA 

  

Petitioner, WARREN McCLESKEY, prays that a Writ of Certio- 

rari issue to the Superior Court of Butts County, State of 

Georgia, to review the judgment of that Court entered on April 

8, 1981. The Supreme Court of Georgia denied the Petitioner's 

Application For A Certificate of Probable Cause to Appeal the 

decision of the Superior Court of Butts County on June 17, 1981. 

CITATION TO OPINION BELOW 
  

The opinion of the Superior Court for Butts County is un- 

reported, but attached hereto as Appendix "A" 6 pp. A-1 through 

A-23: The decision of the Supreme Court of Georgia denying the 

Application For A Certificate of Probable Cause is also un- 

reported but attached hereto as Appendix "B." 

JURISDICTION 
  

The decision of the Superior Court of Butts County was 

entered on April 8, 1981 and the Application For A Certificate 

of Probable Cause to Appeal was denied by the Supreme Court of 

Georgia on June 17, 1981 (see Supreme Court of Georgia Order, 

attached hereto as Appendix "B"). 

 



  

This Court has jurisdiction pursuant to 28 U, §., C. 

$1257. 

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED. 
  

This case involves the Sixth, Eighth, and Fourteenth 

Amendments to the United States Constitution, which provide 

in relevant part: 

SIXTH AMENDMENT. 
  

"In all criminal prosecutions, the accused 
shall enjoy the right to a speedy and public 
trial, by an impartial jury of the State 
and district wherein the crime shall have 
been committed, which district shall have 
been previously ascertained by law, and to 
be informed of the nature and cause of the 
accusation; to be confronted with the wit- 
nesses against him; to have compulsory 
process for obtaining witnesses to his 
favor, and to have the Assistance of Counsel 
for his defence." 

EIGHTH AMENDMENT. 
  

"Excessive bail shall not be required, nor 
excessive fines imposed, nor cruel and unusual 
punishments inflicted." 

FOURTEENTH AMENDMENT. 
  

. .No state shall make or enforce any law 
which shall abridge the privileges or im- 
munities of citizens of the United States; 
nor shall any state deprive any person of 
life, liberty, or property, without due 
process of law; nor deny to any person with- 
in its jurisdiction the equal protection of 
the laws. , . ." 

This also involves provisions of the Georgia Death Penalty 

Statute including, inter alia, Ga. Code Ann. §27-2534.1:   

"(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 in- 
structions to the jury for it to consider, any 
migigating circumstances or aggravating circum- 
stances otherwise authorized by law and any of 
the following statutory aggravating circumstances 
which may be supported by the evidence: . . 
(2) the offense of murder, rape, armed robbery, 
or kidnapping was committed while the offender was 
engaged in the commission of another capital 
felony, or aggravated battery, or the offense of 
murder was committed while the offender was en- 
gaged in the commission of burgulary or arson in 
the first degree. . . 
(8) the offense of murder was committed against 
any peace officer, corrections employee or fire- 
man while engaged in the performance of his of- 
ficial duties. 

 



  

* * * 

(c) the statutory instructions as determined 
by the trial judge to be warranted by the 
evidence shall be given in charge and in 
writing to the jury. The jury, if its 
verdict be a recommendation of death, shall 
designate in writing, signed by the foreman 
of the jury, the aggravating circumstance 
or circumstances which it found beyond a 
reasonable doubt. Except in cases of treason 
or aircraft hijacking, unless at least one 
of the statutory aggravating circumstances 
enumerated in §27-2534.1(b) is so found, the 
dealth penalty shall not be imposed." 

STATEMENT OF THE CASE 
  

Petitioner, WARREN McCLESKEY, was indicted on June 33, 1978 

for the murder of Frank Schlatt, an officer with the Atlanta 

Bureau of Police Services, during the course of a robbery of the 

Dixie Furniture Store in Atlanta. Petitioner was also indicted 

on two counts of armed robbery. 

The charges against petitioner were tried before a jury on 

October 9-12, 1978 and he was convicted on all three counts. In 

a separate sentencing phase, the jury imposed the death penalty 

for the murder conviction and imposed two consecutive life 

sentences for the armed robbery conviction (Tr. 1031). 

The Court ordered that petitioner be executed by electrocu- 

tion on November 22, 1978 (Tr. 1036). His execution was then 

stayed pending appeal. McCleskey's conviction was appealed to 

the Supreme Court of Georgia which upheld his conviction and 

sentences on January 24, 1980. 

The United States Supreme Court denied a Petition for Writ 

of Certiorari, McCleskey v. Georgia, U. S. ev: 49:0, S. L. 
  

W. 3251 (1980). Subsequently, on December 19, 1980, the Superior 

Court of Fulton County set January 8, 1981 as the date for 

execution of the petitioner's death sentence. Petitioner then 

filed a Petition for a Writ of Habeas Corpus and moved for a 

Seay of the execution of the death sentence, which stay the 

Superior Court of Butts County granted on January 5, 1981. 

A hearing was held on Petitioner's Petition for a Writ of 

  

 



  

Habeas Corpus on January 30, 1981. On April 8, 1981, the 

Superior Court of Butts County denied the Writ and an 

Application for a Certificate of Probable Cause to Appeal 

was filed in the Supreme Court of Gaokoia. That Application 

was denied on June 17, 1981. 

Petitioner was convicted of murder on the State's theory 

that he was the trigger man in the robbery. The State did 

not introduce the murder weapon and no one testified that they 

saw petitioner shoot Officer Schlatt. In addition to certain 

testimony regarding the Dixie Furniture Store robbery, the 

State introduced evidence regarding two armed robberies which 

had occurred six weeks prior to the Dixie Furniture Store 

robbery (Tr. 673, et seq.; Tr. 884, et seq.). Although the 

the State contended that petitioner had participated in those 

robberies, he had been neither convicted nor indicted for those 

robberies. No instruction was given to the jury regarding 

what standard of proof the State bore in proving petitioner's 

participation in those robberies. During the course of the 

trial, the State also introduced evidence of prior convictions 

or guilty pleas of the petitioner for armed robberies which 

had occurred seven or eight years earlier (Tr. 1066-1078). 

Petitioner was cross-examined by the State regarding the details 

of each of the robberies which were the basis for the prior 

convictions or guilty pleas (Tr. 843-849). 

At trial, the State presented testimony by five witnesses 

(othex than petitioner's co-defendant) who stated that they 

saw petitioner participate in an armed robbery. Of these five 

witnesses, however, only two identified petitioner as a parti- 

cipant in the Dixie Furniture Store robbery. The other three 

witnesses testified to details of petitioner's alleged partici- 

‘pation in other robberies not closely connected in time or 

place with the Dixie Furniture Store robbery. 

The introduction of evidence of other robberies not closely 

related to the Dixie Furniture Store robbery was introduced 

 



  

over the objection of defense counsel (Tr. 668-671). With 

respect to the introduction of such evidence, the Court 

gave the jury the following instruction at the time of its 

admission: 

"Ladies and Gentlemen, in the prosecution 
for a particular crime, evidence which in 
any manner shows or tends to show that the 
accused, that is, the defendant in this 
case, has committed another transaction, 
wholly distinct, independent and separate 
from that for which he is on trial, even 
though it may show a transaction of the 
same nature, with similar methods, in 
similar locations, it is admitted into 
evidence for the limited purpose of aiding 
in identification and illustrating the 
state of mind, plan, motive, intent and 
scheme of the accused, if, in fact, ‘it 
does to the jury illustrate those matters. 

Now, whether or not the defendant was 
involved in such similar transaction is a 
matter for you to determine, and the Court 
makes no intimation in that regard. . 

Furthermore, if you conclude that the 
defendant now on trial was involved in a 
similar transaction or these similar tran- 
sactions, you should consider it solely 
with reference to the mental state and in- 
tent of the defendant insofar as applicable 
to the charges in the indictment, and the 
Court in charging you this principle of law 
in no way intimates whether such transaction, 
if any tends to illustrate the intent or state 
of mind of the defendant. That is a question 
for the jury to determine, but this evidence 
is admitted for the limited purpose mentioned 
by the Court, and you will consider it for no 
other purpose except the purpose for which 
it is admitted. All right, proceed" (Tr. 
673-674). 

The Court repeated this charge almost verbatim in its instruc- 

tions to the jury just prior to its deliberation with respect 

to petitioner's guilt (Tr. 992-993). 

After the jury returned verdicts of guilty on all three 

counts, the Court gave the jury instructions regarding its 

sentencing deliberations. No instruction was given that the 

jury should disregard the "other acts" evidence presented at 

the trial. No instruction was given regarding what weight, 

if any, the jury should give to the evidence presented regard- 

ing other alleged acts of criminal conduct by the defendant. 

Rather, the Court instructed the jury that all the evidence 

  

 



  

presented at the guilt phase could be considered at the 

sentencing phase. The verbatim instruction given to the jury 

was as follows: 

"In arriving at your determination of which 
penalty shall be imposed, you are authoriz- 
ed to consider all the evidence received 
here in court, presented by the State and 
the defendant throughout the trial before 
you" (Tr. 1028). 

One of the other alleged robberies was offered for impeach- 

ment purposes (Tr. 884), and at the time of its introduction, 

the Court gave a cautionary instruction (Tr. 885). No 

cautionary or limiting instruction regarding the use of such 

evidence was given as part of the general instructions to the 

jury prior to deliberating either as to guilt or the sentence. 

The broad general instruction which was given regarding the use 

of evidence of other criminal acts (supra, at 4-5), invited the 

jury to use this evidence for purposes other than those for 

which it was offered. 

At trial, the defendant testified and on direct examina- 

tion the fact of prior armed robbery convictions was elicited 

(Tr. 805A). On cross-examination, the State offered copies of 

prior indictments and convictions (Exhibits S-32 - S-35):; (Tr. 

1066-1078). The State also examined petitioner in detail 

regarding the acts which were the basis for those prior convic- 

tions seven to eight years prior to the Dixie Furniture Store 

robbery (843-849). 

The Georgia death penalty scheme does not require any 

instruction to the jury if the jury determines to use evidence 

of other alleged acts of criminal conduct as aggravating circum- 

stances for imposition of the death penalty. No instruction of 

any kind was given to the jury as to when it would be appro- 

priate to consider evidence of other alleged acts of criminal 

conduct as aggravating circumstances which would justify 

imposition of the death penalty. 

The State also introduced into evidence the testimony of 

Offie Gene Evans, a prisioner and informant, who testified 

 



  

regarding an alleged confession by petitioner which he 

elicited from petitioner while both were incarcerated at 

the Fulton County Jail (Tr. 869-871). This statement 

had not been provided to petitioner prior to trial, and 

petitioner denied making any such confession (Tr. 826-34). 

At the State Habeas Corpus Hearing, this same witness 

admitted that promises had been made to him by a City of 

Atlanta detective with respect to a recommendation for lenient 

treatment for an escape charge which was then pending against 

Evans if he were to give favorable testimony in the McCleskey 

case. Such a promise had not been made known to the jury at 

the time of the McCleskey trial. 

Evidence also introduced at the State Habeas Corpus Hearing 

showed that the pre-1973 pattern of imposing death sentenves 

exists in Georgia after 1973 particularly with respect to the 

imposition of death penalty in cases involving police 

officers as victims. The pattern which the evidence shows is 

that the death penalty had been imposed only when a black male 

has been convicted of shooting a white officer while on duty. 

Each of the Federal claims raised here were raised in the 

Habeas Complaint filed in the Superior Court of Butts County 

(see Petition for a Writ of Habeas Corpus, for a Stay of Execu- 

  

tion, and for Leave to Proceed In Forma Pauperis, filed January 

5, 1981). Each of the Federal grounds raised herein Was Yon 

jected by the Court in its Order of April 8, 1981, attached 

hereto as . 

REASON FOR ALLOWANCE OF THE WRIT. 
  

I. THIS COURT SHOULD GRANT CERTIORARI TO REVIEW AN 

IMPORTANT QUESTION OF FEDERAL LAW WHICH HAS NOT 

BEEN, BUT SHOULD BE, SETTLED BY THIS COURT, 

NAMELY, WHETHER THE GEORGIA DEATH PENALTY SCHEME, 

AS ADMINISTERED IN THIS CASE, CONTRAVENES THE 

EIGHTH AND FOURTEENTH AMENDMENTS BY FAILING TO 

PROVIDE ANY GUIDELINES TO THE JURY WITH RESPECT 

TO USE OF EVIDENCE REGARDING POSSIBLY AGGRAVATING 

CIRCUMSTANCES. 
  

This: case raises important Eighth and Fourteenth 

Amendment questions regarding the imposition by the jury of a 

 



    

death sentence without guidelines regarding the use of possib- 

ly aggravating circumstance evidence. At petitioner's trial, 

the State introduced (in both documentary and testimonial form) 

evidence regarding two armed robberies which had occurred 

sixX weeks prior to the Dixie Furniture Store robbery (Tr. 676, 

et seq.; Tr. 884, et seq.). Although the State contended that 

petitioner had participated in those robberies, he had been 

neither convicted nor indicted for them. No instruction was 

given to the jury regarding what standard of proof the State 

bore in proving petitioner's participation in those robberies. 

During the course of trial, the State also introduced evidence 

of prior convictions or guilty pleas of the petitioner for 

armed robberies which had occurred seven or eight years earlier 

(Tr. 1066-1078). Petitioner was cross-examined by the State 

regarding the details of each of the robberies which were the 

basis for the prior convictions or guilty pleas (Tr. 843-849). 

This Court has recently recognized that the due process 

clause imposes restrictions upon state evidentiary rules. in the 

context of capital felony trials. Green v. State of Georgia, 
  

U.. 8. + 80 L. Pd. 24 738 (1979). 

It has long been the rule in the Anglo-American juris- 

prudence that the state should not introduce evidence of other 

acts of criminal conduct of the accused to prove a predisposition 

for crime. 1 Wigmore Evidence, 55-57; McCormick On Evidence, 
  

  

2d Ed., §190; "Other Crimes at Trial," 70 Yale Law Journal, 763 
  

{19561)., Georgia has, until relatively recent time, followed 

this common law rule. However, in recent years, the Georgia 

Courts have moved away from this tradition to the point where 

evidence of independent crime or alleged crime is admitted 

freely. This change in the Georgia rule is traced by former 

Justice Ingram of the Georgia Supreme Court in his dissent in 

Hamilton v. State, 239 Ga. 72, at 77-78 (1977): 
  

"I dissent to the judgment of the Court in 
this case primarily because, without 

  

 



  

expressly saying so, the majority has greatly 
weakened the doctrine of Bacon v. State, supra 

. .I cannot honestly say that this jury was 
not significantly influenced by the illegal 
admission of this evidence of an independent 
crime. If you doubt that thé Bacon doctrine is 
being eroded, read the following cases. Cf. 
Rosborough v. State, 209 Ga. 362(2) (72 S.E.2d 
7173 (1954); Howard v. State, 211 Ga. 186(3) (84 

S.E.2d 455) (1954); Wilson v. State, 212 Ga. 
412(2)4(93 S.E.24 354) (1956); Wood v. State, 
224 Ga. 121(5) (160 S.5.24 368) (1968) with 
Campbell v, State, 234 Ga.l30 (214 5.E.24 656) 
(1975); Allamson v. State, 235 Ga. 584(1) (221 
S.E.24{(3) (1975); and Fears v. State, 236 Ga. 
660 (1) (225 S.E.2d 4) (1976). These cases show 
a remarkable trend, inh my judgment, towards the 
liberal admission into evidence of independent 
crimes. If this is to be the new rule, why not 
just say, boldly and plainly, that the barrier 
has been lifted and defendants will now be tried 
on their record irrespective of any connection 
with the alleged crime on trial." 

  

  

  

  

  

  

  

  

This broad Georgia rule regarding admissibility of other 

acts evidence contravenes Eighth and Fourteenth Amendment 

standards when the death penalty is imposed. Presnell v. Georgia, 
  

439. U. SS. 14, 16 (1978); Gardner v. Florida, 430 U, 8S. 349 (1977); 
  

Lockett vy. Ohio, 4383 U. S. 5386, 57 1. Ed. 28 973, at 989 (197%). 
  

This Court should grant the writ to determine the important 

question regarding the constitutionality of the admission of such 

evidence without standards to the jury regarding its use. 

A separate and related question is the propriety of the 

jury's use of this cumulatiye evidence of other acts or 

alleged acts of criminal conduct as aggravating circumstances 

for imposition of the death penalty. The instructions given to 

the jury at the .guilt phase of the trial, rather than restrictively 

limiting the jury in its use of this evidence, invited the jury 

to use it for any purpose it saw fit. The failure to properly 

limit the exercise of the jury's discretion in the sentencing 

phase is contrary to the heartof the Supreme Court's decision 

  

in Gregg v. Georgia, 428 U, S,. 153, 49 L. Ed. 24 858, n. 47 

(1976) ("Where the ultimate punishment of death is at issue, a 

system of standardless jury discretion violates the Eighth and 

Fourteenth Amendments"); Godfrey v. Georgia, U. 8S, , 64 
  

L. Ed. 24 398 (1980). In Godfrey, the Court made clear that in 

-0- 

 



  

order to meet constitutional requirements: 

"It, [the State] must channel the sentencers’, , 
discretion by 'clear and objective standards'> 7 
that provide 'specific and detailed guidance, '=> 
and that'make rationally reviewable the process 
for imposing a sentence of death. '"7/ 

5/ 
“Gregg v. Georgia, supra, 428 U.S., at 198, 
guoting Coley v, State, 231 Ga. 834, 204 S.E. 
24 612. (1974). 

6/ 
Proffitt v. Florida, supra, 428 U. 8., at 253 
(Opinion of Stewart, Powell, and Stevens, JJ.) 

/ 
“Woodson v. North Carolina, supra, 428 U. S., 
at 303 (Opinion of Stewart, Powell, and Stevens, 
JJ.) 

  

  

  

  

64 L. Bd. 28 at 393. 

The standardless instruction to the jury in this case 

permitted the jury to use the evidence of other criminal acts 

in a matter that is simply a "subject of sheer speculation" 

just as was the jury's interpretation of the statutory language 

found defective in Godfrey, supra. While the Georgia statu- 
  

tory scheme upheld in Gregg, supra, expressly limits imposition 
  

of the death penalty to a jury finding of a statutorily-defined 

aggravating circumstance, the jury in this case was not 

instructed to assure that it was not motivated by aggravating 

factors such as petitioner's prior convictions or his alleged 

participation in other criminal acts for which he has not been 

indicted or convicted, which are not a part of the statutory 

scheme. 

: The Gedvals. bractics is also inconsistent with the rule 

adopted by three other state courts in interpreting the Furman 

requirements in their death penalty schemes. State v. McCormick, 
  

397 N. E. 2d 276 (Indiana, 1979); Cozzlino v. State, 584 5s. VW. 
  

2d 765 (Tennessee, 1979); Elledge v. State, 346 So. 24 998 
  

(Florida, 1977). 

Therefore, the Court should grant the writ to decide this 

important Federal question which has been subject to varying 

interpretations by the State Courts. 

wn 30) 

  

 



  

IT. THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE 

WHETHER THE GEORGIA DEATH PENALTY STATUTE AS 

APPLIED HAS RESULTED IN THE IMPOSITION OF THE 

DEATH PENALTY IN AN ARBITRARY, CAPRICIOUS, AND 

WHIMSICAL FASHION IN CONTRAVENTION OF THE 

EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED 

- STATES CONSTITUTION. : Jae 
  

The evidence before the Habeas court showed the arbi- 

trary and capricious manner in which the death penalty was 

imposed in this case. The evidence introduced showed that the 

pre-1973 pattern of imposing death sentences in Georgia (and 

found unconstitutional under Furman v. Georgia, 408 U. S. 238,   

33 L. EA 2d 346 (1972)) is the same pattern existing after 

1973. (See Petitioner's Habeas Proceeding, Exhibit "1"). 

Although a number of Atlanta Police Officers were killed, non- 

accidentally, during duty hours both prior to and subsequent 

to 1973, the death penalty had been imposed only freakishly. 

The only situations where the death penalty has been applied 

have involved white victims being killed by black actors. 

Nor has the review of death sentence imposition by 

the Georgia Supreme Court acted to assure that the pre-1973 

arbitrary and capricious nature of the imposition of the death 

sentence has been ended under the current statute. A brief 

review of the cases relied upon by the Georgia Supreme Court 

to support its conclusion that the death penalty was not 

imposed in an arbitrary fashion shows that, to the contrary, 

the death penalty in this case is arbitrary, in that shore is 

no way to explain why here, and not in other cases. 

: Of the thirteen cases reviewed by the Georgia Supreme 

Court and relied upon as a basis for non-arbitrariness, (see 

Appendix, 245 Ga., at 116-17), four ie. cases wherein 

the death penalty was overturned on the basis of Furman v.   

  

1/ 
“Johnson v.: State, 226 Ga. 378 (1970); Callahan v. State, 229 
Ga. 737 (1972); Whitlock v. State, 230 Ga. 700 (1973): Bennette 
v, State, 231 Ga. 458 (1973). 

    

    

  

11. 

  

 



  

Georgia, supra. Of the remaining cases, the bulk of them in-   

volved cases with evidence distinguishing them from the 

routine murder case in which the death penalty has not been 

imposed. For example, in at least three cases, the victim was 

shot while fleeing the scene. Fleming v. State, 240 Ga. 142 
  

(1977); Willis v. State, 243 Ga. 185 (1979); Collier v. State, 
  

  

244 Ga. 553 (1979). In another, one victim's skull was beaten 

in, leaving her features unrecognizable; and a butcher knife was 

buried deep in her chest. Another victim, a woman suffering 

partial paralysis from a stroke, was injured and left alone, 

where police found her several days later. The defendant later 

laughed about what he had done. Bowden v. State, 239 Ga. 821 
  

(1977). Pulliam v. State, 236 Ga. 460 (1976) involved a case 
  

where a cab driver was shot during a premeditated robbery 

scheme that included plans to shoot the driver. One other case 

relied upon by the Georgia Supreme Court, Dobbs v. State, 236 
  

Ga. 427 (1976) involved the murder of a grocery store operator 

who was shot while he lay helpless on the floor, with a witness 

begging that he be spared. And, finally, Callahan v. State, 
  

229 Ga. 737 (1972) invdlved the murder of an Atlanta Police 

Officer who was stomped unconscious prior to the shooting. 

Nothing presented to the jury in the case at hand was 

along the lines of these cases. Nothing in the statutory scheme 

of the Court's instructions to the jury gave the jury guidance 

as to when it was appropriate to impose 2 death sentence, and 

when it was not appropriate to impose a death sentence. 

The standards for assessing the imposition of the death 

penalty are set forth in Gregg v. Georgia, 428 U. S. 153, 49 L. 
  

Fd. 28 859, at 8383 (1976): 

"While Furman did not hold that the infliction 
of the death penalty per se violates the 
Constitution's ban on cruel and unusual 
punishments, it did recognize that the penalty 
of death is different in kind from any other 
punishment imposed under our system of crimi- 
nal justice. Because of the uniqueness of the 
death penalty, Furman held that it could not 
be imposed under sentencing procedures that 
created a substantial risk that it would be 

—] Dw 

  

 



  

inflicted in an arbitrary and capricious 

manner. Mr. Justice White concluded that 

'the death penalty is exacted with great 

infrequency even for the most artrocious 

crimes and. . .there is no meaningful basis 

for distinguishing the few cases in which 

it is imposed from the many cases in which 

it is not.' 408.U. 8,, at 313, 33 L. E&. 
24 346; 92 8S. Ct. 2726 (concurring). In 

deed, the death sentences examined by the 

Court in Furman were 'cruel and unusual in 

the same way that being struck by lighting 

is cruel and unusual. For all of the people 

convicted of [capital crimes], many just as 

reprehensible as these, the petitioners 

[in Furman were] among a capriciously select- 

ed random handful upon which the sentence of 

death has in fact been imposed. . .[T]he 

Eighth and Fourteenth Amendments cannot 

tolerate the infliction of a sentence of death 

under legal systems that permit this unique 

penalty to be so wantonly and so freakishly 

iniposed.”  1Id4., at 309-310, 33 L. Ed. 24 346, 
63 8. Ct. 2736 (Stewart, J., concurring), 

The arbitrary and capricious application of the death 

penalty in this case is akin to that found unconstitutional 

  

by the Court in Godfrey v. State of Georgia, U. Ss. y 

64 L. Ed. 24 398 (1980). There, the Supreme Court held un- 

constitutional, as applied, the death penalty imposed because 

"There is no principled way to distinguish this case, in which 

the death penalty was imposed, from the many cases in which it 

was not." Godfrey, 64 1. Ed. 24 at 409. 

The Supreme Court in Godfrey, supra, further stated: 
  

"A capital sentencing scheme must, in short, 

provide a ‘meaningful basis for distinguishing 

the few cases in which [the penalty] is imposed 

from the many cases in which it is not.' 1Id., 

at 188, 49 L. Ed. 2d 859, 96 S§. Ct. 2909, quoting 

Furman v. Georgia, supra, 408 U. S. at 313,.33 L. 

2d. 24 346, 92 S. Ct. 2726 (white, J., concurring. 

This means that if a State wishes to 

authorize capital punishment it has a constitu- 

tional responsibility to tailor and apply its 

law in a manner that avoids the arbitrary and 

capricious inflinction of the death penalty. 

Part of a State's responsibility in this regard 

is to define the crimes for which death may be 

the sentence in a way that obviates 'standardless 

[sentencing] discretion.' Gregg v. Georgia, supra, 

428.0. 8, , at 196, n, 47, 49 1. Ba. 24 B59, 96 

8S. Ct. 2909. See also Proffitt v. Florida, 428 

U.S. 242, 49 4. £4. 24 913. .96.8, Ct. 2960; Jurek 

vy. Texas, 428 U. S. 262, 49 L. Fd. 24 929, 96 5. 

Ct. 2950. It must channel the sentencer's dis- 

cretion by 'clar and objective standards' that 

provide 'specific and detailed guidance,' and that 

'make rationally reviewable the process for imposing 

a sentence of death.' As was made clear in Gregg, a 

-}3- 

  

 



  

death penalty 'system could have standards so 
vague that they would fail adequately to channel, 
the sentencing decision patterns juries with the 
result that a pattern of arbitrary and capricious 

sentencing like that found unconstitutional in 
Furman could occur.! 428 U.S5., at 195, n. 46, 
49 L.Ed. 24 3859, 96 S. Ct. 2909, 

In the case before us, the Georgia Supreme 
Court has affirmed a sentence of death based 
upon no more than a finding that the offense 
was 'outrageously or wantonly vile, horrible 
and inhuman.' There is nothing in these few 
words, standing alone, that implies any inherent 
restraint on the arbitrary and capricious in- 
fliction of the death sentence. A person of 
ordinary sensibility could fairly characterize al- 
most every murder as 'outrageously or wantonly 
vile, horrible, and inhuman.' Such a view may, 
in fact, have been one to which the members of the 

jury in this case subscribed. If so, their pre- 
conceptions were not dispelled by the trial judge's 
sentencing instructions. These gave the jury no 
guidance concerning the meaning of any of the 
§(b)(7)'s terms. In fact, the jury's interpreta- 
tion of §(b) (7) can only be the subject of sheer 
speculation. 

The standardless and unchanneled imposition of 
death sentences in the uncontrolled discretion of 
a basically uninstructed jury in this case was in 
no way cured by the affirmance of those sentences 
by the Georgia Supreme Court. Under state law 
that court may not affirm a judgment of death un- 
til it has independently assessed the evidence of 
record and determined that such evidence supports 
the trial judge's or jury's finding of an 
aggravating circumstance. Ga. Code Ann. §27-2537 

(cy{(2)." 

Godfrey, at 406-07. 

The Godfrey principles are aplicable to the case herein. 

There is no principled way to distinguish this case, in which the 

death penalty was imposed, from the many cases in which it was not. 

» The Court should grant certiorari to decide this impor- 

tant Federal question. 

Il. THE COURT SHOULD GRANT CERTIORARI TO DETERMINE 

WHETHER THE STATE'S FAILURE TO DISCLOSE AN 

UNDERSTANDING BETWEEN A KEY PROSECUTION WITNESS 

AND A POLICE DETECTIVE REGARDING A FAVORABLE 

RECOMMENDATION THAT WOULD BE MADE ON PENDING 

ESCAPE CHARGES IN EXCHANGE FOR HIS COOPERATION 

CONTRAVENED THE DUE PROCESS CLAUSE OF THE 

- FOURTEENTH AMENDMENT. 
  

The Superior Court of Butts County found in the habeas 

proceedings below that the State, through an Atlanta Police 

Detective, had made a promise with one of the key prosecution 

“ld 

 



  

witnesses to make a favorable recommendation on a pending 

criminal charge against the witness in exchange for his 

testimony in petitioner's trial (Habeas Transcript; 122: 

April 8, 1981 Order, at p. 7). Evidence of this prior promise 

to the key government witness was not revealed to the jury at 

petitioner's trial. 

This Court should grant the writ for certiorari to 

review the question whether a police detective's promise such 

as the one made in this case triggers the protection of Giglio 

V. United States, 465 U. 8S, 150, 31 L. EA. 24 104 (1972). The 
  

State Court in this proceeding concluded that Giglio was not 

implicated because only a police detective was involved in making 

the promise. 

This conclusion of the State Court is contrary to 

decisions of the Federal Courts of Appeals on the same matter. 

Freeman v. State of Georgia, 599 FP. 24 65 (5th Cir. 1979); 
  

Williams v. Brown, 609 PF, 24 216 (5th Cir. 1980); smith v. Florida, 
  

  

410 F. 24 1349 (5th Cir. 1969); Schneider v. Estelle, 552 F. 24 
  

  

593 (5th Cir. 1977); United States v. Sutton, 524 F. 24 1239 (4th 

Cir. 1279). 

The Court should grant the petition to resolve this 

conflict in authority on this important Federal constitutional 

question. 

IV. THE COURT SHOULD GRANT CERTIORARI TO DETERMINE 

WHETHER PETITIONER'S DUE PROCESS RIGHTS WERE 

VIOLATED BY THE TRIAL COURT'S DENIAL OF 

PETITIONER'S MOTION TO PROCEED IN FORMA PAUPERIS 

AND FOR EXPENSES FOR EXPERT TESTIMONY WITH 

RESPECT TO THE IDENTITY OF THE MURDER WEAPON. 

  

  

Prior to trial, counsel for the petitioner moved to pro- 

ceed in forma pauperis and for the appointment of experts and an 
  

investigator to aid in the preparation of the case. The Fulton 

County Superior Court denied the motion. 

Special need existed in this case, and the petitioner 

suffered special harm by the Court's denial of the motion. More 

than 100 witnesses were listed by the State, an unusual number 

which would require substantial efforts by the defense to 

-l5w 

 



  

interview. Further, there was considerable question about the 

State trial expert's conclusion that the murder weapon (never 

recovered by the police) was a .38 Rossi. In his deposition 

taken for the habeas hearing, the expert acknowledged the 

substantial chances that the murder weapon was something other 

than a .38 Rossi (Fite Deposition, pp. 4-7). 

There was, then, special need for the appointment of 

both an investigator and a ballistics expert. 

The evidence left unpursued by defense counsel raises 

substantial doubt regarding the State's theory of the crime. 

The habeas court's order which concluded that "it is doubtful 

that such testimony [that of the expert]could have sufficiently 

refuted the totality of the evidence against petitioner" (Order, 

at 10), is error. The unpursued evidence might well have created 

a reasonable doubt in the minds of the jurors - that is the test, 

not whether the evidence could refute the totality of the evidence. 

The denial of the motion for expert funds in this case 

is contrary to this Court's decision in Little v. Streater, 
  

U. S. y 68 L. Ed. 24 627 (1981). The Couri should grant 

certiorari to consider the scope of the Court's holding in Little 

v. Streater, supra, within a criminal trial context. 
  

V. THE COURT SHOULD GRANT THE WRIT TO CONSIDER 
THE CONSTITUTIONALITY OF THE TRIAL COURT'S 
CHARGE WITH RESPECT TO PRESUMPTIONS ON 
INTENT. 
  

The trial court charged the jury with respect to the 

"intent" necessary for proof of malice murder as follows: 

"Now, in every criminal prosecution, ladies and 
gentlemen, criminal intent is a necessary and 
material ingredient thereof. To put it 
differently, a criminal intent is a material 
and necessary ingredient in any criminal prose- 
cution. 

I will now try to explain what the law means by 
criminal intent by reading you two sections of 
the criminal code dealing with intent, and I will 
tell you how the last section applies to you, the 
jury. 

One section of our law says that the acts of a: 
person of sound mind and discretion are presumed 
to be the product of the person's will, and a 
person of sound mind and discretion is presumed 

-lf- 

 



  

to intend the natural and probable consequences 

of his acts, but both of these presumptions may 

be rebutted." 

Because this charge to the jury regarding intent could 

have been understood by the jury to cast upon the petitioner 

the burden of producing suffucient rebuttal evidence to carry 

the burden of persuasion regarding intent, the charge contra- 

vened the due process clause of the Fourteenth Amendment. 

Sandstrom v. Montana, 442 U. 8S. 510, 61 L. Ed. 24 39 (1979); 
  

Mullaney v. Wilbur, 421 U. S. 684, 44 L., E48. 24 508 (1975). 
  

The State Court below rejected applicable Fifth Circuit 

authority with respect to the unconstitutionality of this 

  

charge to the jury. In Tyler v, Phelps, 622 PF. 24 172, vacated 

on other grounds 643 FP, 24 1095, the Fifth Circuit recently 

found constitutionally infirm a charge similar to the one at 

issue in this case. Tyler, 643 F. 24 at 1099, (5th Cir. 1981). 

The Court should grant the petition for writ of certio- 

rari to resolve this important question of Federal constitutional 

law. 

VI. THE COURT SHOULD GRANT THE PETITION TO DETERMINE 

WHETHER THE PROSECUTOR'S ARGUMENT TO THE JURY 

REGARDING THE EFFECT OF POST-CONVICTION APPEALS 

UPON LIFE SENTENCES IMPOSED BY A PRIOR JURY 

CONTRAVENES THE DUE PROCESS CLAUSE OF THE FOUR- 

TEENTH AMENDMENT. : 
  

In the prosecutor's closing remarks to the jury, the 

Assistant District Attorney asked the jurors to keep in mind 

when they deliberated during the penalty phase the fact that 

in the appellate process the applicant had previously succeeded 

in having a life sentence reduced to 15 years (Tr. 1019-1020). 

Petitioner submits that this argument to the jury contravened 

his Sixth and Fourteenth Amendment rights. The clear implica- 

tion to the jury was that it should impose the death penalty 

in this case so as to avoid the possibility that, like the prior 

life sentences, the sentences in this case would be reduced. 

The integrity of the jury's deliberative processes 

was destroyed by this argument. Their solemn duty as jurors 

-lT7~ 

 



  

to decide upon the penalty in this case was tainted by the 

prosecutor's suggestion that if they were to impose a life 

sentence as opposed to a death penalty, appellate processes 

would reduce that sentence even further. 

The Court should grant the petition for a writ of 

certiorari. 

VII. THE. COURT SHOULD GRANT THE WRIT BECAUSE 

PETITIONER WAS DENIED EFFECTIVE ASSISTANCE 

OF COUNSEL IN CONTRAVENTION OF THE SIXTH 

AND FOURTEENTH AMENDMENTS. Phas 
  

The record of the habeas corpus trial court below is 

replete with evidence of ineffective assistance of counsel by 

petitioner's trial counsel. Prior to trial, defense counsel 

contacted none of the State witnesses despite the fact that 

the State listed over 100 potential witnesses on its May-Call 

List. The State called 24 witnesses at trial, none of whom 

had been interviewed by defense counsel. He contacted none 

of the store employees who were eyve-witnesses to the robbery; 

nor did he contact any of the investigating police officers. 

Although defense counsel admitted at the habeas 

hearing that he recognized there were two possible defenses 

for his client (i.e., an alibi defense, and alternatively, that 

his client was not the triggerman), he failed to take any steps 

to secure the available testimony of at least four witnesses 

whose testimony would have case substantial doubt on the State's 

evidence that McCleskey was the triggerman. 

; Although defense counsel had the opportunity to re- 

view the District Attorney's Investigative File prior to trial, 

he took advantage of that opportunity only on the Thursday 

afternoon prior to the commencement of the Monday morning trial. 

Counsel for co-defendants who were put to trial a month later 

had all viewed the file long before counsel for the petitioner; 

in fact in some cases as much as two and cRg-hall months earlier 

that petitioner's counsel. 

An earlier review of the District Attorney's Investi- 

gative file would have put counsel on notice of such witnesses 

-l Bue 

 



  

as the State Crime Lab Expert who eventially testified at trial 

regarding the possible identity of the murder weapon. Defense 

counsel did not interview the State's expert prior to trial. 

Defense counsel also admitted at the State Habeas 

Hearing that he was taken by surprise by the testimony of two 

of the State's key witnesses - one of them a witness who changed 

her identification testimony at the time of trial and the other 

being the key witness referred to, supra, Part III, who testified 

regarding an alleged admission of guilt by the petitioner. 

Defense counsel's representation of petitioner at trial 

also fell far below constitutional standards. (1) Counsel did 

not object to the trial court's instruction to the jury which was 

contrary to the standards of Mullaney v. Wilbur, supra (Part V, 
  

supra); (2) Counsel did not object to the District Attorney's 

argument which directed the jury to focus its attention on the 

appellate processes which had reduced petitioner's prior life 

sentences (Part VI, supra); (3) Counsel failed to develop on 

cross-examination of one of the prosecution's key witnesses any 

information regarding promises made to the witness by the Atlanta 

Police Officers (Part III, supra); (4) Counsel failed to move for 

a continuance and/or mistrial to permit the development of 

adequate evidence regarding the line-up procedure which occurred 

in the court room on the morning that the trial commenced, al- 

though he admitted he had been taken by surprise by evidence of 

the line-up procedure, and the testimony of a number of witnesses 

was based on that highly suggestive line-up procedure; (5) Counsel 

failed to move to exclude evidence obtained from a search warrant 

executed on Vay 30, 1978, seeking evidence regarding material 

taken from the robbery that had occurred more than two and a half 

months prior to the execution of the search warrant. 

Over and above these substantial failures in trial, 

defense counsel failed to provide effective assistance in the 

sentencing phase of the trial. Affidavits introduced at the Habeas 

Hearing showed the existence of a substantial number of character 

-10- 

 



  

witnesses who were prepared to testify on petitioner's behalf 

at trial. None of these witnesses were called by the defense 

counsel; indeed, trial counsel failed to take any feasonable 

steps to identify witnesses who could testify on petitioner's 

behalf. With respect to petitioner himself testifying at the 

sentencing phase, no advance preparation was made by defense 

counsel. 

Defense counsel's conduct contravened established 

constitutional standards. Powell v. Alabama, 287 U. S. 45 (1932); 
  

Gideon v, Wainwright, 373 U, 8. 335 (1963); Davis v. Alabama, 596 
  

  

F. 28 1214, at"1217 (5th Cir.1979); Rummel v. Estelle, 590 Fr. 2d 
  

103 (5th Cir. 1979); Priedman v. United States,. 588 FP. 24 1010 
  

(5th Cir. 1979); Gaines v. Hopper, 575 PF. 2d 1147 (5th Cir. 1978); 
  

Bell v. Georgia, 554 PF. 24 1360 (5th Cir. 1977); Brown Vv. Black~- 
  

  

burn, 625 F. 2d 35 (5th Cir. 1980). 

The records make approriate, then, the grant of 

the petition for writ of certiorari to consider the constitu- 

tional question of the denial of ineffective assistance of 

counsel in this capital felony case. 

VIII. WHETHER THE TRIAL COURT'S EXCLUSION OF TWO 
PROSPECTIVE JURORS, AFTER ONLY A BRIEF 
EXAMINATION REGARDING THEIR VIEWS ON CAPITAL 
PUNISHMENT, CONTRAVENED WITHERSPOON AND ITS 
PROGENY. bf ahh he 
  

The trial court excluded two prospective jurors be- 

cause of their statements that they were conscientiously 

opposed to capital punishment. Their exclusion came after only 

a brief examination regarding their views with respect to 

imposition of the death penalty. No where in the examination did 

either prospective juror state her inability to set her convictions 

aside and do her duty as a citizen. Nor did either juror state 

what effect the state's request for the death penalty would have 

upon their deliberations with respect to guilt. Neither of the 

excused jurors was asked whether her convictions regarding the 

death penalty would effect her ability to abide by her oath as 

a juror. 

WL TR 

  

 



  

The evidence upon which the Court excluded the jurors 

was inadequate; the Court's failure to inquire further before 

excluding both jurors was error under Witherspoon v. Illinois, 
  

391 U, 8S. 510, 20 L. EA. 24 776 (1968), The Court of Appeals 

for the Fifth Circuit has so held in Burns v. Fatelle, 592 PF. 24 
  

1297 (5th Cir. 1979, approved en banc, 626 F. 2d 396 (5th Cir. 
  

1980). 

As a result of the trial court's action, petitioner's 

jury did not constitute a representative cross-section of the 

community and it was incapable of reflecting contemporary 

community attitudes regarding the appropriateness of the penalty 

of death in petitioner's case. Further, petitioner's trial jury 

was unrepresentative and biased in favor of the prosecution on 

the issue of petitioner's guilt or innocence. 

This Court should grant the petition for a writ of 

certiorari to review this important unsettled question. 

CONCLUSION. 
  

Because this case presents important unsettled questions 

of Federal constitutional law, the Court should grant the Petition 

for a Writ of Certiorari to the Superior Court of Butts County. 

Respectfully submitted, 

Tebort ¥. Fuverp 
ROBERT H. STROUP 

1515 Healey Lr 
57 Forsyth Street, N. W. 
Atlanta, Georgia 30303 
(404) 522-1934 

  

JACK GREENBERG 

JOHN CLARLES BOGER 

10 Columbus Circle 
New York, New York 10019 

ATTORNEYS FOR PETITIONER 

-21- 

        

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

WARREN McCLESKEY, 

Petitioner, CASE NO. 4909 

v, HABEAS CORPUS 

WALTER ZANT, WARDEN, 
GEORGIA DIAGNOSTIC 
AND CLASSIFICATION 
CENTER, 

¥ 
0%

 
XN
 
X
N
 

NH
 

NX 
XH

 
XN
 

NH
 

¥ 
OF
 

Respondent. 

COMES NOW, Respondent in the above-styled action, by 

and through the Attorney General for the State of Georgia, 

and makes this response to the petition for a writ of habeas 

corpus, and amendment thereto, which has been filed on behalf 

of Warren McCleskey: 

1. 

Respondent admits that Petitioner is presently in custody 

at the Georgia Diagnostic and Classification Center, Butts County, 

Georgia, pursuant to his October 12, 1978, convictions in 

the Superior Court of Fulton County, Georgia for murder and 

two counts of armed robbery. Respondent admits that Petitioner 

received a death penalty on the murder count and two 

consecutive life sentences on each count of armed robbery. 

on 

Respondent admits those allegations set out under 

enumerated paragraph nos. 2 and 4 under that portion of the 

petition entitled, "II Parties.” 

 



  

3 

Respondent is without sufficient knowledge or information 

to form a belief as to the truthfulness or untruthfulness 

of those averments in enumerated paragraph no. 3 under that 

section Of the petition entitled, "II, Parties." 

4. 

Respondent admits all those allegations set forth under 

enumerated section III of the petition entitled, "Prior Proceedings." 
  

5. 

Respondent denies all those averments as set out in 

enumerated paragraph nos. 9, 10, 11, 12, 13, 14, 15, 16, 11, 

18, and 19 under section IV of the petition entitled, "Respects   

in Which Petitioner's Rights Were Violated." 
  

(a
) 

Respondent denies those averments under enumerated 

paragraph 20 under section IV of the petition which aver 

that any arrangement had been made with a police agent or 

informer to secure said person's testimony at Petitioner's 

trial. Respondent denies the remainder of the allegations 

under section IV, paragraph 20 of the petition. 

Respondent denies those averments as set out in section 

IV, enumerated paragraph 21 of the petition. 

Respondent denies all those averments under section IV, 

enumerated paragraph no. 22 of the petition which assert that 

the trial court erroneously denied Petitioner's motion for 

appointment of experts and an investigator. Respondent denies 

the remainder of the allegations under section IV, enumerated 

paragraph no. 22 of the petition which aver that any of Petitioner's 

Du 

 



  

constitutional rights have been violated. 

9. 

Respondent denies all those averments under Section IV, 

enumerated paragraph nos. 23, 24, 25, 26, 27, 29, 30, and 31 

of the petition. 

10. 

Respondent admits those averments under section V, 

enumerated paragraph 32 of the petition. 

11. 

Respondent denies all those averments under enumerated 

paragraph nos. 35 and 36 of the amended petition which has 

been filed on behalf of Petitioner. 

12. 

Respondent denies all those averments of the petition 

which assert that any of Petitioner's statutory or constitutional 

rights have been violated or that Petitioner's sentences 

and present detention have been illegally or unconstitutionally 

imposed. 

13. 

Respondent denies all those averments of the petition 

and amended petition not hereinbefore specifically admitted, 

denied or otherwise controverted. 

 



  

WHEREFORE, having made this Answer to the petition 

and amended petition for a writ of habeas corpus which 

has been filed on behalf of Warren McCleskey, Respondent 

respectfully prays that the relief requested in said 

petition be denied, and that Petitioner be remanded to the 

Respondent for the completion of the sentences challenged 

in this proceeding. 

Respectfully submitted, 

ARTHUR K. BOLTON 

Attorney General 

ROBERT S. STUBBS, II 

Executive Assistant 
HE General 

BON A THY RN 

First Assistant 

Attorney stant > 

CS a EE res 
JOHN CW ~WALDEN ia 

Senior Assistant 
Attorney General 

eh pioo & lume, 
NICHOLAS G. DUMICH 

Assistant Attorney General 

  

    

  

Please serve: 

NICHOLAS G. DUMICH 

Assistant Attorney General 
132 State Judicial Bldg. 
40 Capitol Square, S. W. 
Atlanta, Georgia #30334 
(404) 656-3499 

    

 



  

CERTIFICATE OF SERVICE 
  

This is to certify that I have this day served 

upon counsel for the Petitioner, a true and correct copy 

of the foregoing Answer, by placing same in the United 

States mail, with sufficient postage affixed thereon, 

and addressed to: 

Mr. Robert H. Stroup 

Attorney at Law 
1515 Healey Building 
57 Forsyth Street, N. W. 
Atlanta, Georgia 30303 

Jack Greenberg 
James M. Nabrit, III 
John Charles Boger 
Attorneys at Law 
10 Columbus Circle 
New York, New York 10019 

This Biel ay of 7: Sonecasy ray 1981, 

& J : ) ; “Ychtlioo 8, dime 
  

  

NICHOLAS G. DUMICH 

 



  

Supreme Court of the United States 

No. 21-5403 

Warren McCleskey, 

~ 

walter 0. Zant, Superintendent, Georgia 

Diagnostic and Classification Center 

GEORGIA, BUTTS COUNTY: 

The within and foregoing judgment of the Supreme Court of the 

United States is hereby made the judgment of the Butts Superior 

Court. 

This us day of December 198l.. 

     ALEX CRUMBLEY, 
Judge Superior Courts ~~ 

Flint Judicial Circu#* 

OM PETITICN FOR ARIT OF CERTICRARY tc the Superior Court 

cf Georgiar Butts County, ho. 4909. 

ON CONSIDERATION of the petition for a writ of certiorari 

herein to the Superior Court of Georgia, Butts County. 

IT IS ORDERED by this Court that the said petition he, 

ang the same is hereby, denieag. Ane cow FINN aT 
i (V

) 

a meme aa 

  

    

  

Ppt INTRA Or 
Lo LBTLICH S51d.0S 

November 30, 1981 

Chief Deputy 

Justice Brannan and Justice Marshall dissenting: Adhering 

to our views that the death penalty is in all circumstances 

cruel and unusual punishment prohipitec cy tne Tighth and 

Fourteenth Amendments, GLe32 V. §egrgls 22 Hele 153,227, 

231 (1976), we would grant certicrari and vacate the death 

sentence in this case. 

 



   David P. Ridgeway, Clerk Office Of Hugh D. Sosebee, Senior Judge 

Martha R. Sims, Dep. Clerk . Forsyth, Ga. 

. Whitmi ief Audrey R. Halley. Dep. Clerk Clerk Superior Court Som Wiis Cet dutge 
Phone: 404-775-7851 Butts County 

R. Alex Crumbley, Judge 
PO. Box 61 McDonough, Ga. 

Jackson, Georgia 30233 E. Byron Smith, D.A. 
Barnesville, Ga. 

December 8, 1981 

Mr. Jack Greenberg 

Mr. James N. Mabrit, I11 

Mr. John Charles Boger 
Attorneys at Law 

10 Columbus Circle 

New York, N. Y. 1001¢° 

Re: Warren McCleskey vs. 

Walter D. Zant, Warden 

Case No. 4909 

Dear Sirs: 

Enclosed herewith is a copy of the Remittitur from the Supreme 

Court of the United States with the Order of the Butts Superior 

Court thereon in the above-stated case filed in this office on 

this date. 

Yours truly, 

Lod R Edge. 
DAVID P. RIDGEWA 7 

DPR :dr Clerk 

Encl: a/s 

 



  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

WARREN MCCLESKEY, 

PETITIONER 
: HABEAS CORPUS 

VS. : CASE NO. 4909 

WALTER D. ZANT, 
SUPERINTENDENT, 
GEORGIA DIAGNOSTIC 
AND CLASSIFICATION 
CENTER, 

RESPONDENT 

Q DER 
  

By virtue of this Court's denial of relief 

by Order of April 8, 1961, and of the United States 

Supreme Court's denial of certiorari, the stay of 

execution previously granted in this case is hereby 

dissolved. 

SO ORDERED, this 11th day of December, 1981. 

li aii, 
  

ALEX CRUMBLEY "5 
JUDGE SUPERIOR COURYS 
FLINT JUDICIAL CIRCUIT 

 



David P. Ridgeway, Clerk Hugh D. Sosebee, Senior J 
: Office Of Forsyth, id Wee if 

Martha R. Sims, Dep. Clerk . 

Audrey R. Halley, Dep. Clerk Clerk Superior Court BR slugs 

R. Alex Crumbley, Judge 

- PO. Box 61 McDonough, Ga. 

Jackson, Georgia 30233 E. Byron Smith, D.A. 
Barnesville, Ga. 

February 18, 1982 

1) Mr. Robert H. Stroup, Attorney at Law, 1515 Healey Building, Atlanta, 

ss GA 30303 (Certified Mail) 
LA Mr. Jack Greenberg, Mr. James M. Nabrit, III, Mr. John Charles Boger, 

: Attorneys at Law, 10 Columbus Circle, New York, N.Y. 10019 

3) Mr. Nicholas Dumich, Assistant Attorney General, Department of Law, 

132 State Judicial Building, 40 Capitol Square, Atlanta, GA 

30334 (Certified Mail) 

Warden Walter D. Zant, GD&CC, POB 3877, Jackson, GA 30233 

Department of Offender Rehabilitation, 800 Peachtree Street, N. E. 

Atlanta, GA 30365 

Judge, Atlanta Circuit, Fulton County Courthouse, Atlanta, GA 30303 

Ms. Barbara J. Price, Clerk Superior Court, Fulton County Courthouse, 

Atlanta, GA 30303 

Mr. Lewis R. Slaton, District Attorney, Fulton County Courthouse, 

Atlanta, GA 30303 

Re: Warren McCleskey 
vs. Walter Zant, Warden 

No. 4909 

TO THE ABOVE: 

Enclosed is a copy of the remittitur of the Supreme Court of 

Georgia, with the Judgment of the Butts Superior Court thereon, in the 

above-stated case. 

Yours truly, 

: : 2 
(Doin,  frelsy 
AUDREY R. HALLEY 

Chief Deputy Clerk 

 



Application No. 1648 
  

  

SUPREME COURT OF GEORGIA 

ATLANTA, June 17, 1981 

The Honorable Supreme Court met pursuant to adjournment. 

The following order was passed: 

WARREN McCLESKY V. WALTER ZANT, SUPT. 

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 

GEORGIA, BUTTS COUNTY : 

The within and foregoing judgment of the Supreme Court of Georgia 
is hereby made’ the judgment of the Butts Superior Court with costs 

cast against the Appellee. : 

This 16 day of February 1982. 

ALEX CRUMBLEY, Judge 
Flint Judicial Cirgcui 

    

   
   

  

SUPREME COURT OF THE STATE OF GEORGIA, 

CLERK'S OFFICE, AtLaNTA, JAN 19 1982 

I 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. 

Ah tle Ybel od , Deputy Clerk. 
FF 2     
  

A



    

APPENDICES 
  

Appendix A -- Order of Superior Court of Butts 
County, April 8, 1981, Denying 
Habeas Corpus Relief.....cccceeeeeen, A-1.£t0 A~23 

Appendix B -- Order of Supreme Court of Georgia 
Denying Petitioner's Application 
For Certificate of Probable Cause 
to Appeal, June 17, 198l..cvccecccrecnccnene B-l 

Appendix C -- Order of Supreme Court of Georgia 
Denying Petitioner's Direct Appeal, 
January 24, 1980 ..cceccrsvssvnvensnnns C=1 to C-10 

 



  

APPENDIX 

1. ‘Henderson Vo State, 227 Ga. 68 (179.8£2d 78) (1971 

2 “Nramer V. State, 230 Ga. 855 (199 SE2d 805) (1973) 

+3. Floyd v. State, 233 Ga. 280 (210. 5F24 810) (1974) 

4 Musclall v. State, 234 Ga. 1060 (214 SE2d 900) (1975) 

5. -Moore-¥. State, 240 Ga, 807 (243 SF2d4 1)(1978) 

“6. Westbrook v. State, 242 Ga. 151 (249 SE2d 524) (1973)   7." Bugger ¥, State, 242 Ca, 28 (247, SE24.:834)(1973), 
| aff'd on resentencing Ga... 
I #35709, decided 3/14/80 ; 

  

+8. Ruffinw. State, 243 Ga. 95 (252. .8E2d:172) (1979) 

+9. “Tucker v. State, 244.Ga. 721 (26) 'SE2d 635). (1979) 

10. Gates v. State, 244 Ga. 587 (281 SE2d 349) (197%)   11. Dampier v. State, Cal #35378, decided 2/20/80 

  

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