Morgan v. Georgia Appendices to Petition for Certiorari to the Supreme Court of Georgia

    IN THE

&upmttr Court of tljr Imtrfc States
October Term, 1978

No. 78-6140 
(A-697)

ALPHONSO MORGAN,
Petitioner,

v.
STATE OF GEORGIA,

Respondent.

APPENDICES TO PETITION FOR A WRIT OF 
CERTIORARI TO THE 

SUPREME COURT OF GEORGIA

F rederick A. O. Schwarz, Jr., 
One Chase Manhattan Plaza, 

New York, N.Y. 10005 
Counsel for Petitioner

Of Counsel:
J ohn H. P ickering,

1666 K Street N.W., 
Washington, D.C. 20006

Thomas J. D ougherty,
M ark P. Schnapp,
Catherine M. R aymond, 
F rancis P. Barron,
Cravath, Swaine & Moore, 

One Chase Manhattan Plaza, 
New York, N.Y. 10005

March 24, 1979





CONTENTS OF APPENDICES
Appendix Description Page

A Affidavit of Alphonso Morgan in Sup­
port of His Motion to Proceed in
Forma Pauperis..................................  la

B Affidavit of Alphonso Morgan Regard­
ing Timeliness of His Petition and
the State’s Denial of Counsel.............  3a

C Order of Mr. Justice Powell Staying 
Petitioner’s Execution Pending Final 
Disposition of His Petition for Cer­
tiorari................................     6a

D Correspondence Between the Clerk of 
this Court and Petitioner’s Counsel 

Letter of Petitioner’s Counsel to 
the Clerk of this Court Request­
ing Additional Time to Submit
the Substitute Petition................  7a

Letter from the Clerk of this Court 
to Petitioner’s Counsel Inform­
ing Him that Additional Time 
Had Been Granted to and In­
cluding March 24, 1979.......   10a

E Opinions of the Majority and the Three 
Dissenting Members of the Supreme 
Court of Georgia in the Court Below

Majority..........................................  11a
Dissent.......................... .................  16a

F Transcript of the Trial Court’s Instruc­
tions to the Jury and the Jury’s 
Determinations

Instructions Prior to the Jury’s De­
liberations on Guilt or In­
nocence .......................................  20a

The Jury’s Verdict.......................... 29a



ii

Appendix Description Page

Instructions Prior to the Jury’s De­
liberations on Sentence........... . 30a

The Jury’s Sentence ........................ 33a
G Indictment of Petitioner, Jose High, 

and Judson Ruffin, upon which the 
Jury Recorded Its Verdict and Sen­
tence .......................       35a

H Order of the Trial Court Sentencing
Petitioner...................................   38a

I Petitioner’s Pro Se Notice of Appeal
Reconstructed Version...................  40a
Copy of Original Document..........  41a

J Petitioner’s Pro Se Motion for Leave to 
Proceed in Forma Pauperis, Request 
for Appointment of Counsel, and 
Certificate of Service

Reconstructed Version.... ............   42a
Copy of Original Document..........  44a

K Petitioner’s Attempts to Secure a Tran­
script of the Proceedings at the Trial

Petition for Copy of Records
Reconstructed Version.... . 46a
Copy of Original Document.... 48a

Letter to the Clerk of the Trial 
Court Requesting Transcript

Reconstructed Version ............ 50a
Copy of Original Document.... 51a

Letter from Presiding Judge to the 
Prosecutor, with Copy Directed
to Petitioner...... .......................... 52a

L First Letter to Petitioner from the 
Georgia Criminal Justice Council, an 
Agency of the State, Advising Him 
that It Cannot Represent Him...........  53a



Ill

M Letter to the Clerk of the Supreme 
Court of Georgia from Petitioner In­
quiring as to the Status of His Case, 
and Notifying the Court that He Is

Appendix Description Page

Effectively Without Counsel
Reconstructed Version ..................  54a
Copy of Original Document   56a

N Letter from the Clerk of the Supreme 
Court of Georgia to Petitioner’s Ap­
pointed Counsel Informing Him that 
He Must File a Brief on Behalf of 
Petitioner Within Two Weeks, or 
Risk Being Held in Contempt of
Court...................................................  59a

O State’s Brief on the Adequacy of the 
Jury Instructions, Requested by the 
Supreme Court of Georgia During 
Oral Argument at which Only the
State Was Present..............................  60a

P Second Letter from the Georgia Crimi­
nal Justice Council, an Agency of the 
State, to Petitioner Acknowledging 
His Letter Concerning His Counsel’s 
Failure to Communicate With Him, 
and Advising Him that It Cannot
Represent Him...................................  64a

Q Letter from Judge Who Presided at 
Trial to Petitioner Stating that Peti­
tioner Has No Need for Additional
Counsel........................      65a

R Trial Judge’s Order Denying Petitioner 
a Copy of the Transcript of the Pro­
ceedings at His Trial on the Ground 
that His Counsel Already Has His 
Papers..... ................       66a



IV

Appendix Description

S Trial Judge’s Questionnaire Concerning
the Circumstances of the Petitioner’s 
Trial, and the Characteristics of Peti­
tioner, Completed Eight Months
after the Trial....................... ..............

T Summary of Capital Cases, Available
to the Supreme Court of Georgia For 
Comparison Purposes At The End of 
1977, In Which (1) Life Sentences 
Were Imposed and (2) The Court’s 
Assistant Reported Mitigating Cir­
cumstances

Table 1: Cases in Which Youth 
was Reported As a Mitigating
Circumstance...............................

Table 2: Cases in Which the Lack 
of a Prior Criminal Record was 
Reported as a Mitigating Cir­
cumstance ...................................

Table 3: Cases in Which the Jury 
was Instructed that it Could 
Find One or More of The 
Statutory Aggravating Circum­
stances Charged in Petitioner’s 
Case, and Where There Were 
Mitigating Factors Reported 
(Other Than Youth Or Lack Of
a Prior Criminal Record) ...........

Table 4: Cases Where Mitigating 
Factors Other Than Youth Or 
Lack Of a Prior Criminal
Record Were Reported..............

U Summary of Death Cases In Which 
The Georgia Supreme Court Has Ex­
plicitly Ruled On the Adequacy of 
Jury Instructions

Explanation of Summary Chart.....

67a

77a

78a

79a

80a

81a

Page



V

Appendix Description Page

Summary Chart.................    82a
Table of Citations In Chart............  86a

V Constitutional and Statutory Provi­
sions, and Rules Involved in this 
Petition

Constitutional Amendments..........  88a
State Statutory Provisions..............  89a
Rule 34 of Supreme Court of 
Georgia...........................................  97a





la APPENDIX A

IN  THE

g>itpn>mr (ta r t  nf thr Mmtri) States
October Term, 1978

ALPHONSO MORGAN
Petitioner

V5. >■
STATE OF GEORGIA

Respondent

No. 78-6140

PAUPER’S AFFIDAVIT
Alphonso Morgan, being duly sworn, deposes and

says:
1.

I am a citizen of the United States and the petitioner 
in the above entitled action.

2.
I desire to prosecute a review of the judgment entered 

by the Supreme Court of the State of Georgia, on June 28, 
1978, pursuant to 28 U.S.C. § 1257(3), but because of my 
poverty, I am unable to pay the costs of such a review.

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

such a review, and that such a review presents substantial 
issues of deprivation of rights secured by the Constitution 
of the United States.

The nature of the questions to be presented upon such 
a review is as follows:



2a

1.
Whether the charge to the jury in the punishment 

phase of the trial makes the infliction of death upon the 
petitioner violative of his Fourteenth Amendment right to 
a fair trial, equal protection and due process of law.

2.
Whether the imposition and carrying out of the 

sentence of death in this case is consonant with this 
Court’s holdings in Furman v. Georgia, 408 U.S. 238 
(1972), and Gregg v. Georgia, U.S. , 49 L.ED. 2d. 
859, (1976) and whether such violates petitioner’s 
Fourteenth Amendment rights to a fair trial, equal protec­
tion and due process of law, as well as the Eighth 
Amendment’s prohibition of cruel and unusual punish­
ment.

I contend that the Supreme Court of the State of 
Georgia erred in upholding my conviction and sentence.

WHEREFORE, afflant prays that he may have leave 
to proceed in this Court on Petition for Writ of Certiorari 
in forma pauperis.

/ s /  Alphonso Morgan 
Alphonso Morgan 

Petitioner

Sworn to and subscribed 
before me this 9th day of 
February, 1979.

/ s /  Jo h n  L. W oods 
Notary Public
JOHN L. WOODS 

Notary Public, Georgia State at Large 
My Commission Expires May 9, 1980



3a APPENDIX B

IN THE

&ujirpmp Gkmrt of %  InitPiH States

October Term, 1978 

No. 78-6140 

(A-697)

ALPHONSO MORGAN, 
Petitioner,

GEORGIA,

Respondent.

AFFIDAVIT OF ALPHONSO MORGAN REGARDING 
TIM ELINESS OF H IS PETITION

State of G eorgia,
County of Tatnell,

Alphonso Morgan, being duly sworn, deposes and
says:

1. I am a citizen of the United States and the 
petitioner in this case.

2. My petition for certiorari is not on time because 
the lawyer appointed by the trial court to take my case 
abandoned me after my conviction and sentence had been



4a

affirmed by the Supreme Court of Georgia on June 28, 
1978. He did not tell me what I could do to help myself or 
how I could get legal help. He just said he was off my 
case. I have no money and I am not well educated. I did 
not understand how to appeal my case. In addition, it was 
hard for me to get information about my case or to get 
help because I have been in prison since August 28, 1976, 
the day on which I was arrested.

3. I tried to get legal help, but was unsuccessful. I 
sent letters to lawyers, but they said they could not help 
me because I already had a lawyer. Without a lawyer, I 
tried to help myself by sending a handwritten form to the 
Federal court in Georgia in August of 1978. I never heard 
anything about that until just recently, when I was told 
that I had gone to the wrong court.

4. Then, sometime at the end of last January, I got a 
paper from the State that said I would be killed on 
February 7, 1979. Someone at the prison told me to send 
the paper to Millard Farmer, and I did. Mr. Farmer wrote 
back to me saying he would try to get the execution put off 
and help me to get a lawyer so that I could ask this Court 
to review my case. That was the first time any lawyer said 
he would help me ask this Court to look at my case.

5. The lawyer appointed by the trial court to 
represent me never showed interest in my case. He talked 
to me only a few times before the trial and while it was 
going on. He did not want to represent me any further 
after I was convicted on July 14, 1977. I asked him to 
appeal, but he said someone else would do it. I asked him 
to get me a transcript of the trial. He said he would, but 
never did.

6. On July 22, 1977, without a lawyer, I sent a 
handwritten notice to the Superior Court in Richmond 
County, saying that I was going to appeal and asking the 
Court to appoint a lawyer for me.



5a

7. On August 10, 1977, again without a lawyer, I 
wrote out and sent a petition for a copy of the record in 
my case so that I could appeal. Judge Fulcher, who was 
the Judge at my trial, sent my petition to Richard Allen, 
the District Attorney. (Judge Fulcher sent me a copy of 
his letter to Mr. Allen. He did not send a copy to the 
lawyer who had represented me at trial.) I did not hear 
anything, so I wrote a letter to the Clerk of the Superior 
Court in Richmond on October 5, 1977, asking for a copy 
of the record. I told her that my lawyer had not talked to 
me since the trial and that I needed the papers so that I 
could help myself.

9. On December 19, 1977, I wrote a letter to the 
Clerk of the Supreme Court of Georgia telling her that I 
had tried to get the transcript from my lawyer and that I 
had heard nothing about my case. The Clerk told me that 
she had received my letter and told me that my lawyer’s 
brief would be studied carefully by the Supreme Court of 
Georgia. Much later, I found out that my lawyer had not 
even filed a brief and that he had to be asked by the State 
to file one.

10. On April 21, 1978, over eight months after the 
date that I asked for a copy of the record in my case, 
Judge Fulcher said he would not give them to me because 
my lawyer already had the papers.

/ s /  Alphonso Morgan
Petitioner

Sworn to and sub­
scribed before me this 
38th day of March 
1979.
/ s /  M illard C. F armer, Jr.

N.P. State at large



6a APPENDIX C

Supreme Court of tlje Mmteb
No. A-697 (78-6140)

ALPHONSO MORGAN,

v.
Petitioner,

GEORGIA

O R D E R

Upon Consideration of the application of counsel 
for the petitioner,

It Is Ordered that the execution and enforcement of 
the sentence of death imposed upon the petitioner is 
hereby stayed pending the disposition by this Court of a 
petition for a writ of certiorari filed February 2, 1979. 
Should the petition for a writ of certiorari be denied, this 
stay is to terminate automatically. In the event the 
petition for a writ of certiorari is granted, this stay is to 
continue pending the issuance of the mandate of this 
Court.

Lewis F. Powell, Jr.
Associate Justice of the Supreme 

Court of the United States
A true copy M ichael R odak, Jr. 
Clerk of the Supreme Court of the 
United States

By /s /  F rancis J. Lorson 
Deputy

Dated this 2nd day of 
February, 1979.



7a APPENDIX D

February 21, 1979

Morgan v. Georgia 
No. 78-6140 (A-697)

D ear Mr. R odak:

I am now appearing as counsel, pro bono publico, for 
Alphonso Morgan, who is imprisoned in Georgia under 
sentence of death.

On January 30, 1979, it came to the attention of Mr. 
Millard Farmer, of Team Defense Project, Inc., that Mr. 
Morgan was scheduled to be executed on February 7, 
1979. Mr. Farmer also discovered that counsel who had 
been appointed to represent Mr. Morgan at his trial and 
appeal in Georgia (i) had not filed a certiorari petition, 
and (ii) had not communicated with his client since the 
decision by the Supreme Court of Georgia affirming 
petitioner’s conviction and sentence of death.

Mr. Farmer was informed by Mr. Lorson of your 
office that he could not apply for a stay of execution 
without first filing a Petition for Certiorari. Accordingly, 
without benefit of the full record, or an opportunity to 
adequately research the issues, Mr. Farmer filed a pro 
forma Petition on February 2, 1979, indicating that it was 
to be followed by a petition which would adequately 
present the important issues for the Court’s review.

On February 2, 1979, Mr. Justice Powell signed an 
Order staying the execution of sentence.

Since my agreement to be substituted as counsel for 
petitioner in all further proceedings in this Court, I have 
attempted to assemble the complete record. While at the



8a

end of last week, I had obtained enough of the record to 
be able to commence the research, l still do not have all 
the relevant papers. As of this date I still have not 
received necessary papers from appointed Georgia coun­
sel, and still do not have the relevant court records in the 
cases involving Morgan’s alleged codefendants.

Considering the seriousness of the matter, my associ­
ate, Francis P. Barron, last week telephoned John W. 
Dunsmore, Jr., the Assistant Attorney General of the State 
of Georgia responsible for representing the State in this 
matter, to discuss his position on the timing for the 
submission of our Petition for Certiorari, i.e., the replace­
ment for the petition hastily submitted, without benefit of 
record or research. Mr. Dunsmore said that he had no 
objection to our taking the time that is necessary in light of 
the serious nature of the case, that he wanted to be certain 
that the entire matter was adequately briefed, and that his 
only concern was that the State would have its usual 30 
days to respond after the submission of our Petition.

Having now just had an opportunity to focus on the 
relevant material and to begin the necessary legal re­
search, it seems to me that a reasonable target for filing 
the Petition would be April 23, i.e., 60 days from the date 
of this letter. Mr. Barron spoke to Mr. Dunsmore by 
telephone today and he indicated that he would prefer 
that I limit myself to 30 days. However, in light of the 
seriousness of the matter, the unavailability of the record 
until now (and the need to obtain still other necessary 
documents), I represent that such a short time to prepare 
might result in an injustice.

I would appreciate it if you would advise me whether 
the proposed April 23 date is satisfactory. I recognize, of 
course, that nothing was filed by Mr. Morgan within the 
time required by the rules. However, considering Georgia



9a

counsel’s abandonment of petitioner, and, in particular, 
considering that the case involves a death sentence, I 
believe that the arrangement which I have suggested is 
necessary in the interest of justice.

Sincerely yours,

/s / F rederick A. O. Schwarz, Jr. 
Frederick A. O. Schwarz, Jr.

Hon. M ichael R odak,
Office of the Clerk,

Supreme Court of the United States, 
Washington, D.C. 20543

Attention of Hon. Francis J. Lorson

By Hand

3N

Copy to John W. Dunsmore, Jr., Esq.,
132 State Judicial Building,

40 Capital Square, S.W.,
Atlanta, Georgia 30334.

Express Mail



10a

SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK 

WASHINGTON, D. C. 20543

February 26, 1979

Frederick A. O. Schwarz, Jr., Esquire 
Cravath, Swaine & Moore 
One Chase Manhattan Plaza 
New York, New York 10005

Re: Alphonso Morgan v. Georgia 
No. 78-6140

Dear Mr. Schwarz:
Your request of February 21, 1979 for an extension of 

time in which to file a supplement to the petition has been 
granted, and the time to file such a supplement has been 
extended to and including only March 24, 1979. No 
further extension of time will be entertained.

The time for the Attorney General to respond to the 
petition and the supplement thereto has been extended to 
and including April 23, 1979.

Very truly yours,

M ichael R odak, J r., Clerk

By /s / F rancis J. Lorson 
Francis J. Lorson 
Deputy Clerk

th
cc: Millard C. Farmer, Jr., Esquire 

Suite 831, 15 Peachtree Street, N.E.
Atlanta, Georgia 30303

John W. Dunsmore, Jr., Esquire 
132 State Judicial Building 
40 Capital Square, S.W.
Atlanta, Georgia 30334



11a APPENDIX E

In the
SUPREME COURT OF GEORGIA

D ecided: June 28, 1978 
Morgan v . The State 

33046
Nicholson & Nicholson, Chris G. Nicholson, for appel­

lant.
Alphonso Morgan, pro se.
Richard E. Allen, District Attorney, Arthur K. Bolton, 

Attorney General, John W. Dunsmore, Jr., Assistant A t­
torney General, for appellee.

Hall, Justice.
This is the direct appeal of the conviction and death 

sentence of Alphonso Morgan, who was convicted in 
Richmond County Superior Court for the armed robbery, 
kidnapping and murder of James Gray. Appellant was 
given a twenty year sentence for kidnapping, a concurrent 
life sentence for armed robbery, and the death penalty for 
murder.

I. SUMMARY OF THE EVIDENCE
The State presented evidence from which the jury 

was entitled to find the following:
On August 22, 1976, at 11:30 P.M., the victim James 

Gray was driving to his job as night superintendent at the 
Graniteville Company in South Carolina. When he 
stopped at an intersection, appellant Morgan, Jose High 
and Judson Ruffin approached Gray’s truck. One of the 
co-indictees got into the truck with Gray, and, pointing a 
sawed-off shotgun at him, forced the victim to follow 
Ruffin’s automobile. Somewhere in Georgia, the victim 
was taken out of his truck and put into the trunk of 
Ruffin’s automobile. The co-indictees then drove their 
victim to the south end of Bush Field in Richmond 
County.



12a

Morgan and his companions pulled Gray out of the 
truck, took ninety dollars from his wallet and told him that 
they were going to kill him. They took off the victim’s 
shirt and tied it around his head like a blindfold. While 
Gray was begging for his life, Morgan pulled the sawed- 
off shotgun to his face and pulled the trigger.

II. ENUMERATIONS OF ERROR
1. In his first enumeration of error, appellant com­

plains that the trial court erred in failing to have a hearing 
on a motion to suppress the oral confession of appellant, 
and in allowing the confession to be admitted into evi­
dence.

The trial transcript shows that a Jackson v. Denno 
hearing was held to determine the admissibility of appel­
lant’s confession. The State called the arresting officer 
who testified that appellant was given the Miranda warn­
ings at the time of arrest. Before any more testimony was 
heard, the jury was excused and the judge heard evidence 
on the voluntariness of statements made by appellant to 
the arresting officer. Also considered at that time was the 
legality of appellant’s arrest. At the close of the hearing 
the judge ruled to allow introduction of the confession. 
This constituted a ruling that appellant’s arrest was legal 
as well as a decision that the confession was freely and 
voluntarily given.

Appellant contends that his warrantless arrest was 
illegal because there was no probable cause to support it, 
and that his subsequent confession should have been 
excluded from the jury’s consideration on the basis that it 
was the product of an illegal arrest. See: Brown v. Illinois, 
422 U.S. 590 (1975); Wong Sun v. United States, 371 
U. S. 471 ( 1963).

At the time of appellant’s arrest, police authorities 
were involved in the investigation of a number of homi-



13a

rides, rapes, kidnappings and robberies in which the 
modus operandi was similar. The victims were placed in 
the trunk of a car and taken to an isolated area, the 
victims were blindfolded and a shotgun was used to 
threaten or kill the victims.

Jose High was arrested on Friday evening, August 27, 
1976, in connection with the investigation. He confessed 
to numerous crimes, including the murder of James Gray. 
High expressly named appellant as being responsible for 
Gray’s murder. This information was learned in the early 
morning hours of August 28, 1976. Police officers, fearing 
that appellant might flee if he learned of High’s arrest, 
immediately went to appellant’s address as furnished to 
them by High, and placed appellant under arrest.

In view of the circumstances, we believe that appel­
lant’s arrest falls within the purview of Code Ann. §27-207 
which authorizes a warrantless arrest of one where it 
appears that there is likely to be a failure of justice for 
want of an officer to issue a warrant. There appears to be 
no question that the police, at the time of arrest, had 
probable cause to arrest appellant. As the result of High’s 
confession, which incriminating statements were consistent 
with information the officers had gained from independent 
investigation, the officers had reasonably trustworthy in­
formation to conclude that appellant was involved in the 
murder of James Gray.

“Whether [an] arrest [is] constitutionally valid de­
pends . . . upon whether, at the moment the arrest was 
made, the officers had probable cause to make 
it—whether at that moment the facts and circumstances 
within their knowledge and of which they had reasonably 
trustworthy information were sufficient to warrant a pru­
dent man in believing that the petitioner had committed 
or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 
91 (1964) Brinegar v. United States, 361 U.S. 98 (1949).



14a

Appellant attaches to his brief an order of the Superi­
or Court of Richmond County sustaining a motion to 
suppress filed on behalf of Jose High, appellant’s co­
indictee, challenging High’s arrest. This ruling was re­
versed on appeal to the Court of Appeals in State v. High, 

Ga. App. (Case No. 55212, Decided April 6, 
1978), where the court found High’s arrest to be based on 
probable cause at the time it was made and to be legal 
even though made without a warrant. Therefore, no 
Wong Sun v. United States, supra, issue is presented by 
High’s confession implicating appellant.

We conclude that the record clearly establishes that 
police officers had probable cause to arrest appellant, and 
that due to exigent circumstances there was a likelihood 
that there would have been a failure of justice had the 
police delayed in making the arrest of appellant. Appel­
lant’s subsequent confession was admissible and it was not 
error for the trial court to so rule.

2. There was sufficient evidence to sustain the 
verdict. The general grounds present no basis for reversal. 
Cunningham v. State, 235 Ga. 126 (218 SE2d 854) 
(1975); Fleming v. State, 240 Ga. 142 (240 SE2d 37) 
(1977).

3. We find no error in the trial court’s charge to the
jury relating to the sentencing phase of the trial. Spivey v. 
State, Ga. ( SE2d ) (No. 33135,
decided June 8, 1978).

III. DEATH SENTENCE REVIEW

4. After reviewing the entire record and transcript 
and considering the foregoing enumerations of error, we 
conclude that the sentence of death imposed on Alphonso 
Morgan was not imposed under the influence of passion, 
prejudice or any other arbitrary factor.



15a

5. The jury found the following statutory aggravating 
circumstance: “The offense of murder was outrageously or 
wantonly vile, horrible or inhuman in that it involved 
torture, depravity of mind, or an aggravated battery to the 
victim.” Code Ann. §27-2534.1(b)(7). This aggravating 
circumstance is supported by the evidence.

6. In reviewing the death penalty in this case, we 
have considered the cases appealed to this court since 
January 1, 1970, in which a death or life sentence was 
imposed for murder, and we find the similar cases listed in 
the Appendix support affirmance of the death penalty.

Alphonso Morgan’s sentence to death for murder is 
not excessive or disproportionate considering both the 
crime and the defendant. Code Ann. 27-2537(c)(3). 
The verdict is factually substantiated.

Judgment affirmed. All the Justices concur, except 
Hill, Bowles and Marshall, J.J., who dissent to Division 3 
and the judgment.

APPENDIX

M organ v . The State 

33046

House v. State, 232 Ga. 140 (205 SE2d 217)( 1974); 
McCorquodale v. State, 233 Ga. 369 (211 SE2d 
577)(1974); Floyd v. State, 233 Ga. 280 (210 SE2d 
810)( 1974); Jarrell v. State, 234 Ga. 410 (216 SE2d 
258)( 1975); Berryhill v. State, 235 Ga. 549 (221 SE2d 
185)( 1975); Birt v. State, 236 Ga. 815 (225 SE2d
248)(1976); Gibson v. State, 236 Ga. 874 (226 SE2d 
63)( 1976); Harris v. State, 237 Ga. 718 (230 SE2d
1)(1976); Young v. State, 237 Ga. 852 (230 SE2d
287)(1976); Dix v. State, 238 Ga. 209 (232 SE2d
47)( 1976); Blake v. State, 239 Ga. 292 (236 SE2d
637)( 1977); Young v. State, 239 Ga. 53 (236 SE2d 
1)( 1977); Stanley v. State, 240 Ga. 341 (241 SE2d
173)(1977); Thomas v. State, 240 Ga. 393 (242 SE2d 
1)(1977).



16a

In the

SUPREME COURT OF GEORGIA 

M organ v . State 

33046
Bowles, J., dissenting
I cannot agree with the majority that the trial court’s 

charge to the jury in the sentencing phase was sufficient 
under the rule we recently set forth in Spivey v. State, 

Ga. ( SE2d ) (Case No. 33135,
decided June 8, 1978), and as first formulated in Fleming 
v. State, 240 Ga. 142, 147 (240 SE2d 37) (1977).

In Fleming the following statements were given in the 
charge to the jury during the sentencing phase, “ [In] the 
event your verdict is life imprisonment the punishment the 
Defendant would receive would be imprisonment in the 
penitentiary for life. And, of course, if you found that 
there was evidence in extenuation or mitigation then you 
could fix his punishment at life imprisonment. . . . Now, 
if you do not find that there was one or more aggravating 
circumstances, which I’ve just read to you, then the form 
of your verdict would be, ‘We, the Jury, fix punishment at 
life.’ Now whatever your verdict is—or if you found that 
there was evidence in extenuation or mitigation, you could 
fix punishment at life.”

We reversed Fleming’s death sentence because of a 
finding that the trial court failed to make clear to the jury 
that they could recommend a life sentence even if they 
found the existence of a statutory aggravating circum­
stance.

In Spivey v. State, supra, we approved the following 
charge as making clear to the jury that it could recom­
mend a life sentence even though it found a statutory 
aggravating circumstance: “It is now your duty to deter­



17a

mine, within the limits prescribed by law, the penalty that 
shall be imposed as punishment for that offense. In 
reaching this determination you are authorized to consider 
all of the evidence received by you in open court, and both 
phases of the trial. You are authorized to consider all 
facts and circumstances of the case. . . You must first 
consider and find beyond a reasonable doubt that the . . . 
murder happen [ ed ] while in the perpetration of another 
capital felony . . .  If you find that to exist, then you shall so 
indicate in writing, then you will determine whether or not 
you will impose the death penalty, and your verdict then 
will be one of two, ‘We the jury recommend the death 
penalty’ or ‘We the jury do not recommend the death 
penalty.’ This is a matter for your determination, ladies 
and gentlemen.”

The majority has now gone so far as to approve the 
following charge given during the sentencing phase of 
Morgan’s trial:

“Now, ladies and gentlemen of the jury, you 
having found the defendant guilty of murder, and 
armed robbery, and kidnapping, the Court will im­
pose sentence with reference to the armed robbery 
and kidnapping, but you having found the defendant 
guilty of the offense of murder, it is now your duty to 
determine within the limits prescribed by law the 
penalty that shall be imposed as punishment for that 
offense. In reaching this determination, you should 
consider all of the evidence received by you in open 
court in both phases of the trial. You should consider 
all of the facts and circumstances of the case, in­
cluding any mitigating or aggravating circumstances.

“Under the laws of this State, every person guilty 
of the offense of murder shall be punished by death 
by electrocution, or by life in the penitentiary. In the 
event that your verdict is life imprisonment, the



18a

punishment the defendant would receive would be 
imprisonment in the penitentiary for and during the 
remainder of his natural life. If that be your verdict, 
you would add, following the verdict already found 
by you, an additional verdict as follows: We fix his 
punishment as life imprisonment for the offense of 
murder, to be served concurrently or consecutively 
with any other sentence, as you may determine. You 
may, however, if you see fit and if such be your 
verdict, fix his punishment as death, which would 
require a sentence by the Court of death by elec­
trocution. If that be your verdict, you would add 
following the verdict already found by you an addi­
tional verdict as follows: We recommend his punish­
ment as death for the offense of murder.

“I charge you that before you would be author­
ized to find a verdict fixing a sentence of death by 
electrocution for the offense of murder, you must find 
upon the evidence statutory aggravating circumstance 
or circumstances sufficient to authorize such penalty.” 
To my mind, the approval of this charge is to 

completely erase the standard for review we have set for 
ourselves in Fleming and Spivey, and to ignore the spirit of 
the law as formulated by the legislature in Code Ann. 
§ 27-2534.1. In the instant case I find no suggestion given 
to the jury that they may nevertheless show mercy to the 
defendant even though they find a statutory aggravating 
circumstance.

I cannot with clear conscience affirm the death sen­
tence in this case when the charge here is considered in the 
light of Fleming v. State, supra. Therefore, I respectfully 
dissent to the judgment of affirmance in the punishment 
phase of the majority opinion.

I am authorized to say that Justice Marshall and 
Justice Hill concur in this dissent.



19a APPENDIX F

In The Superior Court of 

R ichmond County, G eorgia 

Second D ivision

State of G eorgia

v s — >

Alphonso M organ

MURDER, ARMED ROBBERY 

and KIDNAPPING

Richmond County Courthouse 
Augusta, Georgia 
July 13-14, 1977

Proceedings of the trial of the above captioned case 
held at the above stated time and place before the 
Honorable Edwin D. Fulcher, Judge of Superior Court, 
Augusta Judicial Circuit, and a jury.

APPEARANCES:

Mr. R ichard E. Allen, District Attorney, of Augusta, 
Georgia, represented the State.

Mr. Chris G. N icholson, Attorney at Law, of Augusta, 
Georgia, represented the Defendant.

L o is  W. Story  
Official Reporter 
Certificate No. A-186



20a

CHARGE OF THE COURT
Ladies and gentlemen of the jury, the grand jury of 

this county has returned a bill of indictment against the 
defendant, Alphonso Morgan, charging him with the 
offense of murder, for that the said accused in the County 
of Richmond and State of Georgia on the 22nd day of 
August, 1976, unlawfully did and with malice afore­
thought kill one James Gray, a human being, by shooting 
the said James Gray with a certain shotgun; and with the 
further offense of armed robbery, for that the said accused 
in the County of Richmond and State of Georgia on the 
22nd day of August, 1976, with the intent to commit theft, 
took from the person of James Gray the following proper­
ty, to-wit, ninety dollars United States currency, of the 
property of James Gray, of the value of ninety dollars, by 
use of a shotgun, the same being a dangerous weapon—an 
offensive weapon; and with the further offense of kidnap­
ping, for that the said accused in the County of Richmond 
and State of Georgia on the 22nd day of August, 1976, did 
abduct James Gray, a person, without lawful authority, 
and held such person against his will, contrary to the laws 
of the State, the good order, peace, and dignity thereof.

Now, to this indictment, the defendant has entered a 
plea of not guilty, and that makes up the issue which you 
are now called upon to well and truly try.

Every person is presumed innocent until proved 
guilty. No person shall be convicted of a crime unless 
each element of such crime is proved beyond a reasonable 
doubt. The defendant enters into the trial of this case with 
the presumption of innocence in his favor, and that 
presumption remains with him throughout the trial and 
until his guilt is established by the evidence beyond all 
reasonable doubt. The indictment is not evidence. It is 
the charge of the State of Georgia against the defendant 
made through the grand jury of Richmond County. The



21a

burden is upon the State to prove every material allega­
tion in this bill of indictment against this defendant to a 
moral and reasonable certainty and beyond all reasonable 
doubt.

A reasonable doubt means just what it says. It is a 
doubt of a fair-minded, impartial juror, honestly seeking 
the truth. It is not a fanciful, arbitrary, or capricious 
doubt; but is a doubt based upon a reason such as a 
reasonable man would have and would act upon or 
decline to act upon in a matter of importance to himself, 
and which arises from a consideration of the evidence or 
from the lack of evidence or from a conflict in the 
evidence. If after considering all of the evidence, facts, 
and circumstances of the case your minds are wavering, 
unsettled, and unsatisfied, then that is a reasonable doubt 
under the law. If such a doubt rests upon your minds, you 
should give the defendant the benefit of that doubt and 
acquit him. If no such doubt rests upon your minds and 
you believe beyond a reasonable doubt that the defendant 
is guilty as charged, it would be equally your duty to 
return a verdict of guilty. Moral and reasonable certainty 
is all that can be expected in any legal investigation.

The true question in all criminal cases is not whether 
it be possible that the conclusion to which the evidence 
points may be false, but is whether the evidence is 
sufficient to and does satisfy your minds and consciences 
to a moral and reasonable certainty and beyond all 
reasonable doubt that the defendant is guilty as charged.

The term “felony” as used in these instructions means 
a crime punishable by death or by imprisonment for life or 
by imprisonment for more than twelve months. A crime is 
a violation of a statute of this State in which there shall be 
a union of joint operation of act and intention. A person 
will not be presumed to act with criminal intention, but 
you may find such intention upon consideration of the



22a

words, conduct, demeanor, motive, and all other circum­
stances connected with the act for which the defendant is 
prosecuted.

I charge you that a person commits murder when he 
unlawfully and with malice aforethought, either express or 
implied, causes the death of another human being. Ex­
press malice is that deliberate intention, unlawfully, to 
take away the life of a fellow creature, which is manifested 
by external circumstances capable of proof. Malice shall 
be implied where no considerable provocation appears 
and where all the circumstances of the killing show an 
abandoned and malignant heart.

I charge you that a person commits armed robbery 
when with intent to commit theft he takes property of 
another from the person or the immediate presence of 
another by use of an offensive weapon. The term “theft” 
as used in these instructions is the taking or appropriating 
unlawfully of any property of another with the intention of 
depriving him of said property regardless of the manner in 
which that property is taken or appropriated.

I charge you that a person commits kidnapping when 
he abducts or steals away any person without lawful 
authority or warrant and holds such person against his 
will.

I charge you that every person concerned in the 
commission of a crime is a party thereto and may be 
charged with and convicted of commission of the crime. A 
person is concerned in the commission of a crime only if 
he directly commits the crime; or intentionally aids or 
abets in the commission of the crime; or intentionally 
advises, encourages, hires, counsels, or procures another to 
commit the crime. Any party to a crime who did not 
directly commit the crime may be indicted, tried, con­
victed, and punished for commission of the crime upon 
proof that the crime was committed and that he was a



23a

party thereto, although the person claimed to have directly 
committed the crime has not been prosecuted or con­
victed, or has been convicted of a different crime or degree 
of crime, or is not amenable to justice, or has been 
acquitted.

I charge you that a person is not guilty of a crime 
except murder if the act upon which the supposed criminal 
liability is based is performed under such coercion that the 
person reasonably believes that performing the act is the 
only way to prevent his imminent death or great bodily 
injury.

I charge you that a person commits a conspiracy to 
commit a crime when he together with one or more 
persons conspires to commit any crime and any one or 
more of such persons does an overt act to effect the object 
of the conspiracy.

I charge you that when a person’s conduct would 
otherwise constitute an attempt to commit a crime it is an 
affirmative defense that he abandoned his effort to commit 
such crime, or in any other manner performed its commis­
sion under circumstances manifesting a voluntary and 
complete renunciation of his criminal purpose.

I charge you that a person commits criminal attempt 
when with intent to commit a specific crime be performs 
any act which constitutes a substantial step toward the 
commission of that crime.

I charge you that a confession is a voluntary state­
ment made by a person charged with the commission of a 
crime, wherein he acknowledges himself to be guilty of the 
offense charged. All admissions shall be scanned with 
care, and confessions of guilt shall be received with 
caution. To make a confession admissible, it must have 
been made voluntarily without being induced by another 
by the slightest hope of benefit or the remotest fear of



24a

injury by one who was previously warned that he had the 
right to remain silent; that anything he might say could 
and would be used against him in a court of law; that he 
had the right to talk to a lawyer and have him present 
while he was being questioned; and if he could not afford 
to hire a lawyer, one would be appointed to represent him 
before any questioning, if he wished one. It is a question 
for you to determine, first, whether a confession has been 
made in this case; and, secondly, if made, was it made 
voluntarily without being induced by another by the 
slightest hope of benefit or the remotest fear of injury; 
and, thirdly, if it was made only after the aforesaid 
warning. If you find that a confession was made but that 
it was not made voluntarily, or that it was induced by 
another by the slightest hope of benefit or the most remote 
fear of injury, or that it was made without the aforesaid 
warning, you should not give it any consideration what­
ever, either together with or independent of the other 
evidence. A confession alone, uncorroborated by any 
other evidence, shall not justify conviction. No definite 
rule has been laid down as to how far or in what 
particulars a confession must be corroborated. Each case 
must stand on its own footing, and you, as honest, upright 
jurors diligently seeking the truth, are by law made the 
sole judges of whether or not a confession has been made 
under these rules of law.

I charge you that direct evidence is that which 
immediately points to the question at issue. Indirect or 
circumstantial evidence is that which only tends to estab­
lish the issue by proof of various facts, sustaining by their 
consistency the hypothesis claimed. A strong suspicion of 
guilt is not sufficient under the law to convict. To warrant 
a conviction on circumstantial evidence, the proved facts 
shall not only be consistent with the hypothesis of guilt but 
shall exclude every other reasonable hypothesis save that 
of the guilt of the accused. Where the facts and evidence



25a

and all reasonable deductions therefrom present two 
theories, one of guilt and the other consistent with in­
nocence, the justice and humanity of the law compel the 
acceptance of the theory which is consistent with in­
nocence.

You are the judges both of the law and the facts. The 
law is given you in these instructions; the facts are given 
you in the evidence. To the facts as you find them to be, 
you will apply the law as given in these instructions.

In any rulings the Court has made during the trial 
and in these instructions, the Court has not intended to 
express or intimate any opinion as to the guilt or in­
nocence of the defendant. That is for your sole and 
exclusive decision. Your verdict is solely for you to 
determine and must be agreed to by all twelve of you.

Now, you are about to retire to consider a verdict of 
guilty or not guilty. You are not called upon to fix any 
punishment. The form of your verdict should be: “We, 
the jury, find the defendant guilty as charged,” which 
would have the effect of finding him guilty of each of the 
three charges contained in the indictment in separate 
counts, that of murder, armed robbery, and kidnapping; 
or, “We, the jury, find the defendant not guilty,” which 
would have the effect of acquitting the defendant of each 
and every one of the three charges set forth in the 
indictment; or, if you should find the defendant guilty of 
some of the charges set forth in the different counts of the 
indictment and not guilty of the other charges set forth in 
the remaining counts set forth in the indictment, you 
would say, “We, the jury, find the defendant guilty of 
count one, count two, or count three,” whichever one it 
might be, and, “We, the jury, find the defendant not guilty 
of the counts on which you find him not guilty.” What­
ever your verdict is, have one of your number that you 
select as foreman or forelady complete the form of printed



26a

verdict here on the back of the indictment where I have 
indicated by the letter “X,” and date it, and sign it as 
foreman or forelady, and return it into court.

Now, you may retire now, but do not begin your 
deliberations until the indictment is brought out to you by 
the bailiff. And, Mrs. Becsi and Mrs. Andrews, if you all 
would just stand aside please, and let the other jurors go 
to the jury room.

(The jury retired to the jury room.)
(Conference at the bench.)
(Alternate jurors retired to another jury room at 

this time.)
The Court: All right, now, are there any ex­

ceptions, objections, or omissions which the State 
wishes to suggest?

Mr. Allen: None, Your Honor.
The Court: Anything on behalf o f the defend­

ant?
M r. N icholson: N o, Your Honor.
The Court: All right, sir.
(Evidence was checked here and along with the 

indictment was sent out to the jury.)
The Court: All right, we’ll be in recess until we 

hear from the jury.
( Recess.)
(The jury returned to the courtroom.)
The Court: Mr. Foreman, is there some ques­

tion which the jury wishes to ask?
The F oreman: Yes, sir, Your Honor. We would 

like for you to read the charges back to us on the 
armed robbery and the kidnapping charge.



27a

RECHARGE OF THE COURT

A person commits armed robbery when with intent to 
commit theft he takes property of another from the person 
or the immediate presence of another by use of an 
offensive weapon. The term “theft” as used in these 
instructions is the taking or appropriating unlawfully of 
any property of another with the intention of depriving 
him of said property, regardless of the manner in which 
said property is taken or appropriated.

A person commits kidnapping when he abducts or 
steals away any person without lawful authority or war­
rant and holds such person against his will.

The Court: Is that what the jury had in mind?
A J uror: Yes, sir.
The Court: The definition of those charges?
The F oreman: Yes, sir.
The Court: All right, you may retire to further 

consider your verdict.
(The jury retired to the jury room.)
(Alternate jurors retired to another jury room.)
The Court: All right, we’ll be in recess until we 

hear from the jury.
(Recess.)
(The jury and alternate jurors returned to the 

courtroom.)
The Court: Was there some question you had, 

Mr. Foreman?
The F oreman: Yes, sir, Your Honor. We’d like 

for you to read all the charges on the kidnapping, 
including the conspiracy and all parts of it.

The Court: All right, sir.



28a

RECHARGE OF THE COURT
A person commits kidnapping when he abducts or 

steals away any person without lawful authority or war­
rant and holds such person against his will.

Every person concerned in the commission of a crime 
is a party thereto and may be charged with and convicted 
of the commission of the crime. A person is concerned in 
the commission of a crime only if he directly commits the 
crime; or intentionally aids or abets in the commission of 
the crime; or intentionally advises, encourages, hires, 
counsels, or procures another to commit the crime.

Any party to a crime who did not directly commit the 
crime may be indicted, tried, convicted, and punished for 
commission of the crime upon proof that the crime was 
committed and he was a party thereto, although the 
person claimed to have directly committed the crime has 
not been prosecuted or convicted, or has been convicted of 
a different crime or degree of crime, or is not amenable to 
justice, or has been acquitted.

I charge you that a person commits criminal attempt 
when with the intent to commit a specific crime he 
performs any act which constitutes a substantial step 
toward the commission of that crime.

I charge you that when a person’s conduct would 
otherwise constitute an attempt to commit a crime, it is an 
affirmative defense that he abandoned his effort to commit 
such crime, or in any other manner performed its commis­
sion under circumstances manifesting a voluntary and 
complete renunciation of his criminal purpose.

I charge you that a person commits a conspiracy to 
commit a crime when he together with one or more 
persons conspires to commit any crime and any one or 
more of such persons does an overt act to effect the object 
of the conspiracy.



29a

I charge you that a person is not guilty of a 
crime—disregard that, that was not included in your 
request.

The Court: Does that satisfactorily answer the 
questions which the jury had in mind?

The F oreman: I believe it will. Thank you, 
Judge.

The Court: All right, you may retire and further 
consider your verdict.

(The jury retired to their jury room and the 
alternate jurors retired to another jury room.)

( Interval.)
(The jury returned to the courtroom.)
The Court: Mr. Foreman, has the jury reached 

a verdict?
The F oreman: We have, Your Honor.
The Court: All right, will you deliver it to the 

bailiff, and, Mr. Bailiff, will you deliver it to the clerk, 
and, Madam Clerk, will you publish the verdict.

(The clerk published the verdict as follows: We, 
the jury, find the defendant guilty as charged. This 
14th day of July, 1977. John T. Andrews, Foreman.)

The Court: D o you wish to poll the jury?
Mr. N icholson: N o, sir.
The Court: All right, well, let the verdict be 

entered. Now, Mrs. Becsi and Mrs. Andrews, we’ll 
excuse you at this time. Thank you very much. (To 
counsel) Is there anything which you wish to show in 
mitigation or aggravation?

Mr. Allen: Your Honor, the State has no fur­
ther evidence. We’ll rely upon the evidence produced 
in the first phase of the trial, but we would like to 
argue a point.



30a

The Court: All right, sir. All right, is there 
anything you wish to present on behalf o f the defend­
ant?

Mr. N icholson: N o, Your Honor, except argu­
ment.

The Court: all right, you may proceed with the 
argument on behalf o f the State.

Mr. Allen: Thank you, Your Honor.
(Mr. Allen argued to the jury on punishment.)
(Mr. Nicholson argued to the jury on punish­

ment. )

CHARGE OF THE COURT ON PUNISHMENT
Now, ladies and gentlemen of the jury, you having 

found the defendant guilty of murder, and armed robbery, 
and kidnapping, the Court will impose sentence with 
reference to the armed robbery and kidnapping, but you 
having found the defendant guilty of the offense of 
murder, it is now your duty to determine within the limits 
prescribed by law the penalty that shall be imposed as 
punishment for that offense. In reaching this determina­
tion, you should consider all of the evidence received by 
you in open court in both phases of the trial. You should 
consider all of the facts and circumstances of the case, 
including any mitigating or aggravating circumstances.

Under the laws of this State, every person guilty of 
the offense of murder shall be punished by death by 
electrocution, or by life in the penitentiary. In the event 
that your verdict is life imprisonment, the punishment the 
defendant would receive would be imprisonment in the 
penitentiary for and during the remainder of his natural 
life. If that be your verdict, you would add, following the 
verdict already found by you, an additional verdict as 
follows: We fix his punishment as life imprisonment for



31a

the offense of murder, to be served concurrently or 
consecutively with any other sentence, as you may deter­
mine. You may, however, if you see fit and if such be your 
verdict, fix his punishment as death, which would require 
a sentence by the Court of death by electrocution. If that 
be your verdict, you would add following the verdict 
already found by you an additional verdict as follows: We 
recommend his punishment as death for the offense of 
murder.

I charge you that before you would be authorized to 
find a verdict fixing a sentence of death by electrocution 
for the offense of murder, you must find upon the evidence 
statutory aggravating circumstance or circumstances 
sufficient to authorize such penalty.

I charge you that a finding of statutory aggravating 
circumstance or circumstances shall only be based upon 
evidence convincing your minds beyond a reasonable 
doubt—and reasonable doubt has previously been de­
fined in the first phase of the trial—as to the existence of 
one or more of the following factual conditions, in con­
nection with the defendant’s perpetration of the offense 
for which you found him guilty. With respect to the 
offense of murder, they are: The offense of murder was 
committed while the offender was engaged in the commis­
sion of another capital felony, armed robbery; or the 
offense of murder was outrageously or wantonly vile, 
horrible, or inhuman in that it involved torture, or de­
pravity of mind, or an aggravated battery to the victim. 
Now, an aggravated battery is when one maliciously 
causes bodily harm to another by depriving him of a 
member of his body, or by rendering a member of his 
body useless, or by seriously disfiguring him, his body, or 
a member thereof; or that the offender committed the 
offense of murder for the purpose of receiving money.



32a

The statutory aggravating circumstance or circum­
stances that you are authorized to consider will be sub­
mitted to you in writing for your deliberations. You must 
designate in writing in your verdict on the indictment the 
aggravating circumstance or circumstances which you find 
to have existed with respect to the offense for which you 
recommend the death penalty.

Your verdict respecting punishment must be agreed 
to by all twelve of you.

Now, you may retire to begin your deliberations—but 
don’t begin your deliberations until the bailiff brings you 
the indictment with your verdict of guilty on it, along with 
the written statutory aggravating circumstances which you 
may consider.

You may retire.
(The jury retired to the jury room.)
The Court: All right.
(Papers were sent out to the jury.)
The Court: All right, we’ll be in recess until we 

hear from the jury.
(Recess.)
(The jury returned to the courtroom.)
The Court: Mr. Foreman, has the jury reached 

a verdict?
The F oreman: We have, Your Honor.
The Court: Deliver it to the bailiff, please, sir. 

Mr. Bailiff, hand it to the clerk. Madam Clerk, 
publish the verdict.

(The clerk published the verdict as follows: We, 
the jury, find the defendant guilty as charged. We 
ask the death penalty. The offense of murder was 
outrageously and wantonly—I can’t read it—horrible 
and inhuman in that i t . . . )



33a

T he Court: Return it to the foreman and let the 
foreman read it. Just hand it to him to read.

The F oreman: (Reading) “We ask the death 
penalty for the offense of murder was outrageously 
and wantonly vile, horrible, or inhuman in that it 
involved torture, depravity of mind, and aggravated 
battery to the victim. May God rest his soul.”

The Court: Is that dated?
The F oreman: Yes, sir.
The Court: And signed by you as foreman?
The F oreman: Yes, sir.
The Court: All right, do you wish to poll the 

jury?
Mr. N icholson: N o, sir.
The Court: Let me have that, please, Mr. 

Foreman.
(The foreman gave the indictment to the Court.)
The Court: Is there anything which you wish to 

say on behalf of the defendant before sentence is 
imposed?

Mr. N icholson: N o, sir.
The Court: Anything which the defendant 

wishes to say before the imposition of sentence?
The D efendant: Yes, sir.
The Court: All right, stand up and say it.
The D efendant: I think it was unfair the way 

they did it—unfair trial—and I ask for a new trial.
T he Court: Well, you’ll have an automatic 

appeal. Remain standing there. You having been 
found guilty as charged in the indictment, it is 
ordered that you be taken to the county jail to await 
guard to be sent to the State penitentiary where you



34a

shall be confined at hard labor therein or elsewhere 
as the Director of the State Department of Correc­
tions or Offender Rehabilitations shall direct for the 
remainder of your natural life consecutively with any 
other sentence for armed robbery; and, in addition, 
for twenty years consecutively with any other sen­
tence for kidnapping. And it is further ordered that 
you be delivered to the said director for electrocution 
at such penal institution as may be designated by said 
director on the 17th day of August, 1977, for murder.

That’s the sentence of the Court, and you may 
take the defendant back to the jail.

Now, ladies and gentlemen of the jury, that will 
conclude your services for this term, and you are now 
excused with the thanks of the Court.
(This concluded the proceedings of this case.) 

* * * * *



WITNESSES FOR THE STATE?

J. B, Dykes 
Inv. Belcher 
Marvin Woodward 
Inv. J. T. Johnson 
Jerry D. Chandler 
Cpl. C. D. Smith 
Lt. J. R. Holmes 
Inv. L. D. Stevens 
Dr. W. R. Murphy 
Dr. J. W. Mitchener 
#iv. E. J. Wilhelm

indictment No*

RICHMOND SUPERIOR COURT

------bias------- Term, 19-IZ_

THE STATE
vs.

ALPHONSO MORGAN_____
JOSE MARTINEZ HIGH 
JUDSON RUFFIN

■Z43SSM
MURDER_____ ______ _
ARMED ROBBERY________
KIDNAPPING

________________Bill

_^£®.doy o f 197?
_____ , Foreman

W.Miy îALH ^ & i1a,^Uor,'cir

The Defendant

ALPHONSO M O R G A N - m u T f  

6T 'loflicfrrtsnT̂TSt-̂ f-wieflesses-swo&o- 
/l/£ ? r guilty.
Th iSJa M l a y  of > & £>.$  ... 19'Ct>.

/  /  -Defendant——•
2)/hAT<-

■ £ ^ .ja ^ c lfeU e = = _
Defendant's Attorney.

The DcfcndinK^J. . (V\.
in u  r\{ Kill n fwaivc^ formal arraignment, copy of will of Ini 

dictmeut, list o; witnesses sworn before the GranJ

Jury, and pleads .S^r£- -----------  Rudty.

T!<i 34gE&i nf J 2 i — , >25

RICH A n n  E. ALLEN 
District Attorney

RICHARD E. ALLEN, District A ttorney

W e fhe Ju ry  find the DefendantDefendant

The Defendant *L
waives formal arraignment, copy ox Bill of In' 

dictmcm, list of witnesses sworn before the Grand

d & t f U .  Kuiity.

■S1.LJ/,., rK~L

ir̂c c
T h k  /  ^  An y  nf 3 U  L /  19 7 ?  RICHA'iD E. AI.I.CN

Attorney

J L L  Q (Z L d ,
FoiForeman

U>
Co

o

A
PPE

N
D

IX



In the
SUPERIOR COURT 
of Said County.

36a

THE GRAND JURORS selected, chosen and sworn 
for the County of Richmond, to-wit:

1 H. F. Elrod, Jr.. Foreman
2 Sarah L. Wideman
3 Lots Lamar
4 Maureen C. Gootee
5 Robert R. Howard
6 Particia E. Engvoidsen
7 Kenneth Labrack
8 Bonnie W. Cumbest
9 Mary A. Brown

10 Mrs. Anita D. Smalley
11 Patsy A. Eggers
12 Juanita Chavous

13 -Paula W. Washington
14 Mrs. Daisy P. Morgan
15 Mary F. Allen
16 Andrew J. Ziemba
17 Steve A. Cooper
18 Marian L. Purkey
19 Laura Brooks
20 Marie Covington
21 George H. Mitchell
22 Kenneth L. Harris
23 Carolyn Aaron

in the name and behalf of the citizens of Georgia, charge 
and accuse Alphonso Morgan, Jose Martinez H igh 
and Judson R uffin with the offense of: Murder for that 
said accused, in the County of Richmond and State of 
Georgia, on the 22nd day of August, 1976 unlawfully did 
and with malice aforethought kill one James G ray, a 
human being, by shooting the said James G ray with a 
certain shotgun, contrary to the laws of said State, the 
good order, peace and dignity thereof.

SECOND COUNT
The Grand Jurors aforesaid, in the name and behalf of the 
citizens of Georgia, further charge and accuse Alphonso 
Morgan, Jose Martinez H igh and Judson Ruffin with 
the offense of: Armed R obbery, for that said accused, in 
the County of Richmond and State of Georgia, on the



37a

22nd day of August, 1976, with the intent to commit theft, 
took from the person of J ames G ray, the following 
property, to-wit: $90.00 United States Currency of the 
property of James G ray, of the value of $90.00, by use of 
a shotgun, the same being an offensive weapon, contrary 
to the laws of said State, the good order, peace and dignity 
thereof.

THIRD COUNT

The Grand Jurors aforesaid, in the name and behalf of the 
citizens of Georgia, further charge and accuse Alphonso 
Morgan, Jose Martinez H igh and Judson R uffin with 
the offense of: K idnapping, for that said accused in the 
County of Richmond and State of Georgia, on the 22nd 
day of August, 1976, did abduct J ames G ray, a person, 
without lawful authority and held such person against his 
will, contrary to the laws of said State, the good order, 
peace and dignity thereof.

May Term, 1977 J. B. D ykes

Prosecutor 
R ichard E. Allen,

District Attorney



38a APPENDIX H

In The
SUPERIOR COURT OF 

R ichmond County, G eorgia

The State of G eorgia

vs. f  INDICTMENT n o .

Alphonso Morgan MAY TERM, 1977

SENTENCE
W hereupon, the defendant, Alphonso Morgan, hav­

ing been found guilty of the within charge of Murder, 
Armed Robbery and Kidnapping at the present Term of 
the Richmond Superior Court.

It is Considered, Ordered and Adjudged that he 
be taken to the Jail of said county to await a guard to be 
sent to the penitentiary of Georgia, where he shall be 
taken and confined at hard labor therein or elsewhere, as 
the State Department of Correction shall direct for the 
space of natural life on the charge of Armed Robbery and 
twenty years on the charge of Kidnapping, to be served 
consecutively;

W hereupon, the Jury in the above stated case having 
returned on the 14th day of July, 1977, a verdict of death 
by electrocution for the charge of Murder:

It is Considered, Ordered and Adjudged by the 
Court that the Defendant, Alphonso Morgan, be taken 
from the Bar of this Court to the common jail of Rich­
mond County or to some other safe and secure place 
under such guard and protection as may be deemed 
necessary where he shall be safely and securely kept until 
his removal therefrom to the custody of the Director of the 
State Department of Corrections, for the purpose of the 
execution of this sentence in the manner prescribed by 
law.



39a

It is F urther Ordered and Adjudged by the Court 
that on the 2 17th day of August, 1977, the Defendant, 
Alphonso Morgan, shall be executed by the Director of 
the State Department of Corrections at such penal in­
stitution as may be designated by said Director, and 
witnessed only by the executing officer with such assistants 
as the law requires as well as the defendant’s relatives, 
counsel and such clergymen and friends as he may desire.

It is F urther Ordered that the Sheriff of Richmond 
County together with such deputies as he may deem 
necessary, the number of guards to be approved by the 
presiding Judge, myself, or Ordinary of said County, shall 
convey and deliver the said Alphonso Morgan to the 
Director of the State Department of Corrections at such 
penal institution as may be designated by said Director 
not more than 20 days and not less than 2 days prior to the 
time fixed herein for the execution of said condemned 
person.

And there delivered into the custody of said Director.
And It Is F urther Ordered that the said Defendant, 

Alphonso Morgan, on the day fixed herein between the 
hours of 10:00 o’clock A.M. and 2:00 P.M. be by the 
Director of the State Department of Corrections, elec­
trocuted at the time and place and in the manner herein 
provided by law.

And may God have mercy upon your soul.
Signed, this 14th day of July, 1977.

/ s /  Edwin L. F ulcher
Judge, Superior Court, 

Richmond County, Georgia

R ichard E. Allen 
District Attorney, 
Augusta Judicial Circuit



40a APPENDIX I

In the
SUPERIOR COURT 

of R ichmond County, G eorgia

Alfonso M organ

vs. -

State of G eorgia

Civil Action 
No.
No. 7244 

Motion Docket

“NOTICE OF APPEAL”
Notice of Appeal is hereby given that Alfonso Mor­

gan, Plaintiff above named appeals to the Georgia Su­
preme Court from the conviction and sentencing of the 
trial court of Richmond County, Georgia.

Convicting him of murder, kidnap and robbery and 
sentencing him to die in the electric chair, life and (20) 
twenty years. This action was entered by the Superior 
Court of Richmond County, Augusta, Georgia, on the 
13th day of July 1977.

Respectfully Submitted

/s / Alfonso Morgan 
Alfonso Morgan Pro Se 
R.C.C.I. 2-5 
P. O. Box 5259 
Augusta, GA 30906

Dated July 18, 1977

Notary Public
/s / James A. Price 
My Commission Expires:

Notary Public, Richmond Co., Georgia 
My Commission Expires Oct. 8, 1977

Reconstructed Version
(Original Follows)



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42a APPENDIX J

In the
SUPERIOR COURT 

of R ichmond County, G eorgia

Alfonso Morgan

vs. >

State of G eorgia

Civil Action No.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 
AND APPOINTMENT OF COUNSEL

Plaintiff moves this honorable court for an order 
appointing (Mr. Archie L. Gleason, 412 Greene Street, 
Augusta, Ga.) a member of the Georgia Bar to represent 
him on his appeal because he cannot afford to employ an 
attorney at the present time.

This motion is based on plaintiff's affidavit in support 
of his motion to proceed in forma pauperis and for 
appointment of counsel. Legal authority for appointment 
and compensation of counsel is 28 U.S.C. Sec. 1915(d) 
and 18 U.S.C. Sec. 3006A(g) as interpreted in McClain v. 
Manson, 343 F. Supp. 382 D. Conn. 1972.

Dated July 18, 1977

Respectfully submitted

/ s /  Alfonso M organ 
Alfonso Morgan Pro Se 
R.C.C.I. 2-5 
P. O. Box 5259 
Augusta, GA 30906

Notary Public
/s / James A. Price 
My Commission Expires:

Notary Public, Richmond Co., Georgia 
My Commission Expires Oct. 8, 1977

Reconstructed Version
(Original Follows)



43a

IN THE
SUPERIOR COURT OF 

R ichmond County, G eorgia

Alfonso M organ

vs. a

State of G eorgia * I

Civil Action
No.

CERTIFICATE OF SERVICE
I do hereby certify that I have this date made the 

proper and necessary service upon the offices of the Clerk 
of Superior Court by placing a copy herein of notice of 
appeal and for appointment of counsel and forwarding it 
in the United States mail addressing it to the clerk of court 
Miss Helen M. Speltz with sufficient postage affixed 
thereto.

Respectfully submitted 

/s / Alfonso Morgan

Sworn to and subscribed
before me this 18th day of July 1977

Notary Public

/ s /  James A. Price
Notary Public Richmond Co., Georgia
My Commission Expires Oct. 8, 1977

Filed in office this 22nd day of 
July, 1977

/ s /  Helen M. Speltz 
Clerk

Reconstructed Version
(Original Follows)



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46a APPENDIX K

IN THE
SUPERIOR COURT OF 

R ichmond County, G eorgia

Alfonso Morgan

Helen M. Speltz
Respondent

Criminal Case No.
Charges: Murder, Kidnap, Arm Robbery 
Sentences: Death, life, 20 years 
Date of Conviction: 7/15/77 * 1

PETITION FOR COPY OF RECORDS 
Comes now the petitioner-defendant in the above styled 
cause and moves this Honorable Court to issue an order 
directed to the above named respondent and commanding 
that the respondent supply the petitioner-defendant with 
certain documents which have heretofore been filed by 
him in his capacity officially as clerk of this court and 
which are required by the petitioner-defendant for the 
purpose of continuing litigation as good cause for issuing 
such order he submits the following to wit:

1. ) The defendant now petitioner is an indigent 
person unable to pay the respondent’s fees for such 
documents.

2. ) As the defendant in a criminal case, peti­
tioner is entitled to certified copies of the documents 
below listed as a matter of law.

3.) Petitioner should have been, but has not 
been served with a copy of

(A) The warrant in this cause.
(B) The indictment in this cause.
(C) Any transcript of any proceeding in 

which petitioner was a defendant.
(D) The sentence as impose from the bench.

Reconstructed Version
(Original Follows)



47a

Whereas the defendant petitioner is entitled to the 
foregoing documents described as a matter of law and, 
whereas the cost of such documents may be taxed against 
the state.

Wherefore the defendant now petitioner prays that 
an order be issued as in hereinabove prayed, and this he 
will ever pray.

Respectfully submitted

/ s /  Alfonso Morgan 
defendant petitioner 
R.C.C.I. P. O. Box 5259 
Augusta, GA 30906 

Sworn to and subscribed before me 
this 10th day of August 1977.

/s /  James A. P rice 
Notary Public

My commission expires:
Notary Public, Richmond Co., Georgia 
My Commission Expires Oct. 8, 1977 
CERTIFICATE OF SERVICE

I do hereby certify that I have this date made service 
upon the opposite party by placing a copy of this fore­
going petition for copy of Record and “Petition for Leave 
to file and proceed” in forma pauperis in the United States 
mail with sufficient postage attached thereto.

This Day of 197

/ s /  Alfonso Morgan 
Petitioner Pro Se 
R.C.C.I. P. O. Box 5259

Reconstructed Version
(Original Follows)



48a

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Commission Expires Oct. 8, 1977

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50a

Inmate’s N ame: Alfonso Morgan 
Institution: R.C.C.I.
D ate: Oct. 5, 1977 
State Serial N umber:
C ity: Augusta, Georgia

I am presently confined at Richmond County Correc­
tions Institution. I am writing you in request for the 
transcript pertaining to my case, or any information you 
can give me as to how I can obtain my transcript. I was 
tried and sentenced August 22, 1977 and since then have 
tried to obtain any transcript and indictment papers. My 
attorney Chris Nicholson has not contacted me since my 
trial and I have not been able to contact him. It is my 
opinion that Mr. Nicholson does not intend to assist me in 
any other legal matters, so it is imperative that I receive 
my transcript and any other papers pertaining to my case 
so that I may be able to help myself efficiently.

My mother, Betty Morgan will contact you soon and I 
would appreciate it if you would cooperate with her in 
helping me receive my legal papers.

Sincerely,

/ s /  Alfonso Morgan

The transcript has not been filed. Court is in session 
every week, therefore, the court reporter has not had time 
to prepare it.

Reconstructed Version 
(Original Follows)



51a

INMATE'S NAME:-

INSTITUTION

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A I o  n z o Me>y- anr\
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STATE SERIAL NUMBER:*- 

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t h e r e f o r e ,  t h e  c o u r t  r e p o r t e r  h a s  n o t  h a d  t im e  t o  p r e p a r e  i t . ____________ i_



52a

EDWIN D. FULCHER 
JUDGE OF THE SUPERIOR COURTS 

OF THE AUGUSTA JUDICIAL CIRCUIT 
311 CITY-COUNTY BUILDING 

AUGUSTA, GEORGIA 30902

August 17, 1977

Mr. Richard E. Allen 
District Attorney 
The 500 Building 
Augusta, Georgia 30902

Re: State v. Alphonso Morgan

Dear Sir:
I enclose herewith Petition for Copy of Records in the 

above matter for your handling and disposition.

Yours very truly,

/s /  Edwin D. Fulcher 
Edwin D. Fulcher

edf/d
Enclosure
Copy to Alfonso Morgan 

R. C. C. I.
P. O. Box 5259 
Augusta, Georgia 30906



53a APPENDIX L

November 17, 1977
Mr. Alfonso Morgan 
Richmond County C.I. 2-5 
Post Office Box 5259 
Augusta, Georgia 30906

Dear Mr. Morgan:

Thank you for your letter of last week.

I noted in your letter that you were anxious for your 
trial court attorney to contact you concerning your appeal. 
Generally, the attorney who is appointed to handle your 
case at trial will also represent you on appeal. Our office 
does not intervene in cases where a lawyer has already 
been appointed in a case such as yours, and, moreover, we 
do not have an office which covers the Richmond County 
area. Therefore, we will not be able to assist you directly 
at this time. However, if your attorney fails to contact you 
after the time for appeal has elapsed, please contact us 
again at that time, for then we may be able to assist you.

Yours truly,

/ s /  Barry G. Sikes

Barry G. Sikes 
Legal Assistant

BGS/dgl



54a APPENDIX M

Inmate’s N ame: ...........................
Institution: ...........................
D ate: ...........................
State Serial N umber: Rec. 12/19/77 
C ity: ...........................

Mrs. J oline B. W illiams Clerk 
Supreme Court of Georgia

I’am writing you to let you know that I have tried to 
get my transcript from my lawer but I’ve had [no] resort 
on my case, and I would like for you to check on some of 
the evidence on me as they say, they say it was three of us 
on the crime and I was the only one convicted for the 
crime, and my lawer gave me no a cooperation and I 
would like for you all to know that Fam not a wealth man 
at the moment and I did not committ this crime, and the 
evidence there was, was on someone else and I became 
involve also, but the evidence was no good in Court and 
this no one has been release I want you to know that I am 
trying in all my ability to help myself on the case I would 
like for you to investigate this case [first?] before any final 
decision is made, because my like is in state of Death 
[unclear word] was not meant for me as a human being, 
and I have never commited a felony case in my life and 
behalf of my like I feel that may case down here in 
Georgia is taking my life for nothing I done and that why 
I ask you to help me in every way you can, and when I got 
convicted my lawer never gave me a report are never 
answered any of my letter, and I know that he a stat 
apointed, but I would like to know did he file my 
complank, and never received this as a murder I did’nt 
committ with 11 whites & 1 Black that could explain how I 
got arrested, and the D.A. Richard Allend said that I 
hated white folk so the jury and I would like for you to 
check into it, and I have evidence on this, on my behalf I



55a

was railroad, and as of now they violated my rights on a 
speedy trial because of no evidence and all that is being 
introduced to you I would like to here from you on my 
case and I was tortued and beating & they said I made 
statement, but I did not say, and as arresting me they had 
no warrant of my arrest. So please I am asking you to 
help me, because I am a young man and care about my 
life, and they keep asking me to cop out and I said no for 
knowing I did’nt, not even a line up. They gave me, in my 
way my lawer and Richard Allend sat me up, because 
they hadno evidence, and also when I was arrest, the 
Detective said I made a statement around five men had no 
time to take it down and only one took the stand without 
no statement, and a G.B.I. took the stand on behalf that I 
had nothing to do with the case in Crawford Villi, and I 
hope I could receive a letter from yoall for help.

Reconstructed Version 
(Original Follows)



56a

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59a APPENDIX N

December 16, 1977

Mr. Chris Nicholson 
The 500 Building 
Augusta, Georgia 30902

In re: Case No. 33046
Morgan v. The State

Dear Mr. Nicholson:
The Court has directed me to notify you that you are 

required to file the appellant’s briefs in the above case in 
this Court not later than 4:30 p.m., December 30, 1977, or 
be subject to the sanctions of Rule 34 of this Court.

Yours truly,

Mrs. Joline B. Williams, Clerk

JBW.bc

cc: Arthur K. Bolton, Atty. Gen.
Attn: John W. Dunsmore, Jr.

Richard Allen, Dist. Atty.



60a APPENDIX O

In The
SUPREME COURT

Of G eorgia

Alfonso Morgan,
Appellant,

v. >

Case No. 33046

On Appeal from the 
Superior Court of 
Richmond County

State of G eorgia,
Appellee.

Murder. Armed Robbery,
Kidnapping
(Death Case)

SUPPLEMENTAL BRIEF 
ON BEHALF OF THE APPELLEE 
BY THE ATTORNEY GENERAL

Please serve:

John W. D unsmore, Jr. 
132 State Judicial Bldg. 
40 Capitol Square, S.W. 
Atlanta, Georgia 30334 
(404) 656-3358

Arthur K. Bolton 
Attorney General
R obert S. Stubbs, II 
Executive Assistant 
Attorney General
R ichard L. Chambers
First Assistant 
Attorney General
John C. Walden 
Senior Assistant 
Attorney General
J ohn W. D unsmore, Jr. 
Assistant Attorney General
R ichard E. Allen 
District Attorney 
Augusta Judicial Circuit



61a

In The
SUPREME COURT 

Of G eorgia

Alfonso Morgan,
Appellant,

v. >

Case No. 3.3046

On Appeal from the 
Superior Court of 
Richmond County

State of G eorgia,
Appellee.

Murder, Armed Robbery,
Kidnapping
(Death Case)

SUPPLEMENTAL BRIEF 
ON BEHALF OF THE APPELLEE 
BY THE ATTORNEY GENERAL

At the direction of the Court during oral argument 
held on January 9, 1978, Appellee was requested to file a 
supplemental brief addressing the adequacy of the lower 
court’s instructions during the sentencing phase of the trial 
in light of Hawes v. State, Ga. (Case No. 32167, 
decided Nov. 28, 1977), and Fleming v. State, Ga.

(Case No. 32344, decided Nov. 8, 1977). Before 
discussing this issue Appellee wishes to correct a statement 
made during oral argument in which it stated that the 
Court of Appeals had already heard oral argument 
regarding an appeal filed on behalf of the State in 
connection with the lower court’s ruling setting aside the 
arrest of Appellant’s co-defendant. State v. High, Case 
No. 55212. Appellee was in error insofar as informing the 
Court that oral argument had been held before the Court 
of Appeals in that matter. Oral argument has not been



6 2 a

held, but briefs for both sides have been submitted with 
the Court. Appellee apologizes for this error and for 
misleading the Court in this matter.

Recently this Court has been asked by various Appel­
lants to look more closely at the trial court’s instructions 
coming during the penalty phase in those cases in which 
the state is seeking the death penalty under Ga. Laws 
1973, pp. 163, Ga. Code Ann. § 27-2734.1, particularly as 
to the sufficiency and clarity of those instructions on 
mitigating and aggravating circumstances which the jurors 
are to consider before imposing a death sentence. Ga. 
Code Ann. § 27-2734.1 ( b )(c). In that connection this 
Court has held that a jury must be instructed that they are 
to consider in addition to aggravating circumstances, any 
mitigating circumstances warranted by the evidence, 
Hawes v. State, supra, but that the mitigating circum­
stances need not be singled out and specifically listed, a 
general charge on mitigating circumstances being 
sufficient. Thomas v. State, Ga. (Case No. 32259, 
Nov. 28, 1977). Further, a judge during the penalty 
phase must also make it clear to the jurors that even if 
they find a statutory aggravating circumstance they may 
still recommend a life sentence. Fleming v. State, supra. 

Sub judice, the trial judge specifically instructed the
jury:

“ . . . it is now your duty to determine within the limits 
prescribed by law the penalty that shall be imposed 
as punishment for that offense. In reaching this 
determination, you should consider all of the evi­
dence received by you in open court in both phases of 
the trial. You should consider all the facts and 
circumstances of the case, including any mitigating or 
aggravating circumstances. ” (Emphasis added). 
Hawes is not applicable in this instance, since the 

lower court did instruct on mitigating circumstances,



63a

whereas in Hawes such an instruction was totally lacking. 
Admittedly, while the lower court did not include in its 
charge information to the jury that they could nevertheless 
recommend a life sentence even if they found the existence 
of a statutory aggravating circumstance. Fleming, supra. 
This Court’s concern in Fleming and instructions similar to 
that which it took issue with in Fleming, is that it is 
possible for the judge to give too much emphasis on 
aggravating circumstances, and that in doing so the 
instruction may appear to the jury that if they find a 
statutory aggravating circumstance it is mandatory for 
them to return a sentence to death. In this instance, the 
charge when taken as a whole permits a life sentence even 
though an aggravating circumstance may be found. (T 
229-231).

Respectively submitted,

Arthur K. Bolton
Attorney General

R obert S. Stubbs, II 
Executive Assistant 
Attorney General

/s /  R ichard L. Chambers 
Richard L. Chambers 
First Assistant 
Attorney General

/s / John C. Walden 
John C. Walden 
Senior Assistant 
Attorney General

/s / John W. D unsmore, Jr. 
John W. Dunsmore, Jr. 
Assistant Attorney General

/ s /  R ichard E. Allen 
Richard E. Allen 
District Attorney 
Augusta Judicial Circuit

Please serve:

J ohn W. D unsmore, J r.
132 State Judicial Bldg.
40 Capitol Square, S.W.
Atlanta, Georgia 30334 
(404) 656-3358

CERTIFICATE OF SERVICE 
This is to certify that I have this 
day served counsel for the oppos­
ing party in the foregoing matter 
with a copy of this pleading by 
depositing in the United States 
Mail a copy of same in a properly 
addressed envelope with adequate 
postage thereon.

THIS 16th day of Janaury, 1978

/ s /  J ohn W. D unsmore, J r. 
Counsel for Appellee

PERSON(s) SERVED

Mr. Chris G. Nicholson 
The 500 Building 
Augusta, Georgia 30902



64a APPENDIX P

February 15, 1978

Mr. Alfonso Morgan 
Richmond County Correctional Institute 
Post Office Box 5259 
Augusta, Georgia 30906

Dear Mr. Morgan:
We have received your letter dated February 13, 

1978. You indicated that you have an attorney assigned 
to your case. We are unable to become involved in a case 
where an attorney is presently active and representing his 
client on appeal, so we will not be able to directly help you 
at this time. I would suggest you try contacting your 
attorney again for additional assistance.

If in the future we can be of help to you, please do not 
hesitate to write.

Sincerely,

/ s /  Barry Sikes

BGS/dgl

Barry G. Sikes 
Legal Assistant



65a APPENDIX Q

April 18, 1978
Alphonso Morgan 
R. C. C. I.
P. O. Box 5259 
Augusta, Georgia 30906

Dear Sir:

I have your letter of April 13. Your case is presently 
before the Supreme Court of Georgia and the appeal will 
be prosecuted by Mr. Nicholson. There is no reason for 
other or additional counsel.

Yours very truly,

/ s /  Edwin D. F ulcher 
Edwin D. Fulcher

edf/d

Copies to Mr. Richard E. Allen, District Attorney 
Mr. Chris G. Nicholson, Attorney



66a APPENDIX R

In the
SUPERIOR COURT 

Of R ichmond County, G eorgia

Alfonso Morgan 

VS.

Clerk of Court

Petitioner

Respondent

Motion Docket 
No. 7641

O R D E R
The Petitioner, Alfonso Morgan, having filed a “ Peti­

tion for Copy of Records”, and it appearing to the 
Court that:

Alfonso Morgan was found guilty of the offenses of 
Murder, Armed Robbery and Kidnapping and on the 
14th day of July, 1977, was sentenced to death on the 
Murder conviction and life on the Armed Robbery con­
viction and twenty years on the Kidnapping conviction, to 
be served consecutively; and,

It further appearing to the Court that no justification 
or necessity for transmittal of the requested documents is 
alleged or shown as they are in the possession of Defend­
ant’s (Petitioner’s) attorney, the Petitioner’s Motion is 
hereby denied.

This 21st day of April, 1978.

/ s /  Edwin D. F ulcher 
J.S.C.A.C.

Presented By:

R ichard E. Allen 
District Attorney 
R ichard E. Allen



67a APPENDIX S

CODE

R e p o r t  o f  T h e  T r - - a l  Juc lg

S u p e r i o r  C o u r t  o f  R i c h m o n d C o u n t y ,  G e o r g i a

1. £$\ame M o r g a n

T h e  S t a t e  v s . A l f o n z o  M o r g a n  
( A  c a s e  i n  w h i c h  t h e  d e a t h  p e n a l t y  w a s  i m p o s e d )

A . D a t a  C o n c e r n i n g  t h e  D e f e n d a n t

A1 fn n ? .n  '

10.
11.

L a s t , F i r s t
2 .  D a t e  o f  E M r t h  0 1  01  5 8

M i d d l e M o .  D ay  Y e a

S o c i a l  S e c u r i t y  N u m b e r
S e x : LX ]

[ 1
5 .  M a r i t a l  S t a t u s : LX]r i

C h i l d r e n
( a )  N u m b e r  o f  c h i l d r e n
( b )  A g e s  o f  c h i l d r e n :

N e v e r  H a r r  
M a r r i e d  
D i v o r c e d
S p o u s e  D e c e a s e d [

F a t h e r  l i v i n g :  y e s .  [ x ]
M o t h e r  l i v i n g :  y e s  [ x]
N u m b e r  o f  c h i l d r e n  b o r n  t o  p a r e n t s  
E d u c a t i o n — H i g h e s t  G r a d e  C o m p l e t e d :  1

1 2 3 4  5  6 7 8 9  1 0  1 1  1 2  1 3  U  1 5  1 6  1 7  
( C i r c l e  a g e  o f  e a c h  c h i l d )

n o  [ ] I f  d e c e a s e d ,  g i v e  d a t e  o f  d e a t h   
n o  [  1 i f  d e c e a s e d ,  g i v e  d a t e  o f  d e a t h   

S i x  ( 6 )
2 3 4  5 6 7 F 9  1 0  <Q) 12  1 3  1 4  15  16

I n t e l l i g e n c e  L e v e l :  ( I Q  b e l o w  7 0 )  
. ( I Q  7 0  t o  1 0 0 )  
( I Q  a b o v e  10? ;)

( C i r c l e  o n e )  
L o w  [ ] 
M e d iu m  ? x ]  
H i g h  [ 1

[  c o l l e g e

r i
1 2 . '  P s y c h i a t r i c  E v a l u a t i o n  P e r f o r m e d ?

I f  p e r f o r m e d  i s  d e f e n d a n t :
a .  A b l e  t o  d i s t i n g u i s h  r i g h t  f r o m  w r o n g ?
b .  A b l e  t o  a d h e r e  t o  t h e  r i g h t ?  [
c .  A b l e  t o  c o o p e r a t e  i n t e l l i g e n t l y  i n  h i s  ow n  d e f e n s e ?  

1 2 .  I f  e x a m i n e d ,  w e r e  c h a r a c t e r  o r  b e h a v i o r  d i s o r d e r s  f o u n d ?
( I f  a n s w e r  i s  y e s  p l e a s e  e l a b o r a t e ) _________________________________

Y e s  [  ] N o  [ x l

[
Y e s  [ 1  N o  [  ]

1 4 .  W h a t  o t h e r  p e r t i n e n t  p s y c h i a t r i c  [ a n d  p s y c h o l o g i c a l !  i n f o r m a t i o n  w a s  r e v e a l  

N o n e

1 5 .  P r i o r  V’o r ’ :  R e c o r d  o f  D e f e n d a n t :
T ’-"ne J o b  T ' s v  D a t e s  He 1 d R e a  s o n  f o r  T e r m *  n a t ~  c n

a  . T h e  s u b j e c t  s t a t e s  t h a t  h e  h a s  b e e n  e m p l o y e d  a t  v a r i o u s  t i m e s  a s  a b r i c k  

b . M a s o n 1s  a s s i s t a n t , a  y a r d w o r k e r ,  a n d  a c o n v e n i e n t  s t o r e  c l e r k . He d e -  

c  . d i n e d  t o  g i v e '  a n y  p a r t i c u l a r  e m p l o y e r s  o r  d a t e s  o f  e m p l o y m e n t . ____

*'v s e p a r a t e  r e p o r t  m u s t  b e  s u h n - t t e -1 f o r  e a c h  d e f e n d a n t  s e n t e n c e d  t o  d e a t h .



68a

B . D a t a  C o n c e r n i  n g  t h e  T r ; a1

1 .  Was t h e  c a s e  t r i e d  w i t h  o r  w i t h o u t  j u r y ?  W i t h  [x ) W i t h o u t  [  ]

2 .  How d i d  t h e  d e f e n d a n t  p l e a d ?  G u i l t y  [ ] N o t  g u i l t y  &;xl

C . O f f e n s e  R e l a t e d  D a t a

1 .  C a p i t a l  O f f e n s e  f o r  W h i c h  P e n a l t y  I m p o s e d :
a .  T r e a s o n ...................................................................................]
b  . M u r d e r ......................................................................   jx j
c .  K i d n a p p i n g  f o r  R a n s o m ..................................................... [ ]
d . K i d n a p p i n g  w h e r e  I n j u r y  R e s u l t s  . . . . . .  pc ]
e  . A i r c r a f t  Hi j a c k i n g ................................................ ..  . [  ]
f .  R a p e ................................................................................................... £ -j
g .  A r m e d  R o b b e r y ......................................................................... [ x ]

2 .  W e r e  o t h e r  o f f e n s e s  t r i e d  i n  t h e  sa m e  t r i a l ?  y e s  [  ] no [ x]

I f  o t h e r  o f f e n s e s  w e r e  t r i e d  i n  t h e  sa m e t r i a l  l i s t  t h o s e  o f f e n s e s .

d . _______ _______________
I r  t r i e d  w i t h  j u r y ,  d i d  t h e  j u r y  r e c o m m e n d  t h e  d e a t h  s e n t e n c e ?

Y e s  fo 1 N o  [  ]

S t a t u t o r y  a g g r a v a t i n g  c i r c u m s t a n c e s  f o u n d : Y e s  [  x ] No

W h i c h  o f  t h e  f o l l o w i n g  s t a t u t o r y  
a n d  w h i c h  w e r e  f o u n d ?

g g r a v a t i n g  c i r c u m s t a n c e s  w e r e  i n s t r u c t e d

( 1 )  T h e  o f f e n s e  o f  m u r d e r ,  r a p e ,  a r m e d  r o b b e r y ,  o r  
k i d n a p p i n g  w a s  c o m m i t t e d  b y  a p e r s o n  w i t h  a p r i o r  
r e c o r d  o f  c o n v i c t i o n  f o r  a c a p i t a l  f e l o n y ,  o r
( 2 )  T h e  o f f e n s e  o f  m u r d e r  w a s  c o m m i t t e d  b y  a p e r ­
s o n  w h o  h a s  a s u b s t a n t i a l  h i s t o r y  o f  s e r i o u s  a s ­
s a u l t i v e  c r i m i n a l  c o n v i c t i o n s .

( 1 )  T h e  o f f e n s e  o f  m u r d e r ,  r a p e ,  a r m e d  r o b b e r y ,  o r  
d n a p p i r . g  w a s  c o m m i t t e d  w h i l e  t h e  o f f e n d e r  w a s  e n ­

g a g e d  i n  t h e  c o m m i s s i o n  o f  a n o t h e r  c a p i t a l  f e l o n v .  
o r  a g g r a v a t e d  b a t t e r y  o r
( 2 )  T h e  o f f e n s e  o f  m u r d e r  w a s  c o m m i t t e d  w h i l e  t h e  
f e n d e r  w a s  e n g a g e d  •f n  t h e  c o m m i s s i o n  o f  b u r g l a r y  o r  
a r s o n  ‘ n  t h e  f i r s t  d e g r e e .

I n s t r u c t e d  F ound
L 1 C 2

[ 1 [ ]

T h e  o f f e n d e r  b y  h ’ s  a c t  o f  m u r d e r ,  a r m e d  r o b b e r y ,  o r  
’ w c n a p r r r . g  k n o w i n g l y  c r e a t e d  a g r e a t  r i s k  o f  d e a t h  
t o  m o r e  t h a n  o n e  p e r s o n  i n  a p u b l i c  p l a c e  b y  m e a n s  
o r  a w e a p o n  o r  d e v i c e  w hm ch  w o u l d  n o r m a l l y  b e  h a ? . -  
a r o o u s  t o  t h e  l i v e s  o f  m o r e  t h a n  o n e  o e r s o r . .



69a

I n s t r u c t e d  F o u n d

d .  T h e  o f f e n d e r  c o m m i t t e d  t h e  o f f e n s e  o f  m u r d e r  f o r  [ ]  {■ -j
h i m s e l f  o r  a n o t h e r ,  f o r  t h e  p u r p o s e  o f  r e c e i v i n g  
m o n e y  o r  a n y  o t h e r  t h i n g  o f  m o n e t a r y  v a l u e .

e .  T h e  m u r d e r  o f  a j u d i c i a l  o f f i c e r ,  f o r m e r  j u d i c i a l  [ 1 
o f f i c e r ,  d i s t r i c t  a t t o r n e y  o r  s o l i c i t o r  o r  f o r m e r  
d i s t r i c t  a t t o r n e y  o r  s o l i c i t o r  d u r i n g  o r  b e c a u s e  o f
t h e  e x e r c i s e  o f  h i s  o f f i c i a l  d u t y .

f .  T h e  o f f e n d e r  c a u s e d  o r  d i r e c t e d  a n o t h e r  t o  c o m m i t  [ } 
m u r d e r  o r  c o m m i t t e d  m u r d e r  a s  a n  a g e n t  o r  e m p l o y e e
o f  a n o t h e r  p e r s o n .

©• T h e  o f f e n s e  o f  m u r d e r ,  r a p e ,  a r m e d  r o b b e r y ,  o r  k i d -  [ ] 
n a p p i n g  w a s  o u t r a g e o u s l y  o r  w a n t o n l y  v i l e ,  h o r r i b l e  
o r  in h u m a n  i n  t h a t  i t  i n v o l v e d  t o r t u r e ,  d e p r a v i t y  o f  
m i n d ,  o r  a n  a g g r a v a t e d  b a t t e r y  t o  t h e  v i c t i m .

h .  T h e  o f f e n s e  o f  m u r d e r  w a s  c o m m i t t e d  a g a i n s t  a n y  p e a c e  [ ] 
o f f i c e r , c o r r e c t i o n s  e m p l o y e e  o r  f i r e m a n  w h i l e  e n ­
g a g e d  i n  t h e  p e r f o r m a n c e  o f  h i s  o f f i c i a l  d u t i e s .

i .  T h e  o f f e n s e  o f  m u r d e r  w a s  c o m m i t t e d  b y  a p e r s o n  i n ,  [  ] 
o r  w h o  h a s  e s c a p e d  f r o m ,  t h e  l a w f u l  c u s t o d y  o f  a
p e a c e  o f f i c e r  o r  p l a c e  o f  l a w f u l  c o n f i n e m e n t .

j .  T h e  m u r d e r  w a s  c o m m i t t e d  f o r  t h e  p u r p o s e  o f  a v o i d -  [  1 
i n g ,  i n t e r f e r i n g  w i t h ,  o r  p r e v e n t i n g  a  l a w f u l  a r r e s t
o r  c u s t o d y  i n  a . p l a c e  o f  l a w f u l  c o n f i n e m e n t ,  o f  h i m ­
s e l f  o r  a n o t h e r .

[ 1

f 1 

hd

[ i 

[ i 

t ]

L i s t  n o n  s t a t u t o r y  a g g r a v a t i n g  c i r c u m s t a n c e s  i n d i c a t e d  b y  t h e  e v i d e n c e ,  
i f  a n y .

V.’a s  t h e r e  e v i d e n c e  o f  m i t i g a t i n g  c i r c u m s t a n c e s ?  Y e s  [ ] N o  [ x ]

I f  s o ,  w h i c h  o f  t h e  f o l l o w i n g  m i t i g a t i n g  c i r c u m s t a n c e s  w a s  i n  e v i d e n c e ?

a . T h e  d e f e n d a n t  h a s  n o  s i g n i f i c a n t  h i s t o r y  o f  p r i o r  [ ]
c r i m i n a l  a c t i v i t y .

b .  T h e  m u r d e r  w a s  c o m m i t t e d  w h i l e  t h e  d e f e n d a n t  w a s  [ ]
u n d e r  t h e  i r f l u e n c e ' - ' o f  e x t r e m e  m e n t a l  o r  e m o t i o n a l  
d i s t u r b a n c e .

c .  T h e  v i c t i m  w a s  a p a r t i c i p a n t  i n  t h e  d e f e n d a n t ’ s  [ ;
h o m i c i d a l  c o n d u c t  o r  c o n s e n t e d  t o  t h e  h o m i c i d a l
a c t  .

c .  T h e  m u r d e r  w a s  c o m m i t t e d  u n d e r  c i r c u m s t a n c e s  w h i c h  { ] 
t h e  d e f e n d a n t  b e l i e v e d  t o  p r o v i d e  a m o r a l  j u s t i f i ­
c a t i o n  o r  e x t e n u a t i o n  f o r  h i s  c o n d u c t .

c . T h e  d e f e n d a n t  w a s  a n  a c c o m p l i c e  i n  a m u r d e r  c o m -  [  1
m i t t e d  b y  a n o t h e r  p e r s o n  a n d  h i s  p a r t i c i p a t i o r .  
i n  t h e  horn - c ’ d a ]  a c t  w a s  r e l a t i v e l y  m i n o r  .

3



70a

f .  T h e  d e f e n d a n t  a c t e d  u n d e r  d u r e s s  o r  u n d e r  t h e  d o m -  
’ n a t  o n  o f  a n o t h e r  p e r s o n .

g .  A t  t h e  t i m e  o f  t h e  m u r d e r ,  t h e  c a p a c i t y  o f  t h e  [ ]
d e f e n d a n t  t o  a p p r e c i a t e  t h e  c r i m i n a l i t y  [ w r o n g ­
f u l n e s s  i o f  h i s  c o n d u c t  o r  t o  c o n f o r m  h i s  c o n -

r>  d u c t  o r  t o  c o n f o r m  h i s  c o n d u c t  t o  t h e  r e q u i r e -
Q0 m e n t s  o f  l a w  w a s  i m p a i r e d  a s  a  r e s u l t  o f  m e n t a l
W  d i s e a s e  o r  d e f e c t  o r  i n t o x i c a t i o n .

C
h .  T h e  y o u t h  o f  t h e  d e f e n d a n t  a t  t h e  t i m e  o f  t h e  c r i m e .  [  ]

i . O t h e r .  ̂ -j
P l e a s e  e x p l a i n  i f  ( i )  i s  c h e c k e d  _____________  * 11

9 .  I f  t r i e d  w i t h  a j u r y ,  w a s  t h e  j u r y  i n s t r u c t e d  t o  c o n s i d e r  t h e  c i r c u m ­
s t a n c e s  i n d i c a t e d  i n  8. a s  m i t i g a t i n g  c i r c u m s t a n c e s ?  Y e s  [  ] N o  [ x ]

1 0 .  D o e s  t h e  d e f e n d a n t ' s  p h y s i c a l  o r  m e n t a l  c o n d i t i o n  c a l l  f o r  s p e c i a l
c o n s i d e r a t i o n ?  Y e s  { f  K q  ^

1 1 .  A l t h o u g h  t h e  e v i d e n c e  s u f f i c e s  t o  s u s t a i n  t h e  v e r d i c t ,  d o e s  i t  f o r e ­
c l o s e  a l l  d o u b t  r e s p e c t i n g  t h e  d e f e n d a n t ' s  g u i l t ?  Y e s  [ x ]  N o  [ ]

1 2 .  W as t h e  v i c t i m  r e l a t e d  b y  b l o o d  o r  m a r r i a g e  t o  d e f e n d a n t ?  Y e s  T 1 No  fx 1
1 3 .  I f  a n s w e r  i s  y e s ,  w h a t  w a s  t h e  r e l a t i o n s h i p ?  ____________  ‘  '  J

14- . \V 3 S

1 5 .  V:as

1 6 .  Was 
t h e

1 7 .  V’a s 

ID. VJas 
1 9 .  Was

t h e  v i c t i m  a n  e m p l o y e r  o r  e m p l o y e e  o f  d e f e n d a n t ?  K o
E m p l o y e r
E m p l o y e e

t h e  v i c t i m  a c q u a i n t e d  w i t h  t h e  d e f e n d a n t ?  K o
C a s u a l  A c q u a i n t a n c e  

F r i e n d

t h e  v i c t i m  l o c a l  r e s i d e n t  o r  t r a n s i e n t  i n  
c o m m u n i t y ?

t h e  v i c t i m  t h e  sa m e  r a c e  a s  d e f e n d a n t ?  

t h e  v i c t i m  t h e  sa m e  s e x  a s  t h e  d e f e n d a n t ?  

t h e  v i c t i m  h e l d  H o s t a g e  d u r i n g  t h e  c r ^ r a e ?

R e s i d e n t
T r a n s i e n t

Y e s  [ 1 K o

Y e s  [ X 1 Ko

K o
Y e s  -  L e s s  t h a n  a n  h o u r  
Y e s  -  M o r e  t h a n  a n  h o u r

[X]
C 1 [ ]
[xl 
C i [ }
[xl 
[ ]

f 1 
r 1
Ex1

2 D .  Was t h e  v i c t - m ’ s r e p u t a t i o n  i n  t h e  c o m m u n i t y :  G o o d  [x "l
Ba d [  ; 

U n k n o w n  [ 1

V.'as t h e  v i c t i m  p h y s i c a l l y  h a r m e d  o r  t o r t u r e d ?  Y e s  f K o  r 1 
I ”  y e s ,  s t a t e  e x t e n t  o f  h a rm  o r  t o r t u r e :  D e a t h ______________



01
65

4
71a

2 2 .  V ;h a t  w a s  t h e  a g e  o f  t h e  v i c t i m ?

2 3 .  I f  a w e a p o n  w a s  u s e d  i n  c o m m i s s i o n  o f  t h e  c r i m e  w a s  i t ?
N o  w e a p o n  u s e d
P o i s o n f
M o t o r  V e h i c l e {
B l u n t  I n s t r u m e n t f
S h a r p  I n s t r u m e n t [
F i r e a r m [x
O t h e r [

2 4 .  D o e s  t h e  d e f e n d a n t  h a v e  a r e c o r d  o f  p r i o r  c o n v i c t i o n s ?  Y e s  [  ) N o  (XjQ

2 5 .  I f  a n s w e r  i s  y e s ,  l i s t  t h e  o f f e n s e s ,  t h e  d a t e s  o f  t h e  o f f e n s e s  a n d  
t h e  s e n t e n c e s  i m p o s e d :

O f f e n s e  P 3 t e  o f  O f f e n s e  S e n t e n c e  I m p o s e d

a . ___________________________________________________________________ _______________

2 6 .  W as t h e r e  e v i d e n c e  t h e  d e f e n d a n t  w a s  u n d e r - t h e  i n f l u e n c e  o f  n a r c o t i c s  
o r  d a n g e r o u s  d r u g s  a t  t h e  t i m e  o f  t h e  o f f e n s e ?  Y e s  [ ] No  [XX]

2 7 .  W a s  t h e  d e f e n d a n t  a l o c a l  r e s i d e n t  o r  t r a n s i e n t  i n  t h e  c o m m u n i t y ?
R e s i d e n t  [X 1 
T r a n s i e n t  [ ]

D . R e p r e s e n t a t i o n  o f  D e f e n d a n t  *

1 .  D a t e  c o u n s e l  s e c u r e d  A u g u s t  3 0 .  1 9 7 7 _____________________

2 .  How w a s  c o u n s e l  s e c u r e d ?  a .  R e t a i n e d  b y  d e f e n d a n t  [ ]
b .  A p p o i n t e d  b y  C o u r t  [XX]

3 .  I f  c o u n s e l  w a s  a p p o i n t e d  b y  c o u r t  w a s  i t  b e c a u s e
a .  D e f e n d a n t  u n a b l e  t o  a f f o r d  c o u n s e l ?  [  x]
b .  D e f e n d a n t  r e f u s e d  t o  s e c u r e  c o u n s e l ?  [ ]
c .  O t h e r  ( e x p l a i n )  ______________________________  [  ]

4 .  How m a nv  y e a r s  h a s  c o u n s e l  p r a c t i c e d  l a w ? a . 0 t o  5 f x ]
b . 5 t o  1 0 [
c , o v e r  1 0 T

5 .  W h a t  • s t h e  n a t u r e  o f  c o u n s e l ' s  p r a c t i c e ? a . M o s t l y c i v i 1 f  ;
* b . G e n e r a l [ Xl

c  . M o s t l y c r i m i n a l  [

6 .  D ' d  t h e  sa m e  c o u n s e l  s e r v e  t h r o u g h o u t  t h e t r i a l ?  Y e s LXX5 [

I f  n o t  e x p l a i n  n d e t a i l .

( I f  m o r e  t h a n  o n e  c o u n s e l  s e r v e d  a n s w e r  t h e  a b o v e  c u e s t i o n s  a s  t o  e a c :  
c o u n s e l  a n d  a t t a c h  t o  t h i s  r e p o r t . )



01
68

5
72a

E . G e n e r a l  C o n s ?  d e r a t i o n s

1 .  W as r a c e  r a i s e d  b y  t h e  d e f e n s e  a s  a n  i s s u e  i n  t h e  t r i a l ?  Y e s  [ ] No  f x  ]

2 ;  D i d  r a c e  o t h e r w i s e  a p p e a r  a s  a n  i s s u e  i n  t h e  t r - ' a l ?  Y e s  [  ]  No  [ x 1

3 .  W h a t  p e r c e n t a g e  o f  t h e  p o p u l a t i o n  o f  y o u r  c o u n t y  i s  t h e  s a m e  r a c e  a s  
t h e  d e f e n d a n t ?

a .  U n d e r  1 0 % ..................... ]
b .  1 0  t o  2 5 % ................j
c .  2 5  t o  5 0 % ............................ [ x ]
d .  5 0  t o  7 5 % .............................[  ]
e .  7 5  t o  9 0 % ............................ [  }
f .  O v e r  9 0 % .............................. [  ]

4 .  W e r e  m e m b e r s  o f  d e f e n d a n t ' s  r a c e  r e p r e s e n t e d  o n  t h e  j u r y ?  Y e s  f x )  N o  [  j

5 .  I f  n o t ,  w a s  t h e r e  a n y  e v i d e n c e  t h e y  w e r e  s y s t e m a t i c a l l y  e x c l u d e d  f r o m
t h e  j u r y ?  Y e s  £ ]  No  £x 1

6 .  W as t h e  j u r y  i n s t r u c t e d  t o  e x c l u d e  r a c e  a s  a n  i s s u e ?  Y e s  [  ] N o  [ x ]

7 .  W as t h e r e  e x t e n s i v e  p u b l i c i t y  i n  t h e  c o m m u n i t y  c o n c e r n i n g  t h i s
c a s e ?  Y e s  t x 3 N o  [  ]

8 .  W as t h e  j u r y  i n s t r u c t e d  t o  d i s r e g a r d  s u c h  p u b l i c i t y ?  Y e s  [ 3  No  [ x 3

9 .  Was t h e  j u r y  i n s t r u c t e d  t o  a v o i d  a n y  i n f l u e n c e  o f  p a s s i o n ,  p r e j u d i c e ,
o r  a n y  o t h e r  a r b i t r a r y  f a c t o r  w h e n  i m p o s i n g  s e n t e n c e ?  Y e s  [ 3  N o  [ x ]

1 0 .  W as t h e r e  a n y  e v i d e n c e  t h a t  t h e  j u r y  w a s  i n f l u e n c e d  b y  p a s s i o n ,  
p r e j u d i c e ,  o r  a n y  o t h e r  a r b i t r a r y  f a c t o r  w h e n  i m p o s i n g  s e n t e n c e ?

Y e s  [ ] N o  [x  ]

1 1 .  I f  a n s w e r  i s  y e s ,  w h a t  w a s  t h a t  e v i d e n c e ?  _________________________________________________

1 2 .  G e n e r a l  c o m m e n t s  o f  t h e  T r i a l  J u d g e  c o n c e r n i n g  t h e  a p p r o p r i a t e n e s s  o f  
t h e  s e n t e n c e  i m p o s e d  j .n t h i s  c a s e  T h i s  m u r d e r  w a s  i n e x c u s a b l e  a n d

t h e  v i l e  a n d  h o r r i b l e  m a n n e r  o f  d e a t h  r e n d e r s  t h e  s e n t e n c e  a p p r o p r i a t e .  * 1 2 3

F . C h r o n o l o g y  o f  C a s e
E la o s e d  Davs

1 . D3te o f  O ffe n se  August 22 , 1976______________________ 0

2 . Date o f  A rre s t  August 28, 1976 ________________________________________ 6

3 . Date T r ia l  Began J u ly  11/ 1977 ________________________ 315

^ . Date Sentence Imposed J u ly  14. 1977__________________ n  a

6



73a

6 .  D a c e  T r i a l  J u d g e ' s  R e p o r t  C o m p l e t e d  3 / 2 7 / 7 8

7 .  * * D a t e  R e c e i v e d  b y  S u p r e m e  C o u r t  

C*D<p-------------------------------
C . . ^ * D a t e  S e n t e n c e  R e v i e w  C o m p l e t e d

9 .  * T o t a l  E l a p s e d  D a y s  _____________

*  T o  b e  c o m p l e t e d  b y  S u p r e m e  C o u r t

T h i s  r e p o r t  w a s  s u b m i t t e d  t o  t h e  d e f e n d a n t ’ s  c o u n s e l  f o r  s u c h  c o m m e n t s  a s  
h e  d e s i r e d  t o  m ake  c o n c e r n i n g  t h e  f a c t u a l  a c c u r a c y  o f  t h e  r e p o r t ,  a n d

O

1 .  H i s  c o m m e n t s  a r e  a t t a c h e d  {  )

2 He s t a t e d  h e  h a d  n o  c o m m e n t s  ( x )

3 .  He h a s  n o t  r e s p o n d e d ( )
March 27 1978

Date J u d g e ,  S u p e r i o r  C o u r t  o f

Richmond C o u n t y

7



74
a

/fc . u w -



0i
6S

7

75a

ST ATE OF GEORGIA 
VS
ALFONZO MORGAN

STATE OF GEORGIA C L E R K 'S  OFF ICE

RICHMOND COUNTY SUPERIOR COURT

I ,  H e l e n  M. S p e l t z ,  C l e r k  o f  t h e  S u p e r i o r  C o u r t  o f  R i c h m o n d  

C o u n t y ,  G e o r g i a ,  h e r e b y  c e r t i f y  t h a t  t h e  f o r e g o i n g  T r i a l  J u d g e ' s  

R e p o r t  i s  t h e  o r i g i n a l  t a k e n  f r o m  t h e  f i l e s  o f  t h i s  o f f i c e ,  i n  

t h e  a b o v e  s t a t e d  c a s e .

W i t n e s s  my s i g n a t u r e  a n d  t h e  s e a l  o f  s a i d  C o u r t  h e r e t o  a f f i x e d  

a t  A u g u s t a ,  G e o r g i a ,  t h i s  3 1 s t  d a y  o f  M a r c h  . 1 9  7 8  .

(u. Vn /2  "



76a



lid,
APPENDIX T

SUMMARY OF CAPITAL CASES AVAILABLE TO 
THE SUPREME COURT OF GEORGIA FOR COM­
PARISON PURPOSES AT THE END OF 1977, IN 
WHICH (1) LIFE SENTENCES WERE IMPOSED 
AND (2) THE COURT’S ASSISTANT REPORTED 
MITIGATING CIRCUMSTANCES*

Table 1
Cases in which Youth was Reported as a Mitigating 
Circumstance

Sanders v. State, 235 Ga. 425, 219 S.E.2d 768
(1975)**

Tarpkin [Johnny] v. State, 236 Ga. 67, 222 S.E.2d 
364 ( 1976)**

Tarpkin [Robert] v. State, 236 Ga. 67, 222 S.E.2d 
364 ( 1976)**

Fuller v. State, 231 Ga. 818, 204 S.E.2d 592
(1974)**

Sims v. State, 229 Ga. 33, 189 S.E.2d 68 ( 1972)** 
Stovall v. State, 236 Ga. 840, 225 S.E.2d 292 (1976) 
Riley v. State, 237 Ga. 124, 226 S.E.2d 922 (1976) 
Gibson v. State, 236 Ga. 175, 223 S.E.2d 150 ( 1976) 
Davis v. State, 233 Ga. 638, 212 S.E.2d 814 ( 1975)

* Counsel for Petitioner have examined the trial judge’s question­
naires in the cases summarized in this Appendix. The questionnaires 
are on file in the Supreme Court of Georgia under the custody of the 
Assistant to the Georgia Supreme Court {see Ga. Code Ann. §27-2537
(f)-(h )). If the Court desires, Counsel for Petitioner will supply the 
Court with copies of the questionnaires.

** Jury instructed that it could find one or more of the statutory
aggravating circumstances charged in petitioner’s case.



78a

Table 2
Cases in which the Lack of a Prior Criminal Record was Reported as a 
Mitigating Circumstance

Sanders v. State, 235 Ga. 425, 219 S.E.2d 768
(1975)**

Burke v. State, 234 Ga. 512, 216 S.E.2d 812 
(1975)**

English v. State, 234 Ga. 602, 216 S.E.2d 851 
(1975)**

Stovall v. State, 236 Ga. 840, 225 S.E.2d 292 (1976) 
Jackson v. State, 234 Ga. 602, 216 S.E.2d 851 ( 1975) 
Henderson v. State, 234 Ga. 893, 218 S.E.2d 622 

(1975)
Cooper v. State, 229 Ga. 277, 191 S.E.2d 27 (1972) 
Coffee v. State, 230 Ga. 123, 195 S.E.2d 897 (1973) 
Brown v. State, 228 S.E.2d 215, 184 S.E.2d 655 

(1971)
Chandle v. State, 230 Ga. 574, 198 S.E.2d 289 

(1973)
Reese v. State, 231 Ga. 799, 204 S.E.2d 152 ( 1974) 
Spencer v. State, 231 Ga. 705, 203 S.E.2d 856 (1974) 
Gaines v. State, 232 Ga. 727, 208 S.E.2d 798 ( 1974) 
Johnson v. State, 231 Ga. 138, 200 S.E.2d 734 (1973) 
Butler v. State, 231 Ga. 276, 201 S.E.2d 448 (1973) 
McClendon v. State, 231 Ga. 47, 199 S.E.2d 904 

(1973)
Allen v. State, 230 Ga. 772, 199 S.E.2d 246 (1973) 
York v. State, 226 Ga. 281, 174 S.E.2d 418 (1970) 
Griffin v. State, 237 Ga. 532, 228 S.E.2d 908 (1976) 
Banks v. State, 227 Ga. 578, 182 S.E.2d 106 (1971) 
Page v. State, 237 Ga. 20, 227 S.E.2d 8 ( 1976)

** Jury instructed that it could find one or more of the statutory
aggravating circumstances charged in petitioner’s case.



79a

Rini v. State, 236 Ga. 715, 225 S.E.2d 234 (1976)
Herlong v. State, 236 Ga. 326, 223 S.E.2d 672 (1976)
Glass v. State, 235 Ga. 17, 218 S.E.2d 776 (1975)
Lavender v. State, 234 Ga. 608, 216 S.E.2d 855 

(1975)
Shy v. State, 234 Ga. 816, 218 S.E.2d 599 (1975) 
Jones v. State, 234 Ga. 108, 214 S.E.2d 544 (1975)

Table 3
Cases in which the jury was instructed that it could find one 
or more of the statutory aggravating circumstances charged 
in petitioner’s case, and where there were mitigating factors 
reported (other than youth or lack of a prior criminal 
record)

Brooks v. State, 233 Ga. 524, 212 S.E.2d 355 (1975)
Scott v. State, 230 Ga. 413, 197 S.E.2d 338 ( 1973)
Jackson v. State, 234 Ga. 153, 210 S.E.2d 673 (1975)
Owens v. State, 233 Ga. 905, 213 S.E.2d 860 ( 1975)
Gaither v. State, 234 Ga. 465, 216 S.E.2d 324 (1975)
Stamper v. State, 235 Ga. 165, 219 S.E.2d 140 

(1975)



80a

Table 4
Cases Where Mitigating Factors Other Than Youth Or 
Lack of Prior Record Were Reported

Stewart v. State, 234 Ga. 3, 214 S.E.2d 509 (1975)
Wood v. State, 234 Ga. 623, 216 S,E.2d 865 ( 1975)
Graham v. State, 234 Ga. 520, 216 S.E.2d 817

(1975)

Battle v. State, 234 Ga. 637, 217 S.E.2d 255 ( 1975)
Lindsey v. State, 234 Ga. 874, 218 S.E.2d 585 ( 1975)
Henderson v. State, 234 Ga. 827, 218 S.E.2d 612 

(1975)

Jones v. State, 234 Ga. 648, 217 S.E.2d 597 (1975)
Harrison v. State, 236 Ga. 355, 223 S.E.2d 715

(1976)

Wessner v. State, 236 Ga. 162, 223 S.E.2d 141
(1976)

Graham v. State, 236 Ga. 378, 223 S„E.2d 803 
(1976)

Brannen v. State, 235 Ga. 505, 220 S.E.2d 264 
(1975)

Williams v. State, 232 Ga. 203, 206 S.E.2d 37 (1974) 
Young v. State, 232 Ga. 285, 206 S.E.2d 439 (1974) 
Coats v. State, 234 Ga. 659, 217 S.E.2d 260 ( 1975) 
Teasley v. State, 228 Ga. 107, 184 S.E.2d 179 (1971)



81a APPENDIX U

OTHER DEATH CASES IN WHICH THE GEORGIA SUPREME 
COURT HAS CONSIDERED THE ADEQUACY 

OF JURY INSTRUCTIONS

EXPLANATION OF SUMMARY CHART

The following chart summarizes the characteristics of 
the jury charges in the 29 cases (other than petitioner’s) in 
which the Georgia Supreme Court has explicitly dealt with 
the adequacy of jury instructions.*

For each case, the chart indicates in the first column 
whether or not the Georgia Supreme Court approved the 
trial court’s charge. In columns 2-5, the chart indicates, 
for each case, whether or not the charge included distinct 
characteristics necessary to make a death penalty charge 
under the Georgia statute, and this Court’s decisions, 
accurate and clear:

1. An instruction that the jury was authorized to 
consider mitigating circumstances.

2. A definition of the legal term “mitigation”.
3. Particular mitigating circumstances which the 

jury could consider.
4. An instruction that, even if it found statutory 

aggravating circumstances, the jury could nevertheless 
return a sentence of life imprisonment.

* The jury charges are part of the records of the Supreme Court 
of Georgia. Counsel for petitioner has examined the instructions, and 
will, if the Court desires, make copies available for its use.



82a

OTHER DEATH CASES IN WHICH THE GEORGIA SUPREME 
COURT HAS CONSIDERED THE ADEQUACY 

OF JURY INSTRUCTIONS

Case*

i

Charge 
Approved 
by State 
Sup. Ct.

2

Instructed 
to Consider 
Mitigating 
Circum­
stances

3

Definition 
of the Term 

“Mitigation”

4

Particular
Mitigating

Circum­
stances

Suggested

5

Authorized 
to Return 
Life Sen­

tence Even if Aggravat­
ing Circum­

stances 
Found

1. Street............... Yes Yes No No
2. Fleming........... .......  No Yes No( 1) No No(2)
3. Hawes.............. ..... . No No No No Yes(3)
4. Spraggins......... ..... . No No No No No
5. Redd(4).......... .......  No No No No No(5)

* A list of citations by line number appears at 86a.

(1) The court twice used the term “extenuation” along with “mitigation”.
(2) But the court did state that “if you find . . . aggravating circumstances, you 

may fix the punishment at death.” (emphasis supplied)
(3) At first, the court did not so charge, but a colloquy between the court and 

defense counsel in the presence of the jury made this clear.
(4) Judge Fulcher gave precisely the same instruction in petitioner’s case as he 

gave in Redd, except: (i) the state did not seek the death penalty for 
kidnapping in petitioner’s case, so he did not charge on that offense; (2) in 
petitioners case, he defined “aggravated battery”; and (3) in petitioner’s 
case, he added to his general instruction that the jury should consider all 
the facts and circumstances, the phrase: “including any mitigating or 
aggravating circumstances”.

(5) Defense counsel specifically requested such a charge. Judge Fulcher noted 
the objection, but did not recharge.



83a

t 2 3 4 5

Case

Charge 
Approved by 

State 
Sup. Ct.

Instructed 
to Consider 
Mitigating 

Circum­
stances

Definition 
of the Term 

“Mitigation”

Particular
Mitigating

Circum­
stances

Suggested

Authorized 
to Return Life 
Sentence Even 
if Aggravating 

Circum­
stances 
Found

6 . L a m b ................. ......  N o Y e s ( 6 ) N o N o N o
7. D a v i s .................. ......  N o N o N o N o N o
8. T h o m a s ............ ......  Y e s Y e s Y e s N o Y e s
9. P r e s n e l l ............ Y e s Y e s Y e s N o Y e s

10. P o t t s ( 7 ) ........... Y e s N o ( 8 ) Y e s N o Y e s
11. P o t t s ( 7 ) ........... ......  Y e s Y e s Y e s N o Y e s
12. S p i v e y . . . . . ...... . ......  Y e s N o N o N o N o
13. D r a k e ................. ......  Y e s Y e s Y e s N o Y e s
14. B o w e n ............... ......  N o Y e s N o N o N o
15 . A l d e r m a n ........ Y e s Y e s Y e s N o Y e s
16 . S t e v e n s .............. . . . . .  N o N o N o N o N o
17. B u r g e r ............... ......  N o N o N o N o N o

(6) The jury was instructed that it could consider the evidence adduced by 
defendant during the sentencing phase of the trial.

(7) Defendant was tried and sentenced on separate charges by two separate 
courts. Thus, there were two charges reviewed by the Supreme Court of 
Georgia.

(8) The court did not explicitly direct the jury to consider mitigating 
circumstances, but it did direct the jury to consider all the facts and 
circumstances, defined “mitigation”, and informed the jury that it could 
“recommend mercy” with or without reason, and that such “recommen­
dation” would be binding upon the court.



84a

l 2 3 4 5

Case

Charge 
approved 
by State 
Sup. Ct.

Instructed 
to consider 
Mitigating 

Circum­
stances?

Definition 
of the Term 

“Mitigation”

Particular
Mitigating

Circum­
stances

Suggested

Authorized to 
Return Life 

Sentence 
Even if 

Aggravating 
Circum­
stances 
Found

18. Stephens......... .....  Yes(9) Yes(10) No No Yes( 11)

19. Westbrook...... ...... Yes Yes No No( 12) Yes( 13)
20. Berry hill......... . .....  Yes(9) No No No No
21. Banks.............. ...... Yes(9) Yes Yes Yes( 14) No
22. Young............. .....  Yes(9) Yes Yes No Yes
23. Johnson ........... .....  Yes Yes Yes No Yes
24. Finney............. .....  Yes Yes No No Yes( 13)

(9) The charge was implicitly approved during the mandatory direct sentence 
review, and explicitly approved when the State Supreme Court affirmed the 
denial of defendant’s petition for a writ of habeas corpus.

(10) The jury was instructed twice, in the proper context, that they should consider 
mitigating circumstances.

(11) Though it was not made explicit.
(12) But court calls jury’s attention to evidence brought out by defendant during 

presentencing hearing.
(13) But there is some confusion in the charge.
(14) The defendant’s youth (he was 23 at the time of the offense).



85a

i 2 3 4 5

Case

Charge
Approved

by
State 

Sup. Ct.

Instructed 
to Con­

sider Miti­
gating 

Circum­
stances

Definition 
of the 
Term 

“Mitiga­
tion”

Particular
Mitigating

Circum­
stances

Suggested

Authorized 
to Return 

Life
Sentence 
Even if 

Aggravat­
ing Cir­

cumstances 
Found

25. Goodwin.......... .....  Yes( 15) No No No No
26. Ruffin............ . Yes No No No No
27. Godfrey........... Yes Yes Yes No Yes
28. Harris............. . ...... Yes/No( 16) No No No No
29. Holton( 17)............. No No No No No

(15) The charge was implicitly approved during the mandatory direct sentence 
review, and explicitly approved when the State Supreme Court affirmed 
the denial of defendant’s petition for a writ of habeas corpus.

(16) The charge was explicitly approved during the mandatory sentence 
review, and explicitly disapproved when the State Supreme Court 
reversed the denial of defendant’s petition for a writ of habeas corpus.

(17) Both the prosecutor and the trial court conceded that the charge was 
inadequate, and the State Supreme Court agreed.



86a

Citations for Death Cases in Which the 
Georgia Supreme Court has Considered 

the Adequacy of Jury Instructions
No.

on Chart Case

1. Street v. State, 237 Ga. 84, 226 S.E.2d 911
(1976) .

2. Fleming v. State, 240 Ga. 142, 240 S.E.2d 37
( 1977).

3. Hawes v. State, 240 Ga. 327, 240 S.E.2d 833
(1977) .

4. Spraggins v. State, 240 Ga. 759, 243 S.E.2d 20
( 1978).

5. Redd v. State, 240 Ga. 753, 242 S.E.2d 628
( 1978).

6. Lamb v. State, 241 Ga. 10, 243 S.E.2d 59, cert.
denied, 436 U.S. 914 (1978).

7. Davis v. State, 241 Ga. 376, 243 S.E.2d 12
( 1978).

8. Thomas v. State, 240 Ga. 393, 242 S.E.2d 1
(1977) .

9. Presnell v. State, 241 Ga. 49, 243 S.E.2d 496
(1978) .

10. Potts v. State (first trial), 241 Ga. 67, 243 S.E.2d
510 ( 1978).

11. Potts v. State (2nd trial), 241 Ga. 67, 243 S.E.2d
510 ( 1978).

12. Spivey v. State, 241 Ga. 477, 240 S.E.2d 37, cert.
denied, No. 78-5460, slip op. (Ga. Sup. Ct., 
Dec. 4, 1978).

13. Drake v. State, 241 Ga. 583, 247 S.E.2d 57
( 1978).

14. Bowen v. State, 241 Ga. 492, 246 S.E.2d 322
(1978).

Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, 
cert, denied, No. 78-5490, slip op. (Ga. Sup. 
Ct., Nov. 27, 1978).

15.



87a

No.
on Chart Case

16. Stevens v. State, 242 Ga. 34, 247 S.E.2d 838
(1978).

17. Burger v. State, 242 Ga. 28, 274 S.E.2d 834
(1978).

18. Stephens v. State, 237 Ga. 259, 227 S.E.2d 261
(1976);

Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92 
(1978), cert, denied, No. 78-5544, slip op. 
(Nov. 27, 1978).

19. Westbrook v. State, 242 Ga. 151, 249 S.E.2d 524
(1978).

20. Berryhill v. State, 235 Ga. 549, 221 S.E.2d 185
(1975) , cert, denied, 429 U.S. 1054 (1977).

Berryhill v. Ricketts, ....  Ga........, 249 S.E.2d
197 (1978).

21. Banks v. State, 237 Ga. 325, 227 S.E.2d 380
(1976) , cert, denied, 430 U.S. 975 (1977); 
Banks v. Glass, No. 33786, slip op. (Ga. Sup. 
Ct., Nov. 7, 1978).

22. Young v. State, 237 Ga. 852, 230 S.E.2d 287
(1976); Young v. Ricketts, ....  Ga....... , 250
S.E.2d 404 (1978).

23. Johnson v. State, 242 Ga. 649 (1978).
24. Finney v. State, 242 Ga. 583, 250 S.E.2d 388

(1978).
25. Goodwin v. State, 236 Ga. 339, 223 S.E.2d 703

(1976), cert, denied, 431 U.S. 909 (1977); 
Goodwin v. Hopper, No. 34234, slip op. (Ga. 
Sup. Ct., Feb. 6, 1979).

26. Ruffin v. State, No. 33865, slip op. (Ga. Sup. Ct.,
Jan. 24, 1979).

27. Godfrey v. State, No. 34256, slip op. (Ga. Sup.
Ct., Feb. 24, 1979).

28. Harris v. State, 237 Ga. 718, 230 S.E.2d 1
(1976); Harris v. Hopper, No. 34567, slip op. 
(Ga. Sup. Ct. Feb. 27, 1979).

29. Holton v. State, No. 34272, slip op. (Ga. Sup.
Ct., March 6, 1979).



88a APPENDIX V

CONSTITUTIONAL AND 
STATUTORY PROVISIONS

United States Constitution

Fourth Amendment
“The right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable searches 
and seizures, shall not be violated, and no Warrants shall 
issue, but upon probable cause, supported by Oath or 
affirmation, and particularly describing the place to be 
searched, and the persons or things to be seized.”

Fifth Amendment
“No person shall be held to answer for a capital, or 

otherwise infamous crime, unless on a presentment or 
indictment of a Grand Jury, except in cases arising in the 
land or naval forces, or in the Militia, when in actual 
service in time of War or public danger; nor shall any 
person be subject for the same offence to be twice put in 
jeopardy of life or limb; nor shall be compelled in any 
criminal case to be a witness against himself, nor be 
deprived of life, liberty, or property, without due process 
of law; nor shall private property be taken for public use, 
without just compensation.”

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 obtain­
ing witnesses in his favor, and to have the Assistance of 
Counsel for his defence.”



89a

Eighth Amendment
“Excessive bail shall not be required, nor excessive 

fines imposed, nor cruel and unusual punishments in­
flicted.”

Fourteenth Amendment: Section 1
“All persons born or naturalized in the United States, 

and subject to the jurisdiction thereof, are citizens of the 
United States and of the State wherein they reside. No 
State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United 
States; nor shall any State deprive any person of life, 
liberty, or property, without due process of law; nor deny 
to any person within its jurisdiction the equal protection of 
the laws.”

Georgia Code Annotated

§ 26-1101 Murder
“ (a) A person commits murder when he unlawfully 

and with malice aforethought, either express or implied, 
causes the death of another human being. Express malice 
is that deliberate intention unlawfully to take away the life 
of a fellow creature, which is manifested by external 
circumstances capable of proof. Malice shall be implied 
where no considerable provocation appears, and where all 
the circumstances of the killing show an abandoned and 
malignant heart.

“ (b) A person also commits the crime of murder 
when in the commission of a felony he causes the death of 
another human being, irrespective of malice.

“ (c) A person convicted of murder shall be punished 
by death or by imprisonment for life.”



90a

§ 26-1311 Kidnapping
“ (a) A person commits kidnapping when he abducts 

or steals away any person without lawful authority or 
warrant and holds such person against his will.

“ (b) A person over the age of 17 commits kidnap­
ping when he forcibly, maliciously, or fraudulently leads, 
takes, or carries away, or decoys or entices away, any child 
under the age of 16 years against the will of the child’s 
parents or other person having lawful custody.

“A person convicted of kidnapping shall be punished 
by imprisonment for not less than one nor more than 20 
years: Provided that a person convicted of kidnapping for 
ransom shall be punished by life imprisonment or by 
death; and Provided, further, that if the person kidnapped 
shall have received bodily injury, the person convicted 
shall be punished by life imprisonment or by death.”

§ 26-1901 Robbery
“A person commits robbery when, with intent to 

commit theft, he takes property of another from the 
person or the immediate presence of another (a) by use of 
force; or (b) by intimidation, by the use of threat or 
coercion, or by placing such person in fear of immediate 
serious bodily injury to himself or to another; or (c) by 
sudden snatching. A person convicted of robbery shall be 
punished by imprisonment for not less than one nor more 
than 20 years.”

§ 27-2503 Presentence hearing in felony cases
“ (a) Except in cases in which the death penalty may 

be imposed, upon the return of a verdict o f ‘guilty’ by the 
jury in any felony case, the judge shall dismiss the jury 
and shall conduct a presentence hearing at which the only 
issue shall be the determination of punishment to be 
imposed. In such hearing the judge shall hear additional



91a

evidence in extenuation, mitigation, and aggravation of 
punishment, including the record of any prior criminal 
convictions and pleas of guilty or pleas of nolo contendere 
of the defendant, or the absence of any prior conviction 
and pleas: Provided, however, that only such evidence in 
aggravation as the State has made known to the defendant 
prior to his trial shall be admissible. The judge shall also 
hear argument by the defendant or his counsel and the 
prosecuting attorney, as provided by law, regarding the 
punishment to be imposed. The prosecuting attorney shall 
open and the defendant shall conclude the argument. In 
cases in which the death penalty may be imposed, the 
judge when sitting without a jury shall follow the addi­
tional procedure provided in section 27-2534.1. Upon the 
conclusion of the evidence and arguments the judge shall 
impose the sentence or shall recess the trial for the purpose 
of taking the sentence to be imposed under advisement. 
The judge shall fix a sentence within the limits prescribed 
by law. If the trial court is reversed on appeal because of 
error only in the presentence hearing, the new trial which 
may be ordered shall apply only to the issue of punish­
ment.

“ (b) In all cases in which the death penalty may be 
imposed and which are tried by a jury, upon a return of a 
verdict of guilty by the jury, the court shall resume the 
trial and conduct a presentence hearing before the jury. 
Such hearing shall be conducted in the same manner as 
presentence hearings conducted before the judge as pro­
vided in subsection (a) of this section. Upon the con­
clusion of the 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, exist and 
whether to recommend mercy for the defendant. Upon 
the findings of the jury, the judge shall fix a sentence 
within the limits prescribed by law.”



92a

§ 27-2514 Sentence of death; copy for penitentiary 
superintendent. Time and mode of conveying prisoner to 
penitentiary. Expenses

“Upon a verdict or judgment of death made by a jury 
or a judge, it shall be the duty of the presiding judge to 
sentence such convicted person to death and to make such 
sentence in writing, which shall be filed with the papers in 
the case against such convicted person, and a certified 
copy thereof shall be sent by the clerk of the court in 
which said sentence is pronounced to the superintendent 
of the State penitentiary, not less than 10 days prior to the 
time fixed in the sentence of the court for the execution of 
the same; and in all cases it shall be the duty of the sheriff 
of the county in which such convicted person is so 
sentenced, together with one deputy or more, if in his 
judgment it is necessary, and provided that in all cases the 
number of guards shall be approved by the trial judge, or 
if he is not available, by the ordinary of said county in 
which such prisoner is sentenced, to convey such convicted 
person to said penitentiary, not more than 20 days nor less 
than two days prior to the time fixed in the judgment for 
the execution of such condemned person, unless otherwise 
directed by the Governor, or unless a stay of execution has 
been caused by appeal, granting of a new trial, or other 
order of a court of competent jurisdiction, and the expense 
for transporting of said person to the penitentiary for the 
purpose of electrocution shall be paid by the ordinary of 
the county wherein the conviction was had, or the board 
of county commissioners, the county commissioner, or 
other person or persons having charge of the county funds, 
out of any funds on hand in the treasury7 of such county.

§ 27-2534.1 Mitigating and aggravating circum­
stances; death penalty

“(a) The death penalty may be imposed for the 
offenses of aircraft hijacking or treason, in any case.



93a

“ (b) In all cases of other offenses for which the death 
penalty may be authorized, the judge shall consider, or he 
shall include in his instructions to the jury for it to 
consider, any mitigating circumstances or aggravating 
circumstances otherwise authorized by law and any of the 
following statutory aggravating circumstances which may 
be supported by the evidence:

“ (1) The offense of murder, rape, armed rob­
bery, or kidnapping was committed by a person with 
a prior record of conviction for a capital felony, or the 
offense of murder was committed by a person who 
has a substantial history of serious assaultive criminal 
convictions.

“ (2) The offense of murder, rape, armed rob­
bery, or kidnapping was committed while the offend­
er was engaged in the commission of another capital 
felony, or aggravated battery, or the offense of mur­
der was committed while the offender was engaged in 
the commission of burglary or arson in the first 
degree.

“ (3) The offender by his act of murder, armed 
robbery, or kidnapping knowingly created a great 
risk of death to more than one person in a public 
place by means of a weapon or device which would 
normally be hazardous to the lives of more than one 
person.

“ (4) The offender committed the offense of 
murder for himself or another, for the purpose of 
receiving money or any other thing of monetary 
value.

“ (5) The murder of a judicial officer, former 
judicial officer, district attorney or solicitor or former 
district attorney or solicitor during or because of the 
exercise of his official duty.



94a

“ (6) The offender caused or directed another to 
commit murder or committed murder as an agent or 
employee of another person.

“ (7) The offense of murder, rape, armed rob­
bery, or kidnapping was outrageously or wantonly 
vile, horrible or inhuman in that it involved torture, 
depravity of mind, or an aggravated battery to the 
victim.

“ (8) The offense of murder was committed 
against any peace officer, corrections employee or 
fireman while engaged in the performance of his 
official duties.

“ (9) The offense of murder was committed by a 
person in, or who has escaped from, the lawful 
custody of a peace officer or place of lawful con­
finement.

“ (10) The murder was committed for the pur­
pose of avoiding, interfering with, or preventing a 
lawful arrest or custody in a place of lawful con­
finement, of himself or another.
“ (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 for its deliberation. 
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. In non-jury cases the 
judge shall make such designation. Except in cases of 
treason or aircraft hijacking, unless at least one of the 
statutory aggravating circumstances enumerated in section 
27-2534.1(b) is so found, the death penalty shall not be 
imposed.”



95a

§ 27-2537 Review of death sentences
“ (a) Whenever the death penalty is imposed, and 

upon the judgment becoming final in the trial court, the 
sentence shall be reviewed on the record by the Supreme 
Court of Georgia. The clerk of the trial court, within 10 
days after receiving the transcript, shall transmit the entire 
record and transcript to the Supreme Court of Georgia 
together with a notice prepared by the clerk and a report 
prepared by the trial judge. The notice shall set forth the 
title and docket number of the case, the name of the 
defendant and the name and address of his attorney, a 
narrative statement of the judgment, the offense, and the 
punishment prescribed. The report shall be in the form of 
a standard questionnaire prepared and supplied by the 
Supreme Court of Georgia.

“ (b) The Supreme Court of Georgia shall consider 
the punishment as well as any errors enumerated by way 
of appeal.

“ (c) With regard to the sentence, the court shall 
determine:

“ (1) Whether the sentence of death was im­
posed under the influence of passion, prejudice, or 
any other arbitrary factor, and

“(2) Whether, in cases other than treason or 
aircraft hijacking, the evidence supports the jury’s or 
judge’s finding of a statutory aggravating circum­
stance as enumerated in section 27-2534.1(b), and

“ (3) Whether the sentence of death is excessive 
or disproportionate to the penalty imposed in similar 
cases, considering both the crime and the defendant.
“ (d) Both the defendant and the State shall have the 

right to submit briefs within the time provided by the 
court, and to present oral argument to the court.



96a

“ (e) The court shall include in its decision a reference 
to those similar cases which it took into consideration. In 
addition to its authority regarding correction of errors, the 
court, with regard to review of death sentences, shall be 
authorized to:

“ (1) Affirm the sentence of death; or
“ (2) Set the sentence aside and remand the case 

for resentencing by the trial judge based on the 
record and argument of counsel. The records of those 
similar cases referred to by the Supreme Court of 
Georgia in its decision, and the extracts prepared as 
hereinafter provided for, shall be provided to the 
resentencing judge for his consideration.
“ (f) There shall be an Assistant to the Supreme 

Court, who shall be an attorney appointed by the Chief 
Justice of Georgia and who shall serve at the pleasure of 
the court. The court shall accumulate the records of all 
capital felony cases in which sentence was imposed after 
January 1, 1970, or such earlier date as the court may 
deem appropriate. The Assistant shall provide the court 
with whatever extracted information it desires with respect 
thereto, including but not limited to a synopsis or brief of 
the facts in the record concerning the crime and the 
defendant.

“ (g) The court shall be authorized to employ an 
appropriate staff and such methods to compile such data 
as are deemed by the Chief Justice to be appropriate and 
relevant to the statutory questions concerning the validity 
of the sentence.

“ (h) The office of the Assistant shall be attached to 
the office of the Clerk of the Supreme Court of Georgia for 
administrative purposes.

“ (i) The sentence review shall be in addition to 
direct appeal, if taken, and the review and appeal



97a

shall be consolidated for consideration. The court 
shall render its decision on legal errors enumerated, 
the factual substantiation of the verdict, and the 
validity of the sentence.”

Rules of the Supreme Court of Georgia

Rule 34. (Codified at Ga. Code Ann. §24-4534)
(a) Any breach of one or more of these rules, 

whether intentionally or by inexcusable negligence, 
will subject the offender to be dealt with for contempt 
or by revocation of the privilege of practicing before 
this court.

( b ) The court considers it the duty of counsel for 
the appellee as well as the appellant to timely comply 
with these rules.