Third Habeas Petition (Multiple Courts) Vol. 2 of 2

    (ase Wes: McCleskey (031-613) background: Sed Habel pf (my hple Court (2 of2/ Jun-Avg 199) 

   



  

Draft 7/25/91 

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

WARREN McCLESKEY, * CIVIL ACTION NO. 

Petitioner, * 91-V-3669 

vs. * 

WALTER D. ZANT, Warden, * HABEAS CORPUS 

Georgia Diagnostic & * 
* 
* 

Classification Center, 
Respondent. 

PETITIONER’S MEMORANDUM OF LAW 

IN OPPOSITION TO RESPONDENT’S MOTION TO DISMISS 

COMES NOW petitioner Warren McCleskey, by his undersigned 

counsel, and files this memorandum of law in opposition to 

respondent's Motion to Dismiss, dated July 5, 1991. As we will 

demonstrate, respondent's motion is legally insufficient and 

should be denied, for three reasons: 

(i) First, as a matter of law, respondent relies on 

principles of res judicata that do not avail him. Under settled 
  

Supreme Court precedent, see, e.g. Smith v. Zant, 250 Ga. 645, 
  

652, 301 S.E.24 32, 37 (1933): cf. Nelson v. Zant, Ga. (No. 
  

91A0524)_ the law of res judicata has no application to this. 
  

case. Petitioner's constitutional claim is based on newly 

available evidence that was withheld from him by State actors at 

the time of his previous applications. The Supreme Court's has 

unmistakably affirmed the right of an applicant to bring forward 

such a claim, even on a successive application: 

The defendant has a right to rely on the accuracy of 
the trial testimony of the state's witness where the 

 



  

truth or falsity of his testimony is peculiarly within 
the knowledge of the state and the state is under a 
duty to reveal false testimony. Thus, we find 
unpersuasive the state's argument that the defendant 
should have discovered the state's breach of duty. 

Smith v. Zant, 250 Ga. at 652. 
  

(ii) Second, respondent's motion to dismiss depends on 

factual grounds that are irrelevant or untimely. Respondent's 

twin factual arguments appear to be (a) that petitioner's 

evidence is not "newly available," but was instead readily 

discoverable in 1987 or earlier, and (b) that the totality of 

petitioners's evidence does not suffice to prove a violation of 

Massisgh v, United States, 377 U.S. 201 (1964). 
  

As to respondent's first argument, Smith v. Zant establishes 
  

petitioner's burden of proof under 0.C.G.A. § 9-14-51: that 

burden is met by petitioner's well-pleaded allegations that State 

officials, although aware of the underlying misconduct petitioner 

now complains of, failed to reveal it at trial. Respondent's 

second factual argument -- that the record facts do not suffice 

make out a Massiah violation -- goes directly to the merits of 

petitioner's claim. Georgia law is clear that motions to dismiss 

are not the proper vehicle for resolution of the merits. If 

petitioner's well-pleaded allegations =-- supported by sworn 

transcripts and affidavits -- prove £0 be true, he has uncovered 

a classic violation of Massiah and United States v. Henry, 447 
  

U.S. 264 (1980) and is entitled to relief. A final decision on 

these issues must abide the development of a full factual record. 

(iii) Finally, respondent's claim that any Massiah claim 

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was "harmless error" likewise depends upon this Court's 

consideration of a full factual record that has not yet been 

placed before the Court. What is clear, at present, is that 

United States District Judge J. Owen Forrester -- the only judge 

who has ever heard the relevant witnesses -- found that 

[o]lnce the fact of the Massiah violation in this case 
is accepted, it is not possible to find that the error 
was harmless. A review of the evidence presented at 
the petitioner's trial reveals that [informant Offie] 
Evans' testimony about the petitioner's incriminating 
statements was critical to the state's case. There 
were no witnesses to the shooting and the murder weapon 
was never found. The bulk of the state's case against 
the petitioner was three pronged: (1) evidence that 
petitioner carried a particular gun on the day of the 
robbery that most likely fired the fatal bullets; (2) 
testimony by co-defendant Ben Wright that petitioner 
pulled the trigger; and (3) Evans' testimony about 
petitioner's incriminating statements. As petitioner 
points out, the evidence on petitioner's possession of 
the gun in question was conflicting and the testimony 
of Ben Wright was obviously impeachable. . . . Because 
the court cannot say, beyond a reasonable doubt, that 
the jury would have convicted petitioner without Evans! 
testimony about petitioner's incriminating statements, 
petitioner's conviction for the murder of Officer 
Schlatt must be reversed pending a new trial. 

st. Hab. Pet,., Exh. D, 29-31. 

In addition, sworn affidavits from two of McCleskey's twelve 

trial now confirm Judge Forrester's finding. These jurors aver 

without hesitation: that Offie Evans was the key witness to the 

identity of the murderer; that the jury's based its death 

sentence largely on Evans' testimony; that the jury's reliance on 

Evans stemmed from his apparent role as a disinterested witness; 

that, had Offie Evans' secret relations with the police been 

disclosed, at least two jurors would never have voted to convict 

McCleskey of malice murder; and that, moreover, these jurors 

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would have held fast against imposition of a death sentence. 

Given this sworn testimony from the jurors themselves, there is 

no need to rely on second-hand speculations from persons who 

weren't there: jurors who heard and decided the case assure us 

that the State's use of Evans' testimony, far from "harmless 

error," was the master stroke that sent McCleskey to Death Row. 

I. 

SINCE STATE ACTORS WITHHELD CRUCIAL EVIDENCE 

OF THEIR OWN UNCONSTITUTIONAL CONDUCT, 

PREJUDICIAL TO PETITIONER’S TRIAL, THE 

CONTROLLING GEORGIA PRECEDENTS REQUIRES THIS 

COURT TO HEAR PETITIONER’S PRESENT CHALLENGE 

ON ITS MERITS =-=- DESPITE HIS PRIOR 

APPLICATIONS AND WITHOUT ANY RES JUDICATA BAR 
  

Respondent's principal legal argument is straightforward: 

"[Ulnder the principles of res judicata, this Court should 
  

decline to review [petitioner's] issue." (Resp. Br. 1).* At 

first glance, the controlling statute, 0.C.G.A. § 9-14-51, 

appears to support the argument. It provides: 

All grounds for relief claimed by a petitioner for a 
writ of habeas corpus shall be raised by a petitioner 
in his original or amended petition. Any grounds not so 
raised are waived. . . . 

However, the statute does not stop with a general 

declaration of waiver. It goes on to create two important 

exceptions to the general rule: 

  

! Each reference to respondent's Motion to Dismiss and 
Brief in Support, dated July 5, 1991, will be indicated by the 
abbreviation "Resp. Br." followed by the number of the page on 
which the reference may be found. 

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[i] unless the Constitution of the United States or of 
this state otherwise requires or [ii] unless any judge 
to whom the petition is assigned, on considering a 
subsequent petition, finds grounds for relief asserted 
therein which could not reasonably have been raised in 
the original or amended petition. 

The meaning of the second exception -- which requires a 

state habeas court to entertain the merits of any claim "which 

could not reasonably have been raised" -- was authoritatively 

interpreted by the Supreme Court of Georgia in 1983, in Smith wv. 
  

zant, 250 Ga. 645, 301 S.E. 24d 32 (1933). The precise 

circumstances in Smith bear close examination by this Court, 

since they are nearly identical to those at issue here. 

John Eldon Smith, a death-sentenced Georgia inmate, 

unsuccessfully sought state habeas corpus relief in 1977. Six 

years later, in 1983, Smith returned to the state habeas courts 

and asserted additional constitutional claims, including a claim 

based upon newly discovered evidence. He alleged that the 

prosecuting attorney and a key State witness had made a deal, in 

alleged violation of Giglio v. United States, 405 U.S. 150 (1972) 
  

and Napue v. Illinois, 360 U.S. 264 (1959). _See Smith v. Zant, 
    

250 Ga. at 645-646; id. at 650.7 

Although Smith's 1983 petition was summarily dismissed by 

the Superior Court, the Georgia Supreme Court granted Smith's 

application for a certificate of probable cause. Following oral 

  

2 smith had alleged in his second application that, in 
1982, the defense team had obtained an admission from the 
attorney who prosecuted Smith's case that he had failed to 
disclose a pre-trial promise of leniency made to a key State's 
witness. The witness had denied, during cross-examination at 
trial, any such relationship. Smith .v. Zant, 250 Ga. at .. 

  

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argument, the Supreme Court affirmed the dismissal of most of 

Smith's claims under 0.C.C.A. § 9-14-51.  Id., 250 Ga. at 646. 

However, Chief Justice Hill, writing for a unanimous Court, 

remanded Smith's claims under Giglio and Napue for a full hearing 

on their merits. 

In granting Smith a full hearing, the Court brushed aside 

the State's defense -- the same defense now asserted by the State 

in McCleskey's case -- that Smith's defense attorneys should have 

uncovered any alleged State misconduct earlier. The Court's 

analysis is quoted in full: 

The state did not meet petitioner's false 
testimony claim on its merits, but defended 
on the ground of waiver, contending that, 
with due diligence, the defense could have 
ascertained the necessary information, and 
thus that the grounds for relief could 
"reasonably have been raised in the original 
or amended petition." OCGA § 9-14-51 (Code 
Ann. § 50-127), supra. The state urges that 
when, shortly after the trials, [the State's 
witness] in fact pleaded guilty in exchange 
for a life sentence, Smith and his lawyers 
should have made further inquiry of [the 
witness] and his attorney. This was not 
done. Nor has the state shown that [the 
State's witness] would have admitted his 
alleged perjury had he been asked by defense 
counsel. 

The state's argument overlooks the thrust of 
Napue v. Illinois . . . and Giglio v. United 
States. It is not so much that [the State's 
witness] testified falsely, but that the 
state, by allowing this knowingly false 
statement to stand uncorrected deprived the 
defendant of a fair trial. Since the 
prosecution has the constitutional duty to 
reveal at trial that false testimony has been 

given by its witness, it cannot, by failing 
in this duty, shift the burden to discover 
the misrepresentation after trial to the 
defense. The defendant has a right to rely 

    

  

  

  

  

  

  

  

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. on the accuracy of the trial testimony of the 
state's witness where the truth or falsity of 

his testimony is peculiarly within the 
knowledge of the state and the state is under 

a dutv to reveal false testimony. Thus, ve 

find unpersuasive the state's argument that 

the defendant should have discovered the 

state's breach of duty. As was said in 
Williams v. State, 250 Ga. 463 at 466, 298 
S.E. 24 492 (1983): "The state urges that 
the defendant should have done more than he 

did to protect himself. We find that the 
state should have done more than it did to 

protect the defendant's rights." See also 
Price v., Johnston, 334 U.S. 266 (1948). 

  

  

  

  

  

  

  

  

  

  

We, therefore, hold that Smith has alleged 
facts, supported by affidavits, sufficient to 
satisfy the requirements of OCGA § 9-14-51 
{Code Ann. § 50-127), to entitle hin to a 
hearing on the merits of his false testimony 
claim; i.e., petitioner has shown grounds for 
relief which could not reasonably have been 
raised in his original habeas petition. The 
habeas court erred in dismissing Smith's 
Napue-Giglio claim, and we remand this case 
for a hearing on the merits of this issue. 

Smith v. Zant, 250 Ga. at 651-652. (Emphasis added). 
  

Petitioner McCleskey's present habeas petition, like John 

Smith's successive petition, depends upon a prior State cover-up 

of an unconstitutional conspiracy. Specifically, McCleskey has 

proof that Atlanta police officers conspired with a jailhouse 

informant, Offie Evans, to procure incriminating admissions from 

McCleskey. The conspiracy was successful: Evans spoke with 

McCleskey and, called by the State as a key witness against 

petitioner McCleskey during his 1978 trial, Evans used the 

purported fruits of his secret interrogation to name McCleskey as 

 



  

the triggerman in the crime. (See St. Hab. Pet. qf 32-37.)° 

Atlanta police officers, indisputably part of the State's 

prosecutorial team, were obligated to disclose their misconduct 

to the defense.’ Instead, they lied, and permitted Evans to lie, 

in order to obtain McCleskey's conviction. 

The teaching of Smith v. Zant is that McCleskey and his 
  

counsel were entitled to presume that State witnesses told the 

  

3 Each reference to the Petition for a Writ of Habeas 

" Corpus, filed by petitioner as an appendix to his Application for 
a Writ of Habeas Corpus, dated June 13, 1991, will be indicated 
by the abbreviation "St. Hab. Pet." followed by the number of the 
page on which the reference will be found. 

5 The United States Supreme Court has traditionally 
imputed the misconduct of any member of the prosecution team to 
the State itself. See, e.9,, Moonev v. Holohan, 294 U. S. 103 
(1935): Brady v. United States, 373 U.S. 83 (1963). The good 
faith of some State actors cannot excuse the bad faith of others. 
Especially is this true when Sixth Amendment claims are under 
consideration. As Justice Stevens explained in Michigan v. 
Jackson, 475 U. 8. 625, 634 (1936), 

Sixth Amendment principles require that we impute the 
State's knowledge from one state actor to another. For the 
Sixth Amendment concerns the confrontation between the State 
and the individual. 

  

  

  

« 

See also Giglio v. United States, 405 U, S. 150, 154 (1972); 
Santobello v. New York, 404 U.S. 257, 262 (1971); Cf. United 
gtatesv. Bagley, 473 U. 8. 667, 671 &. n.4 (1986). 

The lower federal courts have regularly applied this rule to 
police misconduct of the sort at issue here. See, e.g., Freeman 
v. State of Georgia, 599 F.2d 65, 69-70 (5th Cir. 1979) ("We feel 
that when an investigating police officer willfully and 
intentionally conceals material information, regardless of his 
motivation and the otherwise proper conduct of the state 
attorney, the policeman's conduct must be imputed to the state as 
part of the prosecution team"); Barbee v. Warden, 331 F.2d 842 
(4th Cir. 1964) ("The police are also part of the prosecution, 
and the taint on the trial is no less if they, rather than the 
State's Attorney, were guilty of the nondisclosure. . . ."); 
Schneider v, Estelle, 552 F.24 553 (5th Cir. 1971); Jackson Vv. 
Hainwright, 390 F.24 283, 296 (5th Cir. 1968); Curran v. State of 
Delaware, 259 F.2d4 707, 713 (34 Cir. 1953). 

  

  

  

  

  

  

  

  

    

  

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truth; moreover, they were entitled to rely upon the express 

assurance by the prosecutor that no illegal informant 

relationship marred the State's case. The prosecutor gave such 

an express assurance in this case, in 1981, during a deposition 

later admitted into evidence during petitioner's initial state 

habeas proceedings in this Court: 

Q. [Defense Counsel]: Okay. Were you aware at the time of 
the trial of any understandings between Evans and any 
Atlanta police department detectives regarding favorable 
recommendation [sic] to be made on his federal escape charge 
if he would cooperate with this matter? 

A. [Assistant District Attorney]: No, sir. 

Q. Let me ask the question another way to make sure we 
are clear. Are you today aware of any understanding 

between any Atlanta police department detectives and 
Offie Evans? 

A. No, sir, I'm not aware of any. 

(Parker Dep., 9-10). 

On cross-examination, the Assistant District Attorney 

broadened his testimony: 

Q. Do you have any knowledge that Mr. Evans was 
working as an informant for the Atlanta Police or any 
police authorities when he was placed in the Fulton 
County Jail and when he overheard these conversations 
of Mr. McCleskey? 

A. I don't know of any instance that Offie Evans had 
worked for the Atlanta Police Department as an 
informant prior to his overhearing conversations at the 
Fulton County Jail. 

(Parker Dep. 14-15). 

Under Smith v. Zant, petitioner McCleskey presently has two 
  

separate bases for his present entitlement to be heard on the 

merits of his Massiah claim: (i) first, he relied on the State's  



  

  

failure to disclose the Massiah violation when Offie Evans 

testified during petitioner's 1978 trial; and (ii) second, he 

relied on the prosecutor's denial of any Massiah violation during 

his 1981 deposition.’ Together, these misrepresentations, and 

petitioner's justifiable reliance upon them, excuse petitioner's 

failure to have brought forward evidence of State misconduct 

earlier. They squarely meet the terms of 0.C.G.A. § 9-14-51's 

  

second exception, as interpreted in Smith v. Zant: the "grounds 

for relief asserted therein . . . could not reasonably have been 

raised in the original or amended petition." 

II 

THE FACTS ASSERTED BY THE RESPONDENT DO NOT 

ENTITLE HIM TO A DISMISSAL OF PETITIONER'S 

APPLICATION. AT MOST, THEY PRESENT DISPUTED 

ISSUES WHICH CAN BE RESOLVED ONLY AFTER FULL 

CONSIDERATION OF THE MERITS 

As noted above, respondent launches two factual arguments in 

his motion to dismiss. We will treat them in turn. 

A. Respondent’s Assertion That Petitioner Should 
Have Discovered The State’s Misconduct 
Earlier Is Irrelevant Under Georgia Law. It 
Is Also Factually Incorrect, As The Federal 
District Court Found 

i. The 21-Page Statement -- Respondent begins by 

complaining that "[p]etitioner has failed to establish exactly 

  

> It is, of course, immaterial whether prosecutor Russell 
Parker himself knew about the Massiah violation. As indicated 
above, see note 4, when he spoke, the law imputes to him the 
knowledge of the entire prosecution team, including the 
unquestionably knowledgeable participants in the police 
conspiracy. 

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what newly discovered facts would justify this Court's re- 

litigation of this issue and what facts he contends are newly 

discovered." (Resp. Br. 10). Offie Evans' 2l1-page written 

statement, given to Atlanta police in August of 1978, is not 

"new," respondent notes; petitioner had uncovered the statement 

(no thanks to the prosecution or the State Attorney General's 

Office) by 1987, when petitioner's second state application was 

filed. (Id.; see also id. at 12-13).   

Petitioner's claim, however, does not depend upon the 21- 

page statement alone, but upon the carefully concealed story of 

the Massiah violation which first came tumbling out of the mouths 

of various witnesses, inadvertently, during a federal evidentiary 

hearing in July of 1987 -- only after McCleskey's second state   

application had been summarily dismissed. 

2 The Police Witnesses -- Turning to these witnesses, 

respondent bundles together a handful of half-truths and 

misrepresentations by insisting that "all . . . were readily 

available at any time to testify." (Resp. pr. 10). First, while 

the police officers involved in the conspiracy -- Sidney Dorsey 

and, perhaps, Welcome Harris =-- were doubtless "available" in 

1987, petitioner did actively seek a state habeas hearing to put 

them under oath. By summarily granting the State's 1987 motion 

to dismiss, this Court deprived petitioner any meaningful 

opportunity to obtain their testimony. 

More important, as Judge Forrester found after listening to 

their testimony in federal court, these police witnesses in 1987 

il 

 



  

were actively covering up the Massiah violation and their own 

involvement in it: "unfortunately, one or more of those 

investigating Officer Schlatt's murder stepped out of line. 

Determined to avenge his death the investigator (s) violated 

Clearly-established case law." (St. Hab. Pet., Exh. D, 31). 

"Detective Dorsey," Judge Forrester observed, had an obvious 

interest in concealing any [Massiah] arrangement" (St. Hab. 

Pet., Exh. E, 10); and this "complicated scheme . . . required 

Evans and any officers involved to lie and lie well about the 

circumstances.” (St. Hab. Pet. 21). 

For these reasons, Judge Forrester rejected any possibility 

that petitioner could have obtained proof of the Massiah 

violation by means of an informal interview with Detective Dorsey 

or the other detectives: 

The state argues that petitioner's counsel should have 
at least interviewed Detectives Harris and Dorsey and 
Deputy Hamilton. Given that all three denied any 
knowledge of [the details of the conspiracy to violate 
Massiah] . . . it is difficult to see how conducting 
such interviews would have allowed petitioner to assert 
this claim any earlier. 

(St. Hab..Pet., Exh. 25). 

3. Offie Evans -- Respondent also faults McCleskey's 

counsel for alleged failure to interrogate Offie Evans: "Mr. 

Evans . . . testified before this Court in 1981, but was not 

asked whether he had been moved or placed in a jail cell as an 

agent for the State. Thus, Petitioner simply failed to pursue 

that line of questioning.” (Resp. Br. 11). Respondent's 

assertion is false. Defense counsel Stroup pursued an entire 

12 

 



  

line of questioning on these issues, asking Offie Evans under 

oath when he had been placed in solitary confinement at the 

Fulton County Jail (1987 St. Hab. Tr. 116), whether there was a 

"special reason" he had been put into solitary confinement (id. 

116-117), whether he had been placed adjacent to the cell of 

Warren McCleskey (id. 117), the identity of the investigators and 

police officers who had spoken with him, when those conversations 

with police had occurred (id. 117-118), whether he had been 

promised anything in exchange for his testimony against Mr. 

McCleskey (id.,122), and whether he had subsequently given 

‘testimony against any other inmates in other cases. (Id. 126- 

127). 

Informant Evans, in response, never disclosed that he had 

been moved from another cell to the cell adjacent to McCleskey's, 

or that he had been asked by Atlanta detectives secretly to 

interrogate Mr. McCleskey, or that he had agreed to do so, or 

that he had given a 2l-page written statement to Atlanta 

« 

investigators. 

4. Ulysses Worthy -- Finally, respondent faults petitioner 

for not locating jailor Ulysses Worthy prior to McCleskey's 1987 

state habeas application. During the 1987 federal hearing, 

Worthy -- a retired jailor at the Fulton County Jail -- proved a 

key witness to the Massiah violation. Jailor Worthy testified 

that he had overheard Atlanta police detectives as they met with 

informant Offie Evans in Worthy's office at the jail, during July 

of 1978. In Worthy's presence, the officers coached Evans only 

15 

 



  

his secret interrogation of McCleskey. Jailor Worthy testified 

that, during the meeting, Detective Sidney Dorsey (or perhaps 

another "officer on the case") "asked Mr. Evans to engage in 

conversations with McCleskey who was being held in the jail," 

and, to facilitate Evans' questioning, requested jailor Worthy to 

move Evans from another part of the jail to a cell next to 

McCleskey. Judge Forrester himself questioned jailor Worthy on 

the essential points: 

THE COURT: But you're satisfied that those three things 
happened, that they asked to have him put 
next to McCleskey, that they asked him to 
overhear McCleskey, and that they asked him 
to question McCleskey. 

THE WITNESS: I was asked can -- to be placed near 
McCleskey's cell, I was asked. 

THE COURT: And you're satisfied that Evans was asked to 
overhear McCleskey talk about this case? 

THE WITNESS: Yes, sir. 

THE COURT: And that he was asked to kind of try to draw 
him out a little hit about it> 

THE WITNESS: Get some information from him. 

Judge Forrester ultimately found that "one or more of those 

[who were] investigating Officer Schlatt's murder" (St. Hab. 

Pet., Exh. D, 31) requested Captain Ulysses Worthy to move 

informant Evans to the cell adjacent to Mr. McCleskey. Next, the 

officers instructed informant Evans to "get some information" 

from Mr. McCleskey about Officer Schlatt's homicide (St. Hab. 

Pet., Exh. D, 21-23): 

[Evans] was moved, pursuant to a request approved by 
Worthy, to the adjoining cell for the purpose of 
gathering incriminating information; Evans was probably 

14 

 



  

coached in how to approach McCleskey and given critical 
facts unknown to the general public; Evans engaged 
McCleskey in conversation and eavesdropped on 
McCleskey's conversations with [co-defendant Bernard] 
DuPree; and Evans reported what he had heard . . . to 

Assistant District Attorney Parker. . . . 

(St. Hab. Pet., Exh. D, 23).° 

Respondent suggests that, in light of Worthy's potentially 

explosive testimony, McCleskey should now be faulted for failure 

to have called him earlier: 

Detective Harris freely mentioned the name of Captain 
Ulysses Worthy when asked in the federal district court 
proceeding. Petitioner has never indicated that he 
attempted to contact Mr. Worthy or that he was 
prevented from doing so in any fashion. 

(Resp. Br. 11). This suggestion, however, is a triumph of 

hindsight. In 1987, there was no visible thread connecting 

Ulysses Worthy (by then, long-retired as a jailor, working in 

obscurity at Morehouse College) to McCleskey's case. Neither 

  

® In light of these and other comprehensive findings by 
Judge Forrester on all aspects of the Massiah claim, we are 
frankly baffled by respondent's unsupported declaration that 
"there has never been any finding of a coverup or police 
misconduct regarding any statement of Offie Evans." (Resp. Br. 
15). See, e.g, St. Hab, Pet,., Exh. D, 21, 28: 
  

[T]he use of Evans as McCleskey alleges . . . developed 
into a complicated scheme to violate McCleskey's 
constitutional rights -- its success required Evans and 
any officers involved to lie and lie well about the 
circumstances. . . . Given the facts established 
earlier, petitionr has clearly established a Massiah 
violation here. It is clear from Evans' written 
statement that he did much more than merely engage 
petitioner in conversation about petitioner's crimes. 
As discussed earlier, Evans repeatedly lied to 
petitioner in order to gain his trust and to draw him 
into incriminating statements. Worthy's testimony 
establishes that Evans, in eliciting the incriminating 
statements, was acting as an agent of the state. 

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his name nor his role had ever been mentioned by anyone. He 

played no known role in the police investigation. He had assumed 

no special responsibility for McCleskey, and in 1978, had been 

but one of hundreds of jailors working in the Fulton County Jail 

during McCleskey's incarceration there. 

Only when Detective Harris was cross-examined under oath 

about the 21-page statement of Offie Evans did Worthy's name 

surface. Asked by defense counsel Stroup where the 2l1-page 

statement had been taken, Detective Harris grudgingly mentioned 

"a room [at the Fulton County Jail] that was occupied by a 

captain, and I don't think -- he's no longer employed out there, 

I think his name is Worthy." Pressed on whether jailor Worthy 

had been present during the interview, Detective Harris lied: 

"No, sir. I'm sure he wasn't, vou know." Suspicious of 

Detective Harris' answer, defense counsel promptly located and 

subpoenaed Worthy. 

After fully considering these circumstances -- both Worthy's 

obscurity and the concerted police effort tc hide his role -- 

Judge Forrester concluded that 

counsel's failure to discover . . . Worthy's testimony 
voy: Was not inexcusable neglect. . . . 
Petitioner's counsel represents, and the state has not 
disputed, that counsel did conduct an investigation of 
a possible Massiah claim prior to the first federal 
petition, including interviewing "two or three 
jailers." . «. . The state has made no showing of any 
reason that petitioner or his counsel should have known 
to interview Worthy specifically with regard to the 
Massiah claim. 

(St. Hab. Pet., Exh. D, 285), 

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In sum, McCleskey now comes before this Court with new and 

important evidence obtained since his 1987 state habeas filing. 

This evidence was previously hidden by State actors. It emerged 

only during the federal hearing in 1987. It is decisive of his 

Massiah claim. 

B. A Motion To Dismiss Is An Inappropriate 
Vehicle For Adjudication Of The Merits Of 
Petitioner’s Claim    

Although respondent confesses that "no court actually 

directly reversed the factual findings" of Judge Forrester (Resp. 

Br. 11), he nonetheless draws on a welter of unpersuasive 

authorities to urges this Court to re-determine the merits of the 

Massiah claim -- on this preliminary motion -- prior to 

consideration of the full factual record. As justification, he 

points to "numerous comments" from the majority opinion of the 

Supreme Court of the United States (Resp. Br. 12-14), which, he 

implies, somehow tacitly undermine the facts found by the 

District Court on the Massiah claim. Much of the Supreme Court's 

dicta to which respondent points, on closer examination, proves 

relevant not to the merits, but to that Court's application of 

its new, strict "cause" and "prejudice" inquiry announced in 

McCleskey's case. 

Respondent also prematurely (i) solicits a judgment by this 

Court that "certain findings by the district court are obviously 

clearly erroneous," and (ii) denies that "there has been [any] 

showing that the testimony of Offie Evans was unreliable or 

false." (Resp. Br. 15-16). This Court's determination of whether     
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factual findings are "clearly erroneous," however, is plainly an 

inappropriate inquiry on a motion to dismiss. As to respondent's 

second point, his assurances about Offie Evans' credibility, 

petitioner is content at present simply to juxtapose Judge 

Forrester's factual findings: 

The credibility or believability problems with [Evans'] 
testimony are evident. He has a strong motivation for 
saying he was not an informant . . . . The numerous 
contradictions within his deposition also lead the 
court to the conclusion that his testimony would not be 
believable. . . Evans' testimony is not likely to 
change the credibility of Worthy's testimony or the 
fact that petitioner showed by a preponderance of the 
evidence that a Massiah violation occurred. 

{st. Hab. Pet.; Exh. 'D, 9-10). 

Respondent's final factual argument attempts to make capital 

of certain contrary findings on a Massiah claim, rendered by 

another federal court during another habeas proceeding, involving 

one of McCleskey's co-defendants. (See Resp. Br. 10, 15). This 

lame effort turns all known principles of collateral estoppel on 

their head: surely McCleskey is entitled to rely on prior 

factual findings made in his own case, with the State present as 
  

fully capable adversary; he is not bound by findings made in 

      

another courtroom, in another case, to which he was not a party. 

IIT 

THE STATE’S USE OF OFFIE EVANS’ TESTIMONY =-- AS 

DISTRICT JUDGE OWEN FORRESTER EXPRESSLY FOUND, AND AS 

AFFIDAVITS FROM TWO OF PETITIONER’S TWELVE TRIAL JURORS 

NOW ESTABLISH IRREFUTABLY =-- WAS NOT “HARMLESS ERROR” 

18 

 



  

Respondent's last basis for dismissal relies on a "harmless 

error" holding, rendered 2s an alternative ground by a panel of 

the United States Court of Appeals; this principal ground on 

which that court reversed the judgment of Judge Owen Forrester 

was that McCleskey's habeas application should have been deemed 

an "abuse of the writ." See McCleskey v. Zant, 890 F.2d 342, 

346, 351 (11th cir. 1989). 

CONCLUSION 

Respectfully submitted, 

« 

  

Robert H. Stroup 
141 Walton Street 
Atlanta, Georgia 30303 
(404) 522-8500 

Mark E. Olive John Charles Boger 
Georgia Resource Center University of North Carolina 
920 Ponce de Leon, N.E. School of Law, CB. # 3380 

Atlanta, Georgia 30306 Chapel Hill, North Carolina 27599 
(404) 898-2060 (919) 962-8516 

ATTORNEYS FOR PETITIONER 

1° 

 



  

CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing has been 

furnished by mail to Mary Beth Westmoreland, Esq., counsel for 

Respondent, Office of the Attorney General, 132 State Judicial 

Building, 40 Capitol Square, S.W., Atlanta, Georgia 30334. 

This day of July, 1991. 

  

ATTORNEY FOR PETITIONER 

20 

 



  

Collier v. Sha 

Draft 7/28/91 
  

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

* WARREN McCLESKEY, CIVIL ACTION NO. 

Petitioner, * 91-V-3669 
a 

vs. * 
* 

WALTER D. ZANT, Warden, * HABEAS CORPUS 

Georgia Diagnostic & * 
Classification Center, * 

Respondent. * 

PETITIONER’S MEMORANDUM OF LAW 

IN OPPOSITION TO RESPONDENT’S MOTION TO DISMISS 

COMES NOW petitioner Warren McCleskey, by his undersigned 

counsel, and files this memorandum of law in opposition to 

respondent's Motion to Dismiss, dated July 5, 1991. As we will 

demonstrate, respondent's motion is legally insufficient and 

should be denied, for three reasons: 

(i) Pirst, as a matter of law, respondent relies on 

principles of res judicata that do not avail him. Under settled 
  

Supreme Court precedent, see, e.g. Smith v. Zant, 250 Ga. 645, 
  

652. 301 S.E.24 32, 37 (1983); Cf. Nelson v.. Zant, Ca. (No, 
  

  

9130524) (June 25, 1991), res Hudicata has no application to this 

case. Petitioner's constitutional claim is based on newly 

available evidence that was withheld from him by State actors at 

the time of his previous applications. The Supreme Court has 

unmistakably affirmed the right of an applicant to bring forward 

such a claim, even on a successive application: 

The defendant has a right to vely on the accuracy of 
the trial testimony of the state's witness where the 

 



  

truth or falsity of his testimony is peculiarly within 
the knowledge of the state and the state is under a 
duty to reveal false testimony. Thus, we find 
unpersuasive the state's argument that the defendant 
should have discovered the state's breach of duty. 

Smith v. Zant, 250 Ga. at 652. 
  

(ii) Second, respondent's motion to dismiss depends on 

factual grounds that are irrelevant or untimely. Respondent's 

‘evidence is not "newly available," but was instead readily 

discoverable in 1987 or earlier, and (b) that the totality of 

Vassian' vi UnitediStatesy 377 U.S. 201 (1964). Smith v. Zant 

dictates petitioner's burden of proof in responding to 

  
  

respondent's first argument. Under O0.C.G.A. § 9-14-51, 

petitioner need only tender well-pleaded allegations that State 

officials, although aware of the underlying misconduct petitioner 

now complains of, failed to reveal it at trial or in injtial 

state habeas proceedings. ‘peftitoner in this case proffers 

exactly the proof of State concealment that Smith requires. 

Respondent's second factual argument -- that the record 

facts do not suffice make out a Massiah violation -- is clearly 

an attack on the merits of petitioner's claim. ~ Georgia law 

1 ral rovide tl . 1 . t a pre ‘ 1 

; Cit 
for resolution of the merits. A ince petitioner's well-pleaded 

allegations -- supported by sworn transcripts and affidavits -- 

allege a classic violation of Massiah and United States v. Henry, 
  

447 U.S. 264 (1980), respondent's motion to dismiss must be 

 



  

denied. A final decision on the merits must abide the 

development of a full factual record. 

(iii) Finally, respondent's claim that any Massiah claim 

was "harmless error" likewise depends upon this Court's 

consideration of a full factual record that has not yet been 

placed before the Court. What is clear, at present, is that 

United States District Judge J. Owen Forrester -- the one judge 

in this case who has heard the relevant witnesses -- found that 

[o]lnce the fact of the Massiah violation in this case 
is accepted, it is not possible to find that the error 
was harmless. A review of the evidence presented at 
the petitioner's trial reveals that [informant Offie] 
Evans' testimony about the petitioner's incriminating 
statements was critical to the state's case. There 
were no witnesses to the shooting and the murder weapon 
was never found. The bulk of the state's case against 
the petitioner was three pronged: (1) evidence that 
petitioner carried a particular gun on the day of the 
robbery that most likely fired the fatal bullets; (2) 
testimony by co-defendant Ben Wright that petitioner 
pulled the trigger; and (3) Evans' testimony about 
petitioner's incriminating statements. As petitioner 
points out, the evidence on petitioner's possession of 
the gun in question was conflicting and the testimony 
of Ben Wright was obviously impeachable. . . . Because 
the court cannot say, beyond a reasonable doubt, that 
the jury would have convicted petitionet without Evans’ 
testimony about petitioner's incriminating statements, 
petitioner's conviction for the murder of Officer 
Schlatt must be reversed pending a new trial. 

St. Hab. Pet., Exh. D, 29-31. 

In addition, sworn affidavits from two of McCleskey's twelve 

trial’ now confirm Judge Forrester's finding. These jurors aver 

without hesitation: that Offie Evans uss the key witness to the 

identity of the murderer; that the i avis its death 

sentence largely on Evans' testimony; that the jury's reliance on 

Evans stemmed from his apparent role as a disinterested witness; 

3 
Ly Might be cleaver to Separate 

och — pont b A nwmber Ley )) 

{ omit {he “nats! 

 



  

that; had Offie Evans' secret relations with the police been 

disclosed, at least two jurors would never have voted to convict 

McCleskey of malice murder; and that, moreover, these jurors 

would have held fast against imposition of a death sentence. 

Given this sworn testimony from the jurors themselves, there is 

no need to rely on second-hand speculations from persons who 
New S¢mence 2 

weren't there: , jurors who heard and decided the case assure us 

that the State's use of Evans' testimony, far from "harmless 

error," was the master stroke that sent McCleskey to Death Row. 

I. 

SINCE STATE ACTORS PREVIOUSLY WITHHELD 

CRUCIAL EVIDENCE OF THEIR OWN 

UNCONSTITUTIONAL CONDUCT, THE CONTROLLING 

GEORGIA PRECEDENTS NOW REQUIRES THIS COURT TO 

HEAR PETITIONER’S PRESENT CHALLENGE ON ITS 

MERITS =-- DESPITE HIS PRIOR HABEAS 

APPLICATIONS AND WITHOUT ANY RES JUDICATA BAR 
  

Respondent's principal legal argument is a simple one: 

"[Ulnder the principles of res judicata, this Court should 
  

decline to review [petitioner's] issue." (Resp. Br. 1).' At 

first glance, the controlling statute, 0.C.G.A. § 9-14-51, 

appears to support respondent. It provides: 

All grounds for relief claimed by a petitioner for a 
writ of habeas corpus shall be raised by a petitioner 
in his original or amended petition. Any grounds not so 
raised are waived. 

  

' Each reference to respondent's Motion to Dismiss and 
Brief in Support, dated July 5, 1991, will be indicated by the 
abbreviation "Resp. Br." followed by the number of the page on 
which the reference may be found. 

4 

 



  

However, the statute does not stop with a general 

declaration of waiver, but goes on to create two important 

exceptions to the general rule. It requires dismissal UNLESS: 

[i) « . . the Constitution of the United States or of 
this state otherwise requires or [ii] unless any judge 
to whom the petition is assigned, on considering a 
subsequent petition, finds grounds for relief asserted 
therein which could not reasonably have been raised in 
the original or amended petition. 

  

  

  

  

  

The meaning of the second exception -- requiring a state 

habeas court to entertain the merits of any claim "which could 

not reasonably have been raised" -- was authoritatively 

interpreted by the Supreme Court of Georgia in Smith v. Zant, 250   

Ga. 645, 301 S.E. 28 32 (1983). This Court should closely sxanine 

the circumstances in Smith, since they are nearly identical to 

those at issue here. 

John Eldon Smith, a death-sentenced Georgia inmate, 

unsuccessfully sought state habeas corpus relief in 1977. Six 

years later, in 1983, his federal claims exhausted, Smith 

returned to the state habeas courts and asserted additional 

constitutional claims, including a claim based upon newly 

discovered evidence. He alleged that the prosecuting attorney 

and a key State witness had made a deal, in violation of Giglio 

v. United States, 405 U.S. 150 (1972), and Napue v., Illinois, 360 
  

  

U.8. 264 (1959). See Smith v. Zant, 250 Ga. at 645-646; id. at 
  

650.2 

  

? Smith had alleged in his second application that, in 
1982, the defense team had obtained an admission from the 
attorney who prosecuted Smith's case that he had failed to 
disclose a pre-trial promise of leniency made to a key State's 

5 

 



  

Although Smith's 1983 petition was summarily dismissed by 

the Superior Court, the Georgia Supreme Court granted Smith's 

application for a certificate of probable cause. Following oral 

argument, the Supreme Court affirmed the dismissal of most of 

Smith's claims under 0.C.G.A. § 9~14~51. Id., 250. Ga. at 646, 

However, Chief Justice Hill, writing for a unanimous Court, 

remanded Smith's claims under Giglio and Napue, directing a full 

hearing on their merits. 

In granting Smith a full hearing, the Court brushed aside 

the State's defense -- the same defense now asserted by the State 

in McCleskey's case -- that Smith's defense attorneys should have 

uncovered any alleged State misconduct earlier. The Court's 

analysis is quoted in full: 

The state did not meet petitioner's false 
testimony claim on its merits, but defended 
on the ground of waiver, contending that, 
with due diligence, the defense could have 
ascertained the necessary information, and 
thus that the grounds for relief could 
"reasonably have been raised in the original 
or amended petition." OCGA § 9-14-51 (Code 
Ann. § 50-127), supra. The state urges that 
when, shortly after the trials, [the State's 
witness] in fact pleaded guilty in exchange 
for a life sentence, Smith and his lawyers 
should have made further inquiry of [the 
witness] and his attorney. This was not 
done. Nor has the state shown that [the 
State's witness] would have admitted his 
alleged perjury had he been asked by defense 
counsel. 

The state's argument overlooks the thrust of 
Nabue v, Tllincis ... . and Giglio v. United 
  

  

  

witness. The witness had denied, during cross-examination at 
trial, any such relationship. Smith yv. Zant, 250 Ga. at 645~ 
650, 

  

 



  

Stateg. * It is not so much that [the State's 
witness] testified falsely, but that the 
state, by allowing this knowingly false 
statement to stand uncorrected deprived the 
defendant of a fair trial. Since the 
prosecution has the constitutional dutv to 

reveal at trial that false testimonv has been 
given by ites witness. it cannot, by failing 
in this duty, shift the burden to discover 

the misrepresentation after trial to the 

defense. The defendant has a right to rely 

on the accuracy of the trial testimony of the 

state'!s witness where the truth or falsity of 

his testimony is peculiarly within the 
knowledge of the state and the state is under 
a duty to reveal false testimony. Thus, we 

find unpersuasive the state's argument that 
the defendant should have discovered the 

state's breach of duty. As was said in 
Williams v. State, 250 Ga. 463 at 466, 298 
S.B. 2d 492 (1983): "The state urges that 
the defendant should have done more than he 

did to protect himself. We find that the 
state should have done more than it did to 

protect the defendant's rights." See also 
Price v. Johnston, 334 U.S. 266 (1948). 

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

We, therefore, hold that Smith has alleged 
facts, supported by affidavits, sufficient to 
satisfy the requirements of OCGA § 9-14-51 
{Code Ann. § 50-127), to entitle him to a 
hearing on the merits of his false testimony 
claim; i.e., petitioner has shown grounds for 
relief which could not reasonably have been 
raised in his original habeas petition. The 
habeas court erred in dismissing Smith's 
Napue-Giglio claim, and we remand this case 
for a hearing on the merits of this issue. 

Smith v. Zant, 250 Ga. at 651-652. (Emphasis added). 
  

Petitioner McCleskey's present habeas petition, like John 

Smith's successive petition, depends upon a prior State cover-up 

of an unconstitutional conspiracy. Specifically, McCleskey has 

proof that Atlanta police officers conspired with a jailhouse 

informant, Offie Evans, to procure incriminating admissions from 

McCleskey. The conspiracy was successful: Evans first spoke 

7 

[his makes it seem as if 

Hein admis 1o confessing 

 



  

with cellmate McCleskey and then, called by the State as a key 

witness against petitioner McCleskey during his 1978 trial, used 

the purported fruits of his secret interrogation to name 

McCleskey as the triggerman in the crime. (See St. Hab. Pet. qq 

32-37.)% The Atlanta police officers invovled, as part of the 

State's prosecutorial team, were obligated to disclose their 

misconduct to the defense.* Instead, they lied, and permitted 

Evans to lie, in order to obtain McCleskey's conviction. 

  

> Each reference to the Petition for a Writ of Habeas 

Corpus, filed by petitioner as an appendix to his Application for 
a Writ of Habeas Corpus, dated June 13, 1991, will be indicated 
by the abbreviation "St. Hab. Pet." followed by the number of the 
page on which the reference will be found. 

4 The United States Supreme Court has traditionally 
imputed the misconduct of any member of the prosecution team to 
the State itself. See, e.da., Moonev v. Holohan, 294 U. S. 103 

(1935); Brady v. United States, 373 U.S. 23 (19563). The good 
faith of some State actors cannot excuse the bad faith of others. 
Especially is this true when Sixth Amendment claims are under 
consideration. As Justice Stevens explained in Michigan v. 
Jackson, 475 UU. 8S. 625, 634 (1986), 

Sixth Amendment principles require that we impute the 
State's knowledge from one state actor to another. For the 
Sixth Amendment concerns the confrontation between the State 
and the individual. : 

See also Giglio v. United States, 405 U. 8. 150, 154 (1972): 
Santobello v. New York, 404 U.S. 257, 262 (1971); Cf. United 
States vy. Badgley, 473 U. 8S. 667, 671 & .n.4 (1986). 

The lower federal courts have regularly applied this rule to 
police misconduct of the sort at issue here. See, e.gq., Freeman 
Y. State of Georgia, 599 F.24 65, 69-70 (5th Cir. 1979) ("We feel 
that when an investigating police officer willfully and 
intentionally conceals material information, regardless of his 
motivation and the otherwise proper conduct of the state 
attorney, the policeman's conduct must be imputed to the state as 
part of the prosecution team"); Barbee v. Warden, 331 F.2d 842 
(4th Cir. 1964) ("The police are also part of the prosecution, 
and the taint on the trial is no less if they, rather than the 
State's Attorney, were guilty of the nondisclosure. . . ."); 
Schneider v. Estelle, 552 F.2d 593 (5th Cir. 1971); Jackson Vv. 
Haeinwrioht, 390 F.24 288, 296 (5th Cir. 1968); Curran v. State of 
Delaware, 259 v.24 707, 713 (34 Cir. 1958). 

  

  

  

  

  

  

  

  

  

  
  

  
  

  

8 

 



  

The teaching of Smith v. Zant is that McCleskey and his 
  

counsel were entitled to presume that State witnesses told the 

truth. In addition, they were entitled to rely upon the express 

assurance by the prosecutor that no illegal informant 

relationship marred the State's case. The prosecutor gave such 

an express assurance in this case, in 1981, during a deposition 

later admitted into evidence during petitioner's initial state 

habeas proceedings in this Court: 

Q. [Defense Counsel]: Okay. Were you aware at the time of 
the trial of any understandings between Evans and any 

Atlanta police department detectives regarding favorable 
recommendation [sic] to be made on his federal escape charge 
if he would cooperate with this matter? 

A. [Assistant District Attorney]: No, sir. 

Q. Let me ask the question another way to make sure we 
are clear. Are you today aware of any understanding 
between any Atlanta police department detectives and 
Offie Evans? 

A, No, sir, I'm not aware of any. 

(Parker Dep., 9-10). 

On cross-examination, the Assistant District Attorney 

broadened his testimony: 

Q. Do you have any knowledge that Mr. Evans was 
working as an informant for the Atlanta Police or any 
police authorities when he was placed in the Fulton 
County Jail and when he overheard these conversations 
of Mr. McCleskey? 

A. I don't know of any instance that Offie Evans had 
worked for the Atlanta Police Department as an 
informant prior to his overhearing conversations at the 
Fulton County Jail. 

(Parker Dep. 14-15). 

 



  

Under Smith v. Zant, petitioner McCleskey thus has two 
  

separate bases for his present entitlement to be heard on the 

merits of his Massiah claim: (i) first, he relied on the State's 

failure to disclose the Massiah violation when Offie Evans 

testified during petitioner's 1978 trial; and (ii) second, he 

relied on the prosecutor's denial of any Massiah violation during 

er i: Ta Together with (2 ) 
his 1981 deposition.’ Together, these misrepresentations, an 

petitioner's justifiable reliance upon them, excuse petitioner's 

failure to have brought forward evidence of State misconduct 

earlier. They squarely meet the terms of 0.C.G.A. § 9-14-51's 

second exception, as interpreted in Smith v. Zant: the "grounds 
  

for relief asserted therein . . . could not reasonably have been 

raised in the original or amended petition." 

IX 

THE FACTS ASSERTED BY THE RESPONDENT DO NOT 

ENTITLE HIM TO A DISMISSAL OF PETITIONER'S 

APPLICATION. AT MOST, THEY PRESENT DISPUTED 

ISSUES WHICH SHOULD BE RESOLVED ONLY AFTER 

FULL CONSIDERATION OF THE MERITS 
“ 

As noted above, respondent launches two factual arguments in 

his motion to dismiss. We will treat them in turn. 

  

> It is, of course, immaterial whether prosecutor Russell 
Parker himself knew about the Massiah violation. As indicated 
above, see note 4, when he spoke, the law imputes to him the 
knowledge of the entire prosecution team, including the 
unquestionably Fnouledosabile participants in the police 
conspiracy. 

10 

 



  

A. Respondent’s Assertion That Petitioner Should 
Have Discovered The State’s Misconduct 

Earlier Is Irrelevant Under Georgia Law. It 
Is Also Factually Incorrect, As The Federal 

District Court Found 

i. The 21-Page Statement -- Respondent begins by 

complaining that "[pl]etitioner has failed to establish exactly 

what newly discovered facts would justify this Court's re- 

litigation of this issue and what facts he contends are newly 

discovered." (Resp. Br. 10). Offie Evans' 21-page written 

statement, given to Atlanta police in August of 1978, is not 

"new," respondent notes; petitioner had uncovered the statement 

(no thanks to the prosecution or the State Attorney General's 

Office) by 1987, when petitioner's second state application was 

filed. (Id.: mee algo id. at 12-13). 
  

Petitioner's claim, however, does not depend upon the 21- 

page statement alone, but upon the carefully concealed story of 

the Massiah violation which first came tumbling out of the mouths 

of various witnesses, inadvertently, during a federal evidentiary 

hearing in July of 1987 -- only after McCleskey's second state   

application had been summarily dismissed. Turning to these 

witnesses, respondent bundles together a handful of half-truths 

and misrepresentations by insisting that "all . . . were readily 

available at any time to testify." (Resp. Br. 10). 

2s The Police Witnesses -- The police officers involved 

in the conspiracy -- Sidney Dorsey and, perhaps, Welcome Harris - 

- were doubtless "available" in 1987. Indeed, petitioner 

actively sought a state habeas hearing to put them under oath. 

Xl 

 



  

By summarily granting the State's 1987 motion to dismiss, 

however, this Court deprived petitioner any meaningful 

opportunity to obtain their testimony. 

Moreover, as Judge Forrester found after listening to their 

testimony in federal court, these police witnesses in 1987 were 

actively covering up the Massiah violation and their own 

involvement in it: "Unfortunately, one or more of those 

investigating Officer Schlatt's murder stepped out of line. 

Determined to avenge his death the investigator (s) violated 

Clearly-established case law." (St. Hab. Pet., Exh. D, 31). 

"Detective Dorsey," Judge Forrester observed, "had an obvious 

interest in concealing any [Massiah] arrangement" (St. Hab. 

Pet., Exh. E, 10); and this "complicated scheme . . . required 

Evans and any officers involved to lie and lie well about the 

circumstances." (St. Hab. Pet. 21). 

For these reasons, Judge Forrester rejected any possibility 

that petitioner could have obtained proof of the Massiah 

violation by means of an informal interview with Detectives 

Harris, Dorsey or the other detectives: 

The state argues that petitioner's counsel should have 
at least interviewed Detectives Harris and Dorsey and 
Deputy Hamilton. Given that all three denied any 
knowledge of [the details of the conspiracy to violate 
Massiah] . . . it is difficult to see how conducting 
such interviews would have allowed petitioner to assert 
this claim any earlier. 

(St. Hab. Pet., Exh. D, 285). 

3. Offie Evans -- Respondent also faults McCleskey's 

counsel for alleged failure to interrogate Offie Evans: "Mr. 

12 

 



  

Evans . . . testified before this Court in 1981, but was not 

asked whether he had been moved or placed in a jail cell as an 

agent for the State. Thus, Petitioner simply failed to pursue 

that line of questioning." (Resp. Br. 11). Regpondent's 

assertion is false. Defense counsel Stroup pursued an entire 

line of questioning on these issues, asking Offie Evans under 

oath when he had been placed in solitary confinement at the 

Fulton County Jail (1987 St. Hab. Tr. 116), whether there was a 

"special reason" he had been put into solitary confinement (id. 

116-117), whether he had been placed adjacent to the cell of 

Warren McCleskey (id. 117), the identity of the investigators and 

police officers who had spoken with him, when those conversations 

with police had occurred (id. 117-118), whether he had been 

promised anything in exchange for his testimony against Mr. 

McCleskey (id., 122), and whether he had subsequently given 

testimony against any other inmates in other cases. (Id. 126- 

127). 

Informant Evans, in response, never distlosed that he had 

been moved from another cell to the cell adjacent to McCleskey's, 

or that he had been asked by Atlanta detectives secretly to 

interrogate Mr. McCleskey, or that he had agreed to do so, or 

that he had subsequently given a 2l1l-page written statement to 

Atlanta investigators. 

4. Ulysses Worthy -- Finally, respondent faults petitioner 

for not locating jailor Ulysses Worthy prior to McCleskey's 1987 

state habeas application. During the 1987 federal hearing, 

13 

 



  

Worthy -- a retired jailor at the Fulton County Jail -- proved to 

be a key witness concerning the Massiah violation. Jailor Worthy 

testified that he had overheard Atlanta police detectives as they 

met with informant Offie Evans, in Worthy's office at the jail, 

during July of 1978. In Worthy's presence, the officers coached 

Evans on his secret interrogation of McCleskey. According to 

Worthy, Detective Sidney Dorsey (or perhaps another "officer on 

the case") "asked Mr. Evans to engage in conversations with 

McCleskey who was being held in the jail." To set up Evans’ 

questioning, these officers asked jailor Worthy to move Evans 

from another part of the jail to a cell next to McCleskey. Judge 

Forrester himself questioned jailor Worthy on the essential 

points: 

THE COURT: But you're satisfied that those three things 
happened, that they asked to have him put 
next to McCleskey, that they asked him to 
overhear McCleskey, and that they asked him 
to question McCleskey. 

THE WITNESS: I was asked can -- to be placed near 
McCleskey's cell, I was asked. 

THE COURT: And you're satisfied that Evans was asked to 
overhear McCleskey talk about this case? 

THE WITNESS: Yes, sir. 

THE COURT: And that he was asked to kind of try to draw 
him out a little bit about it? 

THE WITNESS: Get some information from him. 

Judge Forrester ultimately found that "one or more of those 

[who were] investigating Officer Schlatt's murder" (St. Hab. 

Pet., Exh. D, 31) Femuosten Soptetn Ulysses Worthy to move 

informant Evans to the cell adjacent to Mr. McCleskey. Next, the 

14 

 



  

officers instructed informant Evans to "get some information" 

from Mr. McCleskey about Officer Schlatt's homicide (St. Hab. 

Pat., Exh. D, 21-23): 

[Evans] was moved, pursuant to a request approved by 
Worthy, to the adjoining cell for the purpose of 
gathering incriminating information; Evans was probably 
coached in how to approach McCleskey and given critical 
facts unknown to the general public; Evans engaged 
McCleskey in conversation and eavesdropped on 
McCleskey's conversations with [co-defendant Bernard] 
DuPree; and Evans reported what he had heard . . . to * 

Assistant District Attorney Parker. . . 

(St. Hab, Pet. Exh. D, 23).° 

Respondent suggests that, in light of Worthy's potentially 

explosive testimony, McCleskey should now be faulted for failure 

to have called him earlier: 

Detective Harris freely mentioned the name of Captain 
Ulysses Worthy when asked in the federal district court 
proceeding. Petitioner has never indicated that he 
attempted to contact Mr. Worthy or that he was 
prevented from doing so in any fashion. 

  

€ In light of these and other comprehensive findings by 
Judge Forrester on all aspects of the Massiah claim, we are 
frankly baffled by respondent's unsupported declaration that 
"there has never been any finding of a coverup or police 
misconduct regarding any statement of Offie Evans." (Resp. Br. 
15). See, e.q, St. Bab. Pet., Exh. D, 21, 28: 
  

[T]he use of Evans as McCleskey alleges . . . developed 
into a complicated scheme to violate McCleskey's 
constitutional rights -- its success required Evans and 
any officers involved to lie and lie well about the 
circumstances. . . . Given the facts established 
earlier, petitionr has clearly established a Massiah 
violation here. It is clear from Evans' written 
statement that he did much more than merely engage 
petitioner in conversation about petitioner's crimes. 
As discussed earlier, Evans repeatedly lied to 
petitioner in order to gain his trust and to draw him 
into incriminating statements. Worthy's testimony 
establishes that Evans, in eliciting the incriminating 
statements, was acting as an agent of the state. 

15 

 



  

(Resp. Br. 11). This suggestion, however, is a triumph of 

hindsight. In 1987, there was no visible thread connecting 

Ulysses Worthy (by then, long-retired as a jailor, working in 

obscurity at Morehouse College) to McCleskey's case. Neither 

his name nor his role had ever been mentioned by anyone. He 

played no known role in the police investigation. He had assumed 

no special responsibility for McCleskey, and in 1978, had been 

but one of hundreds of jailors working in the Fulton County Jail 

during McCleskey's incarceration there. 

Only when Detective Harris was cross-examined under oath 

about the 2l1-page statement of Offie Evans did Worthy's name 

surface. Asked by defense counsel Stroup where the 21-page 

statement had been taken, Detective Harris grudgingly mentioned 

"a room [at the Fulton County Jail] that was occupied by a 

captain, and I don't think -- he's no longer employed out there, 

I think his name is Worthy." Pressed on whether jailor Worthy 

had been present Saving the interview, Detective Harris lied: 

“No, sir. I'm sure he wasn't, you know." Suspicious of 

Detective Harris' answer, defense counsel promptly located and 

subpoenaed Worthy. 

After fully considering these cireumstances =- both Worthy's 

obscurity and the concerted police effort to hide his role == 
/ 

Judge Forrester concluded ¢ that 
A 

counsel's failure to discover . . . Worthy'!s testimony 
. «. . Was not inexcusable neglect. . 
Petitioner's counsel represents, and the state has not 
disputed, that counsel did conduct an investigation of 
a possible Massiah claim prior to the first federal 
petition, including interviewing "two or three 

16 

 



  

jailers." . . . The state has made no showing of any 
reason that petitioner or his counsel should have known 
to interview Worthy specifically with regard to the 
Massiah claim. 

{st. Hah, Pet., Exh. D, 25). 

In sum, McCleskey now comes before this Court with new and 

important evidence obtained since his 1987 state habeas filing. 

This evidence was previously hidden by State actors, and could 

not reasonably have been obtained by petitioner through informal 

investigation. It emerged only during the federal hearing in 

1987. Under Smith, it should be heard on its merits. 

B. A Motion To Dismiss Is An Inappropriate 
Vehicle For Adjudication Of The Merits Of 
Petitioner’s Claim 

Although respondent confesses that "no court actually 

directly reversed the factual findings" of Judge Forrester (Resp. 

Br. 11), he nonetheless draws on a welter of unpersuasive 

authorities to urges this Court to re-determine the merits of the 5 

Massiah claim -- on this preliminary motion -- prior to i 

consideration of the full factual record. Ab justification, he 

points to "numerous comments" from the majority opinion of the 

Supreme Court of the United States (Resp. Br. 12-14), which, he 

implies, somehow tacitly undermine the facts found by the 

District Court on the Massiah claim. Much of the Supreme Court's 

dicta to which respondent points is relevant, on closer 

examination, not to the merits, but to that Court's application 

of its new, strict "cause" and "prejudice" inquiry announced in 

17 

 



  

McCleskey's case. It does not, in short, overturn Judge 

Forrester's factual findings. 

Respondent also (i) prematurely solicits a judgment by this 

Court that Ycertain findings by the district court are obviously 

clearly erroneous," and (ii) denies that "there has been [any] 

showing that the testimony of Offie Evans was unreliable or 

false." (Resp. Br. 15-16). 

    

inappropriate inquiry on a motion to dismiss. (Mas to respondent's 

: \ 
bland assurances about Offie Evans' credibility, we are content 

simply to juxtapose Judge Forrester's factual findings: 

The credibility or believability problems with [Evans'] 
testimony are evident. He has a strong motivation for 
saying he was not an informant . . . . The numerous 
contradictions within his deposition also lead the 
court to the conclusion that his testimony would not be 
believable. . . Evans! testimony is not likely to 
change the credibility of Worthy's testimony or the 
fact that petitioner showed by a preponderance of the 
evidence that a Massiah violation occurred. 

(St. Hab. Pst., Exh. D, 9-10). 

Respondent's final factual argument attempts to capitalize 

on certain contrary findings rendered by another federal court 

during another habeas proceeding, involving one of McCleskey's 

co-defendants. (See Resp. Br. 10, 15). This lame effort turns 

all known principles of § collateral estoppel on their head: 

surely McCleskey is entitled to rely on prior factual findings 

made in his own case; he is not bound by findings made in another 
  

courtroom, in another case, to which he was not a party. 
      

18 

 



  

Til 

THE STATE’S USE OF OFFIE EVANS’ TESTIMONY =-- AS 

DISTRICT JUDGE OWEN FORRESTER EXPRESSLY FOUND, AND AS 

AFFIDAVITS FROM TWO OF PETITIONER’S TWELVE TRIAL JURORS 

NOW ESTABLISH IRREFUTABLY -- WAS NOT “HARMLESS ERROR” 

Respondent's last basis for dismissal relies on the 

"harmless error" holding rendered, as an alternative ground, by a 

panel of the United States Court of Appeals. The principal 

ground .on which that court ruled, however, was a procedural one: 

that McCleskey's habeas application should have been deemed an 

"abuse of the writ." See McCleskey v. Zant, 890 F.24 342, 346, 

351 (11th Cir. 1989). In addressing the harmless error question 

as an alternative ground, the panel committed serious error 

itself, for it repudiated Judge Forrester's carefully elaborated 

factual findings on harmless error, without any showing that 

those findings were themselves "clearly erroneous" under Rule 52 

of the Federal Rules of Civil Procedure. The Supreme Court of 

the United States did not reach or decide that issue, since it 

ruled against petitioner on the "abuse of the writ" point. 

Hence, there was no final, authoritative decision from the panel 

on the "harmless error" point. 

More importantly, the panel's holding was uninformed by the 

evidence now before this Court: sworn testimony from two trial 

jurors that leaves SN etatoble the gravity of the injury done to 

Warren McCleskey by the State's secret dealings with Offie Evans. 

The two jurors declare emphatically that neither a conviction for 

malice murder nor a sentence of death would have been imposed on 

McCleskey without the apparently neutral and impartial testimony 

19 

 



  

of Offie Evans. Had either juror known of Evans' arrangements 

with Atlanta police, they would have discredited his testimony 

and held out against a sentence of death. Armed with this 

knowledge, it becomes impossible for anyone of good faith to 

contend that the State's deliberate misconduct was "harmless 

beyond a reasonable doubt" under Georgia or federal standards. 

CONCLUSION 

Respondent's motion to dismiss should be denied, and 

petitioner should be £entitled to proceed to the merits of his 

Massiah claim. 

Respectfully submitted, 

  

Robert H. Stroup 
141 Walton Street 
Atlanta, Georgia 30303 
(404) 522-8500 

Mark E. Olive John Charles Boger 
Georgia Resource Center University of North Carolina 
920 Ponce de Leon, N.E. School of Law, CB # 3380 
Atlanta, Georgia 30306 Chapel Hill, North Carolina 27599 
(404) 898-2060 (919) 962-8516 

ATTORNEYS FOR PETITIONER 

20 

 



  

CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing has been 

furnished by mail to Mary Beth Westmoreland, Esq., counsel for 

Respondent, Office of the Attorney General, 132 State Judicial 

Building, 40 Capitol Square, S.W., Atlanta, Georgia 30334. 

This day of July, 1991. 

  
ATTORNEY FOR PETITIONER 

2x 

 



    

vot re . eo Nk — “» “a : 

EAE Le Jo RiSE 2 AGI X, EAs I TLR TS oF :. 

  

Cae EH rd yar SORA “ust go ABA: 

In the Supreme Court of Georgia 

Decided: JUN 2 § 1991 

£91A0524., NELSON v. ZANT, WARDEN. 

AFTL, Justice. 

" Gary Nelson appeals from the denial of his petition for writ 

of babeds corpus. Nelson's conviotien and dealh =entence 

originally were affirmed by this court on dircot appeal in Nelson 

v. stata, 247 Ga. 172 (274 SE2d 317) (1vsl). As noted in Lhe 

opinlon, the conviction was based upon circumstantial ovidence: 

A ten-year-old friend of the viotim saw the victim at Nelson's 

rccidence shortly before the vietim was murdered; a hair round on 

the victim was consistent with that of Neleon; a knife oun near 

the scene could have been in Nelkon's possession. Soon after our 

original afzirmanoc, Nelson filed a slate hahaas corpus potitien. 

In Count one ot his petition, Nelson contended the evidence vas . 

not sufficient to support the conviction. The habeas court 

severed Count one, ‘ruling that a hearing would be held on count 

One only znd that Nalson wes relieved from any responsibility to 

conduct discovery or otherwise prepare tor trial en any of the 

other isgues. Following a hearing, the habeas esust grantes, 

rel lef on count one. The state ‘appealed, ‘and we ‘reversed, 

“holding thal the evidence vas, ‘Buficlent | 30 rupport the g 

conviction. . gant 'v. Nelson, 250 Ga. - 153 (396 or2d 590)" RECEIVE 3 
Seve 

we remanded the case te the habeas court. ror Fesolution of, “the 3 

  

L \d . . . v. ey v Te : 
oS . . a . : PRP, SRT Tae ol ime Vv . vee . * v , Tae a 

S03 NOS I Leena) a Wd3E ga 12 51 ni 

LEN Ye 

JUI FN, ¥1 YE ve to UUs r.uL 

pe 

  



“aun e901 14: 0 og ous P.O 

remaining icsues. The matter finally wae heard on August 1», 

'198¥. The day bcfore the hearing, Nelson filed an amended 

petition, fleshing out previous claims and adding Ral ones based, 

according to Nelson, an matters lcarned only as a consequence of 

the lengthy discovery process. The state objected tn the 

amendments to the petition, and the habeas court refused to 

consider then. After ‘hearing, the ‘court denicd relief. We 

reverse the court’g retusal to consider the amendments and denial 

of relief. 

1. In Johnson v. Caldwell, 2329 Ca. 548 (192 srka2a $00) 

(1972), thic court held: 

that tha Civil Practice Act [presently codified at OCGA 
§§ 9-11-1 through 9-11-1322) applies to habeas corpus 
proceedings insofar as’ questions arise therein 
regarding the sufficiency of pleadings, the 
admissibility or evidence under the petition ax arawn, 
amencime , and those other elements of pleading 
and practice enumerated in § 81 of the Act as ancnded. 
(Id. at S552. (Emphasis supplied.)) 

We have continued to adhere to our decision in Johnsen wv. 

caldwell, supra, observing in gilec v. Ford, 258 Ga. 245 (1) (368 

552d 318) (1988), that, in habeas corpus proccedings, “ithe CFA 

governs the eugficioncy of pleadings, adwmiscibility of ovidsice 

‘under the petition ne ‘drawn end auengdments to the petition,” 

(Emphasis supplied.) 

Accordingly, the cra governs whether ox not Nelson's mended 

Petition should have baen allowed and considered. ; 

2. The state contends Nelson lost hic ¥ight - te amend tna i 

petition,” rateing eccentially two grounds: (=) there vas ‘a’ % 

hearing on Count iii of the petition that resulted An, a “final 
. v . . . 

wr for of oe : a Ts . 
. Se. . * - , 

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. ' on s : ; me ean ry 

i . LET NOT Ch TRL MF, 1 SE BRT 11 2 MI TSR RS PUI SOIR SEFC FRE OER, 1 J 

AR ER LA weigh ARERR ERR AR ode OUCRIRURE I 
Sx a ER w! Sle] Jun 25.91 14:09 Wn 202 v.04 

\ 

judgment, i.a., the grant of habeas xeller "in ite entircty,™ and 

(b) the amendment was filed almest eight years after the original 

petition was filed. : 

Thc CPA provides that a party "may amend his pleading as a 

matter ©f cource and without leave of court at any time befoure 

entry of a pretrial order.” OCGA § 9-11-18 (a). Aboent a 

pretrial order, this "unfettered right to amend" cemses only when 

the trial begins. Jackson v. paces Ferry Dodge, Inc., 183 Ga. 

App. 502, 503 (359 SE2d 412) (1987). 

In thie case, the habeas Judye Aid hear and dlepose of Count 

One of the petition, but specifically reserved all other iesucs, 

stating in his written order of February 25, 1982: : 

(da) Pending further order of Court, counsel for the 
petitioner and counsel for the respondent are hereby 
rclieved from the obligation of conducting any 
discovery or otharwise preparing for a hearing on the 
parite of petitioner's clajms for relief undar Counts 
Two through Twenty of his petition for writ of haboas 
corpus; 4: tho Court denles pelitioner's claim for 
relief under Count One or the petition, the Court will 
allow the parties a ycasonable time tn conduct 
discovery and otherwise prepave for a heaxing on 
petitioner's claims for reliez under Counts Two through 
Twenty. cv ! ; : : ihe 

Since the order granting relief on Counl One was ravereed on 

appeal, all the other iesuec remained “still pending and Nelson 

was entitled to amend his petition as of right at any tine before 

the hearing on these remaining issues. Stokes ¥, Otokes, 246 Ga. 

765 (1) (373 SE24 169) (1980); Priue v. Price, 243 Ca. 4, 5 (252 
sE2a 402) (1979): Ellinaton v.. uot M308 
App. 218 (235 SE24 729) (3977). 

   

    
SNOWTE NOSKIN INGNNANOE WdSE 160° 16. S2 NIL © 

AL ne 3.48 Ra) DO TL TR Eo ER Ty a 
EI



EET Jun 25.91 14:10 Np .D02 P.OS 

  

While we do not approve of the eight-year delay that 

occurred between filing the petition and the amendment, we cannot 

accept the state's implication that Nelson is solely responsible 

for the delay. Moreovaxr, delay in and of itself is not a 

justification for refusing to consider an amendment to a 

petition, so long as it precedes both the hearing on the issues 

and the entry of a pretrial order, which either party may insist 

on. See Smith _v, Davis, 121 Ga. App. 704 (175 SE24 28) (1970), 

and § 9-11-16 (pretrial conference and order mandatory if sought 

by either party). 

. : The habeas court erred by refusing to consider Nelson's 

amended petition. ; Te 

3, It is not necessary that we remand this case to the 

habeas court for consideration of the amended petition, however. 

Nelson is entitled to relief based on his original petition ana 

the evidence considered by the court. 

As we have twice noted, the evidence in this case was 

circumstantial. Zant v. Nelson. Supra, 250 Ga.; Nelson V. State, . 

supra, 247 Ga. a critical item of evidence was a hair found on 

the victin's body. According to testimony by the ‘state's expert 

ities, the hair not only could have come from Nelson, it could ..- 

only h&Ve come from about 120 people in the entire Savannah area. 

Unknown to the defense at the original trial, the hair 

“sample had ‘been examined not just by the expext who testified for 

the state at trial but also by the FBI. crime laboratory. Rh FBI 

concluded, in a report dated April 5, 1978, that the state? 5 s pair 

= 3 ¢ : 
CRETY 

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8.8" 2a : JONI HOSKIM LNHNNANOE KAZE :€0 16. S2 HNL 
ov i . 

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rip Tune 2S TRITAYIO THETGUE 063 
pe : yb RE 

A) 

sample "is not suitable for significant comparison purposes.® 

The FBI supervisor who approved this report (then the unit chief 

of the Microscopic Analysis Unit of the FBI taVoratory in 

washington, D.C.) explained in this habeas proceeding that limb 

hairs are unsuitable for comparison purposes. Limb hairs, he 

testified, in contrast to head hairs and pubic hairs %¥lack 

. sufficient individual microscopic characteristics to be used fox 

significant comparison purposes, * and "are so fine and small" 

that they are unsuitable ‘either to include or to exclude a 

     
      
         

           
    
    
         
        

   

particular individual as the source of the hair. He testified: 

The state of the art of limb hair comparisons, both at 
the time of trial and today, simply does not support . 
« « [the) attempt [of the state's witness] to associate 
the limb hair found on the victim with Mr. Nelson. 

* 
0.
 

. 

The state concedes that the FBI's report and conclusions f 

were in the prosecutor's file and does not contend that the 

report was unknown to the prosecutor at the time of the trial. 

However, the state points out that it is obliged only to disclose 

see PBrady Vv. Marviand, 373 VU. 8. 83 

10 LE2d 21S) (1963), and contends the nondisclosed 
    evidence that is material, 

    (83 SC 1194, 

FBI report is not "material" because it "does not establish" that 

  

      
      

  

the state's expert witness was incorrect, but simply that two 

experts disagree about the value of a comparison that is not 

conclusive in any event. 

In another case wa might agree. In this case, the hair     
           comparison testinony at trial was an important circumstance in a : 

‘See Zant v 2 Ne 1son, 

at 154-55 (summarizing the evidence supporting the verdict). 

          
        

circumstantial-svidence’ case. supra, 250 fo ok 

   

  

. Ne SE LR oe Gs. 
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crm e te EEE (had ott re MPS" veg. ap Sas 2 ak EL ae bo af BAER Eh FSC PERT 

COURT OF APPEALS aT 07 Jun 25,91 14:11 Ho.002 Poo? ck 
\ 

the FBI report had not been suppressed, Nelson could have 

countered the state's hair-comparison testimony with credible 

expert testimony that the limb hair at issue was unsuitable for 

comparison purposes and had no probative value at all. We think 

there is a reasonable probability that if the jury had been 

exposed to such rebuttal testimony, the Fesult of the proceeding 

would have been different. | 

[E]vidence favorable to the accused . . . is material 
only if there is a reasonable probability that, had the 
evidence been disclosed to the defense, the result of 
the proceeding would have been different. A 
"reasonable probability" is a probability sufficient te 

" undermine confidence in the outcome. [U Ba 
473 U, 6. 667, 682 (105 SC 3375, 87 LE2d 481) (1985).) 

~ Although the jury in this case might have arrived at the 

same verdict {if the state had not suppressed this critical 

evidence, we find there is a reasonable probability that the jury 

would have not done so. We conclude that the FBI report was 

material and that the state's suppression of the report denied 

Nelson a fair trial. 

eT Nelson also contends that the prosecutor suppressed 

evidence that another person had confessed to the cringe, 

suppressed prior Statements by the witness who saw the victim and 

the defendant together shortly before the crime,l and suppressed 
  

1 This witness was unable to identify Nelson in court; in 
fact, she testified he was not the man she saw with the victim. 
However, she had identified Nelson before trial from a 
photographic display, and she testified at trial that the 

. photograph she had selected was that of the man she saw the 
victim with soon before the crime occurred. A police officer 
testified that she had "readily identified" the defendant's 
photograph as that of the man she had seen with the victim. 
Belson contends - “the transoript ~of the officer's pretrial Ee, 

    

yore, . 
® 9° va, ’ 2a Tahir TyY 
Ve Vem (me sels, AL



  

    

  

   

  

    

  

   

   

  

    
   

   
    

COURT OF AFPEALS Jun 25,91 14:11 No.002 P.0S 

\ 

prior statements by the defense witness who testified he could 

not identify the Xknife found seventeen feet from the body.? 

Bince Nelson is entitled to habeas relief on other grounds and 

- gince he now has been provided this {information prior to any 

retrial of the case, these claims and all remaining claims axe 

moot 3 | | 

ps Jude ver stices CoO . 

  

interview of this witness ~- which was not furnished to him until 
after the trial was over =- contradicts the officer's trial 
testimony that she "readily identified" the defendant's 
photograph. In addition he contends the undisclosed transcript 
shows the witness had returned to her home before 7:00 p.m., 
while statements from other witnesses (also not provided to 
Nelson until after trial) show that the victim was seen alive 
after 7:00 p.m. at a heighborhiood store. : 

2 The state called a police officer who testified in 
rebuttal that the witness had stated he "possib[ly)" could 
identify the knife if there was a “toothpick” in it. The officer 
testified that he thereafter opened the knife and discovered it 
had a "toothpick" in it. Nelson contends that the transcript of 
the officer's pretrial interview of this witness, which was not 
provided to him until after this habeas proceeding began, 
contradicts the officer's testimony. 

trial counsel was ineffective. His trial counsel has &inoe been 
disbarred and now resides in New York. : sea, 

. ¢ sie . . 

cr U1 Taf hi me a Bet tind 

3 Included in these claims is 8 contention that Nelson's . 

   



  

Draft 7/25/91 

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

WARREN McCLESKEY, * CIVIL ACTION NO. 

Petitioner, * 91-V=-3669 
* 

VS. %* 

WALTER D. ZANT, Warden, 

Georgia Diagnostic & 
Classification Center, 

Respondent. 

HABEAS CORPUS 

* 
% 

* 
* 

PETITIONER’S MEMORANDUM OF LAW 

IN OPPOSITION TO RESPONDENT’S MOTION TO DISMISS 

COMES NOW petitioner Warren McCleskey, by his undersigned 

counsel, and files this memorandum of law in opposition to 

respondent's Motion to Dismiss, dated July 5, 1991. As we will 

demonstrate, respondent's motion is legally insufficient and 

should be denied, for three reasons: 

(i) First, as a matter of law, respondent relies on 

principles of res judicata that do not avail him. Under settled 
  

Supreme Court precedent, see, e.g. Smith v. Zant, 250 Ga. 645, 
  

  

652, 301 S.E.24 32, 37 (1983); cf. Nelson v., Zant, Ga. (No. 

91A0524)_ the law of res judicata has no application to this 
  

case. Petitioner's constitutional claim is based on newly 

available evidence that was withheld from him by State actors at 

the time of his previous applications. The Supreme Court's has 

unmistakably affirmed the right of an applicant to bring forward 

such a claim, even on a successive application: 

The defendant has a right to rely on the accuracy of 
the trial testimony of the state's witness where the 

 



  

truth or falsity of his testimony is peculiarly within 
the knowledge of the state and the state is under a 
duty to reveal false testimony. Thus, we find 
unpersuasive the state's argument that the defendant 
should have discovered the state's breach of duty. 

Smith v. Zant, 250 Ga, at 652, 
  

(ii) Second, respondent's motion to dismiss depends on 

factual grounds that are irrelevant or untimely. Respondent's 

twin factual arguments appear to be (a) that petitioner's 

evidence is not "newly available," but was instead readily 

discoverable in 1987 or earlier, and (b) that the totality of 

petitioners's evidence does not suffice to prove a violation of 

Massiah v. United States, 377 U.S. 201 (1964). 
  

As to respondent's first argument, Smith v. Zant establishes 
  

petitioner's burden of proof under 0.C.G.A. § 9-14-51: that 

burden is met by petitioner's well-pleaded allegations that State 

officials, although aware of the underlying misconduct petitioner 

now complains of, failed to reveal it at trial. Respondent's 

second factual argument -- that the record facts do not suffice 

make out a Massiah violation -- goes directly to the merits of 

petitioner's claim. Georgia law is clear that motions to dismiss 

are not the proper vehicle for resolution of the merits. If 

petitioner's well-pleaded allegations =-- supported by sworn 

transcripts and affidavits -- prove to be true, he has uncovered 

a classic violation of Massiah and United States v. Henry, 447 
  

U.S. 264 (1980) and is entitled to relief. A final decision on 

these issues must abide the development of a full factual record. 

(iii) Finally, respondent's claim that any Massiah claim 

 



  

was "harmless error" likewise depends upon this Court's 

consideration of a full factual record that has not yet been 

placed before the Court. What is clear, at present, is that 

United States District Judge J. Owen Forrester -- the only judge 

who has ever heard the relevant witnesses -- found that 

[o]nce the fact of the Massiah violation in this case 
is accepted, it is not possible to find that the error 
was harmless. A review of the evidence presented at 
the petitioner's trial reveals that [informant Offie] 
Evans' testimony about the petitioner's incriminating 
statements was critical to the state's case. There 
were no witnesses to the shooting and the murder weapon 
was never found. The bulk of the state's case against 
the petitioner was three pronged: (1) evidence that 
petitioner carried a particular gun on the day of the 
robbery that most likely fired the fatal bullets; (2) 
testimony by co-defendant Ben Wright that petitioner 
pulled the trigger; and (3) Evans' testimony about 
petitioner's incriminating statements. As petitioner 
points out, the evidence on petitioner's possession of 
the gun in question was conflicting and the testimony 
of Ben Wright was obviously impeachable. . . . Because 
the court cannot say, beyond a reasonable doubt, that 
the jury would have convicted petitioner without Evans' 
testimony about petitioner's incriminating statements, 
petitioner's conviction for the murder of Officer 
Schlatt must be reversed pending a new trial. 

St. Hab, Pet., Exh. D, 29-31. 

In addition, sworn affidavits from two of McCleskey's twelve 

trial now confirm Judge Forrester's finding. These jurors aver 

without hesitation: that Offie Evans was the key witness to the 

identity of the murderer; that the jury's based its death 

sentence largely on Evans' testimony; that the jury's reliance on 

Evans stemmed from his apparent role as a disinterested witness; 

that, had Offie Evans' secret relations with the police been 

disclosed, at least two jurors would never have voted to convict 

McCleskey of malice murder; and that, moreover, these jurors 

3 

 



  

would have held fast against imposition of a death sentence. 

Given this sworn testimony from the jurors themselves, there is 

no need to rely on second-hand speculations from persons who 

weren't there: jurors who heard and decided the case assure us 

that the State's use of Evans' testimony, far from "harmless 

error," was the master stroke that sent McCleskey to Death Row. 

I. 

SINCE STATE ACTORS WITHHELD CRUCIAL EVIDENCE 
OF THEIR OWN UNCONSTITUTIONAL CONDUCT, 
PREJUDICIAL TO PETITIONER’S TRIAL, THE 
CONTROLLING GEORGIA PRECEDENTS REQUIRES THIS 
COURT TO HEAR PETITIONER’S PRESENT CHALLENGE 
ON ITS MERITS =-- DESPITE HIS PRIOR 
APPLICATIONS AND WITHOUT ANY RES JUDICATA BAR 

  

Respondent's principal legal argument is straightforward: 

"[U]lnder the principles of res judicata, this Court should 
  

decline to review [petitioner's] issue." (Resp. Br. 1). At 

first glance, the controlling statute, 0.C.G.A. § 9-14-51, 

appears to support the argument. It provides: 

All grounds for relief claimed by a petitioner for a 
writ of habeas corpus shall be raised by a petitioner 
in his original or amended petition. Any grounds not so 
raised are waived. . . 

However, the statute does not stop with a general 

declaration of waiver. It goes on to create two important 

exceptions to the general rule: 

  

! Each reference to respondent's Motion to Dismiss and 
Brief in Support, dated July 5, 1991, will be indicated by the 
abbreviation "Resp. Br." followed by the number of the page on 
which the reference may be found. 

4 

 



  

[i] unless the Constitution of the United States or of 
this state otherwise requires or [ii] unless any judge 
to whom the petition is assigned, on considering a 
subsequent petition, finds grounds for relief asserted 
therein which could not reasonably have been raised in 
the original or amended petition. 

The meaning of the second exception -- which requires a 

state habeas court to entertain the merits of any claim "which 

could not reasonably have been raised" -- was authoritatively 

interpreted by the Supreme Court of Georgia in 1983, in Smith v. 
  

Zant, 250 Ga. 645, 301 S.,E. 24 32 (1983). The precise 

circumstances in Smith bear close examination by this Court, 

since they are nearly identical to those at issue here. 

John Eldon Smith, a death-sentenced Georgia inmate, 

unsuccessfully sought state habeas corpus relief in 1977. Six 

years later, in 1983, Smith returned to the state habeas courts 

and asserted additional constitutional claims, including a claim 

based upon newly discovered evidence. He alleged that the 

prosecuting attorney and a key State witness had made a deal, in 

alleged violation of Giglio v. United States, 405 U.S. 150 (1972) 
  

and Napue v., Illinois, 360 U.S. 264 (1959). _See Smith v. Zant, 
    

250 Ga. at 645-646; id. at 650.7 

Although Smith's 1983 petition was summarily dismissed by 

the Superior Court, the Georgia Supreme Court granted Smith's 

application for a certificate of probable cause. Following oral 

  

2 smith had alleged in his second application that, in 
1982, the defense team had obtained an admission from the 
attorney who prosecuted Smith's case that he had failed to 
disclose a pre-trial promise of leniency made to a key State's 
witness. The witness had denied, during cross-examination at 
trial, any such relationship. Smith v. Zant, 250 Ga. at. 

  

5 

 



  

argument, the Supreme Court affirmed the dismissal of most of 

Smith's claims under 0.C.G.A. § 9-14-51. 1d., 250 Ga. at 646. 

However, Chief Justice Hill, writing for a unanimous Court, 

remanded Smith's claims under Giglio and Napue for a full hearing 

on their merits. 

In granting Smith a full hearing, the Court brushed aside 

the State's defense -- the same defense now asserted by the State 

in McCleskey's case -- that Smith's defense attorneys should have 

uncovered any alleged State misconduct earlier. The Court's 

analysis is quoted in full: 

The state did not meet petitioner's false 
testimony claim on its merits, but defended 
on the ground of waiver, contending that, 
with due diligence, the defense could have 
ascertained the necessary information, and 
thus that the grounds for relief could 
"reasonably have been raised in the original 
or amended petition." OCGA § 9-14-51 (Code 
Ann. § 50-127), supra. The state urges that 
when, shortly after the trials, [the State's 
witness] in fact pleaded guilty in exchange 
for a life sentence, Smith and his lawyers 
should have made further inquiry of [the 
witness] and his attorney. This was not 
done. Nor has the state shown that [the 
State's witness] would have admitted his 
alleged perjury had he been asked by defense 
counsel. 

The state's argument overlooks the thrust of 
Nabue v. Illinois . . . and Giglio v, United 
States. It is not so much that [the State's 
witness] testified falsely, but that the 
state, by allowing this knowingly false 
statement to stand uncorrected deprived the 
defendant of a fair trial. Since the 
prosecution has the constitutional duty to 
reveal at trial that false testimony has been 

given by its witness, it cannot, by failing 
in this duty, shift the burden to discover 
the misrepresentation after trial to the 
defense. The defendant has a right to rely 

    

  

  

  

  

  

  

  

6 

 



  

on the accuracy of the trial testimony of the 

state's witness where the truth or falsity of 
his testimony is peculiarly within the 
knowledge of the state and the state is under 

a duty to reveal false testimony. Thus, we 

find unpersuasive the state's argument that 
the defendant should have discovered the 

state's breach of duty. As was said in 
Williams v. State, 250 Ga. 463 at 466, 298 
S.E. 24 492 (1983): "The state urges that 
the defendant should have done more than he 

did to protect himself. We find that the 
state should have done more than it did to 

protect the defendant's rights." See also 
Price v. Johnston, 334 U.S. 266 (1948). 

  

  

  

  

  

  

  

  

  

  

We, therefore, hold that Smith has alleged 
facts, supported by affidavits, sufficient to 
satisfy the requirements of OCGA § 9-14-51 
(Code Ann. § 50-127), to entitle him to a 
hearing on the merits of his false testimony 
claim; i.e., petitioner has shown grounds for 
relief which could not reasonably have been 
raised in his original habeas petition. The 
habeas court erred in dismissing Smith's 
Napue-Giglio claim, and we remand this case 
for a hearing on the merits of this issue. 

Smith v. Zant, 250 Ga. at 651-652. (Emphasis added). 
  

Petitioner McCleskey's present habeas petition, like John 

Smith's successive petition, depends upon a prior State cover-up 

of an unconstitutional conspiracy. Specifically, McCleskey has 

proof that Atlanta police officers conspired with a jailhouse 

informant, Offie Evans, to procure incriminating admissions from 

McCleskey. The conspiracy was successful: Evans spoke with 

McCleskey and, called by the State as a key witness against 

petitioner McCleskey during his 1978 trial, Evans used the 

purported fruits of his secret interrogation to name McCleskey as 

 



  

the triggerman in the crime. (See St. Hab. Pet. qq 32-37.)° 

Atlanta police officers, indisputably part of the State's 

prosecutorial team, were obligated to disclose their misconduct 

to the defense.’ Instead, they lied, and permitted Evans to lie, 

in order to obtain McCleskey's conviction. 

The teaching of Smith v. Zant is that McCleskey and his 
  

counsel were entitled to presume that State witnesses told the 

  

® Each reference to the Petition for a Writ of Habeas 

" Corpus, filed by petitioner as an appendix to his Application for 
a Writ of Habeas Corpus, dated June 13, 1991, will be indicated 
by the abbreviation "St. Hab. Pet." followed by the number of the 
page on which the reference will be found. 

4% The United States Supreme Court has traditionally 
imputed the misconduct of any member of the prosecution team to 
the State itself. See, e.g., Mooney v. Holohan, 294 U. S. 103 
(1935): Brady v. United States, 373 U.8., 83 (1963). The good 
faith of some State actors cannot excuse the bad faith of others. 
Especially is this true when Sixth Amendment claims are under 
consideration. As Justice Stevens explained in Michigan v. 
Jackson, 475 U., 8S. 625, 634 (1986), 

Sixth Amendment principles require that we impute the 
State's knowledge from one state actor to another. For the 
Sixth Amendment concerns the confrontation between the State 
and the individual. 

  

  

  

See also Giglio v. United States, 405 U. S. 150, 154 (1972); 
Santobello v. New York, 404 U.S, 257, 262 (1971); Cf. United 
States v. Bagley, 473 U. S. 667, 671 & n.4 (1986). 

The lower federal courts have regularly applied this rule to 
police misconduct of the sort at issue here. See, e.q., Freeman 
Vv. State of Georgia, 599 F.2d 65, 69-70 (5th Cir. 1979) ("We feel 
that when an investigating police officer willfully and 
intentionally conceals material information, regardless of his 
motivation and the otherwise proper conduct of the state 
attorney, the policeman's conduct must be imputed to the state as 
part of the prosecution team"); Barbee v. Warden, 331 F.2d 842 
(4th Cir. 1964) ("The police are also part of the prosecution, 
and the taint on the trial is no less if they, rather than the 
State's Attorney, were guilty of the nondisclosure. . . ."); 
Schneider v. Estelle, 552 F.2d 593 (5th Cir. 1971); Jackson V. 
Kainwright, 390 F.2d 288, 296 (5th Cir. 1968): Curran Vv. State of 
Delaware, 259 F.2d 707, 713 .(34 Cir. 1958). 

  

  

  

  

  

  

  
  

  
  

  

8 

 



  

truth; moreover, they were entitled to rely upon the express 

assurance by the prosecutor that no illegal informant 

relationship marred the State's case. The prosecutor gave such 

an express assurance in this case, in 1981, during a deposition 

later admitted into evidence during petitioner's initial state 

habeas proceedings in this Court: 

Q. [Defense Counsel]: Okay. Were you aware at the time of 
the trial of any understandings between Evans and any 
Atlanta police department detectives regarding favorable 
recommendation [sic] to be made on his federal escape charge 
if he would cooperate with this matter? 

A. [Assistant District Attorney]: No, sir. 

Q. Let me ask the question another way to make sure we 
are clear. Are you today aware of any understanding 
between any Atlanta police department detectives and 
Offie Evans? 

A. No, sir, I'm not aware of any. 

(Parker Dep., ©°-10). 

On cross-examination, the Assistant District Attorney 

broadened his testimony: 

Q. Do you have any knowledge that Mr. Evans was 
working as an informant for the Atlanta Police or any 
police authorities when he was placed in the Fulton 
County Jail and when he overheard these conversations 
of Mr. McCleskey? 

A. I don't know of any instance that Offie Evans had 
worked for the Atlanta Police Department as an 
informant prior to his overhearing conversations at the 
Fulton County Jail. 

(Parker Dep. 14-15). 

Under Smith v. Zant, petitioner McCleskey presently has two 
  

separate bases for his present entitlement to be heard on the 

merits of his Massiah claim: (i) first, he relied on the State's 

 



  

failure to disclose the Massiah violation when Offie Evans 

testified during petitioner's 1978 trial; and (ii) second, he 

relied on the prosecutor's denial of any Massiah violation during 

his 1981 deposition.’ Together, these misrepresentations, and 

petitioner's justifiable reliance upon them, excuse petitioner's 

failure to have brought forward evidence of State misconduct 

earlier. They squarely meet the terms of 0.C.G.A. § 9-14-51's 

second exception, as interpreted in Smith v. Zant: the "grounds 
  

for relief asserted therein . . . could not reasonably have been 

raised in the original or amended petition." 

II 

THE FACTS ASSERTED BY THE RESPONDENT DO NOT 
ENTITLE HIM TO A DISMISSAL OF PETITIONER'S 
APPLICATION. AT MOST, THEY PRESENT DISPUTED 
ISSUES WHICH CAN BE RESOLVED ONLY AFTER FULL 
CONSIDERATION OF THE MERITS 

As noted above, respondent launches two factual arguments in 

his motion to dismiss. We will treat them in turn. 

A. Respondent’/s Assertion That Petitioner Should 
Have Discovered The State’s Misconduct 
Earlier Is Irrelevant Under Georgia Law. It 
Is Also Factually Incorrect, As The Federal 

District Court Found 

i. The 21-Page Statement -- Respondent begins by 

complaining that "[p]etitioner has failed to establish exactly 

  

> It is, of course, immaterial whether prosecutor Russell 
Parker himself knew about the Massiah violation. As indicated 
above, see note 4, when he spoke, the law imputes to him the 
knowledge of the entire prosecution team, including the 
unquestionably knowledgeable participants in the police 
conspiracy. 

10 

 



  

what newly discovered facts would justify this Court's re- 

litigation of this issue and what facts he contends are newly 

discovered." (Resp. Br. 10). Offie Evans' 21-page written 

statement, given to Atlanta police in August of 1978, is not 

"new," respondent notes; petitioner had uncovered the statement 

(no thanks to the prosecution or the State Attorney General's 

Office) by 1987, when petitioner's second state application was 

filed. (Id.:; see also id. at 12-13). 
  

Petitioner's claim, however, does not depend upon the 21- 

page statement alone, but upon the carefully concealed story of 

the Massiah violation which first came tumbling out of the mouths 

of various witnesses, inadvertently, during a federal evidentiary 

hearing in July of 1987 -- only after McCleskey's second state 
  

application had been summarily dismissed. 

2. The Police Witnesses -- Turning to these witnesses, 

respondent bundles together a handful of half-truths and 

misrepresentations by insisting that "all . . . were readily 

available at any time to testify." (Resp. Br. 10). First, while 

the police officers involved in the conspiracy -- Sidney Dorsey 

and, perhaps, Welcome Harris =-- were doubtless "available" in 

1987, petitioner did actively seek a state habeas hearing to put 

them under oath. By summarily granting the State's 1987 motion 

to dismiss, this Court deprived petitioner any meaningful 

opportunity to obtain their testimony. 

More important, as Judge Forrester found after listening to 

their testimony in federal court, these police witnesses in 1987 

11 

 



  

were actively covering up the Massiah violation and their own 

involvement in it: "Unfortunately, one or more of those 

investigating Officer Schlatt's murder stepped out of line. 

Determined to avenge his death the investigator(s) violated 

clearly-established case law." (St. Hab. Pet., Exh. D, 31). 

"Detective Dorsey," Judge Forrester observed, had an obvious 

interest in concealing any [Massiah] arrangement" (St. Hab. 

Pet., Exh. E, 10); and this "complicated scheme . . . required 

Evans and any officers involved to lie and lie well about the 

circumstances." (St. Hab. Pet. 21). 

For these reasons, Judge Forrester rejected any possibility 

that petitioner could have obtained proof of the Massiah 

violation by means of an informal interview with Detective Dorsey 

or the other detectives: 

The state argues that petitioner's counsel should have 
at least interviewed Detectives Harris and Dorsey and 
Deputy Hamilton. Given that all three denied any 
knowledge of [the details of the conspiracy to violate 
Massiah] . . « it is difficult to see how conducting 
such interviews would have allowed petitioner to assert 
this claim any earlier. 

(St. Hab. Pet., Exh. 25). 

3. Offie Evans -- Respondent also faults McCleskey's 

counsel for alleged failure to interrogate Offie Evans: "Mr. 

Evans . . . testified before this Court in 1981, but was not 

asked whether he had been moved or placed in a jail cell as an 

agent for the State. Thus, Petitioner simply failed to pursue 

that line of questioning." (Resp. Br. 11). Respondent's 

assertion is false. Defense counsel Stroup pursued an entire 

12 

 



  

line of questioning on these issues, asking Offie Evans under 

oath when he had been placed in solitary confinement at the 

Fulton County Jail (1987 St. Hab. Tr. 116), whether there was a 

"special reason" he had been put into solitary confinement (id. 

116-117), whether he had been placed adjacent to the cell of 

Warren McCleskey (id. 117), the identity of the investigators and 

police officers who had spoken with him, when those conversations 

with police had occurred (id. 117-118), whether he had been 

promised anything in exchange for his testimony against Mr. 

McCleskey (id., 122), and whether he had subsequently given 

testimony against any other inmates in other cases. (Id. 126- 

127). 

Informant Evans, in response, never disclosed that he had 

been moved from another cell to the cell adjacent to McCleskey's, 

or that he had been asked by Atlanta detectives secretly to 

interrogate Mr. McCleskey, or that he had agreed to do so, or 

that he had given a 21-page written statement to Atlanta 

investigators. 

4. Ulysses Worthy -- Finally, respondent faults petitioner 

for not locating jailor Ulysses Worthy prior to McCleskey's 1987 

state habeas application. During the 1987 federal hearing, 

Worthy -- a retired jailor at the Fulton County Jail -- proved a 

key witness to the Massiah violation. Jailor Worthy testified 

that he had overheard Atlanta police detectives as they met with 

informant Offie Evans in Worthy's office at the jail, during July 

of 1978. In Worthy's presence, the officers coached Evans only 

13 

 



  

his secret interrogation of McCleskey. Jailor Worthy testified 

that, during the meeting, Detective Sidney Dorsey (or perhaps 

another "officer on the case") "asked Mr. Evans to engage in 

conversations with McCleskey who was being held in the jail," 

and, to facilitate Evans' questioning, requested jailor Worthy to 

move Evans from another part of the jail to a cell next to 

McCleskey. Judge Forrester himself questioned jailor Worthy on 

the essential points: 

THE COURT: But you're satisfied that those three things 
happened, that they asked to have him put 
next to McCleskey, that they asked him to 
overhear McCleskey, and that they asked him 
to question McCleskey. 

THE WITNESS: I was asked can -- to be placed near 
McCleskey's cell, I was asked. 

THE COURT: And you're satisfied that Evans was asked to 
overhear McCleskey talk about this case? 

THE WITNESS: Yes, sir. 

THE COURT: And that he was asked to kind of try to draw 
him out a little bit about it? 

THE WITNESS: Get some information from him. 

Judge Forrester ultimately found that "one or more of those 

[who were] investigating Officer Schlatt's murder" (St. Hab. 

Pet., Exh. D, 31) requested Captain Ulysses Worthy to move 

informant Evans to the cell adjacent to Mr. McCleskey. Next, the 

officers instructed informant Evans to "get some information" 

from Mr. McCleskey about Officer Schlatt's homicide (St. Hab. 

Pet., Bh. D, 21-23): 

[Evans] was moved, pursuant to a request approved by 
Worthy, to the adjoining cell for the purpose of 
gathering incriminating information; Evans was probably 

14 

 



  

coached in how to approach McCleskey and given critical 
facts unknown to the general public; Evans engaged 
McCleskey in conversation and eavesdropped on 
McCleskey's conversations with [co-defendant Bernard] 
DuPree; and Evans reported what he had heard . . . to 
Assistant District Attorney Parker. . . . 

(St. Hab. Pet., Fuh. D, 23).° 

Respondent suggests that, in light of Worthy's potentially 

explosive testimony, McCleskey should now be faulted for failure 

to have called him earlier: 

Detective Harris freely mentioned the name of Captain 
Ulysses Worthy when asked in the federal district court 
proceeding. Petitioner has never indicated that he 
attempted to contact Mr. Worthy or that he was 
prevented from doing so in any fashion. 

(Resp. Br. 11). This suggestion, however, is a triumph of 

hindsight. In 1987, there was no visible thread connecting 

Ulysses Worthy (by then, long-retired as a jailor, working in 

obscurity at Morehouse College) to McCleskey's case. Neither 

  

® In light of these and other comprehensive findings by 
Judge Forrester on all aspects of the Massiah claim, we are 
frankly baffled by respondent's unsupported declaration that 
"there has never been any finding of a coverup or police 
misconduct regarding any statement of Offie Evans." (Resp. Br. 
15). See, e.g. St. Hab. Pet., Exh. D, 21, 23: 
  

[Tlhe use of Evans as McCleskey alleges . . . developed 
into a complicated scheme to violate McCleskey's 
constitutional rights -- its success required Evans and 
any officers involved to lie and lie well about the 
circumstances. . . . Given the facts established 
earlier, petitionr has clearly established a Massiah 
violation here. It is clear from Evans' written 
statement that he did much more than merely engage 
petitioner in conversation about petitioner's crimes. 
As discussed earlier, Evans repeatedly lied to 
petitioner in order to gain his trust and to draw him 
into incriminating statements. Worthy's testimony 
establishes that Evans, in eliciting the incriminating 
statements, was acting as an agent of the state. 

15 

 



  

his name nor his role had ever been mentioned by anyone. He 

played no known role in the police investigation. He had assumed 

no special responsibility for McCleskey, and in 1978, had been 

but one of hundreds of jailors working in the Fulton County Jail 

during McCleskey's incarceration there. 

Only when Detective Harris was cross-examined under oath 

about the 21-page statement of Offie Evans did Worthy's name 

surface. Asked by defense counsel Stroup where the 21l-page 

statement had been taken, Detective Harris grudgingly mentioned 

"a room [at the Fulton County Jail] that was occupied by a 

captain, and I don't think -- he's no longer employed out there, 

I think his name is Worthy." Pressed on whether jailor Worthy 

had been present during the interview, Detective Harris lied: 

"No, sir. I'm sure he wasn't, you know." Suspicious of 

Detective Harris' answer, defense counsel promptly located and 

subpoenaed Worthy. 

After fully considering these circumstances -- both Worthy's 

obscurity and the concerted police effort to hide his role -- 

Judge Forrester concluded that 

counsel's failure to discover . . . Worthy's testimony 
+ +» + Vas not inexcusable neglect. . . . 
Petitioner's counsel represents, and the state has not 
disputed, that counsel did conduct an investigation of 
a possible Massiah claim prior to the first federal 
petition, including interviewing "two or three 
jailers." . +. . The state has made no showing of any 
reason that petitioner or his counsel should have known 
to interview Worthy specifically with regard to the 
Massiah claim. 

(St. Hab. Pet., Exh. D, 25). 

16 

 



  

In sum, McCleskey now comes before this Court with new and 

important evidence obtained since his 1987 state habeas filing. 

This evidence was previously hidden by State actors. It emerged 

only during the federal hearing in 1987. It is decisive of his 

Massiah claim. 

B. A Motion To Dismiss Is An Inappropriate 
Vehicle For Adjudication Of The Merits Of 
Petitioner’s Claim 

Although respondent confesses that "no court actually 

directly reversed the factual findings" of Judge Forrester (Resp. 

Br. 11), he nonetheless draws on a welter of unpersuasive 

authorities to urges this Court to re-determine the merits of the 

Massiah claim -- on this preliminary motion -- prior to 

consideration of the full factual record. As justification, he 

points to "numerous comments" from the majority opinion of the 

Supreme Court of the United States (Resp. Br. 12-14), which, he 

implies, somehow tacitly undermine the facts found by the 

District Court on the Massiah claim. Much of the Supreme Court's 

dicta to which respondent points, on closer examination, proves 

relevant not to the merits, but to that Court's application of 

its new, strict "cause" and "prejudice" inquiry announced in 

McCleskey's case. 

Respondent also prematurely (i) solicits a judgment by this 

Court that "certain findings by the district court are obviously 

clearly erroneous," and (ii) denies that "there has been [any] 

showing that the testimony of Offie Evans was unreliable or 

false." (Resp. Br. 15-16). This Court's determination of whether 

17 

 



  

factual findings are "clearly erroneous," however, is plainly an 

inappropriate inquiry on a motion to dismiss. As to respondent's 

second point, his assurances about Offie Evans' credibility, 

petitioner is content at present simply to juxtapose Judge 

Forrester's factual findings: 

The credibility or believability problems with [Evans'] 
testimony are evident. He has a strong motivation for 
saying he was not an informant . . . . The numerous 
contradictions within his deposition also lead the 
court to the conclusion that his testimony would not be 
believable. . . Evans' testimony is not likely to 
change the credibility of Worthy's testimony or the 
fact that petitioner showed by a preponderance of the 
evidence that a Massiah violation occurred. 

(St. Hab. Pet., Exh. D, 9-10). 

Respondent's final factual argument attempts to make capital 

of certain contrary findings on a Massiah claim, rendered by 

another federal court during another habeas proceeding, involving 

one of McCleskey's co-defendants. (See Resp. Br. 10, 15). This 

lame effort turns all known principles of collateral estoppel on 

their head: surely McCleskey is entitled to rely on prior 

factual findings made in his own case, with the State present as 
  

fully capable adversary; he is not bound by findings made in 

      

another courtroom, in another case, to which he was not a party. 

11X 

THE STATE’S USE OF OFFIE EVANS’ TESTIMONY =-- AS 
DISTRICT JUDGE OWEN FORRESTER EXPRESSLY FOUND, AND AS 
AFFIDAVITS FROM TWO OF PETITIONER’S TWELVE TRIAL JURORS 
NOW ESTABLISH IRREFUTABLY -- WAS NOT “HARMLESS ERROR” 

18 

 



  

Respondent's last basis for dismissal relies on a "harmless 

error" holding, rendered as an alternative ground by a panel of 

the United States Court of Appeals; this principal ground on 

which that court reversed the judgment of Judge Owen Forrester 

was that McCleskey's habeas application should have been deemed 

an "abuse of the writ." See McCleskey v. Zant, 890 F.2d 342, 

346, 381 (11th Cir. 1989). 

CONCLUSION 

Respectfully submitted, 

  

Robert H. Stroup 
141 Walton Street 
Atlanta, Georgia 30303 
(404) 522-8500 

Mark E. Olive John Charles Boger 
Georgia Resource Center University of North Carolina 
920 Ponce de Leon, N.E. School of Law, CB # 3380 
Atlanta, Georgia 30306 Chapel Hill, North Carolina 27599 
(404) 898-2060 (919) 962-8516 

ATTORNEYS FOR PETITIONER 

19 

 



  

CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing has been 

furnished by mail to Mary Beth Westmoreland, Esq., counsel for 

Respondent, Office of the Attorney General, 132 State Judicial 

Building, 40 Capitol Square, S.W., Atlanta, Georgia 30334. 

This day of July, 1991. 

  

ATTORNEY FOR PETITIONER 

20 

 



  

  

B
R
R
 

  

B
R
 

S
R
S
 

  

        

B
y
 

a
s
 

  

218 JANUARY TERM, 1970. (226 

appellant, there was no formal demand or request made upon 

the Governor of Georgia; and the cases of Life Ins. Co. of Ga. 

v. Burke, 219 Ga. 214 (2) (132 SE2d 737); and Guarantee 

Reserve Iafe Ins. Co. of Hammond v. Norms, 219 Ga. 573, 

574 (134 SE2d 774), holding that where a written demand is 

required by statute to subject a party to insurance penalties, 

there must be a demand, are not analogous to this situation. 

The requisition made upon the Governor of Georgia con- 

taining a request for return of the fugitive found in this State, 

who 1s charged with a crime in that State, meets the require- 

ments of the Extradition Act. Code Ann. Ch. 44-4. 

Judgment affirmed. All the Justices concur. 

  

25656. MITCHELL et al. v. DICKEY et al. 

“The complaint states a claim for relief for interference with 
church property rights. 

SUBMITTED FEBRUARY 9, 1970—DECIDED MARCH 5, 1970. 

Injunction. Putnam Superior Court. Before Judge Jackson. 

D. D. Veal, for appellants. 

William A. Rice, for appellees. 

Grice, Justice. This appeal is from the denial of a motion 

to dismiss a complaint with reference to a church controversy. 

Litigation began when Rev. U. G. Dickey and four others filed 

in the Superior Court of Putnam County their complaint against 

Tinch Mitchell, Butler Banks, Terrell Dorsey and Jessie Burke. 

The allegations, insofar as necessary to recite here, may be 

summarized as follows: that the defendants Mitchell, Banks 

and Dorsey in March 1969 created a disturbance during a 

church service; that the defendant Banks in May 1969, after 

a worship service, told the plaintiff Dickey not to return to 

the pulpit unless called by the Board of Deacons; that the 

defendants Banks and Dorsey and two other persons in June 

1969 forced him to leave the church premises without con- 

ducting church services; that the “minority group mentioned 

above” on the first Sunday in July 1969 personally threatened 

his “physical well-being” if he continued to serve as pastor; 
Thr 

ag
 R
E
E
 
G
H
 

 



  

<2 
09 + 

220 MITCHELL v. DICKEY. (226 

In our view the trial court properly denied the motion to 

dismiss the complaint. 

1. At the outset of this review, we are mindful that with 

the advent of the adoption of the Civil Practice Act (Ga. L. 

1966, p. 609; 1967, p. 226; Code Ann. Title 81A) a complaint 

is not required to sct forth a cause of action, but need only set 

forth a claim for relief, and that a complaint is no longer to 

be construed most strongly against the pleader. Code Ann, 

§ 81A-108 (a). Also, see in this connection, Martin v. Approved 

Bancredit Corp., 224 Ga. 550, 551 (163 SE2d 885); Bourn wv. 

Herring, 225 Ga. 67, 70 (166 SIi2d 89); McKinnon v. Neugent, 

225 Ga. 215, 217 (167 SE2d 593); Residential Developments, 

Inc. v. Mann, 225 Ga. 393 (169 SE2d 305); Chancey v. Han- 

cock, 225 Ga. 715 (171 SE2d 302). Furthermore, “A motion 

to dismiss for failure to state a claim should not be granted ° 

unless it appears to a certainty that the plaintiff would be en- 

titled to no relief under any state of facts which could be 

proved in support of his claim. If, within the framework of 

the complaint, evidence may be introduced which will sustain 

a grant of relief to the plaintiff, the complaint is sufficient.” 

2A Moore, Federal Practice 1706, § 8.13. 

2. Measured by the foregoing standards, the complaint’s 

allegations were sufficient to withstand the motion to dismiss. 

They show that the plaintiffs claim to represent the majority of 

members of the church and that property rights are involved. 

(a) The amendment to the complaint expressly alleging that 

the plaintiffs represent the majority of the members of the 

church was filed after the ruling complained of and hence can- 

not be considered. However, although the original complaint 

did not specifically so allege, it is obvious from all of the allega- 

tions taken together that the plaintiffs do purport to represent 

the majority. 

The rule is that “In a church of a congregational form of 

government, a majority of those adhering to its organization 

and doctrines represent the church and have the right to man- 

age its affairs and to control its property for the use and bene- 

fit of such church . . .? Everett v. Jennings, 137 Ga. 253 

(3) (73 SE 375). It will be assumed that the Baptist Church 

   



Ga.) JANUARY TERM, 1970. ; 221 

in controversy is one with a congregational form of government. 

Bates v. Houston, 66 Ga. 198, 201; Stewart v. Jarriel, 206 Ga. 

855 (59 SE2d 368). 
Thus, the plaintiffs are proper persons to bring this action. 

(b) Although courts “will not interfere with the internal 

affairs of a religious organization when no property rights are 

involved” (Gibson v. Singleton, 149 Ga. 502 (1) (101 S10 178)), 

it is well established that where property rights are volved, 

civil courts have jurisdiction. Bates v. Houston, 66 Ga. 198, 

supra; Mack v. Kime, 129 Ga. 1, 18 (58 SE 184); Sapp v. Cal- 

laway, 208 Ga. 805 (69 SIE2d 734). 

While it appears there is disagreement here over whether 

the plaintiff Dickey should continue to serve as pastor, much 

more is involved. According to the complaint, the defendants, 

the minority group, have wrongfully and violently scized the 

church building, taking control and right to its use from the 

majority of the congregation. Thus, property rights are di- 

rectly involved. 
The allegations furnish sufficient grounds for equitable relief. 

See Tucker v. Paulk, 148 Ga. 228 (96 SE 339); White v. Evans, 

181 Ga. 16 (181 SE 153); Sanders v. Edwards, 199 Ga. 266 

¥ at SE2d 167); Sapp v. Callaway, 208 Ga. 805 (2), supra. 

Judgment affirmed. All the Justices concur. 

  

25538. CHRYSLER MOTORS CORPORATION v. DAVIS. 

95574. GLYNN PLYMOUTH, INC. v. DAVIS. 

Where the Court of Appeals holds that certain specified evi- 

dence in negligence cases is insuflicient to show that the 

alleged negligence was the proximate cause of the injuries, 

the further holding by that court that the self-serving dec- 

laration of one since deceased, introduced without objection, 

has probative value, and that together with the other evi- 

dence is sufficient to prove proximate cause, is erroncous In- 

sofar as the self-serving declarations are eoncained, How- 

ever, the Court of Appeals was correct in affirming the trial 

court’s judgment overruling the defendants’ motions for judg- 

ments notwithstanding the mistrial for the reason that there  



   
132 SEPTEMBER TERM, 1979. (244 

  

This did not cause Bovd’s defense to be antagonistic to 
Jones  defenze or to permit the evidence as to Brown's 
confession to be used against Boyd. Division, 1, supra. 
Jones v. State, 243 Ga. 584, supra. 

5. The fifth enumeration of error relates to the 
sufficiency of the evidence to support the verdict. After 
having reviewed the evidence in the light most favorable 
to the prosecution, this court concludes that any rational 
trier of fact could have found the essential elements of the 
crime beyond a reasonable doubt. Jackson v. Virginia, 99 
SC 2781 (Case No. 78-5283. Decided June 28, 1979). 

Judgment affirmed. All the Justices concur. 

SUBMITTED JUNE 11, 1979 — DECIDED SEPTEMBER 6, 1979 . 

Murder. Richmond Superior Court. Before Judge 
Fleming. 

Jack G. Angaran, for appellant. 
Richard E. Allen, District Attorney, Arthur K. 

Bolton, Attorney General, for appellee. 

  

34978. HARDY et al. v. JONES et al. 
259 std 

PER CURIAM. 
This is an appeal from the grant of a motion to set 

aside a default judgment entered after the defendant 
failed to answer the call of the case. The motion to set aside 
was filed within the same term of court. The motion 
alleged that the defendant was present in the courtroom 
when the case was called but did not hear the call because 
of ‘an infirmity in his hearing. 

The trial court found and held after an evidentiary 
hearing “that when Civil Action File No. 11,081 was 
called for trial that Parks Jones was present in the 
courtroom but did not hear the case called. Subsequently 
Mr. Jones inquired of the Court about the status of the 
case and understood that the case had been continued 
until a later term of Court. Thereafter, the verdict 
judgment [sic] was [sic] entered against Mr. Jones. Under 
these circumstances the judgment should be set aside.” 

1. The first, second and fourth enumerations of error 

7 

    

  

 



  

  

SpA HA 

Ga.) SEPTEMBER TERM, 1979. 133 

contend that the equitable complaint to set aside the 
judgment was insufficient and that the trial court erred in 
denying the motion to dismiss. “[A] motion to dismiss 
should not be granted unless the allegations in the 
complaint disclose with certainty that the plaintiff would 
not be entitled to any relief under any state of facts which 
could be proved in support of the claim. Bourn v. Herring, 
225 Ga. 67 (166 SE2d 89).” Residential Developments, Inc. 
v. Mann, 225 Ga. 393, 397 (169 SE2d 305) (1969); DeKalb 
County v. Ga. Paperstock Co., 226 Ga. 369 (1) (174 SE2d 
884) (1970) and Blower v. Jones, 226 Ga. 847 (3) (178 SE2d 
172) (1970). There is no merit in these enumerations of 
error. 

2. The third enumeration of error contends that 
appellants were denied a full hearing on the motion to set 
aside. The transcript before this court on appeal does not 
indicate that appellants offered any evidence or were 
denied the opportunity to present evidence. There is no 
merit in this enumeration of error. : 

Judgment affirmed. All the Justices concur. 

SUBMITTED JUNE 12, 1979 — DECIDED SEPTEMBER 6, 1979. 

Equitable complaint to set aside judgment. Whitfield 
Superior Court. Before Judge Vining. 

McCamy, Minor, Phillips & Tuggle, James T. 
Fordham, for appellants. 

Ernest McDonald, for appellees. 

  

35014. SMITH et al. v. BOARD OF COMMISSIONERS 
OF ROADS & REVENUES OF HALL COUNTY et al. 

PER CURIAM. 
This is a suit brought by certain Hall County 

taxpayers and certain employees of the Hall County Fire 
Department seeking injunctive relief against a contract 
entered into by the Hall County Board of Commissioners 
(hereinafter referred to as “Commissioners”). The 
plaintiffs ask the court to declare the contract invalid in 
its entirety and also challenge specific provisions of the 
contract. The contract in question essentially would 

 



DOWS v. STATE, 

ely on circumstantig) or 
told several people that Wel 
without stating any g €XCuse or justificatj, 

. State, 213 Ga. 188 (9 
216 Ga. 15 (4) (114 SE 
on shall not be an exc 
on.” Code Ann. § 26- 
D). “The law presu 

facts op 

2d 431), 

: ge the law of 
and Involuntary m,n. 

n statement of the defendagy : rceased wife were alone (except 

t 
e killed the deceased, (2) i 
at the deceased swung at him 
it fired, or (4) that she shot 
hand in an attempt to knock 
her forehead. None of these 

ire a charge on voluntary or 
er. 
irrectly charged the jury upon 

icide, murder and accident. 
743 (2, 3) (194 SE2d 476). 
e Justices concur. ; 
12, 1973 — Dzcipep 
16, 1973. 

rior Court. Before Judge 

0 for the | 

APRIL TERM, 1973. 

Davis & Davidson, Jack S. Davidson, Brooks & Benton, 

: James L. Brooks, for appellant. 

Nat Hancock, District Attorney, Arthur K. Bolton, 
Attorney General, Harold N. Hill, Jr., Executive Assistant 

Attorney General, Courtney Wilder Stanton, Assistant 
Attorney General, B. Dean Grindle, Jr., for appellee. 

$C 
a 

  

27764. ALMAROAD et al. v. GILES. 

Hawes, Justice. 1. “Since the adoption of the Civil. 

Practice Act (Ga. L. 1966, p. 609; 1967, p. 226: Code | 

Ann. Title 81A) a complaint need not set forth = cause 
of action in order to withstand a motion to dismiss but 

need only to set forth a claim for relief. Under that 

title, the complaint may no longer be construed most 
strongly against the pleader. ‘Furthermore, “a motion 

to dismiss for failure to state a claim should not be 
granted unless it appears to a certainty that the 
plaintiff would be entitled to no relief under an state 

~ of facts which could be proved in support of his claim. 
If, within the framework of the complaint, evidence 
may be introduced which will sustain a grant oz relief 
to the plaintiff, the complaint is sufficient.” 2A Moore, 
Federal Practice, 1706, § 8.13.” Mitchell v. Dick=. 226 
Ga. 218, 220 (173 SE2d 695); Gill v. Myrick, 2228 Ga. 
253, 259 (185 SE2d 172); Johnson v. Wormsloe 
Foundation, 228 Ga. 772, 725 (187 SE2d 682).” A oehler 
v. Massell, 229 Ga. 359, 361 (191 SE2d 830). Appolving 
the foregoing rules to the amended complaint in this 
case, it is apparent that the plaintiff seeks reli=< in a 
court of equity to restrain the further use tv the 
defendant of what formerly was a way of necsssity 
from the defendant’s land across the plaintiff’s I=nd to 
a public road, on the ground that the necessity =hich 
dictated the original grant of the way no longer =xists 

 



  
  

  

  
      

  

  

474 ALMAROAD v. GILES. (230 

since defendant now has direct access from his 
property to the public road. Plaintiff, under the 

allegations of the complaint, if they be proved, is 

clearly entitled to this relief under the law. Code § 85- 
1402. Russell v. Napier, 82 Ga. 770, 774 (9 SE 746); 
Gaines v. Lunsford, 120 Ga. 370 (47 SE 967, 102 ASR 

109). 
. The action in this case is not one respecting title to 

land. There is no question under the pleadings but that 

the plaintiff owns the land in question. The question 

presented is whether he owns the land subject to the 

servitude of defendant’s easement for a way of access. 

The action is in equity to restrain further trespass by 
the defendant on the plaintiff's land and was properly 

brought in the county of the residence of the defendant 
against whom substantial equitable relief is sought, 

though the land involved lies in another county. 
Screven County v. Reddy, 208 Ga. 730 (1) (69 SE2d 186); 
Bond v. Ray, 207 Ga. 559, 561 (63 SE2d 399). 

3. As we view this case, we are not called upon at this 

time to determine whether plaintiff has a claim for 

relief by way of declaratory judgment. See, however, 

Calvary Independent Baptist Church v. City of Rome, 
208 Ga. 312 (3) (66 SE2d 726); and City of Atlanta v. 
Fast Point Amusement Co., 222 Ga. 774 (1) (152 SE2d 

374). 
4. The Superior Court of Bibb County erred in dismissing 

the complaint for failure to state a claim for relief and 

in holding that it lacked jurisdiction of the controversy 

because same involved title to land lying in Peach 
County. 

Judgment reversed. All the Justices concur. 
SuBMITTED MARCH 12, 1973 — DECIDED APRIL 16, 1973. 

Injunction. Bibb Superior Court. Before Judge Bell. 
Charles R. Adams, Jr., for appellants. 

Robert E. Lanyon, Albert E. Jones, Lawrence C. Collins, 

for appellee. 

 



[ERICAN OIL CO. (225 JANUARY TERM, 1969. 

record the argument of counsel = Toy 124847. BOURN v. HERRING et al. 

Bl: the action taken by the court = = 1 24851. MATHIS v. HERRING et al. 
mful effects, if any, from the = 24852. R. L. MATHIS CERTIFIED DAIRY COMPANY v. 

the instruction of the court, HERRING et al. 

the plaintiff not to touch upon 24853. GRANT PARK BAPTIST CHURCH v. 

to a rebuke of counsel as Te-- | | 166 Std &9 HERRING et al. 

interpretation of the Court of 
: | 

rgument and the corrective ac- \ 

  
UNDERCOFLER, Justice. This is a damage suit brought by a 

being merely questions of fact 

ourt. The rules of law applied 

his court are unquestioned and 

o reiterate what has been said 

, some of them full bench de- 

fo case holding that the writ of 

fford to the complaining party 

n one review and that in areas 

conferred by the Constitution 

cision of that court should be 

juestion sought to be presented 

d importance. The decision of 

could not possibly fall in that 

ute a binding precedent only 

curred in the trial of another 

e same or even a similar argu- 

me or a similar ruling by the 

e that the decision could not 

of general gravity and impor- 

addition to the cases already 

@bporting my view of this mat- 

f, 712 (118 SE 368); Jones v. 

P48 (125 SE 470); First Nai. 

(13 SE2d 361); Macon Neus 

a. 623 (15 SE2d 793); Slaten 

R56 (30 SE2d 822); Gulf Life 

(45 SE2d 64). 

ustice Mobley concurs in this 

  

  

  

mother for the wrongful death of her minor son over the age 
of 14 years who drowned while attending a church Sunday 
school picnic at a lake resort. The suit was brought against 
the church, the superintendent of the Sunday school, the de- 

fendant corporation which made the picnic grounds and lake 
resort available, and its general manager. The petition al- 

leged that the public was invited to the picnic grounds and 
lake resort for advertising purposes and to promote the sale 

of the defendant corporation’s products. For a detailed state- 
ment of the alleged facts, see Herring v. R. L. Mathis Certi- 
fied Dairy Co., 118 Ga. App. 132 (162 SE2d 863). The 
Court of Appeals held that the petition stated a claim against 
all of the defendants. We granted certiorari. Held: 

."(a) The liability of the defendant corporation and its general 
manager 1s limited by the Act of the General Assembly of 
1965 (Ga. L. 1965, p. 476; Code Ann. §§ 105-403—105-409). 
As stated therein: “Section 1. The purpose of this Act is to 
encourage owners of land to make land and water areas avail- 

able to the public for recreational purposes by limiting their 
liability toward persons entering thereon for such purposes. 

Section 3. Except as specifically recognized by or 
provided in section 6 of this Act, an owner of land owes no 
duty of care to keep the premises safe for entry or use by 
others for recreational purposes, or to give any warning of 

a dangerous condition, use, structure, or activity on such 

premises to persons entering for such purposes. Section 4. 

Except as specifically recognized by or provided in section 6 
of this Act, an owner of land who either directly or indirectly 
invites or permits without charge any person to use such 
property for recreational purposes does not thereby: (a) Ex- 
tend any assurance that the premises are safe for any purpose. 

(b) Confer upon such person the legal status of an invitee 
or licensee to whom a duty of care is owed. (ec) Assume 

 



  

68 BOURN v. HERRING. (225 

responsibility for or incur liability for any Injury to person 
or property caused by an act or omission of such persons. 

Section 6. Nothing in this Act limits in any way 
any liabilty which otherwise exists: (a) for wilful or mali- 

cious failure to guard or warn against a dangerous condition, 

use, structure, or activity. (b) For injury suffered in any 

case where the owner of land charges the person or persons 

who enter or go on the land for the recreational use thercof. 

Section 7. Nothing in this Act shall be construed to: 

(a) Create a duty of care or ground of liability for injury to 

persons or property. (b) Relieve any person using the land 

of another for recreational purposes from any obligation which 

he may have in the absence of this Act to exercise care in his 

use Of such land and in his activities thereon, or from the 

legal consequences of failure to employ such care.” 

As defined in Section 2 (b), “ ‘Owner’ means the possessor of a 
)   fee interest, a tenant, lessee, occupant or persons in control 

of the premises.” Code Ann. § 105-404 (b). The defendant 

corporation and its general manager under the allegations of 

the petition come within this definition of “owner.” 

As defined in Section 2 (¢) “ ‘Recreational purpose’ includes, but 

is not limited to, any of the following or any combination 
thereof: hunting, fishing, swimming, boating, camping, pic- 
nicking, hiking, pleasure driving, nature study, water skiing, 

winter sports, and viewing or enjoying historical, archacolog- 

ical, scenic, or scientific sites.” Code Ann. § 105-404 (c). 
The picnic and lake arca made available in the instant case 

under the allegations of the petition come within this defini- 

tion of recreational purpose. 

Section 2 (d) of the Act provides: “ ‘Charge’ means the admis- 

sion price or fee asked in return for invitation or permission 

to enter or go upon the land.” Code Ann. § 105-404 (d). The 

affirmative allegations of the petition show that the picnic 
grounds and the lake thereon were made available to the 

public for advertising purposes and to promote the sale of 

the defendant corporation’s products. We hold that these 
alleged benefits derived by the defendant corporation are not 

a “charge” as defined by the Act. 
Accordingly under the provisions of the Act of 1965 the de- 
fendant corporation and its general manager are liable only 

for wilful and malicious failure to guard or warn against a 

dangerous condition, use, structure, or activity. 

     



    

Ga.) JANUARY TERM, 1969. 69 

The Court of Appeals erred in Division 4 and that part of Di- 

vision 5 of its opinion which held that the complaint stated 
a claim against these defendants under allegations showing 

the deceased was an invitee. 

(b) The plaintiff cannot raise constitutional questions as to the 

validity of said 1965 Act for the first time in his brief in this 

court. “Where it 1s sought to invoke a ruling by the Supreme 

Court on a constitutional question, the question must have 

been raised in the trial court and a ruling made thereon and 

the case brought to the Supreme Court for review.” Loflin 

v. Southern Security Co., 162 Ga. 730 (3) (134 SE 760); 

Law v. State, 219 Ga. 583 (134 Sk2d 776); Wiggins v. City 

of Macon, 224 Ga. 603 (163 Sl2d 747). This case does not 

fall within the exception made in Calhoun v. State Hwy. 

Dept., 223 Ga. 65, 68 (2) (153 SE2d 418) where there was 

no opportunity to raise the question in the trial court. 

2. The decedent minor child in this case was 14 years, 4 months 

and 20 days old. There are no allegations in the petition 
that he was a child of less than ordinary intelligence and un- 
derstanding for his age. On the contrary, the allegations 

show that he had secured his social security card and worked 
part time for a druggist and part time at a grill in a “short 

order” restaurant. 

“As by the law of this State a boy over fourteen years of age 

is presumably capable of committing erime, he is presump- 

tively chargeable with diligence for his own safety against 
palpable and manifest peril, such as that of jumping from a 

railway train in rapid motion. In the absence of any evidence 

of want of ordinary capacity in the particular boy, he should 

not be treated as a child of ‘tender years,” but as a young 

person who has passed that period and become chargeable 

with such diligence as might fairly be expected of the class 

and condition to which he belongs.” Central R. & Blg. Co. 

v.. Phillips, 91 Ga. 526 42). (17 SE 952)... The danger of 

drowning in water is a palpable and manifest peril, the knowl- 

edge of which is chargeable to the decedent in this case in the 

absence of a showing of want of ordinary capacity. Restate- 

ment of the Law of Torts 2d, § 496D, p. 575, Comment (d). 

Therefore, the plaintiff cannot recover against the church and 

the Sunday school superintendent for failure to exercise ordi- 

nary care in supervising the decedent’s conduct in and around 

that lake if the decedent was a 14-year-old boy of ordinary 

 



  

  

70 BOURN v. HERRING. (225 

capacity because he would have been responsible for the same 
care for his own safety. However, the defendant church and 
the defendant Sunday school superintendent would be liable 
for wilful misconduct proximately causing injury to the 
plaintiff’s son. 

follows that the allegations of the petition showing no control 
or supervision of the decedent by the church or by the Sun- 

day school superintendent and that the decedent had no 
knowledge of the danger are insufficient to authorize a recov- 

ery. The Court of Appeals erred in its rulings in Divisions 2 

and 3 holding to the contrary. 

. The Civil Practice Act of 1966 (Ga. L. 1966, p. 609; Code 
Ann. § 81A-108 (a)) has eliminated issue pleading and sub- 

stituted notice pleading. See Reynolds v. Reynolds, 217 Ga. 
234, 246 (3) (123 SE24:115), % . . [A] motion to dis- 
miss for failure to state a claim should not be granted unless 
it appears to a certainty that the plaintiff would be entitled 

S24 PB to no relief under any state of facts which could be proved in 
support of his claim. If, within the framework of the com- 

plaint, evidence may be introduced which will sustain a grant 

of relief to the plaintiff, the complaint is sufficient.” “2A 
Moore’s Federal Practice § 8.13, p. 1706. 

Accordingly, we hold that the petition in the instant case is suf- 
ficient to withstand the motions to dismiss because the issues 
of the liability of the defendants for wilful misconduct and 
want of ordinary capacity in the decedent remain to be de- 
termined by further proceedings. 

The rulings of the Court of Appeals in Division 5 on the motions 

to dismiss were correct for the reasons stated herein. 

4. The record shows that the trial court in ruling on the mo- 
tions to dismiss did not consider matters outside the pleadings 
and therefore the motions were not treated as motions for 

summary judgment. Ga. L. 1966, pp. 609, 622; Ga. 1.. 1967, 
pp. 228, 231 (Code Ann. § 81A-112 (b)). 

Judgment affirmed in part; reversed in part. All the Justices 

concur. 

ArGUED DECEMBER 10, 1968—DECIDED JANUARY 9, 1969— 

REHEARING DENIED JANTARY 23 AND FEBRUARY 6, 1969. 

Certiorari to the Court of Appeals of Georgia—118 Ga. App. 

132 (162 SE2d 863). 

 



SEPTEMBER TERM, 1972. (229 

  

27362. CLARK v. CALDWELL. 

JORDAN, Justice. Clark, petitioner in habeas corpus, appeals 

an order remanding him to custody following a hearing. 

He is held under a sentence imposed on November 19, 

1968, pursuant to his plea of guilty to three counts of 

robbery. Held: 

Although the record before us is silent as to any transcript 

of the action taken by the trial judge in receiving the 

guilty plea, the trial antedates the decision in Boykin v. 

Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969), 
which is not applied retroactively. Laidler v. Smith, 227 

Ga. 759 (182 SE2d 891). A valid plea of guilty waives all 
known or unknown defenses. Snell v. Smith, 228 Ga. 249, 

250 (184 SE2d 645). The habeas corpus judge as the trior 

of fact was authorized to determine from the evidence 
adduced at the hearing that the petitioner, contrary to his 

contentions and testimony, voluntarily pleaded guilty and 

submitted himself to the trial judge for sentencing with a 

full awareness of his rights and with the assistance of 

competent and experienced counsel who was present with 

him and that the trial judge took action to insure that he 

was acting voluntarily and knowingly. The appeal is with- 

out merit. 

Judgment affirmed. All the Justices concur. 

SUBMITTED SEPTEMBER 11, 1972—DgcipEp OcToBER 10, 1972. 

Habeas corpus. Tattnall Superior Court. Before Judge 
Caswell. : 

Lora Clark, pro se. 

Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Exec- 

utive Assistant Attorney General, Courtney Wilder Stanton, W. 

Hensell Harris, Jr., Assistant Attorneys General, for appellee. 

- 

  

| ) 7d | 93 SEH Y3% y0i08 DEAN v. DEAN. 

1. The trial court properly denied the motion to dismiss the 
petition seeking habeas corpus relief as to a minor child. 

    

 



  

Ga.) SEPTEMBER TERM, 1972. 613 

2. It also was correct in denying the motions to strike a 

particular paragraph of the petition. 
ARGUED SEPTEMBER 13, 1972—DecipEp OcrtoBer 10, 1972. 

Child custody. Fulton Superior Court. Before Judge Wof- 

ford. 

Houston White, for appellant. 

Travis & Furlong, Thomas A. Travis, Jr., Wall, Parker & 

Campbell, Alford Wall, Ross & Finch, Claude R. Ross, for 

appellee. 

GRICE, Presiding Justice. This appeal is from the denial 

of a defendant’s motion to dismiss a petition seeking habeas 

corpus relief involving custody of a minor child and also 

the denial of her motions to strike a specified portion of the 

petition. Two enumerations of error are urged. 

The petition, filed in the Superior Court of Fulton County 

by the father James C. Dean against the mother Voncile 

Dean, alleged in substance that the child is being illegally 

detained by his mother at a specified location in Fulton 

County in violation by the mother of a divorce decree of the 

superior court of that county. 

Paragraph 5 of the petition alleged essentially that the 

detention is illegal in that the mother has violated the de- 

cree by intentionally refusing visitation rights to the father 

as provided for and ordered therein; and that this violation 

is a change in condition which has materially and adversely 

affected the welfare of the child subsequent to the award of 

custody to the mother. 

Paragraph 6 of the answer averred substantially that the 

denial of any visitation rights by the mother is in direct 

violation of the decree and has denied the child his proper 

and necessary parental guidance to which he is entitled 

from his father. 

The prayers were that .the court issue the writ of ha- 

beas corpus; that it inquire into the denial of parental 
visitation rights; that the father be awarded permanent 

custody of the child or in the alternative that the court 

set down certain and definite times that the father may 

have custody. 

 



  

614 DEAN v. DEAN. (229 

The mother filed an answer which denied the foregoing 

allegations of the petition. 

A certificate for immediate review was granted so as to 

permit the appeal. 

1. We deal first with the denial of the defendant mother’s 
motion to dismiss the petition, upon the ground that it fails 

to state a claim upon which relief can be granted. 

The enumeration as to this recites in substance as fol- 

lows: that the allegations of the petition disclose with cer- 

tainty that the plaintiff would not be entitled to any relief 

prayed for under any state of facts which could be proved 

in support of the claim in (a) that the plaintiff failed to 

allege a change of condition with respect to the child; in 

(b) that with respect to change in condition the plaintiff 

failed to allege the facts at the time of the divorce decree, 

which are necessary to be alleged to show a change of 
condition from that existing at that time as compared with 
the date of the filing of this petition; and in (¢) that the 

plaintiff, alleging solely the intentional refusal of visita- 
tion rights, is attempting merely to plead contempt of 

court, but has omitted a prayer therefor, hence the peti- 

tion should be dismissed because no relief of contempt 

could have been granted. 

This enumeration, in our appraisal, is not valid for any 
of the reasons recited above. 

The petition is not subject to dismissal insofar as failing 

to allege a change in condition is concerned. 

It should be kept in mind that here we are concerned 

with the sufficiency of the allegation of the habeas corpus 

petition, not the sufficiency of the evidence upon the trial. 
In this situation it is well settled that the motion to dismiss 

for failure to state a claim should not be granted unless it 

appears to a certainty that the plaintiff would be entitled to 

no relief under any state of facts which could be proved in 
support of the claim; and if within the framework of the 

complaint evidence may be introduced which will sustain a 

grant of relief to the plaintiff, the complaint is sufficient. 

Bourn v. Herring, 225. Ga. 67 (3) (166 SE?d 89) 

  
) —- 

  

  

SEZ4 1 
B40 

 



    

  

  

Si 
gah | 

fet 

24 4 — Re 

Hil 

   
Ga.) SEPTEMBER TERM, 1972. ° 

Mitchell v. Dickey, 226 Ga. 218, 220 (173 SE2d 695). 
Considered in the light of notice pleading, the instant 

petition sufficiently apprises the defendant that the plain- 

tiff is asserting against her a claim of illegal detention of 

the child because of her refusal of visitation rights in vio- 

lation of a court decree, which is a change in the child’s 
condition that has materially and adversely affected the 

welfare subsequent to the decree. Further notice is given 

that this situation has denied the child his parental guid- 

ance that he is entitled to have from his father, the plain- 

tiff here. 

At this stage the plaintiff should not be shut off from the 

opportunity of introducing competent and relevant evidence 

in support of the claim upon the trial. This is vastly differ- 

ent from holding that evidence as to denial of visitation 

rights alone is not sufficient to show change in condition. 

See DeLong v. DeLong, 226 Ga. 147 (173 SE2d 213) and 
similar cases. 

This ruling controls adversely to the defendant mother as 
to (b) and (c) above. 

2. The other enumeration essentially is that the trial 

court erred in not sustaining the motions under Code Ann. 

§ 81A-112 (e) and (f) because the plaintiff should have al- 

leged the dates and circumstances surrounding the alleged 

intentional visitation refusals with sufficient clarity to put 

the defendant on notice thereof. This contention is not 

meritorious. 

In order to grant a motion for a more definite statement 

pursuant to Code Ann. § 81A-112 (e) the pleading must be 

so vague or ambiguous that the opposite party cannot rea- 

sonably be required to frame a proper responsive pleading. 

We do not regard paragraph 5 of the petition here to be in 

that category. The defendant, by this motion, improperly 

sought to employ a substitute for discovery, contrary to the 

intent and purpose of the Civil Practice Act. See Padgett v. 
Bryant, 121 Ga. App. 807 (175 SE2d 884). 

The motion to strike paragraph 5 pursuant to Code Ann. 

§81A-112 (f) cannot be maintained. It does not contain



  
  

  
  

  

SEPTEMBER TERM, 1972. (299 

redundant, immaterial, impertinent or scandalous matter. 

This motion was also properly denied. 
We find no error in the rulings complained of. 
Judgment affirmed. All the Justices concur, except Under- 

cofler and Hawes, JJ., who concur specially. 

UNDERCOFLER, Justice, concurring specially. The complete 

denial of “reasonable visitation rights” granted in a divorce 

decree is a change of conditions which authorizes a redeter- 
mination of visitation rights. Cooper v. Stephens, 214 Ga. 

825, 826 (108 SE2d 274); Smith v. Scott, 216 Ga. 506 (1) 
(117 SE2d 528). It is not a change of conditions which au- 

thorizes a change of permanent custody. Compare Smith v. 
Smith, 225 Ga. 241, 243 (167 SE2d 597). 

I am authorized to state that Justice Hawes joins in this 

special concurrence. 

27419. MOORE v. AULT. 

JORDAN, Justice. This is an appeal by Moore, petitioner in 

habeas corpus, from an order remanding him to custody 

after a hearing. It appears that he is imprisoned under a 
9-year sentence imposed upon conviction of voluntary 

manslaughter on September 9, 1971, under an indictment 

alleging an offense of murder on June 27, 1971. Aside 

from the record of his conviction and sentence the only 

evidence adduced at the hearing is the testimony of the 
petitioner and, for the respondent, that of employed 

counsel who represented the petitioner at the trial for 

murder. Under the evidence the habeas corpus judge was 

authorized to determine that the petitioner was effec- 
tively represented by his counsel at the trial, that none 

of his consitutional rights were violated, and to order his 
remand to custody. There is no merit in the appeal. 

Judgment affirmed. All the Justices concur. 

SUBMITTED SEPTEMBER 12, 1972—DEecipEp OcToBER 10, 1972. 

 



M, 10835 

senting 478 U. S. 

led for the trial of a black 
cy of the trial is significant 
supra, at 87, n. 8 (“For a 

tion as a check on official 
‘om the community”). 
he Court finds to counsel 
arly unpersuasive. While 

ma, 380 U. S. 202 (1965), 
mposed upon both defend- 
the Court seriously over- 
law enforcement officials” 
ase in which primary con- 
ed by one decision of this 
pther. Swain made quite 
jallenges to strike black ju- 
ated the Equal Protection 
defendants a means of en- 
he Court is willing to con- 

in the effective unenforce- 
Swain, it should at least 

r that reliance should be 

at “retroactive application 
-eview of final convictions 
stration of justice.” Ante, 
haps it is not. Certainly, 
low us no basis for making 
ts pursuing federal habeas 
im in the state courts. In 
ny other aspect of the case, 
perhaps the participation of 
| the majority’s readiness to 
tions, disturbing. 
tiorari and set the case for 

ment next Term. 1 

PAPASAN v. ALLAIN 

Syllabus 

PAPASAN, SUPERINTENDENT OF EDUCATION, 

ET AL. v. ALLAIN, GOVERNOR OF 
MISSISSIPPI, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE FIFTH CIRCUIT 

No. 85-499. Argued April 22, 1986 — Decided July 1, 1986 

Federal school land grants to Mississippi in the early 19th century did not 
apply to lands in northern Mississippi that were held by the Chickasaw 
Indian Nation, an area that came to be the northern 23 counties in the 

State. The Chickasaws thereafter ceded this area to the United States 
by a treaty under which the lands were sold, but no lands for public 
schools (Sixteenth Section lands) were reserved from sale. Congress 
then provided for the reservation of lands in lieu (Lieu Lands) of Six- 
teenth Section lands not reserved in the Chickasaw Cession and for vest- 
ing of the title to the Lieu Lands in the State for the use of schools within 
the Cession. These Lieu Lands were given to the State. The state leg- 
islature, however, sold the Chickasaw Cession Lieu Lands and invested 

the proceeds in loans to railroads that were later destroyed in the Civil 
‘War and never replaced. Under a current Mississippi statute, remain- 

ing Sixteenth Section and Lieu Lands “constitute property held in trust 
for the benefit of the public schools.” Another state statute provides 
that all funds derived from Sixteenth Section or Lieu Lands shall be 

credited to the school districts of the township in which such Sixteenth 
Section lands are located or to which any Lieu Lands belong and shall not 
be expended except for the education of children of the school district 
to which the lands belong. Consequently, all proceeds from Sixteenth 
Section and Lieu Lands are allocated directly to the township in which 

the lands are located or to which the lands apply. With respect to the 
Chickasaw Cession counties, to which no lands now belong, the state 

legislature has paid “interest” on the lost principal acquired from the 
sale of those lands in the form of annual appropriations to the Chickasaw 
Cession schools. This dual treatment has resulted in a disparity in the 
level of school funds from the Sixteenth Section lands that are available 
to the Chickasaw Cession schools as compared to the schools in the rest 
of the State, the average Sixteenth Section income per pupil in the latter 

“schools being much greater than the average income per pupil in the for- 

mer schools. Petitioner local school officials and schoolchildren from the 

Chickasaw Cession filed suit in Federal District Court against respond- 

ent state officials, challenging the disparity in Sixteenth Section funds 

 



RM, 1985 

e Court 473 U. S. 

rights secured by the Four- 
Constitution of the United 

these same actions denied 

st In a minimally adequate 
b opportunity therefor,” id., 
o the other schoolchildren in 

lleged a present disparity in 
from the State’s Sixteenth 

ional violation—the unequal 
benefits of the State’s school 
bntinuing violation for which 
ashioned under Young. It 
ty results directly from the 
> the subject of the petition- 
of the equal protection alle- 
the distribution of the bene- 
he past actions of the State. 
nt disparity, even a remedy 
ire of state funds, would en- 

with a substantive federal- 

than bestow an award for ac- 
ken, supra, at 289 (quoting 
claim is, in fact, in all essen- 

al protection claim for which 
Consequently, we agree 

the Eleventh Amendment 
0 correct a current violation 
and that this claim may not 
isis. 

hat the petitioners have not sued 
relief requested, see Brief for Re- 

te, however, that the respondent 
e, responsible for “general super- 
ral school officials of the Sixteenth 

PAPASAN v. ALLAIN 

  

265 Opinion of the Court 

IIT 

The question remains whether the petitioners’ equal pro- 
tection claim, although not barred by the Eleventh Amend- 
ment, is legally insufficient and was properly dismissed for 
failure to state a claim. See Fed. Rule Civ. Proc. 12(b)(6). 

- We are bound for the purposes of this review to take the 
well-pleaded factual allegations in the complaint as true. 
Miree v. DeKalb County, 433 U. S. 25 (1977); Kugler v. Hel- 
fant, 421 U. S. 117 (1975); Scheuer v. Rhodes, 416 U. S. 232 
(1974); Cruz v. Beto, 405 U. S. 319 (1972); Gardner v. Toilet 
Goods Assn., 387 U. S. 167 (1957). Construing these facts 
and relevant facts obtained from the public record in the light 
most favorable to the petitioners, we must ascertain whether 
they state a claim on which relief could be granted. 

A 7 

In Rodriguez, the Court upheld against an equal protection 
challenge Texas’ system of financing its public schools, under 
which funds for the public schools were derived from two 
main sources. Approximately half of the funds came from 
the Texas Minimum Foundation School Program, a state pro- 
gram aimed at guaranteeing a certain level of minimum edu- 
cation for all children in the State. 411 U. S., at 9. Most 

of the remainder of the funds came from local sources —in 
particular local property taxes. Id., at 9, n. 21. Asaresult 
of this dual funding system, most specifically as a result of 
differences in amounts collected from local property taxes, 
“substantial interdistrict disparities in school expenditures 
[were] found . . . in varying degrees throughout the State.” 
dE at 15. 

In examining the equal protection status of these dispari- 
ties, the Court declined to apply any heightened scrutiny 

Section and Lieu Lands. See Miss. Code Ann. §29-3-1(1) (Supp. 1985). 

To the extent that the respondent Secretary of State is acting in a manner 
that violates the Equal Protection Clause, such actions may be enjoined 
under Ex parte Young, 209 U. S. 123 (1908). 

 



     

  

    

    

    

     

   

   

~ 

RM, 1971 

hm 405 U.S. 

\SURANCE COMPANY 

AYCA 

1E COURT OF GEORGIA 

1972—Decided March 20, 1972 

d by an equally divided Court. 

d the cause and filed a 

bd the cause for respond- 

Woodrow W. Lavender. 

an equally divided Court. 

o part in the considera- 

CRUZ v». BETO 319 

Per Curiam 

CRUZ v. BETO, CORRECTIONS DIRECTOR 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 

No. 71-5552. Decided March 20, 1972 

Petitioner prisoner, an alleged Buddhist, complained that he was not 

allowed to use the prison chapel that he was prohibited from 

writing to his religious advisor, and that he was placed in solitary 

confinement for sharing his religious material with other prisoners. 

The Federal District Court denied relief without a hearing or 
findings, holding the complaint to be in an area that should be 

left “to the sound discretion of prison administration.” The Court 

of Appeals affirmed. Held: On the basis of the allegations, Texas 

has discriminated against petitioner by denying him a reasonable 

opportunity to pursue his Buddhist faith comparable to that of- 

fered other prisoners adhering to conventional religious precepts, 
and the cause is remanded for a hearing and appropriate findings. 

Certiorari granted; 445 F. 2d 801, vacated and remanded. 

Per CuriaM. 

The complaint, alleging a cause of action under 42 
U. 8. C. §1983, states that Cruz is a Buddhist, who is 
in a Texas prison. While prisoners who are members 
of other religious sects are allowed to use the prison 
chapel, Cruz is not. He shared his Buddhist religious 
material with other prisoners and, according to the alle- 
gations, in retaliation was placed in solitary confinement 
on a diet of bread and water for two weeks, without access 
to newspapers, magazines, or other sources of news. 
He also alleged that he was prohibited from correspond- 
ing with his religious advisor in the Buddhist sect. Those 
in the isolation unit spend 22 hours a day in total idleness. 

Again, according to the allegations, Texas encourages 
inmates to participate in other religious programs, pro- 
viding at state expense chaplains of the Catholic, Jewish, 
and Protestant faiths; providing also at state expense 
copies of the Jewish and Christian Bibles, and conducting 

 



OCTOBER TERM, 1971 

  

Per Curiam 405 U.S. 

weekly Sunday school classes and religious services. 

According to the allegations, points of good merit are 

given prisoners as a reward for attending orthodox reli- 

gious services, those points enhancing a prisoner’s eligi- 

bility for desirable job assignments and early parole 

consideration." Respondent answered, denying the alle- 
gations and moving to dismiss. 

1The amended complaint alleges, inter alia: 

“Plaintiff 1s an inmate of the Texas Department of Corrections 

and is a member of the Buddhist Churches of America. At the time 

of filing of this suit, he was incarcerated at the Eastham Unit and 
has since been transferred to the Ellis Unit. There is a substantial 

number of prisoners in the Texas Department of Corrections who 
either are adherents of the Buddhist Faith or who wish to explore 

the gospel of Buddhism; however, the Defendants have refused in 

the past, and continue to refuse, Buddhists the right to hold religious 
services or to disseminate the teachings of Buddha. The Plaintiff 

has been prevented by the Defendants from borrowing or lending 

Buddhist religious books and materials and has been punished by said 

Defendants by being placed in solitary confinement on a diet of 

bread and water for two weeks for sharing his Buddhist religious 
material with other prisoners. ih 

“Despite repeated requests to Defendants for the use of prison 

chapel facilities for the purpose of holding Buddhist religious services 
and the denials thereof the Defendants have promulgated customs 

and regulations which maintain a religious program within the penal 
system under which: 

“A. Consecrated chaplains of the Protestant, Jewish and Roman 
Catholic religions at state expense are assigned to various units. 

“B. Copies of the Holy Bible (Jewish and Christian) are dis- 
tributed at state expense free to all prisoners. 

“C. Religious services and religious classes for Protestant, Jewish 

and Roman Catholic adherents are held regularly in chapel facilities 
erected at state expense for ‘non-denominational’ purposes. 

“D. Records are maintained by Defendants of religious partici- 
pation by inmates. 

“E. Religious participation is encouraged on inmates by the De- 
fendants as necessary steps toward true rehabilitation. 

“F. Points of good merit are given to inmates by the Defendants 
as a reward for religious participation in Protestant, Jewish and 

   



CRUZ v. BETO 321 

319 Per Curiam 

The Federal District Court denied relief without a 

hearing or any findings, saying the complaint was 

in an area that should be left “to the sound dis- 

cretion of prison administration.” It went on to say, 

“Valid disciplinary and security reasons not known to 

this court may prevent the ‘equality’ of exercise of reli- 

gious practices in prison.” The Court of Appeals 

affirmed. 445 F. 2d 801. 
Federal courts sit not to supervise prisons but to en- 

force the constitutional rights of all “persons” in- 

cluding prisoners. We are not unmindful that prison 
officials must be accorded latitude in the administration 

of prison affairs, and that prisoners necessarily are sub- 

ject to appropriate rules and regulations. But persons in 

prison, like other individuals, have the right to petition 

the Government for redress of grievances which, of course, 

includes “access of prisoners to the courts for the pur- 

pose of presenting their complaints.” Johnson v. Avery, 

393 U. 8S. 483, 485; Ex parte Hull, 312 U. 3. 546, 544. 

See also Younger v. Gilmore, 404 U. S. 15, aff'g Gilmore 

v. Lynch, 319 F. Supp. 105 (ND Cal.). Morcover, racial 

segregation, which is unconstitutional outside prisons, 

is unconstitutional within prisons, save for “the ncces- 

sities of prison security and discipline.” Lee v. Wash- 

ington, 390 U. S. 333, 334. Even more closely in point 

is Cooper v. Pate, 378 U. S. 5406, where we reversed a 
  

Roman Catholic faiths which enhance on inmates eligibility for pro- 

motions in class, job assignment and parole. 
“Beeause inmates of the Buddhist faith are being denied the right 

to participate in the religious program made available for Protestant, 

Jewish and Roman Catholic faiths by the Defendants, Plaintiff and 

the members of the class he represents are being subjected to an arbi- 

trary and unreasonable exclusion without any lawful justification 

which invidiously discriminates against them in violation of their 

constitutional right of religious freedom and denies them equal pro- 

tection of the laws.”  



OCTOBER TERM, 1971 

  

Per Curiam 405 U.S. 

dismissal of a complaint brought under 42 U. S. C. 

§ 1983. We said: “Taking as true the allegations of 

the complaint, as they must be on a motion to dismiss, 

the complaint stated a cause of action.” Ibid. The 

allegation made by that petitioner was that solely be- 

cause of his religious beliefs he was denied permission 

to purchase certain religious publications and denied 

other privileges enjoyed by other prisoners. 

We said in Conley v. Gibson, 355 U. S. 41, 45-46, that 

“a complaint should not be dismissed for failure to 

state a claim unless it appears beyond doubt that the 

plaintiff can prove no set of facts in support of his 

claim which would entitle him to relief.” 

If Cruz was a Buddhist and if he was denied a reason- 

able opportunity of pursuing his faith comparable to the 

opportunity afforded fellow prisoners who adhere to con- 

ventional religious precepts, then there was palpable 

discrimination by the State against the Buddhist religion, 
established 600 B. C., long before the Christian era.’ 
The First Amendment, applicable to the States by reason 

of the Fourteenth Amendment, Torcaso v. Watkins, 367 

U. S. 488, 492-493, prohibits government from making 

a law “prohibiting the free exercise” of religion. If the 

allegations of this complaint are assumed to be true, as 

they must be on the motion to dismiss, Texas has vio- 

lated the First and Fourteenth Amendments. 

The motion for leave to proceed in forma pauperis 

2 We do not suggest, of course, that every religious sect or group 
within a prison—however few in number—must have identical facili- 

ties or personnel. A special chapel or place of worship need not be 

provided for every faith regardless of size; nor must a chaplain, 

priest, or minister be provided without regard to the extent of the 

demand. But reasonable opportunities must be afforded to all pris- 

oners to exercise the religious freedom guaranteed by the First and 

Fourteenth Amendments without fear of penalty. 

   



CRUZ v». BETO (U
N)
 

ro
 

(W
V)
 

319 Rennquist, J., dissenting 

is granted. The petition for certiorari is granted, the 

judgment is vacated, and the cause remanded for a hear- 

ing and appropriate findings. . 
8 pproj B So ordered. 

MR. JusTicE BLACKMUN concurs in the result. 

Mgr. CHIEF JusTICE BURGER, concurring in the result. 

I concur in the result reached even though the allega- 

tions of the complaint are on the borderline necessary to 

compel an evidentiary hearing. Some of the claims al- 

leged are frivolous; others do not present justiciable 

issues. There cannot possibly be any constitutional or 

legal requirement that the government provide materials 

for every religion and sect practiced in this diverse 

country. At most, Buddhist materials cannot be denied 

to prisoners if someone offers to supply them. 

MR. Justice REHNQUIST, dissenting. 

Unlike the Court, I am not persuaded that petitioner's 

complaint states a claim under the First Amendment, 

or that if the opinion of the Court of Appeals is vacated 

the trial court must necessarily conduct a trial upon the 

complaint. 

Under the First Amendment, of course, Texas may 

neither “establish a religion” nor may it “impair the 

free exercise” thereof. Petitioner alleges that voluntary 

services are made available at prison facilities so that 

Protestants, Catholics, and Jews may attend church 

services of their choice. None of our prior holdings 

1 The Court “remand|s] for a hearing and appropriate findings,” 

ante, this page. But, of course, the only procedural vehicle for mak- 
ing such findings in this civil litigation would be the trial to which any 

civil litigant is entitled, inasmuch as this Court has never dealt with 

the special procedural problems presented by prisoners’ civil suits. 

See Fed. Rules Civ. Proc.  



  

COPR. (C) WEST 1991 NO CLAIM TO ORIG. U.S. GOVT. WORKS 

  

3 «£.24 196 R I OF 6 P 50PFP 12 GA-CS p 
(CITE AS: 351 S.F.2D 196, *197) 
imposed for the murder conviction. On direct appeal, all convictions and 
sentences were affirmed. Tucker v. State, 244 Ga. 721, 261 S.E.2d 635 (1979). 

In 1980, the appellant filed a petition for a writ of habeas corpus in the 
Butts Superior Court. This petition was denied by the superior court. The 
application for certificate of probable cause to appeal was denied by this 
court in 1981. The United States Supreme Court denied certiorari. Tucker v. 
Zant, 454 U.8. 1022, 102 5.Ct., 555, 7T0-L.B@.28 417 (1982). 
In 1982, the appellant filed a petition for a writ of habeas corpus in the 

United States District Court for the Middle District of Georgia. During the 
pendency of protracted proceedings in the federal district court and the 
Eleventh Circuit Court of Appeals, the appellant, on May 29, 1985, filed the 
present petition for a writ of habeas corpus in the Butts Superior Court. In 
this petition, the appellant presents for the first time a claim that at the 
guilt/innocence phase of his trial, the jury instructions on intent were 
unconstitutionally burden-shifting as being in violation of the Due Process 
Clause of the Fourteenth Amendment. The appellant argues that in a line of 
cases commencing with Skrine v. State, 244 Ga. 520, 260 S.E.2d 900 (1979), the 
jury instructions under attack here had been repeatedly upheld by this court; 
however, the Supreme Court of the United States, on April 25, 1985, in Francis 
v., Franklin, 471 U.8. 307, 105 S.Ct. 1965, 85 L.F4d.248 344 (1985), held that 
jury instructions virtually identical to those given here are 

COPR. (C) VEST 1991 NO CLAIM TO ORIG. U.5. GOVT. WORKS 
351 8.2.24 19¢6 R 30F 6 P 6OF 12 GA-CS Pp 

{CITE AS: 351 S.E.2D 196, *197) 
unconstitutionally burden-shifting. The court dismissed the appellant's habeas 
corpus petition as being successive. Held: 

Georgia's habeas corpus statute, OCGA s 9-14-51, provides: "All grounds for 
relief claimed by a petitioner for a writ of habeas corpus shall be raised by a 
petitioner in his original or amended petition. Any grounds not so raised are 
waived unless the Constitution of the United States or of this state 
otherwise requires or unless any judge to whom the petition is assigned, on 
considering a subsequent petition, finds grounds for relief asserted therein 
which could not reasonably have been raised in the original or amended 
petition." 
"Thus, in considering a successive petition, the habeas court must determine, 

as the threshold matter, whether the er is entitled to a hearing on the 
merits of *198 his belated claims. 8 mith v. Snes, wid 36 Bl, 85 41 
S.E.2d 351) (1976). In order to. be r must raise 
gr which are either LT ne Se i SA 

bly have been raised in the earlier petition. Fuller v. Ricketts, 234 
a. : S.E.2d 541) (1975); Dix wv. Zant, 249 Ga. 810, 811 294 s.R. 2d 
Sia For example, in Smith v. Garner. supra, vhere the successive 
petitioner's first habeas attorney would not raise several constitutional 
issues despite the petitioner's requests to do so, the petitioner was allowed 

   

  

    

      

to proceed on the merits of his second petition. But, in Samuels v. Hopper, 
COPR. (C) WEST 1991 NO CLAIM TO ORIG. U.3. GOVT. WORKS 

351 8.B.24 196 R 30OF 6 P-70F 12 GA-CS P 
{CITE aS: 351 5.E.2D 196, %198) 
234 Ga. 246 (215 S.E.2d 250) (1975), where ineffective assistance of trial 
counsel had been raised in petitioner's first habeas, his claim in the 
successive petition that the failure of his appointed trial counsel to inform 
him of his right to appeal was dismissed. Accord, Yates v. “Brown, 235 Ga. 
391(3) (219 5.E.24:729) (1975); Puller wv. Ricketts, supra." SMITH v. ZANT, 
250Ca 645, 647{2),301 3.7.24 32 (1983). 
As we alluded to in Stevens v. Kemp, 254 Ca. 228(1), 327 8.BE.2d 185 (1985), 

 



     oocnoce HAMMOCK Vv. Zant, 24 FM" S— 4 CY . C J73), states 
that "[tlhere : eption ne RES JUDICATA rule in that habeas would 
likely ge alloved if the law changed vhich might render a later challenge 
successful. Bunn v. Burden, [237 Ga. 439, 228 S.E.2d 830 (1976) 1." However, 
the change in the law which transpired in Bunn v. Burden, supra, was that the 
statute under which the habeas petitioner had been convicted was subsequently 
held to be unconstitutional by this court. In Jarrell v. Zant, 248 Ga. 492 (n. 
1), 284 S.E.2d4 17 (1981), we allowed another habeas petitioner under a death 
sentence to raise in a successive habeas corpus petition the claim that the 
trial court's instructions to the jury at the sentencing phase of the trial 
violated Spivey v. State, 241 Ga. 477, 246 S.E.2d4 288 (1978), and its 
predecessors, Hawes v. State, 240 Ga. 327, 240 S.E.2d4 833 (1977), and Fleming 
v. State, 240 Ga. 142, 240 S.E.2d 37 (1977), in that these cases were not 
decided until after the hearing of that petitioner's first habeas action. 

COPR. (C) WEST 1991 NO CLAIM TO ORIG. U.S. GOVT. WORKS 
351 s.E.24 195 R 3 OF 6 P 8 OF 12 GA-CS P 
{CITE AS: 351 S.E.2D 195, 2198) 

However, this holding in Jarrell v. Zant, supra, is equally supportable under 
the rationale of Stynchcombe v. Floyd, 252 Ga. 113, 311 S.E.24d 828 (1984). 
" '(I)n a death case the sentencing charge is so crucial to the outcome of the 
trial that we will exercise our power to review those charges when the issue is 
placed before us on habeas, whether objection was made in the trial court or 
not.' Stephens v. Hopper, [241 Ga. 596, 602, 247 B8.E.24 92 {(1978).] 
Failure to object to a sentencing phase jury charge in a death penalty case 
where the jury was not informed that a life sentence could be recommended in 
spite of the presence of aggravating circumstances does not preclude review of 
that charge on habeas corpus." 252 Ga. at p. 115; 311 S.BE.24 828. However, 
this ruling in Stynchcombe does not apply to the jury instructions in the 
guilt/innocence phase of a death penalty trial. See Rivers v. State, 250 Ga. 
303(7), 298 S.E.2d 1 (1982). In Rivers, we held that the defendant who had 
been given the death sentence there was precluded from raising a claim of an 
unconstitutionally burden-shifting jury instruction given during the 
guilt/innocence phase of his trial, because the trial court asked defense 
counsel if there were any objections to the jury charge and defense counsel did 
not raise this objection. Accord, Zant v. Akins, 250 Ga. 5(2), 295 S.E.24 313 
{1982}. 

[1] The appellant contends that his successive claim of an unconstitutionally 
burden-shifting jury instruction could not reasonably have been raised in his 

: COPR. (C) WEST 1991 NO CLAIM TO ORIG. U.S. GOVT. WORKS 
327 8.K.24 18% R 4 OF 6 P-7:0F 11 GA-CS P 
(CITE AS: 327 S.E.2D 185, 2186) 
vas affirmed. Stevens v. State, 245 Ga. 583, 266 S.E.24 194 (1980), cert. den. 
449 U.S. 891, 101 S.Ct. 251, 656 L.EGd.24 118 (1980). 
Stevens subsequently filed a petition for writ of habeas corpus in the Butts 

Superior Court. This petition was denied, as was Stevens' application for 
certificate of probable cause to appeal. Next, Stevens filed a petition for 
writ of habeas corpus in federal district court; that petition was dismissed 
under Rose v. Lundy, 455 U.S, 509, 102 S.Ct. 1198, 71 L.BEG.24379- (1982), 
because it contained claims with respect to which Stevens had not exhausted his 
state remedies. Stevens v. Zant, 580 F.Supp. 322 (8.D.Ca.l1984). 
Stevens then filed the present petition for writ of habeas corpus. As noted 

by the superior court in this habeas proceeding, Stevens raises two basic 
issues herein: First, Stevens alleges ineffective assistance of trial 
counsel. Second, he alleges that his death sentence is unconstitutional under 
the United States Supreme Court's decision in Enmund v. Florida, 458 U.S. 782, 
102 s.Ct. 3368, 73 L.BEG.24 1140 (1982). 
The superior court ruled that the petitioner's ineffective-assistance-of- 

counsel claim was raised in his first state habeas proceeding; therefore, the 
denial of habeas relief on this ground was found to be RES JUDICATA. Turner v. 
Balkcom, 219 Ga. 48, 131 S.E.2d 563 (1963). The superior court further ruled 

| that what Enmund v. Florida, supra, prohibits is the imposition of the death 
penalty upon a defendant "who aids and abets a felony in the course of which a 

COPR. (C) WEST 1991 NO CLAIM TO ORIG. U.S. GOVT. WORKS 

327 s.2.24 185 R 4 OF 6 P§ OF 1} GA-CS p 
{CITE AS: 327 S.BR.2D 185, =%186) 
murder is committed by others but who does not himself kill, attempt to kill, 

- 

    
i BC Rk oy a) y RR 2 TE oe 4    
  
    



    

  

. = 8 - Ake place Of c SUN Drce wi De employed." 
Enmund v. Florida, 458 U.S8., supra, at p. 797, 102 8.Ct. at p. 3376; Allen v. 
State, 253 Ga. 390, 395(7), 321 S.E.24 710 (1984). The superior court found 
that this court has previously held that the petitioner was an active 

participant in all the offenses culminating in the murder. Stevens v. State, 
245 Ga., supra, at p. 586, 266 S.E.2d 194. Therefore, the superior court 
concluded that Enmund is inapplicable here. Accordingly, the petition was 
dismissed as being *187 successive. OCGA s 9-14-51; SMITH v. ZANT, 250 Oa. 
5645, 647, 301 s.F.24 32 (1983). 
We granted Stevens' application for certificate of probable cause to appeal. 

For reasons which follow, we affirm the denial of habeas relief but 
hold that the petition is not subject to dismissal. 

(11{2] 1. As recognized by the superior court, the rule is that all grounds 
for habeas relief must be raised in the first habeas petition, and thus cannot 
be raised in a successive petition, unless: (1) the grounds are 
constitutionally nonwaivable, or (2) the grounds could not reasonably have been 
raised in the first petition. OCGA s 9-14-51, supra; SMITH v. ZANT, supra. 
As indicated by Hammock v. Zant, 243 Ga. 259, 260 (n. 1), 253 s.B.24 1217 
(1979), the rule of RES JUDICATA in habeas corpus proceedings is rendered 
inapplicable where the grounds for relief are based on a change in the law 

COPR. (C) WEST 1991 NO CLAIM TO ORIG. U.B8. GOVT. WORKS 
CITATIONS LIST (Page 1) Total Documents: 6 
Database: GA-CS 

1. Ga. 1989, ‘zant viiBeck’ 386 5.5.24 349, 259 Ga. 756 

2. GCa.App. 1988. Reynolds v. State 374 8.5.24 341, 188 Ga.App. 7121 

3. Ga. 1987. Tucker v. Kemp 351 s.B.24 196, 256-Ca. 571 

4. Ga. 1985, Stevens v. Kemp 327 3.E.24 185, 254 Ga. 228 

5 Ga. 1983. Smith v. Kemp 308 s.B.28 801,:251 Ga. 350 

6. Ga. 1983. Smith v. Zant 301 sS.R.24 32, 250 Ga. 5645 

| YOU ARE AT THE END OF THE CITATION LIST. PLEASE ENTER YOUR NEXT COMMAND. 

SHEPARD'S (Rank 1 of 2) Page 1 of 2 
CITATIONS TO: 301 8.F.24 32 
CITATOR: SOUTHEASTERN REPORTER CITATIONS 
COVERAGE: First Shepard's volume through Jun. 1991 Supplement 
Retrieval Headnote 

No. ———apnalysig-—~—- mice Citation--———~ No. 
Same Text (250 Ga. 645) 

SC Same Case 464 U.8. 807 

SC Same Case 78 L,.BEd.24 14 

SC Same Case 104 8.Ct. 55 

1 CC Connected Case 222 S.E.2d 308 

CC Connected Case 235 8.E.24 3175 

2 CC Connected Case 239 S.E.2d4 510 

3 CC Connected Case 660 F.2d 573 

4 CC Connected Case 671 F.2d 858 

5 CC Connected Case 679 F.2d 236 

6 CC Connected Case 715 F.2d 1459 

7 CC Connected Case 517 F.Supp. 1076 
8 FF Followed 308 5.B.24 at 801 2 

9 327: 8.8.24 185%, 187  



————_ - - > 7 - LJ Ul = \ J 

Copyright {C) 1991 McGraw- Hill, Inc.; Copyright (C) 1991 West Publishing Co. 

   

      

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CITATIONS TO: 301 S5.E.24 32 
CITATOR: SOUTHEASTERN REPORTER CITATIONS 
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No. -Analysis-—- -——~- Citation------ No. 
1 3.E.2d a t 455 4 

3 351 E. 2d 196. 198 3 
4 386 3.B.24 339, 340 2 
5 387 >: E.2d at 889 1 
6 781 F.24 1458, 1468 l 
7 F Followed 835 F.2d 1567, 1572 1 
8 880 F.2d 362, 372 1 

S Anno Sup 34 A.L.R.3d at 16 

Copyright (C) 1991 McGraw-Hill, Inc.; Copyright (C) 1991 West Publishing Co. 

COPR. (C) WEST 1991 NO CLAIM TO ORIG. U.S. GOVT. WORKS 
CITATIONS LIST (Page 1) Total Documents: 1 
Database: GA-CS 

1. Ca. 1989, Fleming v. Zant 386 S.B2.24 339, 259 Ga. 687 
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COPR. (CC) WEST 1991 NO CLAIM TO ORIC. U.85. COVT. WORKS 

CITATIONS LIST (Page 1) Total Documents: 11 
Database: GA-CS 

l. Ga. 1990. Earp v. Boylan 390 8.E.24 577, 260 Ga. 112 

2. Ga. 1990. Gaither v. Sims 337 S.E.24 389, 259 Ga. 807 

3. Ga. 1989. Fleming v. Zant 386 S.FE.24 339, 259 Ga. 687 

4, Ga. 1981. Tucker v. Kemp 351 S.E.24 196, 256 Ga. 571 

5. Ga. 1986. Gunter v. Hickman 348 S.E.2d 644, 256 Ga. 315 

6. Ca. 1985, Moore v. Kemp 378 8.2.24 725, 254 Ga. 278% 

be 3 alo) 1000 LET ea, om         



ale | V > V e — = ~~ dn J oe ilo oe > Nek —_ 7 — J . Le 

     8. Ga, 1985. Brown v. Francis 326 S.E.24 735, 254 Ga. 83 

9, Ga. 1983. James v. Hight 307 s.E.24 660, 251 Ga, 563 

10. Ga. 1983. Williams v. State 3032 3.9.24 111, 251 Ga. 83 

COPR. :{(C) WEST 1991 NO CLAIM TO ORIC. U.S. GOVT. 
CITATIONS LIST (Page 2) Total Documents: 11 
Database: GA-CS 

11. Ga. 1983. Smith v. Zant 301 s.2.24 32, 250 Ga. 545 
YOU ARE AT THE END OF THE CITATION LIST. PLEASE ENTER YOUR NEXT COMMAND. 

WORKS 

 



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BERTOLOTTI v. DUGGER 1503 
Cite as 883 F.2d 1503 (11th Cir. 1989) 

    

   

Anthon: L 
ellant, Petitioner-App 

v. 

Richard DUGGER, Secretary, Florida 

Department of Corrections, 

Respondent-Appellee. 

No. 89-3104. 

United States Court of Appeals, 

Eleventh Circuit. 

Aug. 31, 1989. 

Defendant, who was convicted of first- 

degree murder and sentenced to death, 

sought federal habeas relief. The United 

States District Court for the Middle Dis- 

trict of Florida, No. 89-127-Civ-ORL~18, 

Richard B. Kellam, Visiting Judge, denied 

relief, and defendant appealed. The Court 

of Appeals, 869 F.2d 1501, initially affirmed 

without published opinion, but subsequent- 

ly vacated panel opinion, granted new cer- 

tificate of probable cause, and agreed to 

rehear argument. On rehearing, the Court 

of Appeals, Kravitch, Circuit Judge, held 

that: (1) defense counsel's performance 

was not ineffective and did not prejudice 

defendant, for purposes of ineffective as- 

sistance claim that counsel overlooked sub- 

stantial evidence of defendant’s psychologi- 

cal problems, although Florida Supreme 

Court found counsel's performance defi- 

cient under state law standard and counsel 

abandoned inquiry into defendant’s mental 

state after less than complete investigation 

of defendant's mental health; (2) counsel 

would not be found to have provided inef- 

fective assistance on allegations that coun- 

sel overlooked evidence of defendant's 

traumatic childhood, overlooked evidence of 

voluntary intoxication, and failed to 

present defense to felony-murder; and (3) 

individual voir dire conducted by defense 

counsel insured that defendant was tried 

by impartial jury, as constitutionally re- 
quired, although defendant claimed he was 

prejudiced by pretrial publicity. 

Affirmed. 

Clark, Circuit Judge, filed opinion con- 

curring in part and dissenting in part. 

1. Habeas Corpus €2746 

Defendant was not entitled to eviden- 

tiary hearing on ineffective assistance of 

counsel claim raised in federal habeas peti- 
tion, where defendant was afforded full 

and fair opportunity to develop basis of 
ineffective assistance claim at four-day 

hearing during state collateral proceedings, 
at which defense counsel presented several 

witnesses including all three trial defense 

attorneys, psychiatrist, and criminal de- 

fense expert, and cross-examined witnesses 

produced by state. U.S.C.A. Const.Amend. 

6. 

2. Judgment €=828(3.10) 

Federal courts are not bound by state 

determination of whether counsel was inef- 

fective. 

3. Habeas Corpus €=486(1) 

Role of Florida Supreme Court in de- 

ciding questions of ineffective assistance 

differs fundamentally from role of habeas 

court; Florida Constitution provides Flor- 

ida Supreme Court jurisdiction to regulate 

admission of persons to practice of law and 

discipline of persons admitted, while ulti- 

mate focus of habeas court's ineffective 

assistance inquiry is on fundamental fair- 

ness of proceeding whose result is being 
challenged. U.S.C.A. Const.Amend. 6; 

West's F.S.A. Const. Art. 5, § 15. 

4. Habeas Corpus €=486(1) 

Federal Court of Appeals’ role in col- 

laterally reviewing state judicial proceed- 

ings on ineffective assistance claim is not 

to point out counsel's errors, but only to 

determine whether counsel's performance 

in given proceeding was so beneath prevail- 

ing professional norms that attorney was 

not performing as “counsel” guaranteed by 

Sixth Amendment. U.S.C.A. Const.Amend. 

6. 

5. Criminal Law €¢=641.13(1) 

State standard does not necessarily de- 

fine ‘prevailing professional norm” for 

purposes of ineffective assistance claim as- 

serted in federal court. U.S.C.A. Const. 

Amend. 6. 

     
  

  

R
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BERTOLOTTI v. DUGGER 1507 
Cite as 883 F.2d 1503 (11th Cir. 1989) 

33. Homicide ¢=357(11) 

Death sentence imposed on defendant 

would not be found invalid based on Flor- 

ida construction of statutory aggravating 
circumstance that offense was especially 

heinous, atrocious, or cruel; Florida's ap- 

pellate construction holding the term to 

mean the conscienceless or pitiless crime 

which is unnecessarily torturous to victim 
provided sufficient guidance, trial judge 
who was sentencer under Florida death 
penalty law explicitly found facts to war- 

rant aggravating circumstance, there was 

no reason to doubt that judge was guided 
by Florida appellate construction of the 

term, and finding that facts of defendant’s 

offense exemplified heinous, atrocious or 
cruel behavior did not subvert Eighth 

Amendment channelling function of the 

term as narrowed by Florida Supreme 

Court. U.S.C.A. Const.Amend. 8. 

34. Homicide €=356, 357(7) 

Jury verdict of felony-murder did not 

make the death penalty automatic under 

Florida law, so as to render death penalty 

unconstitutional, although sentencer found 

in aggravation the circumstance that defen- 

dant murdered in course of robbery. 

35. Criminal Law €=1208.1(5) 

Use of felony-murder as aggravating 

circumstance in imposing death penalty 

was decision within discretion of Florida 
legislature. 

36. Homicide €=358(1) 

Sentencing phase testimony of murder 

victim’s husband that victim was concerned 

with danger in opening door to strangers 

and that all young male strangers upset 

victim was admissible to rebut defense to 

burglary that defendant had been invited 

into home, although defendant character- 

ized such evidence as impermissible victim- 

impact evidence; the testimony was rele- 

vant to prove fact in issue and not overly 

prejudicial or inflammatory. Fed.Rules 

Evid.Rules 401-403, 28 U.S.C.A. 

Martin J. McClain, Billy H. Nolas, Capital 

Collateral Rep., Tallahassee, Fla., for peti- 

tioner-appellant. 

1. The warrant period commenced at noon on 

Richard B. Martell, Asst. Atty. Gen. 

Dept. of Legal Affairs, Tallahassee, Fla. 

for respondent-appellee. 

Appeal from the United States District 

Court for the Middle District of Florida. 

Before KRAVITCH, CLARK and 

EDMONDSON, Circuit Judges. 

KRAVITCH, Circuit Judge: 

Petitioner Anthony Bertolotti, a Florida 

prisoner under sentence of death, appeals 

the district court’s denial of his petition for 

the writ of habeas corpus. Concluding that 

Bertolotti’s claims lack merit, we affirm 

the judgment of the district court. 

I. PROCEDURAL HISTORY 

Bertolotti was convicted of first-degree 

murder for the September 1983 slaying of 

Carol Miller Ward in Orlando, Florida. The 

jury returned a general verdict of guilty 

upon a charge of felony murder and pre- 

meditated murder, both of which are death- 

eligible crimes under Florida law, Fla.Stat. 

Ann. § 782.04(1)(a); by a vote of nine to 

three, the jury recommended the death pen- 

alty, which the judge imposed on April 12, 

1984. The Florida Supreme Court affirmed 

Bertolotti’s conviction and sentence on di- 

rect appeal, Bertolotti v. State, 476 So.2d 

130 (Fla.1985), and Bertolotti voluntarily 

dismissed a subsequent petition for certio- 

rari filed in the United States Supreme 

Court. After the Governor of Florida 

signed a warrant for Bertolotti’s execution, 

Bertolotti filed in the Florida courts two 

collateral attacks on his conviction. The 

Florida courts held an evidentiary hearing 

and granted a temporary stay of execution, 

effectively nullifying the first execution 

warrant, but ultimately denied Bertolotti 

relief. See Bertolotti v. Dugger, 514 So.2d 

1095 (F1a.1987) (denying state writ of habe- 

as corpus) and Bertolotti v. State, 534 

So.2d 386 (Fla.1988) (denying Fla.R.Crim.P. 

3.850 motion for post-conviction relief). 

On January 31, 1989, the Governor of 

Florida signed a second warrant for Berto- 

lotti’s execution.! On February 14, 1989, 

February 15, 1989, and was to expire at noon on  



  
  

  

  

1508 

Bertolotti filed in federal district court a 
motion for stay of execution and a petition 
for the writ of habeas corpus. The peti- 
tion, Bertolotti’s first in federal court, 
presented eleven grounds for relief: 

1. Trial counsel provided Bertolotti with 
ineffective assistance of counsel when 
counsel failed to adequately investi- 
gate, develop and present defenses at 

the guilt and penalty phases of Berto- 
lotti’s capital trial. 

2. The trial court erred by denying Ber- 
tolotti’s motions for a mistrial based on 

the prosecutor’s improper closing ar- 
gument at the sentencing phase of the 
trial. 

3. The trial court’s denial of Bertolotti’s 
requested penalty phase instruction in- 

forming the jury of its ability to exer- 

cise mercy deprived Bertolotti of a reli- 
able and individualized capital-sentenc- 
ing determination. 

4. The trial court in its instructions at 
sentencing unconstitutionally shifted 
the burden of proof to Bertolotti. 

5. The Florida courts have given an im- 
permissibly broad construction to the 

term “especially heinous, atrocious or 
cruel” as that term is used in a statu- 
tory aggravating circumstance which 

was found to justify Bertolotti’s death 
sentence. 

6. Bertolotti’s death sentence is predi- 
cated upon the finding of an automatic, 
non-discretionary-channeling statutory 
aggravating circumstance. 

February 22, 1989. The warden scheduled Ber- 
tolotti’s execution for seven o'clock a.m. on Feb- 
ruary 16, 1989. Bertolotti, through his counsel 
the Office of the Capital Collateral Representa- 
tive, immediately lodged in federal district court 
and in this court substantial portions of the 
voluminous state-court record. On February 9, 
1989, the district court received an additional 
volume containing all documents relating to 
Bertolotti's appeals to the Supreme Court of 
Florida. 

2. Bertolotti immediately filed in this court mo- 
tions for a certificate of probable cause to ap- 
peal and for an additional stay, and also filed an 
appeal of the district court's decision denying 
the writ of habeas corpus. We granted the 
motion for stay on February 15, 1989, in order 
to allow oral argument on the district court's 
denial of both the certificate of probable cause 

883 FEDERAL REPORTER, 2d SERIES 

7. Bertolotti’s right to a reliable capital- 
sentencing proceeding was violated 
when the state urged that he be sen. 
tenced to death on the basis of imper- 
missible “victim impact” evidence. 

8. Comments of the judge and the pros- 
ecutor throughout the trial impermissi- 
bly diminished the jury’s sense of re- 
sponsibility for the awesomeness of its 
sentencing task. 

9. Bertolotti’s conviction is void because 
it may have been based on a constity- 
tionally impermissible ground, and 
there may not have been juror unanim- 
ity. 

10. A state witness introduced imper- 
missible evidence of Bertolotti’s pro- 
pensity to crime. 

11. The trial judge unconstitutionally 
failed to grant Bertolotti’s motion for a 
change of venue, and impermissibly 
limited Bertolotti’s ability to voir dire 
the jury venire. 

The district court heard oral argument 
the morning of February 15, 1989, but de- 
clined to hold an additional evidentiary 
hearing on Bertolotti’s claims. Later that 
afternoon, the district judge denied Berto- - 
Totti relief, and refused to issue a certifi- 
cate of probable cause to appeal; the dis- 
trict court did however enter a twenty-four 
hour stay of execution to allow Bertolotti 
time to appeal to this court.2 

II. MERITS OF THE APPEAL 

Bertolotti reasserts the eleven grounds 
he alleged in the district court? We will 

and the writ of habeas corpus. See 11th Cir.R. 
22-3(a)(7). Following oral argument on Febru- 
ary 18, 1989, we granted Bertolotti's certificate 

of probable cause, but by a divided panel af- 
firmed the denial of relief. Bertolotti immedi- 
ately filed motions for a stay of execution, for 
rehearing by the panel, and for rehearing in 
banc. Pending resolution of these motions, Ber- 
tolotti’s execution was stayed until seven o'clock 
a.m., February 21, 1989. On February 20, 1989, 
we vacated our prior panel opinion, granted a 
new certificate of probable cause, and agreed to 
rehear argument on the merits of Bertolotti's 

appeal. 

3. The facts upon which Bertolotti's conviction 

and sentence are based are recounted in the 
Florida Supreme Court's opinion on direct ap- 

peal, Bertolotti v. State, 476 So.2d 130 (1985), 

and will not be repeated in their entirety here.   

 



ible capita]. 

tS violated 
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BERTOLOTTI v. DUGGER 1509 
Cite as 883 F.2d 1503 (11th Cir. 1989) 

address first those claims that challenge 

the over-all validity of the state-court pro- 

ceedings; second, those claims attacking 

specific errors during the guilt phase of the 
trial; and finally, those claims assigning 
constitutional error to the penalty phase of 

the trial. 

[1] Before turning to Bertolotti’s spe- 
cific claims, we note that the district court 

did not abuse its discretion by declining to 
hold an evidentiary hearing on the one is- 
sue that we agree presents a colorable 
claim for relief, the ineffectiveness claim. 

Although such a hearing often is necessary 
in a first federal habeas petition, it was not 
here. At the four-day hearing during the 
state collateral proceedings, counsel for 
Bertolotti presented several witnesses—in- 
cluding all three of his trial attorneys, a 
psychiatrist, and an expert on criminal de- 
fense; counsel also cross-examined the wit- 
nesses produced by the state. Bertolotti 
thus was afforded a full and fair opportuni- 
ty to develop the basis of his ineffective-as- 
sistance claim. The district court, which 

was provided with the 665-page transcript 
of that hearing, fairly concluded that an- 
other hearing would not materially aid res- 
olution of the ineffectiveness claim. Smith 
v. Dugger, 840 F.2d 787, 796 (11th Cir. 
1988); cf. Coleman v. Zant, 708 F.2d 541, 

545 (11th Cir.1983). 

A. ERROR AFFECTING THE EN- 
TIRE PROCEEDING 

1. Ineffective Assistance of Trial 

Counsel (Claim 1) 

Bertolotti’s defense was undertaken by 
attorneys Joseph DuRocher, Clyde Wolfe, 
and Peter Kenny. DuRocher, the elected 
public defender for the Ninth Judicial Cir- 
cuit in Florida, initially interviewed Berto- 
lotti and assigned the case to his assistants 
Wolfe and Kenny. Wolfe was responsible 
for the guilt phase of the trial and Kenny 
for the penalty phase. Bertolotti argues 
that counsel’s performance was constitu- 
tionally defective for four reasons: (1) 

counsel overlooked substantial evidence of 
Bertolotti’s psychological problems; (2) 
counsel overlooked evidence of Bertolotti’s 
traumatic childhood; (8) counsel overlooked 

evidence of voluntary intoxication; and (4) 

counsel failed to present a defense to felo- 

  

ny murder. Bertolotti claims that coun- 
sel’s errors prevented the presentation of 

an effective defense, compromising the in- 
tegrity of both the guilt and penalty phases 

of his trial. 

Our resolution of Bertolotti’s ineffective- 
ness claims is guided by the familiar two- 

prong test announced by the Supreme 
Court in Strickland v. Washington: to 

prevail, Bertolotti must first show that 
counsel’s performance was so deficient that 

“counsel was not functioning as the ‘coun- 
sel’ guaranteed the defendant by the Sixth 
Amendment;” second, Bertolotti must 

show that “counsel’s errors were so serious 

as to deprive [him] of a fair trial, a trial 

whose result is reliable.” 466 U.S. 668, 
687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 

(1984). To meet the second prong, Berto- 

lotti must demonstrate prejudice: “a rea- 
sonable probability that, but for counsel's 
unprofessional errors, the result of the pro- 

ceeding would have been different.” Id., 

- 466 U.S. at 694, 104 S.Ct. at 2068. The 

Strickland standard is applicable to Berto- 
lotti’s claims of ineffectiveness both at the 

guilt stage and the penalty stage of his 

trial. Id, 466 U.S. at 687, 104 S.Ct. at 

2064. 

a. Insanity and diminished capacity. 
—Bertolotti asserts that his trial counsel 

overlooked clues of mental incapacity that 
would have caused a reasonably competent 

lawyer to secure a psychiatric examination 

of his client. With the results that such an 
examination would have yielded, reason- 

ably competent counsel could have present- 

ed insanity and diminished-capacity defens- 
es at the guilt stage of the trial, and could 
have offered compelling mitigating evi- 

dence at the penalty phase of the trial. 

Although we conclude that Bertolotti can- 
not show prejudice, our resolution of the 

prejudice issue is determined substantially 

by our doubt about the strength of Berto- 

lotti’s evidence of psychological impair- 

ment. This doubt also colors our conclu- 

sions in regard to the performance of Ber- 

tolotti’s counsel. Because much of the evi- 

dence relevant to the prejudice component 

of the Strickland test is also relevant to 

the performance component on this issue, 

resolution of the performance component 

    

To
 

T
T
 

T
T
 

S 

  



      

  

1510 

will not make our task appreciably more 
difficult, and we voluntarily address both 
prongs of the Strickland test. 

[2,3] (1) Attorney performance.— 

Nine judges already have reviewed the per- 
formance of Bertolotti’s attorneys. The 
unanimous Florida Supreme Court decided 
that counsel's performance was deficient; 
the state trial judge and the district judge 
both concluded that counsel’s performance 
was adequate. Federal courts are not 
bound by the state determination of inef- 
fectiveness, however (Strickland, 466 U.S. 

at 698, 104 S.Ct. at 2070), and it is crucial 
to recognize that the role of the Florida 
Supreme Court in deciding questions of 
ineffective assistance differs fundamental- 
ly from the role of the federal court. Arti- 
cle Five, section fifteen of the Florida Con- 

stitution provides that “The supreme court 
shall have exclusive jurisdiction to regulate 
the admission of persons to the practice of 
law and the discipline of persons admitted.” 
West's F.S.A. Const. Art. 5, § 15 (Supp. 
1989). We have no such authority: as our 
Supreme Court has admonished, the duty 
of the federal court sitting in review of a 
state-court proceeding ‘is not to grade 
counsel’s performance.” Strickland, 466 
U.S. at 697, 104 S.Ct. at 2069. Rather, the 

“ultimate focus” of our inquiry “must be 
on the fundamental fairness of the proceed- 
ing whose result is being challenged.” Id. 
466 U.S. at 696, 104 S.Ct. at 2069. 

[4,5] The Florida Supreme Court ana- 
lyzed the performance of Bertolotti’s coun- 
sel under a state-law standard: “where 
there is evidence calling into question a 
defendant's sanity, defense counsel is 
bound to seek the assistance of a mental 
health expert.” Bertolotti v. State, 534 
So.2d at 388. Because some evidence 
called Bertolotti’s sanity into question and 
counsel failed to seek the assistance of a 
mental health expert until the morning of 
the sentencing hearing, the Florida court 

4. In the vacated order, the majority and the 
dissent agreed that this particular claim was the 
only claim presented by Bertolotti which had 
any merit; the majority did not address the 
competency of Bertolotti’s counsel, resolving the 
claim on the ground that Bertolotti had shown 
no prejudice. See Strickland, 466 U.S. at 697, 
104 S.Ct. at 2069 (court should dispose of claim 
on prejudice prong if that course is “easier”). 

883 FEDERAL REPORTER, 2d SERIES 

adjudged counsel's performance deficient. 
534 So.2d at 389. The sixth-amendment 
standard for deciding a claim of defective 
performance is not nearly this formulaic; 
the federal standard asks whether “coun- 
sel’s representation fell below an objective 
standard of reasonableness,” and “[m]ore 
specific guidelines are not appropriate.” 
Strickland, 466 U.S. at 688, 104 S.Ct. at 
2064. Our role in collaterally reviewing 
state judicial proceedings is not to point out 
counsel's errors, but only to determine 
whether counsel's performance in a given 
proceeding was so beneath prevailing pro- 
fessional norms ® that the attorney was not 
performing as “counsel” guaranteed by the 
sixth amendment. Strickland, 466 U.S. at 
687, 104 S.Ct. at 2064. Because the ques- 
tion asked by the state court is not the 
question asked by the federal court, the 
fact that the two courts apparently diverge 
does not necessarily signal a conflict. 

[6] That counsel's behavior trans 
gressed a state-law duty is a factor we 
should consider in determining whether 
counsel was ineffective for the purposes of 
the sixth amendment, but because the sixth 
amendment does not guarantee perfect rep- 
resentation, an attorney error is not dispos- 
itive of the question of sixth-amendment 
ineffective assistance. Adams v. Wain- 
wright, 709 F.2d 1443, 1446 (11th Cir.), reh. 

in banc den., 716 F.2d 914 (11th Cir.1983), 

cert. denied, 464 U.S. 1063, 104 S.Ct. 745, 

79 L.Ed.2d 203 (1984). Significantly, as the 

state-law duty violated by Bertolotti’s coun- 
sel is not constitutionally compelled, it is 

less likely that Bertolotti’s representation 
was fundamentally flawed. The Florida 
court cited the United States Supreme 
Court's decision in Ake v. Oklahoma, 470 
U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 

(1985), as persuasive authority for its deci- 

sion, but Ake does not require the Florida 
rule. 

5. The state rule does not necessarily define a 
“prevailing professional norm” within the Su- 

preme Court's use of the term. Strickland, 466 

U.S. at 688, 104 S.Ct. at 2065 (referring to pre- 

vailing norms in terms of American Bar Associ- 

ation standards). Otherwise, the content of a 

fundamentally fair trial would vary from state 
to state.   

 



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BERTOLOTTI v. DUGGER 1511 
Cite as 883 F.2d 1503 (11th Cir. 1989) 

The defendant in Ake behaved so 
strangely at arraignment and prior thereto 
that the trial judge, on his own motion, 
ordered the defendant “to be examined by 
a psychiatrist ‘for the purpose of advising 
with the Court as to his impressions of 
whether the Defendant may need an ex- 
tended period of mental observation.’” 
470 US. at 71, 105 S.Ct. at 1090. The 
subsequent psychiatric report revealed that 
the defendant appeared to be “ ‘frankly 
delusional. ... He claims to be the “sword 
of vengeance” of the Lord and that he will 
sit at the left hand of God in heaven.” Id. 
The psychiatrist diagnosed the defendant 
as a probable paranoid schizophrenic and 
recommended prolonged psychiatric evalua- 
tion to determine the defendant's compe- 
tency to stand trial. The defendant was 
committed for observation; the chief foren- 

sic psychiatrist informed the trial judge 
that the defendant was psychotic, schizo- 
phrenic, suffering from delusions, rage, 

and poor control; the trial court held the 
defendant incompetent to stand trial. Six 
weeks later, the forensic psychiatrist rec- 
ommended that the defendant (by then un- 
der medication) was competent to stand 
trial; the state resumed proceedings. De- 
fense counsel told the court that he 
planned to raise the insanity defense on 
behalf of his client, and he requested state 
funds to hire a psychiatrist for the purpose 
of determining whether his client was in- 
sane at the time of the offense. The trial 
judge refused to appropriate funds; the 
United States Supreme Court subsequently 

held that the defendant's fourteenth- 
amendment rights had been violated: “We 

hold that when a defendant has made a 
preliminary showing that his sanity at the 
time of the offense is likely to be a signifi- 
cant factor at trial, the Constitution re- 

quires that a State provide access to a 
psychiatrist's assistance on this issue if the 

defendant cannot otherwise afford one.” 
470 U.S. at 74, 105 S.Ct. at 1091-92. 

[7,8] Ake thus speaks to the responsi 
bility of the state when the defendant ex- 
hibits compelling evidence of incompetency 

or insanity, the defendant’s sanity is in 
issue, and the defendant is unable to afford 
the services of a mental-health expert. Be- 
cause implicit in Ake is an assumption that 

  

counsel will recognize the applicability of 
the insanity defense to the facts of his 

particular case, counsel faced with facts 
comparable to those in Ake might be defi- 

cient as a matter of sixth-amendment law if 
he did not conduct a reasonable investiga- 

tion into the possibility of raising an insani- 
ty defense. Cf. Strickland, 466 U.S. at 
691, 104 S.Ct. at 2066. Ake, however, does 

not require that counsel faced with signifi- 
cantly less compelling evidence of mental 

instability—which evidence, as in the in- 
stant case, nonetheless could call his 

client’s sanity into question—must move 
beyond a preliminary inquiry into an insani- 

ty defense and actually “seek the assist- 

ance of a mental health expert.” Cf. Ber- 

tolotti v. State, 534 So0.2d at 388. As the 

state would not be required by the federal 
constitution to fund an examination under 

such circumstances, Moore v. Kemp, 809 

F.2d 702, 712 n. 8 (11th Cir.) (in banc), cert. 

denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 
L.Ed.2d 847 (1987), counsel cannot be per 

se deficient for not requesting an examina- 
tion. When fundamental fairness does not 

require that a defendant be given a benefit, 

fundamental fairness is not threatened by 

the defendant’s failure to receive that bene- 

fit if the failure is due to counsel's reason- 

able decision not to request it or the court’s 

reasonable decision not to grant it. See 
generally Clark v. Dugger, 834 F.2d 1561, 

1563-65 (11th Cir.1987), cert. denied, — 

U.S. —, 108 S.Ct. 1282, 99 L.Ed.2d 493 

(1988); Bowden v. Kemp, 767 F.2d 761, 765 

(11th Cir.1985). 

[91 This is not to say that vigorous 

counsel could never move for the appoint- 

ment of an expert if he doubts that his 

client can make out an Ake showing; nor 

do we in any sense question Florida's deci- 

sion to hold its practitioners to a higher 

standard. Rather, the federal standard by 

which we measure counsel’s decision not to 

go forward with a full-fledged inquiry into 
his client’s mental health remains that an- 

nounced by the Supreme Court in Strick- 
land: “In any ineffectiveness case, a par- 

ticular decision not to investigate must be 

directly assessed for reasonableness in all 

the circumstances, applying a heavy mea- 

sure of deference to counsel's judgments.” 

  

  
  

   



  

1512 

Id. 466 U.S. at 691, 104 S.Ct. at 2066. In 
Strickland as in the instant case, the peti- 
tioner argued that his counsel was ineffec- 
tive for failing to secure a psychiatric ex- 
amination. /d., 466 U.S. at 675, 104 S.Ct. 
at 2058. Evaluating the claim, the Su- 
preme Court held that “[t]he reasonable- 
ness of counsel's actions may be deter- 
mined or substantially influenced by the 
defendant’s own statements or actions.” 

Id, 466 U.S. at 691, 104 S.Ct. at 2066. 
Specifically, “when a defendant has given 
counsel reason to believe that pursuing cer- 
tain investigations would be fruitless or 

even harmful, counsel's failure to pursue 
those investigations may not later be chal- 
lenged as unreasonable.” Id. 

[10] Turning to appraise the reason- 
ableness of counsel’s decision not to secure 
a psychiatric examination until the morning 

6. The dissent submits that “[c]haracterizing 

counsels’ accidental failure to secure a mental 
exam until the morning of the sentencing hear- 
ing as a ‘decision’ that must be evaluated for 
‘reasonableness’ oversteps the settled law of this 

Circuit regarding this issue.” Dissent at 1531. 
We explain infra that counsel's failure to obtain _ 
a mental examination prior to trial is under- 
standable because the total picture confronting 
counsel did not suggest the necessity of such an 
examination to Bertolotti’s defense on the mer- 
its; the circumstances were not such as to call 

for a documented, plotted-out strategic choice 
between mental examination or no mental ex- 

amination, which is what the dissent apparently 

would like to review. Therefore, without joining 
an abstract debate over the meaning of the term 
“decision,” we think counsel's failure to schedule 

a mental examination prior to the guilt phase of 
the trial is properly judged under a standard of 
reasonableness. 

7. Bertolotti attaches some significance to the 

fact that counsel requested a psychiatric exami- 
nation and the court granted that request, but 

counsel failed to schedule the examination until 
the morning of the sentencing hearing. Also, 
the dissent emphasizes that “the fact that a psy- 
chiatric evaluation was both requested and 
granted and the fact that a psychiatrist was 
obtained to conduct an evaluation right before 
the sentencing hearing belies a conclusion that 
counsel had no reason to suspect mental ill- 
ness.” Dissent at 1530. As the following collo- 
quy between attorney Wolfe and the state attor- 
ney at the evidentiary hearing indicates, and as 
the district judge found, Wolfe simply asked for 
the examination as a matter of course: 

Q: Mr. Wolfe, why did you file a motion to 
have Mr. Bertolotti examined? 

883 FEDERAL REPORTER, 2d SERIES 

of Bertolotti’s sentencing hearing,’ we view 
the facts “as of the time of counsel's con- 
duct,” recognizing that “counsel is strongly 
presumed to have rendered adequate as- 
sistance and made all significant decisions 
in the exercise of reasonable professional 
judgment.” Strickland, 466 U.S. at 690, 
104 S.Ct. at 2066. Bertolotti’s burden is to 
“overcome the presumption that, under the 
circumstances, the challenged action ‘might 
be considered sound trial strategy.” Id. 

466 U.S. at 689, 104 S.Ct. at 2065 (quoting 
Michel v. Louisiana, 350 U.S. 91, 101, 76 

S.Ct. 158, 164, 100 L.Ed. 83 (1955)). 

Bertolotti has identified several signals 

that he argues should have led Kenny and 
Wolfe to secure a psychiatric examination 

prior to trial.” A brief review of the facts 

surrounding the murder is needed to place 
the signals in context. The victim, found in 

A: Prior to accepting this assignment, I had 
gone up to the public defender’s office in 
Jacksonville in the Fourth Circuit, Duval 

County, and they had prepared from their 
word processor a whole list of motions. 
And I spent the day with the chief assistant 
up there, Bill White, discussing representa- 
tion of this type of case. And that was the 
type of motion that they had indicated to 
me should be filed in every case to begin an 
investigation. 

It didn't dawn on—I didn’t realize how 
much importance should be placed on that 
until later and how that should be indepen- 
dently followed up in addition to the basic 
factual case preparation. 

Q: Mr. Wolfe, at the time that you filed that 
motion, did you have facts in your posses- 
sion, based upon your interview with Mr. 
Bertolotti, based upon what you knew 
about the facts of this case and based upon 

the background information that you had, 
that would substantiate and support that 
motion? 

A: Well, the threshold for that motion is not 

that great, and—or at least my reading of 

the rules is that the threshold requirements 
for that particular motion are not that 

great, so I would have to say yes with a 

liberal interpretation of the rules. 
Q: Did you think Mr. Bertolotti was incom- 

petent? 

A: Incompetent to stand trial? 

QO: Yes, sir. 

A: I didn't think so. 
Q: Did you think Mr. Bertolotti, based upon 

what you knew of the facts and how this 
crime was committed, was insane at the 

time of the commission of this crime? 
A: From what I knew at the time, I don't 

think so.   
 



ng,’ we view 
yunsel’s con- 

:1 is strongly 
dequate as- 
nt decisions 

professional 

U.S. at 690, 
burden is to 

t, under the 

ction ‘might 

egy.” Id, 
165 (quoting 
9], 101, 76 

(955)). 

eral signals 
Kenny and 

examination 

of the facts 
led to place 
im, found in 

mment, I had 

ler’s office in 

“ircuit, Duval 

zd from their 

of motions. 

chief assistant 

\g representa- 

! that was the 

. indicated to 

se to begin an 

realize how 

laced on that 

d be indepen- 
1 to the basic 

you filed that 

your posses- 
iew with Mr. 
t you knew 
d based upon 
‘hat you had, 

support that 

motion is not 

iy reading of 
requirements 

are not that 

y yes with a 

ules. 

i was incom- 

,, based upon 

ind how this 

nsane at the 

is crime? 
time, I don't 

  

  

   
BERTOLOTTI v. DUGGER 1513 
Cite as 883 F.2d 1503 (11th Cir. 1989) 

her house by her husband, had been re- 
peatedly stabbed with two knives; one 
broke and the other was left in the body. 
She was naked from the waist down and 
forensic tests revealed that intercourse had 
taken place, although there was no evi- 
dence of physical trauma. The victim had 
also been strangled and beaten, and bore 
bruises that indicated she had fought back 
during the attack. She had been robbed of 
thirty dollars, and her car had been stolen. 
A few days later, Bertolotti was arrested 
after his girlfriend informed police that she 
suspected his involvement in the murder. 
He gave the police two voluntary confes- 
sions which were preserved on audio tape; 
in the first confession, he admitted murder- 

ing the victim, in the second, he admitted 
the murder and also attempted to implicate 
his girlfriend. See Bertolotti v. State, 476 

So.2d at 131-32. 

In conjunction with these facts, Bertolot- 
ti argues that counsel unreasonably dis- 
regarded the following signals: first, the 
audio tapes of his confession reveal that he 
was in an extremely emotional state while 
recounting the murder. Second, Bertolotti 
stated during the first taped confession 
that “I just, I don’t know what was happen- 
ing to me.” Third, his explanation of the 
facts of the crime was inherently unbeliev- 
able. Fourth, Bertolotti’s girlfriend told 
Wolfe that she believed Bertolotti needed 
psychiatric help, and had a “split personali- 
ty.” Fifth, Bertolotti was placed under 
psychiatric observation while being held for 
the murder. Sixth, the number of stab 

wounds in the victim should have indicated 
mental instability. 

The audio tapes do indeed reveal that 
Bertolotti cried and moaned while explain- 
ing his crime to the police interrogators. 
Bertolotti’s voice is low and trembling, and 
as the narrative proceeds to the actual 
murder, Bertolotti perceptibly becomes 
more distraught. Throughout the entire 
interrogation, however, Bertolotti plainly 
appears to understand what he is doing, 
who he is talking to, and what he is talking 
about. His responses to the interrogator’s 
questions are consistently coherent. In the 
second taped confession, during which Ber- 
tolotti explains why he did not tell the full 

story in his first confession and also impli 

cates his girlfriend in the wrongdoing, his 

tone is calm and rational. The tapes are at 

least as consistent with the proposition that 
Bertolotti was remorseful or frightened as 
they are with the proposition that Bertolot- 

ti had mental problems. 

His statement that he did not “know 
what was happening” to him raises the 

possibility of mental illness, but in light of 
Bertolotti’'s confession admitting that he 

knew he had killed the victim when he left 
the house, the statement is hardly a sure- 

fire sign of legal insanity and could simply 

be an effort to shirk responsibility for the 
crime. In the same way, the fact that a 

defendant offers an unbelievable explana- 

tion for his actions is hardly unusual in 
itself—Bertolotti first told the police inter- 

rogators that the victim invited Bertolotti 
into her house to use the telephone and get 

a drink, whereupon he attacked her with a 
kitchen knife; in an effort to satisfy Berto- 

lotti, the victim offered him jewelry and 

began to undress. The victim began to 
talk with Bertolotti and encouraged him to 

pray with her, but then tried to wrest the 

knife from him. He resisted, she 

screamed, and he began to stab. The first 
knife broke, but the victim continued to 

make noise and began to get up from the 

floor. Bertolotti found another knife and 

continued to stab. He then hit the victim 
in the head with a beer stein. In Bertolot- 

ti's second confession, he told the police 

that he and his girlfriend entered the vic- 

tim’s house in order to steal some money. 
The victim, who was at home, offered to 

have intercourse with Bertolotti in order to 

appease him, at which point the girlfriend 

became enraged. As Bertolotti and his 
girlfriend prepared to leave the house, the 
victim grabbed the girlfriend by the legs 

and the girlfriend ordered Bertolotti to stab 
the victim. Bertolotti’s stories, while in- 

credible, are not so bizarre that counsel 

should immediately suspect that his client 

is mentally ill, “unless one were to adopt 

the dubious doctrine that no one in his 

right mind would commit a murder.” Ake, 

470 U.S. at 90, 105 S.Ct. at 1100 (Rehn- 

quist, J., dissenting). 

Reasonable counsel could have discount- 

ed much of what Bertolotti’s girlfriend had    

 



    

      

1514 

to say; Bertolotti attempted to implicate 
her in the murder, and she herself turned 
in Bertolotti to the police, collecting a thou- 
sand-dollar reward for her trouble. She 
was probably not too sympathetic to Berto- 
lotti’s plight, and she had her own reasons 
for wanting Bertolotti to appear factually 
responsible for the crime. 

Bertolotti was placed under psychiatric 
observation following his arrest, but the 
psychologist on the sheriff’s staff who or- 
dered the observation testified that he did 
so as a matter of routine, in order to “fol- 
low up on anything that [he] may have 
missed when [he] saw” Bertolotti. Berto- 
lotti now states that he was placed under 
suicide watch on the day of his arrest. The 
staff psychologist did not recall placing 
Bertolotti under a suicide watch; instead, 
the psychologist was asked to interview 
Bertolotti after Bertolotti told a nurse 
questioning him about his background that 
on a previous occasion he had contemplated 
suicide. The fact that Bertolotti was 
placed under any type of psychological ob- 
servation should have been a signal to in- 
quire into Bertolotti’s mental state, but it 
does not amount to much more. Similarly, 
the number of stab wounds in the victim 
could have raised the possibility that Berto- 
lotti committed the murder in a frenzied 
rage, but in light of Bertolotti’s statement 
to the police that he stabbed the victim so 
many times because of the difficulty in 
accomplishing the murder, reasonable 
counsel need not have seized upon this 
evidence as a definite indicator of mental 
problems. 

Against this evidence of mental impair- 
ment, reasonable counsel would have rec- 
ognized that Bertolotti’s own actions fol- 
lowing the murder showed that he appreci- 
ated the criminality of his conduct: he stole 
the victim’s car and abandoned it where it 
would be stolen; also, in his confession to 
the police, he explained how he attempted 
to cover up evidence of his participation in 

8. The dissent states that “[i]n an attempt to 
dismiss the evidence as insufficient to alert the 
attorneys to the possibility of Bertolotti’s insani- 
ty, the majority dissects the evidence and dis- 
cusses the insufficiency of each ‘alleged signal’ 
of mental instability. This seriatim analysis 
wholly fails to address the bigger picture. The 
cumulative effect of all the evidence undeniably 

883 FEDERAL REPORTER, 2d SERIES 

the murder. The day following the muy. 
der, moreover, Bertolotti visited a minister, 
telling the minister that he had problems 
and asking for the minister's prayers. This 
evidence is important for two reasons: 
first, reasonable counsel could have taken 
this information to mean that Bertolottj 
was aware of the criminality of his cop. 
duct, and second, reasonable counsel would 
have realized that the prosecution could 
have used this evidence to rebut an insani- 
ty defense. 

The foregoing evidence, considered as g 
whole, is sufficiently equivocal that reason- 
able counsel] would not have been under a 
duty to secure a psychiatric examination of 
Bertolotti for the purpose of introducing an 
insanity defense or negating Bertolotti’s 
specific intent to commit any of the crimes 
with which he was charged.® Cf Ake, 470 
U.S. at 74, 105 S.Ct. at 1091-92. The fore- 
going, however, probably suggested the 
need for some further inquiry into Berto- 
lotti’s mental state. The record indicates 
that counsel did make preliminary inquiries 
into Bertolotti’s mental condition, but then 
abandoned the effort. As this decision was 
made “after less than complete investiga- 
tion” of Bertolotti’s mental health, Strick- 
land requires an assessment whether “rea- 
sonable professional judgments support[ed] 
the limitations on investigation.” Id., 466 
U.S. at 691, 104 S.Ct. at 2066. 

Recalling that “(t]he reasonableness of 
counsel’s actions may be determined or 
substantially influenced by the defendant's 
own statements or actions,” 466 U.S. at 

691, 104 S.Ct. at 2066, we find it dispositive 

that both Bertolotti and his parents in- 

formed counsel that Bertolotti had never 
experienced any previous mental problems; 
Bertolotti’s parents also told counsel that 
Bertolotti was of above-average intelli 
gence. See Daugherty v. Dugger, 839 F.2d 
1426, 1431 (11th Cir.), reh. in banc den. 

845 F.2d 1032 (11th Cir.), cert. denied, — 

points to the necessity of ordering a mental 
health evaluation.” Dissent at 1531. We agree 
with the dissent that such a “seriatim analysis” 
would be incorrect. As the majority opinion 
demonstrates, however, we have considered the 

totality of the evidence available to counsel at 
the time counsel planned trial strategy. 

     



   
ving the mur 
ted a minister, 

had problems 
prayers. This 

two reasons: 

Id have taken 

hat Bertolotti 

y of his con- 

counsel would 

ecution could 

but an insani- 

nsidered as ga 

that reason- 

been under ga 

xamination of 

atroducing an 
2 Bertolotti’s 

of the crimes 

Cf. Ake, 470 

)2. The fore- 

aggested the 

y into Berto- 

‘ord indicates 

aary inquiries 

sion, but then 

» decision was 

ate Investiga- 

ealth, Strick- 
~vhether “rea- 

Ss supported] 
m.” Id. 466 
6. 

nableness of 

stermined or 

2 defendant's 

466 U.S. at 

it dispositive 

. parents in- 

ti had never 

tal problems; 
counsel that 

rage intelli 

ger, 839 F.2d 

7 banc den., 

. denied, — 

ring a mental 
531. We agree 

iatim analysis” 
jority opinion 

considered the 
: to counsel at 

trategy. 

  

  

BERTOLOTTI v. DUGGER 1515 
  

Cite as 883 F.2d 1503 (11th Cir. 1989) 

U.S. —, 109 S.Ct. 187, 102 L.Ed.2d 156 
(1988); of Elledge v. Dugger, 823 F.2d 
1439, 1445 (11th Cir.) (counsel defective for 

mounting psychiatric defense yet failing to 
interview relatives or seek expert assist- 
ance), mod. on other grounds and reh. in 

banc den., 833 F.2d 250 (11th Cir.1987), 
cert. denied, — U.S. ——, 108 S.Ct. 1487, 

99 L.Ed.2d 715 (1988). Counsel did not 

have any reason to think that Bertolotti 
was less than forthcoming; counsel testi- 
fied that he interviewed Bertolotti numer- 
ous times, found Bertolotti communicative 

and appropriately behaved, and was “very 
comfortable with Mr. Bertolotti.” Cf. 
Thompson v. Wainwright, 787 F.2d 1447, 
1451 (11th Cir.) (counsel testified that he 
thought client was retarded), reh. in banc 

den., 7192 F.2d 1126 (11th Cir.1986), cert. 
denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 ‘Inn 

“examination for the purpose of introducing L.Ed.2d 825 (1987). Furthermore, counsel 
spoke with a staff psychologist at a facility 
where Bertolotti previously had been incar- 
cerated, who indicated that Bertolotti had 

adjusted well to the prison setting, served 
as a peer-counselor, and was in fact so 
trusted by the prison authorities that he 
was allowed access to scissors and razors 
so he could work as a barber. Further 
inquiry would have revealed that this same 
psychologist had at one point thought that 
Bertolotti exhibited “indications of the pos- 
sibility of disorganization under stress, 
cyclic bizarre and/or aggressive behavior 
and sexual dysfunction,” but the psycholo- 
gist did not volunteer this information and 
counsel was not aware of it. Although it is 
difficult to recreate the circumstances of 
the interview, counsel's failure to ask this 

psychologist specifically whether he had 
noticed any mental problems in Bertolotti 
might be considered unreasonable. See 
Thompson, 787 F.2d at 1451 n. 2. The 
failure was likely harmless in any event: 
the psychologist concluded that “[a]ll of 
these indications have now disappeared, 
and it is likely that [Bertolotti] will do well 
in a work release setting. However, it 
should be noted that persons with [socio- 
pathic] profiles similar to [Bertolotti’s] 

9. Bertolotti argues that without securing a psy- 

chiatric examination, counsel could not reason- 

ably have opted to pursue a defense strategy 
based on lack of premeditation. The Strickland 
Court rejected a similar argument: counsel 

present one, have extremely high recidi- 

vism rates, usually for crimes of a property 
offense nature.” Even this information 

would have been an equivocal indicator of 
insanity at the time of the murder of Carol 
Ward. 

In short, counsel testified that “[w]e had 

done a great deal of investigation and depo- 

sition work as to the events prior to the 

offense and afterwards, and those matters 

did not trigger an insanity defense for 

me.... An insanity defense would have 
seemed to me inconsistent with the facts 

that would otherwise have been 

presented at trial.” On the basis of coun- 
sel’s inquiry and the evidence that Bertolot- 

ti appreciated the © Wrongfulness of his con- 
duct, we cannot say that d 
unreasonably 

  

   

      

securing a psychiatric 

negating premeditati Stephens wv. 
Kemp, 846 F.2d 642, 653 (11th Cir.) (no 

further duty of inquiry for purposes of 

guilt phase of trial when preliminary inves- 
tigation of psychiatric evidence reveals that 
petitioner was hospitalized for psychiatric 

problem between four and six months prior 

to crime, but psychiatric report indicates no 

evidence of severe mental illness), reh. in 

banc den., 849 F.2d 1480 (11th Cir.), cert. 

denied, — U.S. ——, 109 S.Ct. 189, 102 

L.Ed.2d 158 (1988). As the state judge 
orally concluded after the evidentiary hear- 

ing in the collateral proceedings, counsel 

“attempted to save the life of their client 

by realistically arguing that this was a 

second-degree murder rather than a first- 

degree murder and opted not to take the 

unrealistic approach of not guilty by reason 

of insanity.” Under the circumstances, the 

decision of Bertolotti’s counsel can be con- 

sidered sound trial strategy.’ 

[11] Even though the totality of the 
evidence discouraged counsel from mount- 

ing a psychologically based defense to the 
substantive crimes, evidence of menta 

an insanity defense ion the purpose of 

   

  

there ade a strategic choice to rely on his 
client's extreme emotional distress, but coun- 
sel’'s decision not to seek more “psychological 

evidence than was already in hand” was reason- 
able. Id, 466 U.S. at 699, 104 S.Ct. at 2070.   



    

      
  

    

r
e
 

S
r
 

ete
 

mat 

  

Bb sentencing phase of the trial. See Ste- 
hens, 846 F.2d at 653 (greater duty of 
fy into client’s mental health imposed 
for penalty phase of trial). Because of the 
evidence that Bertolotti appreciated the 
wrongfulness of his acts, of course, counsel 

could still quite reasonably have enter- 
tained serious doubt about the efficacy of 
such evidence at the sentencing phase; 
nonetheless, counsel may have been able to 
evoke the jurors’ sympathy or rebut some 
of the state’s aggravating evidence with 
testimony that Bertolotti suffered psycho- 
logical problems. Counsel attempted to 
have Bertolotti interviewed by a psychia- 
trist on the morning of the sentencing 
hearing, but Bertolotti refused to be seen. 
With a total lack of evidence that Bertolotti 
was not a competent decision-maker on the 
morning of the sentencing hearing, we can- 
not say that counsel behaved unreasonably 
by not taking further steps to encourage 
Bertolotti to undergo an examination. Cf. 
Faretta v. California, 422 U.S. 806, 820, 95 

S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975) 
(recognizing a right to pro se representa- 
tion: the “language and the spirit of the 
Sixth Amendment contemplate that coun- 
sel, like the other defense tools guaranteed 
by the Amendment, shall be an aid to a 
willing defendant—not an organ of the 
State interposed between an unwilling de- 
fendant and his right to defend himself 

personally”); Foster wv. Strickland, 707 

F.2d 1339, 1343 (11th Cir.1983) (lawyer 
bound by client's decision against insanity 
defense), cert. denied, 466 U.S. 993, 104 

S.Ct. 2375, 80 L.Ed.2d 847 (1984); Ameri- 
can Bar Association Model Code of Profes- 
sional Responsibility EC 7-7 & 7-8. 

[12] (2) hs ~ demons: 
prejudice, Bertolotti relies largely 
testimony of Dr es R. Merikangas, a 

psychiatrist who prior to the state eviden- 
tiary hearing interviewed Bertolotti for one 
hour and fifteen minutes, spoke with mem- 

bers of Bertolotti’s family, and reviewed 
documents relating to Bertolotti’s case. 
Dr. Merikangas testified that Bertolotti 
was insane at the time he murdered Carol 
Miller Ward. Bertolotti argues that had 
Dr. Merikangas’s testimony been presented 
to the jury, there is a reasonable probabili- 
ty that the jury would have acquitted him 

  

   

    

1516 883 FEDERAL REPORTER, 2d SERIES 

on grounds of insanity. Even had the jury 

not acquitted him, there is a reasonable 
probability that Dr. Merikangas’s testimo- 

ny would have saved Bertolotti from the 

electric chair, because the jury may have 

found Bertolotti guilty only of second-de- 
gree murder, or may have found during the 
penalty phase of the trial that mitigating 

circumstances outweighed the aggravating 
circumstances. 

    
     reration to the str 

hearing the victim scream. He reacted by 
stabbing the victim repeatedly, and while 

he was in the process of killing her, he was 

unable to discern right from wrong. Dr. 
Merikangas relied upon several factors to 

conclude that Bertolotti was schizophrenic. 

Bertolotti’s mother briefly had been com- 

mitted to a psychiatric hospital for schizo- 
phrenia in the late nineteen-sixties. Berto- 

lotti suffered from delusions, did not exhib- 

it appropriate reactions, and was “reli 

giously confused.” He had been reared in 

an overly strict and overly religious house- 
hold, and was subjected to “psychological 

abuse” by his father; he would tell lies for 
self-aggrandizement or to accept the blame 

for wrongs he had not done, would cry 

easily, and did poorly in school despite pos- 

sessing above-average intelligence. He 

never had a girlfriend, and he used several 
aliases. 

Dr. Merikangas explained the basis of 

his opinion on the catastrophic-stress reac- 
tion as follows: 

I believe my opinion is that [Bertolotti] 
is a schizophrenic who had a catastrophic 

reaction to stress, that people with this 

disorder are predisposed to break down 
under conditions of stress and go ber- 

serk, as this man apparently did; and 
that this is borne out not only by his 

recounting of the crime and the several 

different versions which he used, but by 
the facts that are documented in the 

autopsy and the police report of a ber- 
serk rage, stabbing multiple times with 

two different knives, for instance; his 
actions after the crime of leaving blood- 

stains all around and leaving the weapon 
there and going home and hiding these 

  

  

s opined that ay 

    

  

    

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for schizo- 

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BERTOLOTTI v. DUGGER 
   

Cite as 883 F.2d 1503 (11th Cir. 1989) 

clothes; his girlfriend, who is not a 

trained psychologist, observing that 
there was something weird and strange 
about him; his blubbering and whining 
and decompensating while giving a vol- 
untary confession to the police the first 
time, and then coming back with another 
different confession that tried to impli- 
cate his girlfriend after he had time to 
consider it and calm down; and his past 
history all point to the same conclusion. 

Dr. Merikangas’s testimony is vulnerable 
to well-considered attack on several fronts 
and we doubt that a jury would find it 

convincing. 

All psychiatrists and psycholc 
testified at the evidentiary h 

reed that schizophrenia can b 
3 therefore, that Bertolotti’ : 

  

    

          

   

   eak. Bertolotti’s alleged delusions, for 
pi e, consist chiefly of his belief that 
he could control those around him and in- 
fluence the outcome of the evidentiary 
hearing. Dr. Merikangas was not aware of 
these delusions when he was deposed by 
attorneys for the state shortly before the 
evidentiary hearing; Bertolotti’s attorney 
informed someone in his office who in turn 
told Dr. Merikangas that Bertolotti had 
related the delusions to counsel sometime 
between the deposition and the hearing. 
Even though Dr. Merikangas’s opinion is 
not necessarily inadmissible because he re- 
lies on rather questionable hearsay testimo- 
ny in formulating his belief, see Fed.R. 
Evid. 703, the trustworthiness of the basis 

for Dr. Merikangas’s opinion is certainly 
something for the court to consider in de- 
ciding whether a fact-finder would credit 
the testimony. FElledge v. Dugger, 823 
F.2d 1439, 1447 (11th Cir.1987) (value of 

doctor’s testimony undercut by doctor’s re- 
Lancers on  Sncorvabor ated Sacts)y 

    

about his own : smploymant on : 

Bertolotty’ S alleged inappropriate reac- 
tions are also the subject of some dispute. 
Although Dr. Merikangas’s testimony indi- 
cates that Bertolotti was displaying inap- 
propriate responses during the evidentiary 
hearing, this behavior seems contradictory 
to the behavior evidenced on the taped con- 
fession, and the behavior otherwise testi- 

fied to by trial counsel, the interrogating 
police officer, and a who inter- 

    

  

erview, but the Poscholbaiet™ 
testified that Pertolott? s reaction was not 
atypical. As to Bertolotti's “religious con- 
fusion,” he apparently could not decide 
whether he wanted to be Catholic or Jew- 

~ ish, but, as Dr. Merikangas agreed, it is not 

unusual for people placed in jail to reassess 
their basic religious beliefs. 

Regarding the severity of the home in 
which Bertolotti was reared, there is no 

strong evidence that Bertolotti was physi- 
cally abused, and Dr. Merikangas did not 
place much emphasis on such evidence in 
forming his opinion. Instead, Dr. Merikan- 
gas testified that “spanking a child when 
he needs it” can be considered “psychologi- 
cal abuse.” Dr. Merikangas’s view that 
the home was overly strict is based on 
information that Bertolotti’s “father and 

. mother would look under the bed to see 
if there [was] any dust before the children 
would be allowed to go out and play.” 
Further, Dr. Merikangas was told that Ber- 
tolotti and his siblings were locked out of 
the house during the day so they could not 
sully the interior. As to Dr. Merikangas’s 
charge that the household was “overly reli- 
gious,” the testimony merely shows that 
the children were taken to long church 
services on Sundays, and the father sub- 
scribed to the maxim that spared rods spoil 
children. The remaining bases for Dr.      

             



      

      

1518 883 FEDERAL REPORTER, 2d SERIES 

Dr. Merikangas opined that Bertolotti 
was unable to discern between right and 

wrong at the time of the murder because of 

his catastrophic reaction to stress. A fo- 

rensic psychologist called by the state (who 

had not interviewed Bertolotti personally 

but who appears, upon the cold record, to 

be the least partisan witness at the hear- 

ing) had trouble with the notion that the 

victim's screaming could have precipitated 
Bertolotti’s reaction: 

It’s also hard for me to put [the victim's 

screaming] into a [catastrophic-stress] 

model in view of the total situation that 

was going on. There was obviously an 

attack involved and normally when peo- 

ple are attacked, they make some kind of 

audible as well as physical response to it. 

So one would expect potentially, if you 

go after someone, they're probably going 

to scream. And to see that as a cata- 

strophic stresser is very difficult because 

we would tend to see that as an expected 
event. 

The factors identified by Dr. Merikangas 

as consistent with his belief that Bertolotti 

had suffered a catastrophic reaction to 

stress are likewise consistent with the 

proposition that Bertolotti stabbed the vic- 

tim repeatedly because of the difficulty in 

killing her, tried to hide his blood-stained 

clothes so he would not be detected, experi- 

10. In the course of his testimony, Dr. Merikan- 
gas made passing reference to other factors in 
support of his diagnosis. He placed some re- 
liance on a belief that Bertolotti had been under 
the influence of a quaalude at the time of the 
murder. The only evidence supporting this 

proposition is the self-serving statement Berto- 
lotti made in his first confession; the state of- 

fered evidence at trial rebutting the notion that 
Bertolotti had consumed a quaalude, and at the 
evidentiary hearing, one of the state's expert 
witnesses testified that Bertolotti told him he 
had lied about taking the quaalude. The Flor- 
ida Supreme Court concluded as a matter of 

state law that Bertolotti had not produced 

enough evidence of intoxication to warrant an 

intoxication instruction. Bertolotti v. State, 534 

So.2d at 387. See infra Part II.A.1.b. 

Dr. Merikangas also referred to Bertolotti's 
second confession, in which he implicated his 

girlfriend, as evidencing the circumstances of 
extreme duress which precipitated Bertolotti’s 
murder of Carol Ward. Bertolotti told police 
that his girlfriend ordered him to kill the victim 

because the victim had grabbed the girlfriend's 

enced remorse while recounting the crime, 
and later, upon reflection (tempered by an- 
ger that his girlfriend had betrayed him) 
attempted to implicate the girlfriend in the 
murder.!? 

Bertolotti’s counsel put the same ques- 
tion to each of the state’s three mental- 
health experts: counsel asked the experts 
whether their disagreement with Dr. Meri- 
kangas’s testimony necessarily meant that 
Dr. Merikangas was wrong, and if not 
whether they agreed that because psychia- 
try and psychology are “arts, not sci- 
ences,” reasonable professionals could dif- 

fer in their diagnoses. Each of the state’s 
witnesses agreed with the latter proposi- 
tion; indeed, it is unexceptional to anyone 
with a modest amount of trial experience. 
Partisan psychologists and psychiatrists 
will often disagree in courts of law. Be- 
fore we are convinced of a reasonable prob- 
ability that a jury’s verdict would have 
been swayed by the testimony of a mental- 
health professional, we must look beyond 
the professional’s opinion, rendered in the 
impressive language of the discipline, to 
the facts upon which the opinion is based. 
Elledge, 823 F.2d at 1447. 

In the instant case, we are not convinced 

that there is a reasonable probability that 
Dr. Merikangas’s testimony would have 
had an effect on the jury’s verdict of first- 
degree murder.!! The testimony itself is 

legs. We doubt a jury would conclude, after 
hearing audio tapes of both confessions, that 
Bertolotti's first confession was a complete fa- 
brication and that his second confession more 
closely represented the true circumstances of 
the crime. 

11. The dissent is “disturbed by the fact that, in 
reaching its conclusion, the majority has imper- 

missibly invaded the province of the jury.” Dis- 
sent at 1534. However, we point out that Strick- 

land requires habeas petitioners not only to 

show defective performance of counsel, but also 
to demonstrate prejudice resulting therefrom. 
466 U.S. at 687, 104 S.Ct. at 2064. To gauge 
prejudice, the federal court must determine 
whether there is a “reasonable probability” that 
the newly proffered evidence would have 

changed the jury's decision. 466 U.S. at 694, 

104 S.Ct. at 2068. The dissent does not suggest 

how the court can complete this task without 
“invading the province” of the jury. At any rate, 
the jury has already spoken in this case. Our 
only license is to determine, within the bounds 

dictated by Supreme Court and Eleventh Circuit   
M
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i
s
i
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i
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ing the crime, 
npered by an- 
Jetrayed him) 
rifriend in the 

e same ques- 
three mental- 

d the experts 
vith Dr. Meri- 

ly meant that 
, and if not 

ause psychia- 
rts, not sci- 

als could dif- 

of the state’s 
itter proposi- 
1al to anyone 
\ experience. 

psychiatrists 

of law. Be- 
sonable prob- 
would have 

of a mental- 
look beyond 
dered in the 

discipline, to 
ion is based. 

10t convinced 

bability that 

would have 

edict of first- 

ony itself is 

:onclude, after 

nfessions, that 

a complete fa- 
nfession more 

cumstances of 

1e fact that, in 

rity has imper- 
the jury.” Dis- 
out that Strick- 
s not only to 
swunsel, but also 

ng therefrom. 
64. To gauge 

ust determine 

‘obability” that 
would have 

6 U.S. at 694, 
es not suggest 

5 task without 

/. At any rate, 

his case. Our 

iin the bounds 

leventh Circuit 

  

  

‘probability that the ‘evidence Sound | 

BERTOLOTTI v. DUGGER 1519 
Cite as 883 F.2d 1503 (11th Cir. 1989) 

‘weak, and it would ‘have een 

    

   

  

ly rebutted by similarly qualified ox 
Elledge, 823 F.2d at 1447. 

hat a Jury ‘would have a ad    
v. Dugger, 850 F.2d 1402, 1412 1th Cir.), 
reh. in banc den., 859 F.2d 928 (11th Cir. 

1988), cert. denied, ==). ==, 109 S.Ct. 

  

= Mnoing non-capita | fof 
a on the basis of Dr. Merikangas’s 
testimony. Dr. Merikangas did testify that 
Bertolotti was capable of forming the in- 
tent to rob the victim, and in fact he had 

“no question that [Bertolotti] had the de- 
sire to rob Carol Ward.” Therefore, even 

if the psychiatrist's testimony would have 
supported the inference of diminished ca- 
pacity, precluding a probable conviction of 
premeditated murder, Dr. Merikangas’s 
testimony would not have changed a ver- 
dict of felony murder, which is also death- 
eligible under Florida law. 

[14] Turning to the sentencing phase of 
Bertolotti’s trial, we see no reasonable 

above would have res      

  

have been strongly disputed by the state's 
expert witnesses, and because the evidence 
itself has substantial internal weaknesses, 
we question whether counsel would have 
presented the evidence to the jury even had 
counsel possessed it. Attorney Kenny tes- 
tified that his penalty-phase tactical theory 
was to portray Bertolotti as a normal man 

precedent, whether the performance of Bertolot- 

ti's counsel deprived him of a fundamentally 

fair trial. 

12. The jury voted nine to three to recommend 
the death penalty; had three jurors voted differ- 
ently, the recommendation would have been for 
life. We reject the argument that analysis of the 
“reasonable probability” of a different verdict 
should vary according to the number of jurors 
voting to impose the death penalty: if there is a 
reasonable probability that one juror would 
change his or her vote, there is a reasonable 
probability that a jury would change its recom- 
mendation. Strickland, 466 U.S. at 695, 104 

S.Ct. at 2068 (“The assessment of prejudice 

should proceed on the assumption that the deci- 
sionmaker is reasonably, conscientiously, and 

from a happy and loving family, whose life 
deserved to be spared; in light of the weak- 

ness of Bertolotti’s psychiatric evidence, 

this tack would continue to be a reasonable 

strategy. 

Assuming counsel would have produced 

the evidence, however, we nonetheless 

agree with the district court’s factual con- 

clusion that a jury likely would have found 

the state’s expert testimony more logical 
and credible than the testimony offered in 

Bertolotti’s behalf; ¥ at most, the experts 

from opposing camps would have offset 
one another."* Bundy, 850 F.2d at 1409, 

1412; Daugherty, 839 F.2d at 1431; El- 

ledge, 823 F.2d at 1447-48. Moreover, in 

view of the three statutory aggravating 

circumstances presented to the jury—a dis- 

turbing record of prior criminal convictions, 

three felonies accompanying the victim's 

murder, and the especial heinousness, 

atrocity and cruelty of the murder—Berto- 

lotti has not established a reasonable prob- 

ability that equivocal evidence of mental 

instability would have tipped the jury’s 

weighing of aggravating and mitigating 

circumstances in his favor. Thompson, 

787 F.2d at 1453 (no reasonable probability 

that evidence of troubled youth, unsavory 

codefendant, and mental incapacity would 

have altered jury's recommendation of 

death sentence for brutal torture-murder); 

Elledge, 823 F.2d at 1447. Even if the 

proffered evidence would have affected the 

jury’s consideration of the third aggravat- 

ing circumstance, the other two would re- 

main amply supported. Cf. Ford v. Strick- 

land, 696 F.2d 804, 815 (11th Cir.) (in banc) 

impartially applying the standards that govern 

the decision. It should not depend on the idio- 
syncracies of the particular decisionmaker, such 
as unusual propensities toward harshness or 
leniency.”). 

13. Moreover, after listening to four mental- 

health experts including Dr. Merikangas, the 
state trial judge found Dr. Merikangas's testimo- 
ny “preposterous.” 

14. Bertolotti contends that none of the state's 
experts rebutted Dr. Merikangas's opinion in 

regard to the availability of death-mitigating 
psychiatric evidence. It is clear that the testi- 
mony of any of the state's witnesses could be 
used at the penalty phase to contradict Bertolot- 
ti's mitigation evidence.



    

  

1520 

(resentencing not necessarily required 

when one aggravating circumstance is 

struck on appellate review), cert. denied, 

464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 
(1983). 

[15] b. Remaining grounds of inef- 

Jective assistance.—We may quickly dis- 

pose of Bertolotti’s remaining charges of 

ineffective assistance of counsel. Testimo- 

ny at the evidentiary hearing showed that 

counsel conducted a reasonable investiga- 

tion into the circumstances of Bertolotti’s 

childhood; counsel interviewed Bertolotti’s 

parents personally and also had them com- 

plete a lengthy questionnaire concerning 
Bertolotti’s past experiences. 

[16] The evidence does not show that 

counsel unreasonably failed to raise a vol- 

untary-intoxication defense to the specific- 

intent crimes of murder, robbery and bur- 

glary. The Florida Supreme Court held 

that the evidence of intoxication was insuf- 

ficient to warrant a voluntary-intoxication 

instruction. Bertolotti v. State, 534 So.2d 
at 387. Bertolotti does not now show that 

counsel overlooked any other evidence of 

intoxication; indeed, = Bertolotti later 

claimed that he had lied when he told police 

officers that he was under the influence of 

a quaalude at the time of the murder. 

[17] Nor does Bertolotti’s final ineffec- 

tiveness claim have merit. Bertolotti ar- 

gues that counsel simply did not grasp the 

fact that felony murder, like premeditated 

murder, is death-eligible under Florida law; 

as a consequence, Bertolotti argues that 

counsel failed to mount a defense against 

felony murder. During a hearing on sever- 

al pending pre-trial motions, however, At- 

torney Wolfe informed the court that the 

state could prove capital murder by prov- 

ing felony murder. Furthermore, the 

record shows that counsel sought to raise a 

reasonable doubt whether Bertolotti had 

committed the three charged predicate felo- 

nies. Bertolotti has shown neither attor- 
ney error nor prejudice. 

15. The trial judge instructed the jury as follows: 
The fact that your recommendation is adviso- 

ry does not relieve you of your solemn re- 

883 FEDERAL REPORTER, 2d SERIES 

2. Caldwell Violations Oc 
Throughout the State Pro 
(Claim 8) 

[18] Bertolotti argues that the Prose 
tor and judge impermissibly diminisheq t} 
jury’s sense of responsibility for the aw 
someness of its task, in violation of Cal, 
well v. Mississippi, 472 U.S. 320, 105 S.C 
2633, 86 L.Ed.2d 231 (1985). The Flori 
Supreme Court found this claim Procedy 
ally barred because it was not raised 
direct appeal; alternatively, the Florig 
court refused to address the merits of Be 
tolotti’s Caldwell claim because Florig: 
maintains that Caldwell is inapplicable t, 
its statutory scheme, in which the tria 
judge imposes the death sentence. Berto 
lotti v. State, 534 So.2d at 387 n. 2. 

Although we question the strength of 
Bertolotti's claim,'® the doctrine of proce 
dural bar prevents us from addressing the 
merits. In Dugger v. Adams, the Supreme 
Court recently held that Florida petitioners 
generally do not have cause for failing to 
object to Caldwell-type errors during pre- 
Caldwell trials, because Florida has long 
recognized that a defendant must object if 
the judge misinstructs jurors on applicable 
state law. — U.S. —, 109 S.Ct. 1211, 
1215-16, 103 L.Ed.2d 435 (1989). Similarly, 
Florida has long held that the defense must 
object to improper prosecutorial remarks. 
E.g., Rogers v. State, 158 Fla. 582, 30 So.2d 
625, 628-29 (1947). As Bertolotti suggests 

no other manner of satisfying the cause- 
and-prejudice test of Wainwright v. Sykes, 
433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 
(1977), we conclude that Florida's decision 

constitutes an adequate and independent 
ground for decision. 

Curn, 
Ceedin 

3. Improper Denial of Motion for a 
Change of Venue and Improper 
Limitation of Bertolotti’s Right to 
Voir Dire the Jury Venire (Claim 

11) 

News stories about the murder of Carol 
Miller Ward were carried on television and 

printed in the newspapers following dis- 
covery of the crime and following Bertolot- 

sponsibility, for the court is required to and 

will give great weight and serious considera 

tion to your verdict in imposing sentence.  



ition the Stren 

he doctrine of i 

5 from addre 

pe errors during 

use Florida has lon 

H Ct. 
£35 (1989). Simi] 

‘atisfying the cause 
Vainwright +, Sykes 497, 53 L.Ed.2q 54 
at Florida's decision 
te and independent 

u of Motion Jor a 

ue and Improper 
ertolotti’s Right to 

ury Venire (Claim 

he murder of Carol 
ed on television and 
pers following dis- 
following Bertolot- 

urt is required to and 
and serious considera- 
N Imposing sentence. 

arly, 
hat the defense hs Bi 

‘0secutorial remarks © | 
[58 Fla. 582, 30 S0.94 i 

s Bertolott; suggests 

gored 0 

    
  

BERTOLOTTI v. DUGGER 1521 
Cite as 883 F.2d 1503 (11th Cir. 1989) 

i ¢ and confession; a local television 
: En carried a report on Bertolotti’s 

. trial shortly before jury selec- 

: pend n. Prior to jury selection, counsel 

gabet® change of venue and for indi- 

B® | voir dire. Ata hearing on March 19, 

dus! the trial judge granted Bertolotti’s 

Lo for individual voir dire,'® but, con- 

ing that Bertolotti had not demonstrat- 

denied the motion for change 

venue. Ihe judge informed defense 

| that should difficulty in obtaining 

a impartial jury “appear to be the case 

ing VOIr dire, ... you are entitled to 

pise the issue at that time.” On March 26, 

or to voir dire, counsel renewed the mo- 

sion for a change of venue. At a subse- 

gent hearing in open court, the trial judge 

owed video tapes of televised news re- 

that aired in September and October 

1988 and March 1984, but again denied 

Bertolotti’s motion for a change of venue 

without prejudice to reconsider should voir 

dire show that the venire was biased. Jury 

selection began later that day. 

Of fifty prospective jurors called, individ- 

ual voir dire revealed that thirteen were 

sufficiently biased to be excused for cause; 

of that number, six were excused because 

of a preconceived notion of Bertolotti’s 

guilt. In response to questions posed by 
the judge and by the attorneys, the remain- 

ing thirty-seven jurors indicated that they 
could determine Bertolotti’s guilt or inno- 
cence based upon the evidence adduced at 
trial and not upon any preconception. The 
attorneys selected a panel of twelve jurors 
and two alternate jurors; of this number, 

three had no knowledge of the murder, 

nine had some knowledge of the murder, 

and two knew of the existence of Bertolot- 

ti's confession. Counsel did not move for a 
change of venue after voir dire com- 

menced. 

[19-21] The individual voir dire con- 
ducted by Bertolotti’s lawyers insured that 

16. Veniremen were brought into the courtroom 
one at a time and examined on the subjects of 

pretrial publicity and personal feelings about 
the death penalty. Veniremen were admon- 
ished not to discuss the individual proceeding 
with the remainder of the venire. 

17. In Coleman, rural Seminole County, Georgia, 
site of the trial, was literally saturated with 

Bertolotti was tried by an impartial jury 
under the sixth and fourteenth amend- 
ments; accordingly, Bertolotti has not dem- 
onstrated that he was actually prejudiced 
by the trial judge’s denial of his motion for 
a change of venue. Importantly, if jurors 
can lay aside preconceptions and base their 
verdict on the evidence adduced at trial, 

they need not be completely unaware of the 
facts of a given case. Murphy v. Florida, 
421 U.S. 794, 799-800, 95 S.Ct. 2031, 2036, 
44 L.Ed.2d 589 (1975). Perhaps recogniz- 
ing the difficulty in proving actual preju- 
dice on the basis of the voir dire transcript, 
Bertolotti submits that his case “is of that 
rare breed which does exceed the extreme- 
ly high threshold test of presumed preju- 
dice requiring a change of venue.” Cole- 
man v. Kemp, 778 F.2d 1487, 1489 (11th 

Cir.1985), reh. in banc den., 782 F.2d 896 

(11th Cir.), cert. denied, 476 U.S. 1164, 106 
S.Ct. 2289, 90 L.Ed.2d 730 (1986). We dis- 

agree. 

The record contains two news articles 
that appeared in the Orlando Sentinel in 
October of 1983, five months before the 

trial. The articles, one of which appeared 
on the front page of the Sentinel, detail 
facts surrounding the murder and Bertolot- 
t's subsequent arrest, and also recount 
Bettolotti’s prior criminal record. Beyond 
this evidence, the record contains affidavits 

of Bertolotti and two public defenders in 
which the affiants state that “extensive 
publicity” surrounded the murder investi- 
gation. The record does not contain the 
video tapes viewed by the trial judge; the 
judge indicated, however, that the tapes 
contained references to statements attrib- 
uted to Bertolotti. The record is devoid of 
circulation figures for the newspaper and 
audience-share figures for the televised 

newscasts. 

This showing is plainly inadequate to es- 
tablish a claim of presumed prejudice under 
our decisions.” In Bundy, the petitioner 

virulent press reports of the crime for which the 
habeas petitioner was indicted, tried, and sen- 

tenced to death. As the Coleman court's lengthy 
narrative demonstrates, the case had become 
notorious throughout Georgia. 778 F.2d at 

1491-1537. A local newspaper that reached 
eighty-five percent of the households in Semi- 
nole County, the Donalsonville News, repeatedly 

published front-page articles, including one