High v. Kemp Brief in Opposition for the Respondent

    MCV

NO . 8 7-566 6 

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1987

JOSE MARTINEZ HIGH,
Petitioner,

v .
RALPH KEMP, WARDEN,

Respondent .

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION 
FOR THE RESPONDENT

Please Serve:

MARY BETH WESTMORELAND 
132 State Judicial Building 
40 Capitol Square, S. W. 
Atlanta, Georgia 30334

MARY BETH WESTMORELAND 
Assistant Attorney General 
Counsel of Record for 
the Respondent

MICHAEL J. BOWERS 
Attorney General

MARION 0. GORDON 
First Assistant 
Attorney General

WILLIAM B. HILL, JR. 
Senior Assistant 
Attorney General



QUESTIONS PRESENTED

1 .
Should this Court decline to grant certiorari in the 

instant case as the Petitioner was only one month away from his 

eighteenth birthday at the time he committed the crime in the 

instant case and as the Eleventh Circuit Court of Appeals 

properly found that there was no Eighth Amendment violation by 

a death sentence being imposed under the circumstances of this 

case .

2 .
Whether this Court should decline to grant certiorari to 

consider the claim that Petitioner's age was not presented to 
the jury as the claim as raised in the instant petition was not

presented to the court below.

3 .
Whether the court below properly applied this Court's

precedent in finding Batson v. Kentucky, ____  U.S. -----  106

S.Ct. 1712 (1986), not to be retroactive to the instant case.

i



TABLE OF CONTENTS

PAGE(S )

QUESTIONS PRESENTED...

TABLE OF CONTENTS....

TABLE OF AUTHORITIES.. 

STATEMENT OF THE CASE. 

STATEMENT OF THE FACTS

i
ii

iii 
1
4

REASONS FOR NOT GRANTING THE WRIT.............. .
I. THERE WAS NO EIGHTH AMENDMENT VIOLATION 

BY THE IMPOSITION OF A DEATH SENTENCE 
IN THE INSTANT CASE AS THE PETITIONER 
WAS NOT A JUVENILE UNDER STATE LAW, WAS 
AT MOST APPROXIMATELY TWENTY-TWO DAYS 
FROM HIS EIGHTEENTH BIRTHDAY AT THE 
TIME OF THE CRIME AND WAS THE LEADER 
AND INSTIGATOR OF AN OUTRAGEOUS 
KIDNAPPING, ARMED ROBBERY AND
MURDER.................................

II. PETITIONER DID NOT RAISE AN ALLEGATION 
IN THE LOWER COURT ASSERTING THAT IT 
WAS UNCONSTITUTIONALLY ARBITRARY FOR 
THE JURY TO IMPOSE A DEATH SENTENCE ON 
SOMEONE WITHOUT THE JURY KNOWING THAT 
THE INDIVIDUAL WAS UNDER EIGHTEEN AT 
THE TIME OF THE OFFENSE; THEREFORE, 
THIS COURT SHOULD NOT CONSIDER THIS 
ISSUE AT THIS
TIME..................................

III. THE HOLDING IN ALLEN V. HARDY, ___
U .S . , 106 S .Ct. 2878 (1986) ,
CLEARLY APPLIES TO CAPITAL CASES AS 
WELL AS NON-CAPITAL
CASES.................................

CONCLUSION.......................................
CERTIFICATE OF SERVICE..........................

6

6

9

11
14
15

ii



TABLE OF AUTHORITIES

CASES CITED: .P.AG.E.( -Sj.

Allen v. Hardy, ___ U.S. ____ , 106 S.Ct. 2878 (1986)..... 11,12,13

Batson v. Kentucky, ___ U.S. ___ , 106 S.Ct. 1712 (1986).. r H  ^

Cardinale v, Louisiana, 394 U.S. 437 ( 1969)..............  9

Eddings v. Oklahoma, 455 U.S. 194 ( 1982).................  9

High v. Georgia, 455 U.S. 927 (1982)...................  2
High v. Kemp, 623 F.Supp. 316 (S.D.Ga. 1985)............ 2

High v. Kemp, 819 F.2d 988 (11th Cir. 1987)............. 3,5,8

High v. State, 247 Ga. 289 , 276 S.E.2d 5 (1981)......... 2

High v. Zant, ___ U.S. ___ , 104 S.Ct. 2669,
rhng. denied, ___ U.S. ___ , 105 S.Ct. 22 ( 1984)........

High v. Zant, 250 Ga. 693, 300 S.E.2d 654 (1983)......... 2

Skipper v. South Carolina, ___ U.S. ___ S.Ct. 1669 (1986) 9

Solem v. Stumes, 465 U.S. 638 (1984)...................... 12,13

Stembridge v. Georgia, 343 U.S. 541 ( 1952)...............  9
Thompson v. Oklahoma, ___ U.S. ____ , 107 S.Ct. 1284 (1987)6,7

Turner v. Murray, ___ U.S. ___ , 106 S.Ct. 1683 (1986).... 11

STATUES CITED: 
O.C.G.A § 15-11-2

iii



NO. 87-5666

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1987

JOSE MARTINEZ HIGH,
Petitioner,

v .

RALPH KEMP, WARDEN,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION 
FOR THE RESPONDENT

PART ONE

STATEMENT OF THE CASE

Petitioner, Jose Martinez High, was convicted in the 
Superior Court of Taliaferro County, Georgia, on charges of 

murder, two counts of kidnapping with bodily injury, armed 

robbery, possession of a firearm during the commission of a 

crime and aggravated assault. Sentences were imposed on 

December 1, 1978. Petitioner was initially sentenced to death 

for the murder and armed robbery as well as both counts of

kidnapping with bodily injury.
Petitioner subsequently filed a notice of appeal to the 

Supreme Court of Georgia. On appeal that court affirmed the 

convictions for armed robbery, murder and the two counts of 

kidnapping with bodily injury, but vacated the conviction for 

possession of a firearm and aggravated assault, holding that



these crimes merged into the crimes of armed robbery and 

kidnapping with bodily injury. The court affirmed the death 

penalty on two of the four counts, but vacated the death 
sentence for armed robbery and for the count of kidnapping with 

bodily injury in which the victim did not die. High v_.— Stat_e, 

247 Ga. 289, 276 S.E.2d 5 (1981). A subsequent petition for 

writ of certiorari was denied by this Court on January 25,

1932. High v. Georgia, 455 U.S. 927 (1982).
Petitioner then filed a petition for a writ of habeas 

corpus in the Superior Court of Butts County, Georgia. On June 

25, 1982, that court denied relief and denied a motion for stay 

of execution. On June 30, 1982, the Supreme Court of Georgia 

granted the motion for a stay of execution and the application 

for a certificate of probable cause to appeal. That court 

remanded the case to the superior court for an evidentiary 

hearing on the issue of the effectiveness of counsel. A 
hearing was held on August 12, 1982 and relief was subsequently 

denied by the Superior Court on September 10, 1982.

The Supreme Court of Georgia subsequently granted an 

application for a certificate of probable cause to appeal and 

then affirmed the denial of habeas corpus relief. High— v_̂_

Zant, 250 Ga. 693, 300 S.E.2d 654 (1983). This Court 
subsequently denied a petition for a writ of certiorari on May 

29, 1984, and a petition for rehearing on August 2 , 1984 . H_i£h 

v, zant, ___ U.S. ___, 104 S.Ct. 2669 , rhng. deni_e_d, ---

U.S. ___, 105 S.Ct. 22 (1984).
Petitioner then filed a petition for a writ of habeas 

corpus in the United States District Court for the Southern 
District of Georgia. On November 19, 1985, that court entered 

an order granting habeas corpus relief as to the charge on 

mitigating circumstances at the sentencing phase of the trial, 

but denying relief as to the remainder of the allegations.

High v. Kemp, 623 F.Supp. 316 (S.D.Ga. 1985).

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Both parties appealed from the decision of the district 

court. By way of an opinion dated June 4, 1987, the Eleventh 

Circuit Court of Appeals affirmed the district court insofar as 

it denied habeas corpus relief, but reversed the district 

court's granting of habeas corpus relief, thus concluding that 

relief should be denied as to all allegations presented. Hig_h 
v. Kemp, 819 F .2d 988 (11th Cir. 1987). A subsequent petition 

for rehearing and a suggestion for rehearing en banc was denied 

on August 20, 1987. The instant petition has been filed 

challenging that decision in the Eleventh Circuit Court of 

Appeals.

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PART TWO

STATEMENT OF THE FACTS

The Eleventh Circuit Court of Appeals set forth the 
following statement of the facts which is sufficient for a 

review of the allegations presented:
Jose High and his accomplices, Nathan 

Brown and Judson Ruffin, robbed a 

service station in a rural Georgia 

community on July 26, 1976. The 

station operator (Henry Lee Phillips) 
and his eleven-year-old stepson (Bonnie 

Bullock) were abducted during the 

course of a robbery. Phillips was 
placed in the trunk of his car; Bonnie 

Bullock was placed in the back seat.

High and his accomplices drove the two 

to a remote site where they were to be 

eliminated. The eleven-year-old was 

taunted by High as they rode in the 

back seat of the car. "Are you ready 

to die? Do you want to die? Well, 

you're going to die." The child begged 

for his life. Upon reaching a deserted 

wooded area, the victims were forced to 

lie face down in front of the car. The 

victims were then shot by the three 

defendants. Bonnie Bullock died of a 

bullet wound to the head. Phillips 

suffered a gunshot wound to the head 

and wrist. Having been left for dead,

Phillips miraculously survived and 

later identified High, Ruffin, and 

Brown. High later confessed to the 

murder.

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High v. Kemp, supra at 990. Further facts will be developed as 

necessary to examine the issues presented in the instant 

petition.

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PART THREE

REASONS FOR NOT GRANTING THE WRIT

I. THERE WAS NO EIGHTH AMENDMENT
VIOLATION BY THE IMPOSITION OF A 

DEATH SENTENCE IN THE INSTANT CASE 

AS THE PETITIONER WAS NOT A 

JUVENILE UNDER STATE LAW, WAS AT 

MOST APPROXIMATELY TWENTY-TWO DAYS 

FROM HIS EIGHTEENTH BIRTHDAY AT 

THE TIME OF THE CRIME AND WAS THE 

LEADER AND INSTIGATOR OF AN 

OUTRAGEOUS KIDNAPPING, ARMED 

ROBBERY AND MURDER.

Petitioner first asserts that this Court should grant 

certiorari to consider the question of whether the imposition 

of the death penalty in this case violates the Eighth Amendment 

to the United States Constitution. Counsel is aware that this 

Court has presently pending before it the case of Thompson v.

Oklahoma, ___U.S. _____ , 107 S.Ct. 1284 (1987), dealing with

the question of the imposition of the death penalty on someone 

who was fifteen years old at the time of the crime. Respondent 

submits that neither the circumstances of the instant case, nor 

the granting of certiorari in Thompson, justify the granting of 

certiorari in this case.
In examining the facts in the instant case it is first 

important to note that at no time has any documentary evidence 

been introduced to the knowledge of counsel for the Respondent 

estabishing the actual date of Petitioner's birth. To the best 

counsel can determine, Petitioner's birthdate was August 17, 

1958, although counsel has information that on other reports 

the birthdate has been reported as early as 1956. Even 

assuming that Petitioner's birthdate was 1958, however, at the

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time of the crime on July 26, 1976, Petitioner was less than a 

month away from his eighteenth birthday. Under Georgia law, 

all persons seventeen years and older were automatically 
treated as adults for purposes of criminal conviction. O.C.G.A 

§ 15-11-2. Although for certain other aspects of the law, 

persons of the age of seventeen are not treated as adults, they 

are for purposes of criminal law. In fact, individuals of the 

age of sixteen can be treated as adults and tried as such, 

although not sentenced to death.
The clear distinction between this case and that faced by 

the Court in Thompson v. Oklahoma is the fact that under state 

law in this case, the Petitioner was not a juvenile and was an 

adult for purposes of criminal proceedings. Thus, Petitioner's 

characterization of himself as a minor is misleading. In fact, 

in less than one month from the date of the incident,

Petitioner was entitled to the "basic freedoms" to which 

Petitioner referred in his petition in this Court. This stands 

in contrast to the situation in Thompson where the individual 

was fifteen at the time of the crime and clearly was a juvenile 

and would have been treated as such under Georgia law and one 

would not have even been eligible for the death sentence under 

Georgia law.
Respondent submits that this Court in making its 

determination as to the evolving standards of decency for 

purposes of an Eighth Amendment analysis should give deference 

to the General Assembly as to what punishment is actually 

appropriate for a given offense. Regardless of whether this 

Court determines the standards of decency prohibits the 

imposition of the death sentence on one who is fifteen at the 

time of the crime, there is nothing in the standards of decency 

and the society of this country which would prohibit the 

imposition of a death sentence on one who committed a cold 

blooded, calculated armed robbery, kidnapping, murder and an 

attempted second murder less than one month before his 

eighteenth birthday. As noted by the Eleventh Circuit Court of

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Appeals, "The constitution does not prohibit the state from 
imposing the death penalty on one who, while seventeen years 
old, has intentionally and viciously taken the life of another 

in cold blood." High v. Kemp, supra at 993. This is 
particularly clear in the instant case where it was the 
Petitioner himself who taunted the eleven year old victim with 

the possibility of the victim's impending death.
Respondent submits that Petitioner has shown no cause to 

this Court to grant certiorari under the circumstances of the 
instant case. Although age may be considered as a mitigating 
factor by a sentencer, nothing compels anything more than that 
under the Constitution or the standards of decency in our 
society. Therefore, Respondent submits that this Court should 

simply decline to grant certiorari under the narrow 
circumstances presented in this case.

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II. PETITIONER DID NOT RAISE AN
ALLEGATION IN THE LOWER COURT 

ASSERTING THAT IT WAS 
UNCONSTITUTIONALLY ARBITRARY FOR 

THE JURY TO IMPOSE A DEATH 
SENTENCE ON SOMEONE WITHOUT THE 
JURY KNOWING THAT THE INDIVIDUAL 
WAS UNDER EIGHTEEN AT THE TIME OF 
THE OFFENSE; THEREFORE, THIS COURT 
SHOULD NOT CONSIDER THIS ISSUE AT 

THIS TIME.

Petitioner now asserts that this trial jury was never made 
aware that he was only seventeen years old at the time of the 
offense. This precise allegation was not raised in the lower 

courts. The thrust of Petitioner's allegation in the lower 
courts was that his trial counsel was ineffective for failing 
to present mitigating evidence to the jury, including failing 
to present Petitioner's actual age to the trial jury. At no 
time did the Petitioner make an argument that his death 
sentence was arbitrary because the jury simply did not know 
this information. Based upon these circumstances, Respondent 
submits that this Court should decline to consider an issue 
which has not been raised and ruled upon by the lower court.
S p p stembridge v. Georgia, 343 U.S. 541 ( 1952); Card inale v^

Louisiana, 394 U.S. 437 (1969).
Additionally, Respondent would submit that whereas the 

prior holdings of this Court provide that a sentencer not be 
prohibited from considering age as a mitigating factor and that 
certainly age should be considered by a sentencer if it is 
presented as a mitigating factor, nothing in these decisions 
mandate that the jury be apprised of the age of the defendant 
at the time of determining sentence. See Eddings v. Oklahoma,
4 55 U.S. 19 4 ( 1982 ) ; Skipper v. South Carolina, ___ U.S. ___
S.Ct. 1669 (1986). To adopt Petitioner's reasoning would have

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essentially required the state to present specific aspects of a 

defendant and the crime to the jury as mitigating evidence 

prior to the jury making a determination as to sentence. What 

evidence is to be presented is normally been left up to a 
defendant and his trial counsel. Petitioner is not reasserting 

his ineffective assistance claim at this time; therefore, 

Respondent submits that this issue simply fails to state a 

claim which would justify the granting of certiorari in this

case .

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III. THE HOLDING IN ALLEN V. HARDY , ___

U.S. ____ , 106 S.Ct. 2878 (1986),

CLEARLY APPLIES TO CAPITAL CASES 

AS WELL AS NON-CAPITAL CASES.

Petitioner's argument in his third reason for granting the 

writ is simply that the Court should apply a different rule of 

retroactivity to capital cases. Thus, Petitioner asserts that

even though this Court has held that Batson v. Kentucky, ___

U.S. ___, 106 S.Ct. 1712 (1986), is not to be applied

retroactively on collateral review to those convictions which 

are already final, this Court should create a different rule in 

capital cases. Respondent submits that there is simply no 

justification for drawing a different line of retroactivity in 

capital cases.
Certainly, this Court has examined cases in which the death 

penalty has been imposed with greater scrutiny. See, e .g . ,

Turner v. Murray, ___ U.S. ___, 106 S.Ct. 1683 ( 1986). In

Turner v. Murray, however, the Court was concerned with the 

question of eliminating juror bias at the sentencing phase of 

the trial. The Court deemed that the potential for racial bias 

was not so great when only a guilt-innocence phase was 

involved, but could create more serious problems when a 

sentence of death was being considered. Batson v. Kentucky is 

simply a different consideration all together and does not 

relate directly to juror bias. There is no question that the 

jury selected in the instant case was impartial and was able to 

reach a non-biased result.
In Allen v. Hardy, supra, this Court examined the question 

of whether Batson v. Kentucky should be applied retroactively

to cases that were final at the time of the decision in Batson, 

supra. In making this determination, this Court examined the 

three factors to be weighed in evaluating the questions of

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retroactively as set forth in Solem v. Stumes, 465 U.S. 638 

(1984). As noted in Allen, supra, "The rule in Batson v. 

Kentucky is an explicit and substantial break with prior 

precedents." Id. at 2830. Further, the Court went on to 
conclude that while the rule could have a bearing on the truth 

finding function of the trial, the decision in Batson did serve 

other functions, including assuring that the state did not 

discriminate against citizens. "The rule in Batson, therefore, 

was designed 'to serve multiple ends,' only the first of which 

may have some impact on truth finding." Allen v. Hardy, supra 

at 2880. The Court went on to note, "the new rule joins other 

procedures that protect a defendant's interest in a neutral 

fact finder. Those other mechanisms existed prior to our 

decision in Batson, creating a high possibility that an 

individual juror seated in a particular case was free from 

bias." I_d. at 2881.
This Court also noted that the factors of prior reliance 

and the effect on the administration of justice, "weigh heavily 

in favor of non-retroactive effect." Id. There is no question 

that prosecutors, trial judges, and appellate courts throughout 

our state and federal systems justifiably have relied on the 

standard of Swain." Id. Therefore this Court found that "the 

reliance interest of law enforcement officials is 'compelling' 

and supports a decision that the new rule should not be 

retroactive." Id. ; Solem v. Stumes, supra at 6 50.

This Court also found that retroactive application of the 

rule "on collateral review of a final conviction would 

seriously disrupt the administration of justice." Allen, supra 

at 2881. Such an application would require hearings in the 

trial court years after the conviction to examine the nature of 

a prosecutor's peremptory challenge. In cases such as the 

instant case, this could possibly require a hearing eleven 

years after the.original conviction when the prosecutor who 

tried the case may be deceased or certainly unavailable or have

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no memory of the event. "Many final convictions therefore 

would be vacated, with retrial 'hampered by problems of lost 

evidence, faulty memory, and missing witnesses.'" Allen, supra 

at 2881, quoting Solem v. Stumes, supra, 465 U.S. at 650.

A review of the above criteria shows that there is no 
reason for distinguishing cases where a death sentence has been 
imposed from the circumstance in Allen v. Hardy in which the 
Petitioner had murder convictions. The same considerations 
concerning the principles of retroactivity apply in the instant 

case as were applied in Allen v. Hardy, supra■
Respondent submits that Petitioner has given no reason for 

this Court to essentially reconsider the decision in Allen v. 
Hardy, and to determine that it should not apply in capital 
cases. Respondent submits that as the same considerations 
apply in the instant case as were applicable in Allen v. Hardy, 

supra, and that this Court should not reconsider its decision 
and should continue to conclude that Batson v. Kentucky does 
not apply to cases that were final at the time of the decision 
and are presently pending on collateral review. Therefore, 
this Court should decline to grant certiorari to review this 

issue.

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CONCLUSION

For all of the above and foregoing reasons/ Respondent 
prays that the petition for writ of certiorari filed on behalf

of Jose Martinez High be denied.
Respectfully submitted,
MICHAEL J. BOWERS 071650
Attorney General
MARION 0. GORDON 302300
First Assistant Attorney General

WILLIAM B . HILL,
Senior Assistant Attorney General

'£ //&  '—3 5 4725

MARY BETH WESTMORELAND 
132 State Judicial Building 
40 Capitol Square, S. W. 
Atlanta, Georgia 30334 
(404) 656-3349

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CERTIFICATE OF SERVICE

I, Mary Beth Westmoreland, a member of the Bar of the 

Supreme Court of the United States and counsel of record for 
the Appellee, hereby certify that in accordance with the Rules 

of the Supreme Court of the United States, I have this day 

served a true and correct copy of this Motion to Dismiss or 

Affirm upon counsel for the Appellant by depositing a copy of 

the same in the United STates mail with proper address and 

adequate postage to:

Bradley S. Stetler 

Public Defender 

127 -H4-m?s Street 
Burlington, Vermont 05401

Michael C. Garrett 

412 Greene Street 

Augusta, Georgia 30910

This /3//\ bay of November, 1987.

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