11th Circuit - Attorney's Working Files - Oral Argument

    Case Files: Mc ([eskey 31-013) : Backgrovmd: [1h ( 
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3. Wha dors dolibeats mond — ho omens ho hed Ha. atin by dikes 
inode r= uasnl inaduatnl ; ite Gove. 

4. hed abot Qundey . Prngaps - 825 Fad 207,291 — yg dowtaite of 7 
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: + chmch Dorey dive fer Othe Evang eclundiod 

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&. dd ed oui'daye, f Aly a Sly farce 

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asks do haut Ca) gr AC an Jed 23d. 

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lo. IW jv makry tha iv dud eofid wil: Clans’ 2l- 

Pie $ fol ¢, 7a, 7; Logically Boke» 
; dbs Cs fawn ob feuas (2. 

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: 2 tid fo py Can ecsas oF. 

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‘eng ke $3.0, ho fepuieg hr 

  

 



  

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res C audiper Mast spprapaks 4 Ht DTG, ula re Via Poe [2c 
Line (au 209 Bat "Luzh] Lovmaggn * bv eal, 

9. Dandi Bianen v. Du Duagen $3 Ed S47 1%. (987), You rg sum. pejudize, 

& vale Siktg Shaw BRD Yat tha eyiavg did nat contrite to fle wandid. 

Toss is mah Adil evidwe tw sufheind fo comid ahead era. 

bet ardatbon, exidnca caruplasrd of ayy baw J nfludead Hus FF 5 dbeison. 

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whe lye? 

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7. laut Westley atcha 1 challas Uguo one POUL trey 1a 
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b. (bn F M:todaa, Heo rolffe, Leo Camo on Ho frank dey ” Loan # 
ut L aolidish (hatha (id Officer Schict: 

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25. ¢ taun key cane m afuss Prigg v. Jour. 

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AQ T2A © 

{Rev. 8/82)     

ufo 

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

WARREN McCLESKEY, 

Petitioner, 

vs. : CIVIL ACTION 
NO. C87-1517A 

RALPH M. KEMP, Superintendent : 
Georgia Diagnostic and 
Classification Center, 

Respondent. 

  

I. INTRODUCTION. 

Petitioner Warren McCleskey, convicted and sentenced to 

death in October 1978 for the murder of Police Officer Frank 

Schlatt during the course of a furniture store robbery,’ petitions 

this court for a writ of habeas corpus on seven separate grounds: 

(1) that the state's non-disclosur: of critical impeachment 

evidence violated his due process richts (the Giglio claim); (2) 

that his capital sentence was the p:'oduct of intentional racial 

discrimination in violation of his eighth amendment and equal 

protection rights (the intentional discrimination claim); (3) 

that the trial court's denial of funds to employ experts in his 

defense violated his due process rights (the Ake claim); (4) that 

the use of the petitioner's alleged statements to a jailhouse 

informant violated his sixth amendment snd due process rights 

(the Massiah claim); (5) that the state's failure to correct a 
  

  

 



  

witness's misleading testimony violated his eighth amendment and 

due process rights (the Mooney claim); (6) that the state's 

reference to appellate review in its closing argument violated 

his eighth amendment and due process rights (the Caldwell claim); 
  

and (7) that the gtate's systematic exclusion of black jurors 

violated his sixth amendment and equal protection rights (the 

Batson claim). 

For the reasons discussed below, the petition for a writ of 

habeas corpus will be granted as to the Massiah claim but denied 

as to all other claims. In Part II of this order the court will 

detail the history of the petitioner's efforts to avoid the death 

penalty. Then, because the successive nature of this petition 

dominates the court's discussion and will be dispositive of many 

of the issues raised by the petition, Part III will set out the 

general principles of finality in habeas corpus actions. Next, 

the court will address each of the seven claims raised in this 

petition; first, the successive claims in Part IV (the Giglio, 

intentional discrimination, and Ake claims) and then the new 

claims in Part V (the Massiah, Mooney, Caldwell, and Batson 
  

claims). Finally, in Part VI, the court will address the peti- 

tioner's other pending motions -- a motion for discovery and a 

motion to exceed page limits. 

"II. HISTORY OF PRIOR PROCEEDINGS. 

The petitioner was convicted and sentenced in the Superior 

Court of Fulton County on October 12, 1978. The convictions and 

sentences were affirmed by the Supreme Court of Georgia.     AOT2A © -2- 
{Rev. 8/82)   
 



  
AO 2A © 

(Rev. 8/32)     

McCleskey v. State, 245 Ga. 108 (1980). The United States 
  

Supreme Court then denied a petition for certiorari, McCleskey v. 
  

Georgia, 449 U.S. 891 (1980). On December 19, 1980, the peti- 
  

tioner filed an extraordinary motion for a new trial in Fulton 

County Superior Court, but no hearing has ever been held on that 

motion. On: January 5, 1981 the petitioner filed a petition for 

writ of habeas corpus in the Butts County Superior Court. On 

April ‘8, 1881, that court denied all rellef. On June 17, 1981 

the Georgia Supreme Court denied the petitioner's application for 

a certificate of probable cause to appeal. The United States 

Supreme Court again denied a petition for a writ of certiorari. 

McCleskey v. Zant, 454 U.S. 1093 (1981). 
  

McCleskey filed his first federal habeas corpus petition in 

this court on December 30, 1981. This court held an evidentiary 

hearing in August and October 1983 and granted habeas corpus 

relief on one issue on February 1, 1984. McCleskey v. Zant, 580 
  

FP. Supp. 338 (N.D.Ga. 1984). The Eleventh Circuit reversed and 

denied the habeas corpus petition on January 29, 1985. McCleskey 
  

v. Kemp, 733 P.284:877 {11th Cir. 1985) (en banc). This time the 
  

United States Supreme Court granted certiorari and affirmed the 

Eleventh Circuit on April 22, 1987. McCleskey v. Kemp, v.88. 
  

, 107 S.Ct. 1756, petition for rehearing denied, 0.8: 
  

307 S.Ct. 3199 (1987). McCleskey filed a successive petition for 

a writ of habeas corpus in the Butts County Superior Court on 

June 9, 1987, and a First Amendment to the Petition on June 22, 

1987 (Civil Action No. 87-V=~1028). That court granted the 

  

  

 



  
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(Rev. 8/82)     

state's motion to dismiss the petition on July 1, 1987. The 

Georgia Supreme Court denied the petitioner's application for a 

certificate of probable cause to appeal on July 7, 1987 (Ap- 

plication No. 4103). 

his court issued an order on June 16, 1987 making the 

mandate of the Eleventh Circuit the judgment of this court and 

lifting the stay of execution that had been entered when the 

first federal habeas corpus petition was filed. On July 7, 1987 

McCleskey filed the present petition for a writ of habeas corpus, 

a request to proceed in forma pauperis, a motion for discovery, 
  

and a motion for a stay of execution. The court granted the 

request to proceed in forma pauperis and held an evidentiary 
  

hearing on the petition on July 8 and 9, 1987. At that time, the 

court granted the motion for a stay of execution. The court took 

further evidence in a hearing on August 10, 1987 and, at the 

close of the evidence, requested post-hearing briefs from the 

parties. Those briefs have since been filed and the petitioner's 

claims are ripe for determination. 

III. THE DOCTRINE OF FINALITY IN HABEAS CORPUS PETITIONS. 

Although successive petitions for a writ of habeas corpus 

are not subject to the defense of res judicata, Congress and the 
  

courts have fashioned a "modified doctrine of finality" which 

precludes a determination of the merits of a successive petition 

  

under certain circumstances. Bass Vv. Wainwright, 675 F.2d 1204, 

1206 (llth Cir. 1982). In particular, Congress has authorized 

the federal courts to decline to address the merits of a petition 

  

 



ACO 72A © 
(Rev. 8/82)     

if the claims contained therein were decided upon the merits 

previously or if any new grounds for relief that are asserted 

should have been raised in the previous petition. 28: USC 

§2244(a) & (b). The habeas rules have described these distinct 

applications of the doctrine of finality as follows: 

A second or successive petition may be 
dismissed if the judge finds that it fails to 
allege new or different grounds for relief 
and the prior determination was on the merits 
or, if new and different grounds are alleged, 
the judge finds that the failure of the 
petitioner to assert those grounds in a prior 
petition constituted an abuse of the writ. 

28. USC foll. §2254, Rule 9(b). 

A purely successive petition or successive claim raises 

issues which have been decided adversely on a previous petition. 

The court may take judicial notice of allegations raised by a 

previous petition. See Allen v. Newsome, 795 F.2d 934, 937 (llth 
  

Cir. 1986). Rule 9(b) requires that the issue raised by the 

previous petition must have been decided adversely to the 

petitioner on the merits before the doctrine of finality obtains. 

A mer ts determination need not be a determination made Alter an 

evidertiary hearing if the facts material to the successive claim 

were 1ndisputed at the time of the previous petition. Bass, 675 

P.24 at 1206, 

A truly ‘successive petition may be distinguished from the 

second category of petitions subject to the finality doctrine: 

petitions alleging new claims that may be an "abuse of the writ." 

28 USC §2244(b); 28 USC foll. §2254, Rule 9(b). The state: has    



  

the burden of pleading abuse of the writ; the burden then shifts 

to the petitioner to show that he has not abused the writ. Price 

v. Johnston, 334 0.8. 265, 292-93 (1948); see also Allen v. 
  

  

Newsome, 795 P.24 934, 938-39 (llth Cir. 1986). To meet his 

burden, a petitioner must "give a good excuse for not having 

raised his claims previously." Allen 794 F.2d at 939. An 

evidentiary hearing on an abuse of the writ defense is not 

necessary if the record affords an adequate basis for decision. 

Price, 3340.8. at 292-93, 

As this circuit has articulated the issue presented by an 

abuse of the writ defense, "[a] district court need not consider 

a claim raised for the first time in a second habeas petition, 

unless the petitioner establishes that the failure to raise the 

claim earlier was not the result of intentional abandonment or 

withholding or inexcusable neglect." Adams v. Dugger, 816 F.2d 
  

1493, 1494 (llth Cir. 1987) (citations omitted). See also Moore 
  

v. Kemp, 824 F.2d 847, 851 (llth Cir. 1987). There are a number 
  

of instances in which failure to raise an issue in. a prior 

  

kA petition is excusable. "A r :troactive change in the law and newly 
Aomm————— 

| discovered evidence are examples." 28 USC foll. $2254, Rule 9   
Advisory Committee Notes. See, e.g., Ritter v. Thigpen, 828 F.2d 

  

662, 665 (llth Cir. 1987): Adams, 816 F.2d at 1495. Of course, 
  

failure to discover evidence supportive of a claim prior to the 
  

first petition may itself constitute inexcusable neglect or 
      ACOT2A © -6- 

(Rev. 8/82)   
 



  

deliberate bypass. Cf. Freeman v. Georgia, 599 F.2d 65, 71-72 
  

  

(5th Cir. 1979) (no procedural default where petitioner was 

Gud misled by police and could not have uncovered evidence supportive 

of a claim in any event) .? 

  gt . . . . ’ : : . 
Even if a particular claim is truly successive or, if it is 

a new claim, is an abuse of the writ, a court may consider the 

merits of the claim if "the ends of justice" would be served 

thereby. See Sanders v. United States, 373 U.S. 1, 16 (1963) 
  

(successive claim); 14. at 18 (new claim)ys Smith v. Kemp, 715 
  

P.24 1459, 1468 (llth Cir. 1983) {successive Claim); Moore v. 
  

Kemp, 824 PFP.2d4 at 856 (new claim). The burden is upon the 

petitioner to show that the ends of justice would be served. 

sanders, 373 0.8. at: 17. 

The "ends of justice" exception has been subject to dif- 

fering interpretations. The Court in Sanders suggested some 

circumstances in which the "ends of justice" would be served by 

re-visiting a successive claim: 

If factual issues are involved, the applicant 
is entitled to a new hearing upon a showing 
that the evidentiary hearinc on the prior 
application was not full and fair; we 
canvassed the criteria of a full and fair 
evidentiary hearing recently in Townsend v. 
Sain, [372 D.8¢ 293 (19631), and thal 
discussion need not be repeated here. If 
purely legal questions are involved, the 
applicant may be entitled to a new hearing 
upon showing an intervening change in the law 
or some other justification for having failed 
to raise a crucial point or argument in the 
prior application. oh [Tlhe foregoing 
enumeration is not intended to be exhaustive; 
the ‘test is "the ends of 3ustice" and it 
cannot be too finely particularized. 

  

AOT2A © -7= 
(Rev. 8/82) /       
 



  

373 U.8.:at 16-17, This circuit has traditionally followed the 

Sanders articulation of the "ends of justice" exception. See, 

€.9., Moore v. Remp, 824 F.2d at 856; Smith v. Kemp, 715 F.24 at 
  

  

1468. 

‘A plurality of the Supreme Court recently challenged this 

open-ended definition-of "the ends of justice," arguing that a 

successive claim should not be addressed unless the petitioner 

"supplements his constitutional claim with a colorable showing of 

factual innocence." Kuhlmann v. Wilson, U.S. y 106 S.Ct. 
  

2616, 2627 (1986) (Opinion of Powell, J., joined by Burger, 

Rehnquist, and O'Connor, JJ.). Under this definition of the 

"ends of justice," the petitioner "must make his evidentiary 

showing even though ... the evidence of guilt may have been 

unlawfully admitted." Id. That is, petitioner must "show a fair 

probability that, in light of all the evidence, including that 

alleged to have been illegally admitted (but with due regard to 

any unreliability of it) and evidence tenably claimed to have 

been wrongfully excluded or to have become available only after 

trial, the trier of facts would have entertained a reasonab.e 

doubt of his guilt.” Id. n. 17 -{quoting Priendly,. Is Innocen:e 
  

Irrelevant? Collateral Attack on Criminal Judgments, 28 
  

U.Chi.L.Rev, 142 (1970)). 

‘Following Kuhlmann, "[i]t is not certain what standards 
  

should guide a district court in determining whether the 'ends of 

justice' require the consideration of an otherwise dismissable 

successive habeas petition." Moore, 824 F.2d at 856. The     AOT2A © oo ne 
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AO 772A © 

(Rev. 8/82) 

Eleventh Circuit, in Moore, declined to decide "whether a 

colorable showing of factual innocence is a necessary condition 

for the aonlication of the ends of justice exception." 1d. The 

court merely held that, "at a minimum, the ends of justice will 

demand consideration of the merits of a claim on a successive 

petition where there is a colorable showing of factual inno- 

cence." Id, 

IV. PETITIONER'S SUCCESSIVE CLAIMS. 

Three of the petitioner's claims in this second federal 
h———— 

habeas petition duplicate claims in the first) federal petition 
ec 

  

  

and are therefore truly successive claims that should be dis- 
  

missed according to the dictates of Rule 9(b) unless the peti- 

tioner can show that the "ends of justice" justify re-visiting 

the claims. Each claim will be discussed in turn. 

A. Giglio Claim.   

Petitioner's Giglio claim is based upon the state's failure 

to disclose its agreement with a witness, Offie Evans, which led 

him to testify against petitioner at trial. McCleskey argues 

that the state's failure to disclose the promise by a police 

detective to "speak a word" for Offie Evans with regard to an 

escape charge violated McCleskey's due process rights under 

Giglioiv. United Scares, 405 U.s. 150 -(1971).-: Giglio hela that 
      failure to disclose the possible interest of a government witness 

will entitle a defendant to a new trial if there is a reasonable 

likelihood that the disclosure would have affected the judgment 

of the jury. Id. at 154. This court granted habeas corpus 

  

 



  

relief on this claim in passing upon the first federal habeas 

petition, but the Eleventh Circuit reversed en banc. McCleskey 
  

  

v. Zant, 580 F. Supp. at 380-84, rev'd sub nom. McCleskey v. 

Kemp, 753. F.2d at 885. 
——— 

‘McCleskey argues that the ends of justice require re~- 

visiting his Giglio claim for three reasons. He argues that the 

discovery of a written statement by Offie Evans provides new 

evidence of a relationship between Offie Evans and the state 

supportive of a finding of a guid pro guo for Offie Evans’ 
  

testimony. He also proffers the affidavit testimony of jurors 

who indicate that they might have reached a different verdict had 

they known the real interest of Offie Evans in testifying against 

petitioner. Finally, petitioner contends that there has been a 

change in the law regarding the materiality standard for a 

finding of a Giglio violation. 

None of these arguments is sufficient to justify re-visiting 

the Giglio claim. The written statement of Offie Evans offers no 

new evidence of an agreement by state authorities to do Offie 

Evens a favor if he would testify against petitioner. Conse- 

quently, the conclusion of the Eleventh Circuit that the de- 

tective's promise did not amount to a promise of leniency 

triggering Giglio is still valid. See McCleskey v. Kemp, 753 
  

F.2d at 885. Because the threshold showing of a promise still 

has not been made, the ends of justice would not be served by 

allowing petitioner to press this claim again.     AOT2A © -10- 
(Rev. 8/82)   
 



    AO72A © 
(Rev. 8/82) 

Petitioner also has no newly discovered evidence with 

respect to the materiality of the state's failure to disclose its 

arrangement with Offie Evans. The affidavit testimony of the 

jurors is not evidence that petitioner could not have obtained at 

the time of the first federal habeas petition. In any event, a 

juror 1s generally held incompetent to testify in impeachment of 

a verdict. Ped. R. Evid. 606(b)y Proffict v, Wainwright, 685 
  

F.28 1227, .1255 (llth Cir. 1982). See generally McCormick on 
  

Evidence §608 (3d Ed. 1984). 
  

    
Finally, petitioner can point to no change in the law on the 

' standard of materiality. The Eleventh Circuit concluded in this 

case that there was "no 'reasonable likelihood' that the State's 

failure to disclose the detective's [promise] affected the 

judgment of the jury." McCleskey, 753 F.2d at 884. The same 
  

standard still guides this circuit in its most recent decisions 

on the issue. See, e.g., United States v. Burroughs, No. 
  

86-3566, Slip Op. at 381 (llth Cir., Nov. 3, 1987); Brown, 785 

F.2d at 1464 (citing McCleskey v. Kemp, 753 F.2d at 885). 
  

  

B. Intenticnal Discrimination Claim. 

Having lost in the Supreme Courts on his contentions re- 

garding the Baldus Study, the petitioner nevertheless trotted it 

out to support the more narrow contention that McCleskey was 

singled out both because he is black and because his victim was 

white. 

-11- 

  

  

 



  
    

The Baldus Study is said to be the most ambitious yet. It 

is. The part of it that is ambitious, however -- the 230-vari- 

able model structured and validated by Dr. Baldus -- did not 

adduce one smidgen of evidence that the race of the defendants or 

the Xade of the victims had any effect on the Georgia prose- 

cutors' decisions to seek the death penalty or the juries! 

decisions to impose it. The model that Dr. Baldus testified 

accounted for all of the neutral variables did not produce any 

"death-odds multiplier" of 4 or 6 or 11 or 14 or any of the other 

numbers which the media have reported. 

To be sure, there are some exhibits that would show discrim- 

ination and do‘'contain such multipliers. But these were not 

produced by the "ambitious" 230-variable model of the study. The 

widely-reported "death-odds multipliers" were produced instead by 

arbitrarily structured little rinky-dink regressions that 

accounted for only a few variables. They are of the sort of 

statistical analysis given short shrift by courts and social 

scientists alike in the past. They prcve nothing other than the 

truth of the adage that anything may be proved by statistics. 

The facts are that the only eviderce of over-zealousness or 

improprieties by any person(s) in the law enforcement estab- 

lishment points to the black case officers of the Atlanta Bureau 

of Police Services,? which was then under the leadership of a 

black superior who reported to a black mayor in a majority black 

city. The verdict was returned by a jury on which a black person 

‘sat and, although McCleskey has adduced affidavits from jurors on 

“12 gr 

  

  

 



  
AO72A © 
(Rev. 8/82)     

other subjects, there is no evidence that the black juror voted 

for conviction and the death penalty because she was intimidated 

by the white jurors. It is most unlikely that any of these black 

citizens who played vital roles in this case charged, convicted 

or sentenced McCleskey because of the racial considerations 

alleged. 

There is no other evidence that race played a part in this 

case. 

Ce. Ake Claim. 
  

Petitioner's last truly successive claim is based upon the 

trial court's denial of his request for the provision of funds 

for experts, particularly for a ballistics expert. Petitioner 

alleges that this ruling by the trial court denied him his right 

to due process of law as guaranteed by the fourteenth amendment. 

Petitioner raised this same claim in the first federal habeas 

petition and this court held that the claim was without merit. 

  

McCleskey v. Zant, 580 F. Supp. at 388-89 (citing Mcore v. Zant, 
  

722 P.24:640 (11th Cir. "1983)). At that time the law held that 

the appointment of experts was generally a matte.” within the 

discretion of the trial judge and could not form the basis for a 

due process claim absent a showing that the trial judge's 

decision rendered the defendant's trial fundamentally unfair. 

Moore, 722 F.2d at 648. With that case law in mind, this court 

concluded that the state trial court had not abused its dis- 

cretion because the petitioner had the opportunity to subject 

-l3~ 

  

 



  
AO72A ©& 

(Rev. 8/82)     

the state's ballistics expert to cross-examination and because 

there was no showing of bias or incompetence on the part of the 

  

state's expert. McCleskey v. Zant, 580 F. Supp. at 389. 

Arguing that the ends of justice require re-visiting the 

claim, petitioner points to the cases of Ake v. Oklahoma, 470 
  

U.5.:68, 83 (1885) and Caldwell v. Mississippi, 472 U.S. 320, 323 
  

n. 1 (19885) (plurality), as examples of a change in the law 

regarding the provision of experts. It may be that these cases 

did change the law; this matter, which was traditionally thought 

to rest within the discretion of state trial judges, now has 

heightened constitutional significance. Compare Moore v. Zant, 
  

  

722 F.2d at 648, with Moore v. Kemp, 809 F.2d 702, 709-12 (llth | 

Cir. 1987): | | 

Even so, this new law does not justify re-visiting this 

claim. The new Supreme Court cases require "that a defendant. 

must show the trial court that there exists a reasonable proba- 

bility both that an expert would be of assistance to the defense 

and that denial of expert assistance would result in a funda- 

mentally unfair trial. Thus, if a defendant wants an expert to 

assist his attorney in confronting the prosecution's proof Lu, he 

must inform the court of the nature of the peoBecutionts case and 

how the requested expert would be useful." Moore v. Kemp, 809 
  

F.2d at 712. A review of the state trial record indicates that 

petitioner did nothing more than generally refer to the extensive 

expert testimony available to the state. Petitioner then 

  

specifically requested the appointment of a psychiatric expert. 

iy FS 

  

 



        

The petitioner never specifically requested the appointment of a 

ballistics expert, nor did he make the showing that this circuit 

has held is required by Ake and Caldwell. The state trial court 
  

could hardly have been expected to appreciate the importance of a 

paliisttcs expert to petitioner's case if petitioner himself 

neither requested such an expert nor explained the significance 

of such an expert to the court. 

V. PETITIONER'S NEW CLAIMS. 

A. Massiah Claim. 
  

1. Pindings of Fact. 

Petitioner relies primarily on the testimony of Ulysses 

Worthy before this court and the recently disclosed written 

statement of Offie Evans to support his Massiah claim. Ulysses 

Worthy, who was captain of the day watch at the Fulton County 
Vd 

Jail during the summer of 1978 when petitioner was being held 

  

there awaiting his trial for murder and armed robbery, testified 

before this court on July 9 and August 10, 1987. The court will 

set out the pertinent parts of that testimony and then summarize 

the information it reveals. 

On July 9, Worthy testified as follows: He recalled 

"something being said" to Evans by Police Officer Dorsey or 

another officer about engaging in conversations with McCleskey 

(II Tr. 147-49).° He remembered a conversation, where Detective 
  

Dorsey and perhaps other officers were present, in which Evans 
    

was asked to engage in conversations with McCleskey (II Tr. 150). 

hI 
  

~]5w 

  

 



  
AO 72A © 

{Rev. 8/82) 

Later, Evans requested permission to call the detectives (II Tr. 

151). Assistant District Attorney Russell Parker and Detective 

Harris used Worthy's office to interview Evans at one point, 

which could have been the time they came out to the Jail at 

Evans' request (Id.). 
LL —————— 

  

In other cases, Worthy had honored police requests that 

someone be placed adjacent to another inmate to listen for 

information (II Tr. 152); such requests usually would come from 

the officer handling the case (Id.); he recalled specifically 
pS .   

that such a request was made in this case by the officer on the 

case (II Tr. 153). Evans was put in the cell next to McCleskey 

  

      

    
at the request of the officer on the case (Id.); "someone asked 
  

[him] to specifically place Offie Evans in a specific location in 

the Fulton County Jail so he could overhear conversations with 

Warren McCleskey," but Worthy did not know who made the request 

and he was not sure whether the request was made when Evans 

first came into the jail (II Tr. 153-54); he did not recall when 

he was asked t> move Evans (II Tr. 155-56). | 

On Augnus:. 10, 1987 Worthy testified as follows: Evans was 

first brought to his attention when Deputy Hamilton brought Evans 

to Worthy's »ffice because Evans wanted to call the district 

attorney or the police with "some information he wanted to pass 

to them" (III Tr. 14). The first time the investigators on the 

Schlatt murder case talked to Evans was "a few days" after Evans’ 

call (III Tr. 16-17). That meeting took place in Worthy's office 

(III Tr. 17). Worthy was asked to move Evans "from one cell to 

“lf= 

SAAR To ass A AL ECE TC —— eT Te me 1 A EA VP ge 

  

 



  
AO 772A © 
(Rev. 8/82) 

another" (XIX Tr. 18)... Worthy was act sare iio asked, "but it 

would have had ... to have been one of the officers," Deputy 

Hamilton, or Evans (III Tr. 183-19). Deputy Hamilton ' asked 

Worthy to move Evans "perhaps 10, 15 minutes" after Evans' 

tAbetvAew with the: investigators (III Tr. 20). This was the 

first and only time Worthy was asked to move Evans {13.).' Deputy 

Hamilton would have been "one of the ones" to physically move 

Evans (III Tr. 22). Worthy did not know for a fact. that Evans 

was ever actually moved (Id.). The investigators later came out 

to interview Evans on other occasions, but not in Worthy's 

presence (III Tr. 23). Neither Detectives Harris, Dorsey or 

Jowers nor Assistant District Attorney Parker ever asked Worthy 

to move Evans (III Tr. 24). 

On cross-examination, Worthy re-affirmed portions of his 
—— 

July 9 testimony: He overheard someone ask Evans to engage in 

  

  

conversation with McCleskey at a time when Officer Dorsey and 

another officer were present (III Tr. 32-33). Evans requested 

permission to call the investigators after he was asked to engage 

in conversation with McCleskey (III Tr. 33). Usually the case 

officer would be the one to request that an inmate be moved and 

that was the case with Evars, though he does not know exactly who 

  

made the request (III Tr. 46-48). (Fereny also contradicted 

Borcions of his July 9 testimony, stating that the interview at 

which Assistant District Attorney Parker was present was the 

first time Evans was interviewed and that Worthy had not met 

      {rious Dorsey Prior to that time (III Tr. 36). On further 

  

i Tg 

  

 



  

cross-examination, Worthy testified as follows: Deputy Hamilton 
I 

was not a case officer but was a deputy at the jail (III Tr. 49). 

  

  

When Worthy testified on July 9 he did not know what legal issues 
  

were peforé tne court (11% Tr. 52-53)... After his July 9 testi- 
  

  . 

oo he met with the state's attorneys on two occasions for a 

2%. total of forty to fifty minutes: {III Tr. 33=54). After his 

July 9 testimony he read a local newspaper article mentioning him 

| (111 Tr. 56). 

T SsRp Ones to questions from the court, Worthy stated that 

=. w.4 he was satisfied that he was asked for Evans "to be placed near 

  
  

  

McCleskey's cell," that "Evans was asked to overhear McCleskey 

talk about this case," and that Evans was asked to "get some 

    information from" McCleskey (III Tr. 64-65) .[ Worthy maintained 
  

that these requests were made on the date that Assistant 

District Attorney Parker interviewed Evans, but he could not 

explain why the investigators would have requested a move on the 

same day that Evans had already told the inves:igators that he 

was next to McCleskey, that he had been listening to what 

McCleskey had been saying, and that he had been isking McCleskey 

questions (III Tr. 64). 

FC. summary, Worthy never wavered from the fact that someone, 
I eel SS 

at some point, requested his permission to move Evans to be near 

  

  

  

— 

McCleskey. Worthy's July 9 testimony indicates the following 

sequence: ' The request to move Evans, the move, Evans' request to 

call the investigators, the Parker interview, and other later 

interviews. Worthy's August 10 testimony indicates a different       AOT2A © ~18= ; 
(Rev. 8/82) /   
 



  
AOT2A © 
(Rev. 8/82) 

sequence: Evans' request to call the investigators, the Parker 

interview, the request to move Evans by Deputy Hamilton, and 

other later interviews. Worthy's testimony is inconsistent on 
  

Officer Dorsey's rold in requesting the move, on whether Deputy 
  

  

Hamilton requested the move, and on whether the request to move 
—— 
  

  

Evans preceded Evans' request to call the investigators. Worthy 
——— 

has no explanation for why the authorities would have requested 

  

to move Evans after the Parker interview, at which Evans made it 

clear that he was already in the cell adjacent to McCleskey's. 

All of the law enforcement personnel to whom Worthy informed 
  

-- Deputy Hamilton, Detectives Dorsey, Jowers and Harris, ard 

Assistant District Attorney Parker =-- flatly denied having 
—   

requested permission to move Evans or having any knowledge of 
  

    
such a request being made (III Tr. 68-71; 80-81, 95; 97-98; 

102-03; 111-12, 116). It is undisputed that Assistant District 

Attorney Parker met with Evans at the Fulton County Jail on only 

one occasion, July 12, 1978, and that Evans was already in tte 

cell next to McCleskey's at that time (III Tr. 113-14; 71-72). 

Petitioner also relies on Evans' twenty-one page statemel t 
— 

to the Atlanta Police Department, dated August 1, 1978, in 

  

support of his claim that the suthorities deliberately elicited 

incriminating information from him in violation of his sixth 

amendment right to counsel. Evans' statement relates conversa- 

tions he overheard between McCleskey and McCleskey's co-defendant 

DuPree and conversations between himself and McCleskey from 

July 9 to July 12, 1978. McCleskey's statements during the 

-] Ge 

  

 



  

AA 

AO72A © 

(Rev. 8/82) 

  

course of those conversations were highly incriminating. In 

support of his argument that the authorities instigated Evans’ 

information gathering, McCleskey points to the methods Evans used 

to secure McCleskey's trust and thereby stimulate incriminating 

  

conversation. [Evans repeatedly lied to McCleskey, telling him 
  ——— 

peas McCleskey's co-defendant, Ben Wright, was. Evans' nephew; 

that Evans' name was Charles; that Ben had told Evans about 

McCleskey; that Evans had seen Ben recently; that Ben was | 

accusing McCleskey of falsely identifying Ben as the "trigger 

man" in the robbery; that Evans "used to stick up with Ben too;" 

that Ben told Evans that McCleskey shot Officer Schlatt; and that   

      
\ Evans was supposed to have been in on the robbery himself. Saf 
  

In addition, McCleskey argues that Evans' knowledge that 

   
  

McCleskey and other co-defendants had told police that co- 

defendant Ben Wright was the trigger person demonstrates Evans' 

collusion with the police since that fact had not been made 
wi 

public at that time. Finally, McCleskey points to two additional 

  

  

pleces of evidence about Evans' relationship with the police: 

Evans testified at McCleskey's trial that he had talked to 

Detective Dorsey about the case before he talked to Assistant 

District Attorney Parker (Pet. Exh. 16 at 119); and Evans had 

acted as an informant for Detective Dorsey before (II Tr. 52-3). 

The factual {isue for the court to resolve is simply stated: 

Either the authorities moved Evans to the cell adjoining 

McCleskey's in an effort to obtain incriminating information or 

yoy de harm they did not. There is evidence to support the argument t! 

2   
  

 



  

Con 
ZL 

Legs 
it 

  

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tar 1 

  
AO 72A © 

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pp 

  

ny 

    

Crd 
Evans was not moved, that he was in the adjoining cell fortu- 

itously, and that his conversations with McCleskey preceded his 

contact with the authorities. Worthy's testimony is often - : 4 : 

confused and self-contradictory, it is directly contrary to the 
———— 

t 

  

testimony of Deputy Hamilton and Detective Dorsey, it is contrary 

to Evans' testimony at McCleskey's trial that he was put in the 

adjoining-cell "straight from the street" (Trial Tr. 873), and it 

1s contrary to the opening line of Evans' written statement 

which says, "3% am in the Fulton County Jail cell #1 north 14 

where I have been since July 3, 1978 for escape." Worthy himself 

testified that escape risks where housed in that wing of the jail 

{III Br. 13-147. Moreover, the use of Evans as McCleskey 

alleges, if it occurred, 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. For these reasons, the state asks this court to 

reject Worthy's testimony that someone requested permission to 

mev 2 Evans next to McCleskey's cell. 
  

~~" After carefully considering the substance of Worthy's 

testimony, his demeanor, and the other relevant evidence in this 

care, the court concludes that it cannot reject Worthy's testi- 
  

mony about the fact of a request to move Offie Evans. The fact 
  

  
———— 

that someone, at some point, requested his permission to move 
—r 

Evans is the one fact from which Worthy never wavered in his two 
ni —— ‘ ——— 

  
  

  
mamm—" 

days of direct and cross-examination. The state has introduced 

no affirmative evidence that Worthy is either lying or mistaken. 

-21- n  



  

  

fe 
The lack of corroboration by other witnesses is not surprising; 

the other witnesses, like Assistant District Attorney Parker, had 

no reason to know of a request to move Evans or, like Detective 

Dorsey, had an obvious interest in concealing any such arrange-   ment. Worthy, by contrast, had no apparent interest or bias that 
  

would explain any conscious deception. Worthy's testimony that 

he was asked to move Evans is further bolstered by Evans' 
ee SR 

  

  

testimony that he talked to Detective Dorsey before he talked to 

Assistant District Attorney parker (and )by Evans' apparent 

knowledge of details of the robbery and homicide known only to 

  

  

the police and the perpetrators. 

Once it is accepted that Worthy was asked for permission to 
Oo — _ 

move Evans, the conclusion follows swiftly that the sequence of 

  

  

  move i oe os : events to which Worthy testified originally must be the correct 
  

sequence; i.e., the request to move Evans, the move, Evans’ 
  

request to call the investigators, the Parker interview, and 

other later interviews There are two other possible con- 
  

-— = 

clusions about the tim.ng of the request to move Evans, but 
| gl 

x neither is tenable. 

   

the request to move Evans could have 

    

come following Evans' neeting with Assistant District Attorney 
  

Parker, as Worthy seemed ‘to be testifying on August 10 (III Tr. 

  

20), However, a request at that point would have been non- 

sensical because Evans was already in ths cell adjoining 
  

  

McCleskey's.( Second, it could be that Evans was originally in the 

cell next to McCleskey, that he overheard the incriminating 

statements prior to any contact with the investigators, that     AOT2A © -22- , 
{Rev. 8/82) 

:   
  

 



  

- 

McCleskey was moved to a different cell, and that the authorities 

then requested permission to move Evans to again be adjacent to 

McCleskey. As the state concedes, this possibility is mere 

speculation and is not supported by any evidence in the record. 

Post-Hearing Brief at 53. 
  

For the foregoing reasons, (the court concludes that peti) 
A 

    

ioner has established by a preponderance of the evidence the     
following sequence of events: Evans was not originally in the 

v 
  

cell adjoining McCleskey's; prior to July 9, 1978, he was moved, 
  

  

pursuant to a request approved by Worthy, to the adjoining cell 
a 

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 
—————— 

  

DuPree; and Evans reported what he had heard between July 9 and 

July 12, 1978 to Assistant District Attorney Parker on July 12. 

  

2. Abuse of the Writ Questions.       
The state argues that petitione:'s Massiah claim in this 

Second federal habeas petition is an atuse of the writ because he 

intentionally abandoned the claim after his first state habeas 

Petition and because his failure to raise this claim in his first 

Lederal habeas petition was due to inexcusable neglect. As was 

‘Nted earlier, the burden is on petitioner to show that he has 

Jt abused the writ. Allen, 795 F.2d at 938-39. The court 
EE rea | 

includes that petitioner's Massiah claim is not an abuse of the 
—— _,, ’ 
  

“d=   
  

  

 



  

(First, petitioner cannot be said to have intentionally 

abandoned this claim. Although petitioner did raise a Massiah 

  

claim in his first state petition, that claim was dropped because 

it was obvious that it could not succeed given the then-known 

~~ 

facts. At the time of his first federal petition, petitioner was 
  

  

unaware of Evans' written statement, which, as noted above, 
| hata 

contains strong indications of an ab initio relationship between 

  

  

Evans and the authorities. Abandoning a claim whose supporting 

facts only later become evident is not an abandonment that "for     ( strategic, tactical, ‘or any other reasons ..... can fairly be 

| described as the deliberate by-passing of state procedures." Fay 

V..Noia, 372:U.8. 391, 439 (1962), quoted in Potts v, Zant, 638 
  

F244 727, 743 A5th Cir 1981). Petitioner's Massiah claim is 

therefore not an abuse of the writ on which no evidence should 

have been taken. This is not .a case where petitioner has 
  

X reserved his proof or deliberately withheld his claim for. a 
    

second petition. Cf. Sanders v., United States, 373 U.S. 1, 18 
  

(1963). Nor is the petitioner now raising an issue identical to 

  

one he earlier considered without merit. Cf. Booker v. Vain- 

wright, 764 F.2d 1371, 1377 (llth Cir. 1985). 

Second petitioner's ‘failure to raise this claim in his 

  

  

ederal habeas petition was not due to his inexcusable 

neglect. When the state alleges inexcusable neglect, the focus 

is on "the petitioner's conduct and knowledge at the time of the 

preceding federal application. devi He id chargeable with 

counsel's actual awareness of the factual and legal bases of the 

AO 2A © : -24- : 
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AO 72A © 
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claim at the time of the first petition and with the knowledge 

that would have been possessed by reasonably competent counsel at 

the time of the first petition." Moore, 324 F.2d at 851. Here, 

petitioner did not have Evans' statement or Worthy's testimony at 
  

  p— 

the time of his first federal petition; there is therefore no 
——— 

  

  

inexcusable neglect unless "reasonably competent counsel" would 
  

have discovered the evidence prior to the first federal petition. 
  

This court concluded at the evidentiary hearing that petitioner's 

counsel's failure to discover Evans' written statement was not 

inexcusable neglect (I Tr. 118-19). The same is true of coun- 

sel's failure to discover Worthy's testimony. Petitioner's 

counsel represents, and the state has not disputed, that counsel 
LT rad   

did conduct an investigation of a possible Massiah claim prior to 
a IS —— 

the first federal petition, including interviewing "two or three 

    
  

  

jailers." Petitioner's Post-Hearing Reply Brief at 5. The state 
Ry 

  — 

has made no showing of any reason that petitioner or his counsel 

should have known to interview For iny speciiieally with regard to 

the Massiah claim. 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 a 
p— 

request to move Evans next to McCleskey, it is difficult to see 

  

    os 

how conducting such interviews would have allowed petitioner to 
om ————————_——E — 

  

  

  

aus 

assert this claim any earlier. See Ross v. Kemp, 785 F.2d 1467, 
  

  

  

1478 (llth Cir. 1986) (remanding for evidentiary hearing on 

hy gi bo   
 



  
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(Rev. 8/82) 

inexcusable neglect where petitioner's counsel may have relied on 

misrepresentations by the custodian of the relevant state 

  

  

  

records). 

In short, the petitioner's Massiah claim as it is idee 

framed is not an abuse of the writ because it is distinct from 

the Massiah claim originally raised in his first state petition 
  

  

    

    

  

and because it is based on new evidence.| Petitioner's failure to 

discover this evidence earlier was not due to inexcusable 
  

  — ————   
  

Because this claim is not an abuse of the writ it is not 

a successive petition under section 2244(b) and therefore the 

court need not inquire whether the petitioner has made a color- 

able showing of factual innocence, if that showing is now the 

equivalent of the "ends of justice.” ZXuhlmann, 106 S.Ct. at 
  

2628 'n, 1B. 

3. Conclusions of Law. 

The Eleventh Circuit recently summarized the petitioner's 

nurden in cases such as this: 

In order to establish a violation of the 
Sixth Amendment in a jailhouse informant 
case, the accused must show (1) that a fellow 
inmate was a government agent; and (2) that 
the inmate deliberately elicited -incrim- 
inating statements from the accused. 

L.ightbourne v. Dugger, 829 F.2d 1012, 1020 (llth Cir. 1987). The 
  

coincidence of similar elements first led the Supreme Court to   
conclude that such a defendant was denied his sixth amendment 

right to assistance of counsel in Massiah v. United States, 377 
  

U.S. 201 (1964). In that case, the defendant's confederate 

2 Be 

 



  
    

cooperated with the government in its investigation and allowed 

his automobile to be "bugged." The confederate subsequently had 

a conversation in the car with the defendant during which the 

defendant made incriminating statements. The confederate then 

testified about the defendant's statements at the defendant's 

trial. The Supreme Court held that the defendant had been 

"denied the basic protections of [the sixth amendment] when it 

was used against him at his trial evidence of his own incrim- 

inating words, which federal agents had deliberately elicited 

from him after he had been indicted and in the absence of his 

counsel." *&. at 206.0 

The Supreme Court applied its ruling in Massiah to the 

jailhouse informant situation in United States v. Henry, 447 U.S. 
  

264 (1980). In that case, a paid informant for the FBI happened 

to be an inmate in the same jail in which defendant Henry was 

being held pending trial. An investigator instructed the 

informant inmate to pay particular attention to statements made 

by the defendant, but admonished the inmate not to solicit 

information irom the defendant regarding the defendant's in- 

dictment for bank robbery. The inmate engaged the defendant in 

conversations regarding the bank robbery and subsequently 

testified at trial against the defendant based upon these 

conversations. The Supreme Court held that the inmate had 

deliberately elicited incriminating statements by engaging the 

defendant in conversation about the bank robbery. Id. at 271.14 

-T 

  

 



  
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was held irrelevant under Massiah whether the informant ques- 

tioned the defendant about the crime or merely engaged in general 

conversation which led to the disclosure of incriminating 

statements about the crime. Id. at 271-72 n. 10. Although the 

government insisted that it should not be held responsible for 

the lnmate's interrogation of .the defendant in light of its 

specific instructions to the contrary, the Court held thar 

employing a paid informant who converses with an unsuspecting 

inmate while both are in custody amounts to "intentionally 

creating a situation likely to induce [the defendant] to make 

incriminating statements without the assistance of counsel." Id. 

at 274.7 

Given the facts established earlier, petitioner has clearly 

established a Massiah violation here. It is clear from Evans’ 
EE 
  

written statement that he did much more than merely engage 

petitioner in conversation about petitioner's crimes. As 
— 

  

  a 

discussed earlier, Evans repeatedl: lied to petitioner in order 
— - Bi. Ra —— ——   

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. 

  

  

  

  

This case is completely unlike Kuhliwann v. Wilson, 106 S.Ct. 2616 
  

(1986), where the Court found no Massiah violation because the 

inmate informant had been a passive listener and had not de- 

liberately elicited incriminating statements from the defendant. 

wD Gh 

  

  

 



    
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(Rev. 8/82) 

  

    

| 

Hinton 
    
———————— — 

Here, Evans was even more active in eliciting incriminating 

statements than was the informant in Henry. The conclusion is 

inescapable that petitioner's sixth amendment rights, as inter- 

preted in Massiah, were violated. 

However, "[n]ot every interrogation in violation of the rule 

set forth in Massiah ... mandates reversal of a conviction." 

United States v. Kilrain, 5686 F.24 979, 982 (5th Cir. 1978), 
  

Instead, "the proper rule [is] one of exclusion of tainted 

evidence rather than a per se standard of reversal if any 

constitutional violation hails] occurred." ..Id4. n. 3, citing 

Brewer v. Williams, 430 U.S. 387, 407 n. 12 (1977); United States 
  

  

V. Hayles, 471 T.24 788, 793, cert. Cenied, 411 U.s. 969 (5th 
  

  

Cir. 1273). In other words, "certain violations of the right to 

counsel may be disregarded as harmless error." United States v. 
  

Morrison, 449 U.S. 361, 365 (1981), citing Chapman v. California, 
  

  

386 U.S. 18, 23 n. 8 (1967). To avoid reversal of petitioner's 

conviction the state must "prove beyond a reasonasle doubt that 

the error complained of [the use at petitioners trial of his own 

incriminating statements obtained in violatio: of his sixth 
  

  

amendment rights] {did not contribute to the verdict gbtained." 

Chapman, 386 U.S. at 24. See also Brown v. Dugger, No. 85-6082, 
  

Slip Op. at 511-12 (11th Cir. November 13, 1987). 
—— 

  

Once 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 

  ——— 

-29= : 

  

 



  
por 

AO 722A © 

(Rev, 8/82) 

  

  

  

Hondas Bry 
reveals that Evans' testimony about the petitioner's incrim-. 
  

inating statements was critical to the state's case. There were 
Lt   

no witnesses to the shooting and the murder weapon was never 
  

  TT — 

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 

5 and the testimony of Ben Wright was obviously impeachable.8 The 

state also emphasizes that Evans testified only in rebuttal and 

for the sole purpose of impeaching McCleskey's alibi defense. But 

the chronological placement of Evans' testimony does not dilute 
  

its impact -- "merely" impeaching the statement "I didn't do it" 

with the testimony "He told me he did do it" is the functional 

equivalent of case in chief evidence of guilt.   
  RR For the foregoing reasons, the court concludes that peti- 

tioner's sixth amendment rights, as interpreted in Massiah, were 

violated by the use at trial of Evans’ testimony about the 

petitioner's incriminating statements because those statements 

were deliberately elicited by an agent of the state after 

petitioner's indictment and in the absence of petitioner's 

   
attorney. Because the court cannot say, beyond a reasonable 

doubt, that the jury would have convicted petitioner without   -30-  



  
AOT2A © 

(Rev. 8/82) 

  

Evans' testimony about petitioner's incriminating statements, 

petitioner's conviction for the murder of Officer Schlatt must be 

reversed pending a new trial.? 

  grrfdrtunately, one or more of those investigating Officer 

[tines murder stepped out of line. Determined to avenge his 

death, the investigator(s) violated clearly-established case 

law, however artificial or ill-conceived it might have appeared.   
In so doing, the investigator(s) ignored the rule of law that 

Officer Schlatt gave his life in protecting and thereby tainted   

    
tl.e prosecution of his killer. 
  —_——— 

B. Mooney Claim. 
  

Petitioner's Mooney claim is based upon the state's use at 

trial of misleading testimony by Offie Evans, which petitioner 

contends violated his eighth amendment rights and his right to 

due process of law under the fourteenth amendment. See Mooney v. 
  

Holohan, 294 U.S. 103, 112:(1935) (criminal conviction "may not be 

obtained using testimony known to be perjured). In particular, 

petitioner contends that the state failed to correct Evans' 

misleading testimony regarding his real interest in testifying 

against petitioner, regarding the circumstances surrounding his 

cooperation with the state, and regarding petitioner's confession 

of having shot Officer Schlatt. Petitioner alleges that the 

newly discovered statement of Offie Evans reveals these mis- 

leading elements of Offie Evans' testimony at trial. 

-31-  



  

- 

Petitioner's allegation that the state misled the jury with 

Offie Evans' testimony that he was a disinterested witness is 

actually a restatement of petitioner's Giglio claim. The 

allegation that the state misled the jury with Offie Evans' 

testimony that he happened to inform the state of petitioner's 

incriminating statements, when in fact the evidence suggests that 

Offie Evans may have been an agent of the state, is a restatement 

of petitioner's Massiah claim. Consequently, only the allega- 

tions of misleading testimony regarding the actual shooting need 

to be addressed as allegations supportive of a separate Mooney 

claim. 

As a preliminary matter, the failure of petitioner to raise 

this claim in his first federal habeas petition raises the 

question of abuse of the writ. Because this claim is based upon 
———— — 

the newly discovered statement of Offie Evans, the same con- 
  

  

clusion reached as to the Massiah claim obtains for this claim. 

  

    
It was not an abuse of the writ to fail to raise the Massiah 

claim earlier and it was not an abuse of the writ to have failed 

to raise.tiis claim earlier. 

Naim” However, on its merits the claim itself is unavailing. In 

order to prevail on this claim, petitioner must establish that 
”   ———— 

the state did indeed use false or misleading evidence and that 
  

the evidence was "material" in obtaining petitioner's conviction 
  

or sentence or both. Brown v. Wainwright, 785 F.2d 1457, 1465 
  

(llth Cir. 1986). The test for materiality is whether there is 

"any reasonable likelihood that the false testimony could have 

AOT2A © : -32- 
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AO 72A © 
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affected the judgment of “the jury.” Id. at 1463-66 (quoting 

United States v. Bagley, 0. 8% 77105 S.Ct. +3375, 3382 
  

    

(1985) (plurality)). Petitioner's allegations of misleading 

testimony regarding his confession fail for two reasons. 

'Pirgt, no false or misleading testimony was admitted at 
—   

trial. A comparison of Offie Evans' recently discovered state- 

ment and his testimony at trial reveals substantially identical 

testimony regarding McCleskey's confession that he saw the 

policeman with a gun and knew there was a choice between getting 

shot by the policeman or shooting the policeman. Compare Pet. 

Exhibit BE, at 6 with Trial Tr. at 870. While Offie Evans did use 

the word "panic" in his written statement when describing this 

dilemma, the addition of this word adds nothing to the substance 

of the trial testimony, which conveyed to the jury the exigencies 

of the moment when petitioner fired upon Officer schiate.(secora, 

even if the omission of this one phrase did render the testimony 

of Offie Evans misleading, this claim would fail because there is 

no reasonable likelihood that the jury's judgment regarding peti- 
i ——————— 

tioner's guilt and his sentencing would have been altered by the 

  
  

addition of the phras: "panic" to otherwise substantially 

identical testimony. 

C. Caldwell Claim. 
  

Petitioner's third new claim is based upon references by the 

prosecutor at petitioner's trial to appellate review of the jury 

sentencing decision and to the reduction on appeal of prior life 

-33- 

  

 



  
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{Rev. 8/82)     

sentences imposed on petitioner. These references are said to 

have violated petitioner's eighth amendment rights and right to 

due process of law as guaranteed by the fourteenth amendment. 

To the extent petitioner claims that the reference to the 

reduction of prior life sentences was constitutionally impermis- 

sible in that it led the jury to impose .the death penalty for 

improper or irrelevant reasons, see Tucker v. Francis, 723 F.2d 
  

1504 (llth Cir, 1984), this claim comes too late in the day. 

- Petitioner was aware of these comments at the time he filed his 

first federal habeas petition but did not articulate this claim 

at that time. Because the state has pled abuse of the writ, 

petitioner must establish that the failure to raise this claim 

during the first federal habeas proceeding was not due to 

intentional abandonment or inexcusable neglect. Petitioner has 

Offered no excuse for not raising this claim before. He was 

represented by competent counsel at the time and should not be 

heard to argue that he was unaware that these facts would support 

the claim for habeas relief. Indeed, this court recognized the 

potential for such a claim when passing upon “he first federal 

habeas petition and concluded "it has not be>n raised .by fully 

competent counsel." McCleskey v. Kemp, 580 P. Supp. at 388 n. 
  

27. 

‘Successive petition and abuse of the writ problems also 

planus this claim to the extent that petitioner is arguing that 

the prosecutor's reference to the fopellace piecess somehow 

diminished the jury's sense of responsibility during the sen- 

-31 

  

4 RT a. WARE IRON nin re C—O A OEY TL a, A A a AINE RR x wr 5 

  

 



  
AO T2A © 
(Rev. 8/82) 

tencing phase. This claim in due process terms was presented to 

this court by the first federal habeas petition and rejected. 

McCleskey v. Zant, 580 F. Supp. at 387-88 (citing inter alia Corn 
  

  

Vv. Zant, 708'P.24:549, 337 (llth Cir. 1983)). ‘petitioner has 
  

offered no reason that the ends of justice would be served by 

re-visiting this due process claim. 

Petitioner also argues that reference to the appellate 

process violated his eighth amendment rights. Although peti- 

tioner did not articulate this eighth amendment claim at the time 

of the first federal habeas proceeding, the failure to raise the 

claim at that time does not amount to an abuse of the writ. Only 

after this court ruled upon the first federal habeas petition did 

the Supreme Court indicate that it is a violation of the eighth 

amendment "to rest a death sentence on a determination made by a 

sentencer who has been led to believe that the responsibility for 

determining the appropriateness of the defendant's death rests 

elsewhere." Caldwell v., Mississippi, 472 U.S. 320, 320-29 
  

(1985). This circuit has recently held that failure to raise a 

Caldwell claim in a first federal habeas petition filed before 
  

    
the decision does not amount to abuse of the writ because there 

has been a change in the substantive law. Adams v. Dugger, 816 
  

P.24 1493, 1495-96 {llth Cir. 1987) (per curiam). 

‘Although this court must reach the merits of the Caldwell 
  

claim, the claim itself fails for the same reasons that the due 

process prong of this claim failed. The essential question is 

whether the comments likely caused the jury to attach diminished 

3 

  

 



  
AO 2A © 

(Rev. 8/82)     

consequences to their deliberations on the death penalty. See 

McCleskey v. Zant, 580 F. Supp. at 388. A review of the prose-   

cutor's actual comments at petitioner's trial does not reveal any 

impermissible suggestions regarding the appellate process which 

would have led the jury to believe that the responsibility for 

imposing the death penalty rested elsewhere.. As this court 

observed when passing upon the due process claim raised by the 

first petition, 

The prosecutor's arguments in this case did 
not intimate +o the Jury that a death 
sentence could be reviewed or set aside on 
appeal. Rather, the prosecutor's argument 
referred to petitioner's ‘prior criminal 
record and the sentences he had received. The 
court cannot find that such arguments had the 
effect of diminishing the jury's sense of 
responsibility for its deliberations on 
petitioner's sentence. Insofar as petitioner 
claims that the prosecutor's arguments were 
impermissible because they had such an 
effect, the claim is without merit. 

McCleskey v. Zant, 580 FP. Supp. at 388. 
  

D. Batson Claim. 
  

Petitioner's final claim rests upon the alleged systematic 

exclusion of black jurors by the prosecutor at petitioner's 

trial. This exclusion is said to have violated petitioner's 

right to a representative jury as guaranteed by the sixth and 

fourteenth amendments. 

‘This claim was not raised during the first federal habeas 

proceedings. However, failure to raise this claim could not be 

said to constitute abuse of the writ because prior to the Supreme 

-36- 

  

 



  
AOT2A © 
(Rev. 8/82)     

"Court's decision in Batson v. Kentucky, G.S. ¢. 107.8.Ct. 
  

708 (1987), petitioner could not have made out a prima facie 

claim absent proof of a pattern of using preemptory strikes to 

exclude black jurors in trials other than petitioner's. See id. 

at 710-11 (citing Swain v. Alabama, 380 U.S. 202 (1965)). 
  

Although petitioner did not abuse the writ by failing to 

raise this claim earlier, the claim itself lacks merit. The 

holding in Batson, which allows defendants to make the prima 

facie showing of an unrepresentative jury by proving a systematic 

exclusion of blacks from their own jury, has not been given 

retroactive application. The Batson decision does not apply 

retroactively to collateral attacks "where the judgment of 

conviction was rendered, the availability of appeal exhausted, 

and the time for petition for certiorari had elapsed" before the 

Batson decision. Allen v. Hardy, U.s. 406 8. Ct. 2878, 
  

2880 n. 1 (1986) (per curiam). Although the Allen decision did 

10t involve a habeas petitioner subject to the death penalty, 

this circuit has specifically held that Batson may not be applied 

retroactively even to a habeas petitioner subject to the death 

penalty. See Lindsey v. Smith, 820 F.2d 1137, 1145 (llth Cir. 
  

  

1987); High v. Kemp, 819 7.24 938, 992 (1lith Cir. 1987). 

VI. OTHER MOTIONS. 

Also pending before this court are petitioner's motions for 

discovery and for leave to exceed this court's page limits. The 

court presumes that the above resolution of the petitioner's 

various claims and the evidentiary hearing held in this case 

37 

  

 



  
AQ 722A © 
(Rev. 8/82)     

obviate the need for any further discovery. Petitioner's motion 

for discovery, filed before the evidentiary hearing, does not 

provide any reason to think otherwise. The motion for discovery 

is therefore DENIED. The motion to exceed page limits is 

GRANTED. 

VI... CONCLUSION. 

In summary, the petition for a writ of habeas corpus is 

DENIED as to petitioner's Giglio, intentional discrimination, and 

Ake claims because those Claims are successive and do not fall 

within the ends of justice exception. The petition for a writ of 

habeas corpus is DENIED as to petitioner's Mooney, Caldwell and 
  

Batson claims because they are without merit. Petitioner's 

motion for discovery is DENIED and his motion to exceed page 

limits is GRANTED. The petition for a writ of habeas corpus is 

GRANTED as to petitioner's Massiah claim unless the state shall 

re-try him within 120 days V the receipt of this order. 
v 

SO ORDERED, this ZZ ny of Lr, 1987. 
  

     TED STATES DISTRICT JUDGE 

-38= 

  

 



  
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FOOTNOTES 
  

1 petitioner was also convicted on two counts of armed robbery 
and sentenced to two consecutive life sentences. 

" ‘Another distinct ground for finding excusable neglect is a 
showing that the petitioner did not realize that the facts of 
which he had knowledge could constitute a basis for which federal 
habeas corpus relief could be granted. Booker v. Wainwright, 764 
F.2d 1371,.1376 (11th Cir... 1985). Although "lt lhe exact scope of 
this alternative exception to the abuse of writ doctrine lacks 
adequate definition," id., it would appear from the cases that it 
applies only when the petitioner appeared pro se in presenting 
the first habeas petition. See, e.g., Haley v. Estelle, 632 F.2d 
1273, 1276 {5th Cir. 1930). 

  

  

  

3 "... [W]e hold that the Baldus study does not demonstrate a 
constitutionally significant risk of racial bias affecting the 
Georgia capital-sentencing process." (Powell, J., for the 
majority). McCleskey v. Kemp, AUS + 307:8,Ct. 1759 at 
1778 (1987). 

4 See the discussion of McCleskey's Massiah claim infra. 

5 References to the transcripts of the July 8, July 9, and 
August 10, 1987 hearings will be to" "I TR.,"™ "II Tr.,”™ and "IIT 

Tr.," respectively. 

6 Dissenting Justice White, joined by Clark and Harland, JJ., 
protested the new "constitutional rule ... barring the use of 
evidence which is relevant, reliable and highly probative of the 
issue which the trial court has before it." 377 U.S. at 208. The 
dissenters were "unable to see how this case presents an un- 
constitutional interference with Massiah's right to counsel. 
Massiah was not prevented from consulting with counsel as often 
as he wished. No meetings with counsel were disturbed or spied 
upon. Preparation for trial was in no way obstructed. It is 
only a sterile syllogism -- an unscund one, besides -- to say 
that because Massiah had a right to counsel's aid before and 
during the trial, his out-of-court conversations and admissions 
must be excluded if obtained without counsel's consent or 
presence,” 1d. at 209, 

  

 



  
AOT2A &@ 

(Rev. 8/82)     

The dissenters highlighted the incongruity of overturning 
Massiah's conviction on these facts. "Had there been no prior 
arrangements between [the confederate] and the police, had [the 
confederate] simply gone to the police after the conversation had 
occurred, his testimony relating Massiah's statements would be 
readily, admissible at the trial, as would a recording which he 
might have made of the conversation. In such event, it would 
simply be said that Massiah risked talking to a friend who 
decided to disclose what he knew of Massiah's criminal activi- 
ties. But if, as occurred here, [the confederate] had been 
cooperating with the police prior to his meeting with Massiah, 
both his evidence and the recorded conversation are somehow 
transformed into inadmissible evidence despite the fact that the 
hazard to Massiah remains precisely the same -- the defection of 
8 confederate in crime.” Id. at 211, 

: 
Justice Rehnquist, dissenting, questioned the validity of 

Massiah: "The exclusion of respondent's statements has no 
relationship whatsoever to the reliability of the evidence, and 
it rests on a prophylactic application of the Sixth Amendment 
right to counsel that in my view entirely ignores the doctrinal 
foundation of that right." 447 U.S. at 289. Echoing many of the 
concerns expressed by Justice White in Massiah, id. at 290, 
Justice Rehnquist argued that "there is no constitutional or 
historical support for concluding that an accused has a right to 
have his attorney serve as a sort of guru who must be present 
whenever an accused has an inclination to reveal incriminating 
information to anyone who acts to elicit such information at the 
behest of the prosecution.” Id. at 295-96. Admitting that the 
informants in Henry and in Massiah were encouraged to elicit 
information from the respective defendants, Justice Rehnquist 
"doubt[ed] that most people would find this type of elicitation 
reprehensible.” 14. at 297. 

For criticism of Henry for extending Massiah "despite that 
decision's doctrinal emptiness" and for giving Massiah "a firmer 
place in the law than it deserves," see Salzburg, Forwa:d: The 
Flow and Ebb of Constitutional Criminal Procedure in the Warren 
and Burger Courts, 69 Geo.L.J. 151, 206-08 (1980). 

  

  

  

8 There is some question whether Ben Wright's testimony on the 
fact of the murder would have been admissible at all absent 
corroboration by Evans' testimony. See 0.C.G.A. §24-4-8 (un- 
corroborated testimony of an accomplice not sufficient to 
establish a fact). But see McCleskey v. Kemp, 753 F.2d at 885 
(Wright's testimony corroborated by McCleskey's admitted par- 
ticipation in the robbery; corroboration need not extend to every 
material detail). ! 

  

ii 

  

 



  
ACO T72A © 
(Rev. 8/82) 

  

    

9 Here, as in Massiah and Henry, the evidence is excluded and 
the conviction consequently reversed despite the fact that the 
evidence is "relevant, reliable and highly probative" of peti- 
tioner's guilt. Massiah, 377 U.s. at 208 (White, J., dis- 

sentinel. (Fhere is no question that petitioner's incriminating 
statements to Evans were made voluntarily and without coercion. 

d Evans been merely a good listener who first obtained 
McCleskey! s confession and then approached the authorities, 
Evans' testimony would have been admissible. The substance of 
the evidence would ave Beer 10 different, McCleskey's risk in 
speaking would have been no different, and McCleskey's counsel 
would have been no less absent, but the evidence would have been 
admissible simply because the state did not intentionally seek to 
obtain it. Whlle this court has grave doubts about -thehis~ 
torical and rational valiqity OF tHe Supreme ( court's present 
ingerpretation Of tHE gIiXTH amendment, those doubts Seid been 
articulated ably in the—disseIrts™08T Justice White and Justice 

  

  

    

  

  

  

Rehnquist. See supra, notes 4 and 5. Until the Supreme Court 
bates its present doctrine this court will be obliged to 

reach the result it reaches today. 

iii 

  

 



  

WARREN McCLESKEY, 

IN THE SUPERIOR COURT OF BUTTS COUNTY 

STATE OF GEORGIA 

  

Petitioner, 

CIVIL ACTION NO. 4909 
vs. 

WALTER ZANT, Warden, 
Georgia Diagnostic and 
Classification Center, 

Respondent. 

P
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PETITIONER'S POST-HEARING MEMORANDUM 
  

Comes now the petitioner, pursuant to the instructions of the 

| court at the close of the evidentiary hearing on January 30, 1981, | 
a 
\ 

| and files this his memorandum of law in support of his petition 

| for a writ of habeas curpus. 

STATEMENT OF FACTS. 
  

Petitioner was arrested on May 30, 1978, by Powder Springs 

. (Cobb County) Police, accompanied by City of Atlanta Police 

| Officers (Trial Tr. 350). He was arrested on an arrest and search 

warrant issued by a Cobb County Magistrate for an armed robbery on! 

a Powder Springs grocery store which occurred more than two and a | 

‘half months earlier, on March 11, 1978. 

Shortly after his arrest, he was questioned by City of Atlanta 

| 
Police regarding the armed robbery of the Dixie Furniture Store in 

Atlanta on May 13, 1978, and the shooting of Atlanta Police 

Officer Frank Schlatt during the course of that robbery. 

While in police custody in Atlanta the next day, petitioner 

made a statement to police, indicating his presence at the Dixie 

Furniture Store at the time of the robbery, but denying that he was 

the triggerman who killed Officer Schlatt. 

Petitioner's family retained the services of Attorney John 

Turner, who represented McCleskey at his preliminary hearing on 

i 

th 
i 
i 

i i 

 



  

June 7, 1978, and at his trial on October 9-12, 1973. McCleskey 

was incarcerated at the Fulton County Jail from the time of his 

arrest until his trial in Ooboher. 

The State sought the death penalty against McCleskey, on the 

theory that he was the triggerman who killed Officer Schlatt. 

The death penalty was not sought against any of the three co- 

defendants, two of whom were tried and sentenced to life, and 

the third of which was allowed to plead guilty to a reduced 

charge of voluntary manslaughter and sentenced to twenty years. 

No murder weapon was ever recovered. The State's theory 

that McCleskey was the triggerman, rather than one of the other 

co-defendants ,was based upon evidence (1) that the murder weapon 

was probably a -38 Rossi; (2) that McCleskey had used a .38 Rossi 

on other nti (3) that the officer was shot by someone 

who was in the front of the store, which had to be McCleskey - 

the other three co-defendants being in the back of the store. 

McCleskey's trial counsel, John Turner, recognized that, 

although his client continued to press an alibi defense, an 

alternative defense was available - that other co-defendants id 

were in the front of the store at the time of the shooting. 

Turner tried to develop this defense through cross—-examination 

of the witnesses called by the State. 

At trial, the State offered the petitioner's statement 

hat he was present at the Dixie Furniture Store during the 

robbery. But, more critically, the State offered the testimony 

of co-defendant Ben Wright to prove that McCleskey was the 

triggerman. The State buttressed its evidence by offering the 

testimony of Offie Evans, a prisoner held in Fulton County Jail 

on escape charges pending from a federal sentence he was then 

serving. 

  

i/ 
“Although it is noted that Wright himself testified to having 

carried the same weapon on occasion. 

 



  

Evans testified that in July, 1978, while housed in isola- 

tion in the cell adjacent to McCleskey, McCleskey confessed to 

Evans that he was the triggerman. Evans's testimony came after 

an understanding between Evans and Atlanta Homicide Detective 

Sidney Dorsey that Dorsey would obtain lighter treatment for 

Evans - he would put in a good word for him on his escape 

charges in exchange for Evans' testimony in the McCleskey trial. 

Defense counsel had requested that the State provide him 

with all information of an impeaching nature, but no information 

regarding the understanding with Offie Evans was given to 

counsel, and the understanding was not made known to the Court or 

jury at the time of Offie Evans' testimony (Trial Tr., 868). 

Sometime between the close of petitioner's trial on October 12, 

1978, and the trial of the co-defendants on November 13, 1978, 

Assistant District Attorney Russell Parker did contact the FBI 

agent with respect to the further processing of escape charges 

against Offie Evans. The FBI agent was advised of Evans’ testi- 

mony in the petitioner's trial, and the FBI agent acted on that 

information in not processing the escape charges against Evans 

(Parker Deposition). 

Prior to trial, defense counsel contacted no State 

witnesses. He contacted none of the store employees who were 

eye witnesses to the robbery; nor did he contact any of the 

investigating officers. While he thought that the appearance on 

the witness list of the names of Fulton County Sheriff Deputies 

might indicate there would be testimony regarding post-arrest 

occurrences at the Fulton County Jail, he did not contact any 

deputies to inquire regarding their testimony. 

The Fulton County District Attorney made available to de- 

fense counsel his file, containing witness statements related to 

the Dixie Furniture Store robbery. Although petitioner was the 

first of the co-defendants to be placed on trial, John Turner 

was the last defense counsel to inspect the file. Other defense 

counsel inspected the file in July, August, and September. 

 



  

Turner, however, looked at the file only once, on Thursday 

afternoon, October 5, 1978, just four days prior to the start 

of trial on October 9, 1978 (Exh. A, attached to Parker deposi- 

tion). 

Contained in the District Attorney's file available for 

Turner's inspection prior to the trial were the statements of 

four witnesses who had been taken into the back of the store 

Autina the course of the robbery (Messrs. Oliver, Tyson, Grier 

and Nelloms).Each of the four witnesses made statements to police 

officers which supported the defense theory that one or more of 

the co-defendants were not in the back of the store at the time 

of the shotting; thereby undercutting the state's proof that the 

triggerman had to be McCleskey. (See statements of Oliver, 

Tyson, Grier and Nelloms, attached to Parker deposition.) 

None of these witnesses were called by defense counsel at 

i Defense counsel did not even speak to the witnesses 

prior to trial regarding their statements. 

The State relied at trial on the testimony of Kelly Fite, 

of the State Crime Lab, to prove that the murder weapon was a 

.38 Rossi. Fite's testimony at trial was that it was rprobably” | 

a .38 Rossi (Trial Tr., 413). [The State's own witness, co-de- | 

fendant Ben Wright, admitted to carrying a-.33 Rossi on prior 

occasions (Trial Tr., 682), and the State's own evidence showed 

that one of the co-defendants carried a .38 on the day of the 

robbery (Tr. Tr., 649)). Pite was not contacted by Turner prior 

to trial, and Fite was not cross-examined on the certainty of 

his view that the murder weapon was a .38 Rossi. 

During the course of the trial, the State introduced 

evidence of two other armed robberies, noe for the stated pur- 

pose of provind the identity of petitioner through a similar 

"MO", and the other for the stated purpose of rebutting testi- 

mony of the petitioner (Trial Tvr., 673, et seqd., 884 et seq.). 
Re 

  

2/ 
“Only Oliver testified, and defense counsel did not bring out 

evidence of his prior statement on this question. 

 



  

The Court gave to the jury broad instructions on the use which 

could be made of such evidence, at either the guilt or sentenc- 

ing phase. 

The trial Court also instructed the jury at the guilt phase 

that, malice murder 

is that deliberate intention to take away the life 

of a fellow creature which is manifested by exter- 

nal circumstances capable of proof. Malice shall 

be implied when no considerable provocation appears 

and where all the circumstances of the killing show 

an abandonment and malignant heart (Tr. 998). 

With respect to intent, the Court charged: 

I will now try to explain what the law means by 

criminal dntent. . . 

One section of our law says that the acts of a person 

of sound mind and discretion are presumed to be the 

product of the person's will, and a person of sound 

"mind and discretion is presumed to intend the natural 

and probable consequences of his acts, but both Of 

these presumptions may be rebutted. 

{Tr. 996) 

The jury apparently struggled, or at least had some 

questions about the evidence on malice murder (Trial Tr. 1084). 

The jury, however, returned a verdict of malice murder. At the 

sentencing phase, no witnesses were called by the defense. The 

trial Court instructed the jury that it could consider all the 

evidence presented at the trial, and the jury fixed the penalty 

at death. 

I. THE IMPOSITION OF THE DEATH PENALTY IN THIS 

CASE IS ARBITRARY, CAPRICIOUS, AND WHIMSICAL, 

IN CONTRAVENTION OF THE EIGHTH AND FOURTEENTH 

AMENDMENTS AND SECTIONS 2-101 and 2-114 OF 

THE 1976 CONSTITUTION OF THE STATE OF GEORGIA. 
  

The evidence before the Court shows the arbitrary and | 

capricious manner in which the death penalty has been imposed 

in this case. It is, indeed, being imposed in a freakish 

manner, without any evidence to support the view that it 1s 

imposed on some rational, systematic basis as required by the 

Supreme Court's decision in Gregg V. Georgia, 42383 U. 8S. 153, 
  

49 1. rd. 2d 859:(1976).: As the Court stated in Gregg, 49 L. 

Pd. 24. at 8383: 

 



  

While Furman did not hold that the in- 
fliction of the death penalty per se violates 
the Constitution's ban on cruel and unusual 
punishments, it did recognize that the penalty 
of death is different in kind from any 
other punishment imposed under our system of 
criminal justice. Because of the uniqueness 
of the death penalty, Furman held that it could 
not be imposed under sentencing procedures 
that created a substantial risk that it would 
be inflicted in an arbitrary and capricious 
manner. Mr. Justice White concluded that "the 
death penalty is exacted with great infrequency 
even for the most artrocious crimes and. . . 
there is no meaningful basis for distinguishing 
the few cases in which it is imposed from the 
many cases in which it is not." 408 US, at 313, 
33 %.. Bd... 24 346, 92. 8. Ct. 2726 (concurring). 
Indeed, the death sentences examined by the Court 
in Furman were "cruel and unusual in the same way 
that being struck by lighting is cruel and unusual. 
For of all the people convicted of [capital crimes], 
many just as reprehensible as these, the petitioners 
[in Furman were] among a capriciously selected 
random handful upon whom the sentence of death has 
in fact been imposed. . . .[Tlhe Eighth and Four- 
teenth Amendments cannot tolerate the infliction 
of a sentence of death under legal systems that 
permit this unique penalty to be so wantonly and 
so freakishly imposed.” 14., at 309-310,.33 L. 
FE. 24 346, 92 S. Ct. 2726. (Stewart, J., concurring). 

The arbitrary and capricious application of the death 

penalty in this case is akin to that found unconstitutional 

by the Court in Godfrey v. State of Georgia, Ug. S. ’ 
  

64 L. Ed. 2d 398 (1980). There, the Supreme Court held unconsti- 

tutional, as applied, the death penalty imposed because "There | 

is no principled way to distinguish this case, in which the 

death penalty was imposed, from the many cases in which it was 

not." Godfrey, 64 1. Ed. 24 at 409. 

The Supreme Court in Godfrey, supra, further stated:   

A capital sentencing scheme must, in short, 
provide a "meaningful basis for distinguish- 
ing the few cases in which [the penalty] is 
imposed from the many cases in which it is not." 

Id. at 188, 49 1. Ed. 24 859, 96 .S, Ct. 2909, 
guoting Furman v. Georgia, supra, 408 U.S. at 

313, 33.1. F& 24 346, 92 8, Ct. 2726. (White, J+, 

concurring). 

This means that if a State wishes to 
authorize capital punishment it has a consti- 

tutional responsibility to tailor and apply 

its law in a manner that avoids the arbitrary 

and capricious infliction of the death penalty. 

Part of a State's responsibility in this regard 

is to define the crimes for which death may be 

the sentence in a way that obviates "standardless 

[sentencing] discretion." Gregg v. Georgia, 
  

-6- 

 



  

supra, 428 U.5., at 196, n. 47,.49 1., F4, 

74 359, 96 S. Ct. 2909. See also Profit: 

v. Plorida, 428 U.S., 242, 49 1. EA 24 913, 

96 S. Ct. 2960; Jurek v. Texas, 428 U.S. 

262, 49 L.: BEd. 24 929, 96 8. Ct., 2950. .1L 

must channel the sentencer's discretion by 

"clear and objective standards" that provide 

"specific and detailed guidance," and that 

"make rationally reviewable the process for 

imposing a sentence of death." As was made 

clear in Gregg, a death penalty "system 

could have standards so vague that they would 

fail adequately to channel, the sentencing 

decision patterns of juries with the result that 

a pattern of arbitrary and capricious sentencing 

like that found unconstitutional in Furman 

could occur." 428 U.S., at 195, n. 46, 49 L. 

Fd. 24 859, 96 8, Ct. 2909. 

In the case before us, the Georgia Supreme 

Court has affirmed a sentence of death based upon 

no more than a finding that th e offense was "out- 

rageously or wantonly vile, horrible and inhuman." 

there is nothing in these few words, standing 

alone, that implies any inherent restraint on the 

arbitrary and capricious infliction of the death 

sentence. A person of ordinary sensibility could 

fairly characterize almost every murder as Pout 

rageously or wantonly vile, horrible, and inhuman." 

Such a view may, in fact, have been one to which 

the members of the jury in this case subscribed. 

If so, their preconceptions were not dispelled by 

the trial judge's sentencing instructions. These 

gave the jury no guidance concerning the meaning 

of any of the §$(b){7)'s terms. In fact, the 

jury's interpretation of $(b) (7) can only be the 

subject of sheer speculation. 

The standardless and unchanneled imposition 

of death sentences in the uncontrolled discretion 

of a basically uninstructed jury in this case 

was in no way cured by the affirmance of those 

sentences by the Georgia Supreme Court. Under state 

law that court may not affirm a judgment of death 

until it has independently assessed the evidence 

of record and determined that such evidence sup- 

ports the trial judge's or jury's finding of an 

aggravating circumstance. Ga. Code Ann. §27-2537 

(c) (2). 

Godfrey, at 406-07. 

The Godfrey principles are applicable to the case here- 

in. There is no principled way to distinguish this case, in which 

the death penalty was imposed, from the many cases in which it 

was not. The evidence shows that the pre-1973 pattern of impos- 

ing death sentences (found unconstitutional under Furman v. Geor- 
  

gia, 408 U. S. 238, 33 1,. Ed. 2d 346 (1972)) is the same pattern 

existing post-1973. (See Petitioner's Exhibit #1.) Although a 

number of Atlanta Police Officers were killed, non-accidentally, 

 



  

during the duty hours, both prior to and subsequent to 1973, the 

death penalty has been imposed only freakishly. 

Nor has the review of death sentence imposition by 

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

arbitrary and capricious nature of the imposition of the death 

sentence has been ended under the current statute. A brief 

review of the cases relied upon by the Georgia Supreme Court 

to support its conclusion that the death penalty was not 

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

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

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

Of the thirteen cases reviewed by the Georgia Supreme 

Court and relied upon as a Basis for non-artibrariness, (see 

Appendix, 245 Ga. at 116-17), four or nl cases wherein the 

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

supra. Of the remaining cases, the bulk of them involved cases 

with evidence distinguishing them from the routine murder case 

in which the death penalty has not been imposed. For example, 

in at least three cases, the victim was shot while fleeing 

from the scene. Fleming v. State, 240 Ga. 142 (1977): Willis Vv. 
  

  

State, 243 Ga. 185 (1979); Collier v. State, 244 Ga,: 553 
  

(1979). In another, one victim's skull was beaten in, leaving 

her features unrecognizible; and a butcher knife was buried 

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

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

police found her several days later. The defendant later 

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

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

where a cab driver was shot during a premeditated robbery 

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

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

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

  

3/ 
Fohnson v. State, 226 Ga. 378 (1970); Callahan v. State, 229 Ga 

737 (1972); whitlock v. State, 230 Ca, 700 (19/3); Bennett v. 
  

  

  

  

State, 231 Ga. 458 (1973), 

 



  

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

begging that he be spared. And, finally, Callahan v. State, 229 
  

Ga. 737 (1972) involved the murder of an Atlanta Police Officer 

who was stomped unconscious prior to the shooting. 

Nothing presented to the jury in the case at hand 

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

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

guidance as to when it was appropriate to impose a death 

sentence, and when it was not appropriate to impose a death 

sentence. 

It is, indeed the case, that the imposition of the 

death penalty in this case was arbitrary and capricious. 

II. THE DEATH PENALTY 1S IMPOSED PURSUANT TO A 
PATTERN AND PRACTICE OF DISCRIMINATION ON 
THE BASIS OF RACE AND POVERTY, IN CONTRAVEN- 
TION OF THE EIGHTH AND FOURTEENTH AMENDMENTS 
TO THE UNITED STATES CONSTITUTION AND SECTIONS 
2-101 and 2-114 OF THE 1976 GEORGIA 

CONSTITUTION. 
  

The evidence also shows that the death penalty in this 

case is being imposed pursuant to a pattern and practice of 

discrimination on the basis of race and poverty. 

Petitioner's Exhibits 1-3 show that, of Atlanta 

Police Officers killed in the line of duty since 1960, the death 

penalty has been imposed only twice, and in both situations, 

the officer killed was white, and the defendant sentenced to 

death was black. 

This pattern is consistent with the findings of studies 

of the imposition of the death penalty, both before and after the 

Supreme Court decision in Furman v. Georgia, supra. See 
  

William J. Bowers & Glenn L. Pierce, "Arbitrariness and 

Discrimination Under Post-Furman Capital Statutes," Crime & 
  

Delinquency, October, 1980 (attached to Bowers affidavit). 
  

The evidence of the race-based imposition of the 

death penalty in Georgia is shown by the conclusions of Bowers 

and Pierce: 

 



  

And what do these data show? Stark 
differences by race of both offender and 
victim in all four states are apparent in 
Table 2. The racial pattern is consistent 
across states and similar to the experience 
under pre-Furman statutes. Thus, black 

killers and the killers of whites are sub- 
stantially more likely than others to receive 
a death sentence in all four states. And, 
as in the pre-Furman era, race of victim tends 
to overshadow race of offender as a basis for 
differential treatment (in fact, differences 
by race of offender would be altogether ob- 
scured if the data were tabulated without race 
Of victim). In Plorida, the difference by 
race of victim is great. Among black 
offenders, those who kill whites are nearly 
forty times more likely to be sentenced to 
death than those who kill blacks. The 
difference by race of offender, although not 
as great, 1s also marked. Among the killers 
of whites, blacks are five times more likely 
than whites to be sentenced to death. To 
appreciate the magnitude of these differences, 
consider the following implications of these 
data: 1f all offenders in Plorida were 
sentenced to death at the same rate as blacks 
who killed whites, there would be a total of 
887 persons sentenced to death; 53 blacks who 
killed whites, 391 whites who killed whites, 
425 blacks who killed blacks, and 18 whites 
who killed blacks - instead of the 147 death 
sentences actually imposed by the end of 1977. 

In Georgia, the chances of a death sentence 
are slightly less in magnitude but remarkably 
similar in pattern to those in Florida. Over- 
all, the likelihood of a death sentence is 30 

percent lower in Georgia than in Florida (.026 
for Georgia; .037 for Florida), but much of 
this difference is due to the greater proportion 
of black/black killings in Georgia. For the 
respective offender/victim racial categories, 
the differences are less: 24 percent lower for 
black offender/white victim killings, 9 percent 
lower for white/white killings, and 17 percent 
lower for black/black killings. Only the 
category of white offenders/black victims is 
noticeably different, as a result of two death 
sentences in Georgia and none in Florida. Hence, 
the difference in statutory form in these two 
states - "aggravating only" in Georgia and 
"aggravating versus mitigating" in Florida - 
appears to have only a slight and not an alto- 
gether consistent effect on the chances of a 
death sentence, and virtually no effect in 
controlling or correcting racial disparities. 

* * * 

In these four states, which accounts for 

approximately 70 percent of the nation's death 
sentences in the first five years after Furman, 
race of both offender and victim had a tremen- 
dous impact on the chances that a death sentence 

would be handed down. To understand to some 
extent the size of the effect of these racial 
diffferences, consider the following: The 

10 

 



  

probability that a difference of this magni- 
tude in the four states combined could have 
occurred by chance is so remote that it can- 
not be computed with available statisfical 
programs. As computed, the probability is 
greater than 1 in 1 million for a chi sguare 
of 769.5 with 3 degrees of freedom. And this 
is a conservative estimate, since the over- 
all pattern is not a composite of widely 
different patterns from state to state, but 
rather is a reflection of the same essential 
pattern in states with differing mechanisms 
and procedures for guiding discretion. 

The presence of differential treatment 
by race is unmistakable. . . . 

Bowers & Pierce, 595-97. 

On this basis, then, the Court should set aside the death 

penalty imposed in this case, as one imposed in contravention of 

the Eighth and Fourteenth Amendnents to the United States Consti- 

tution, and Sections 2-101 and 20114 of the 1976 Constitution of 

the State of Georgia. 

III. THE PROSECUTOR MADE IMPERMISSIBLE REFERENCE 

TO THE APPELLATE COURT PROCESS IN HIS 

ARGUMENT TO THE JURY AT THE SENTENCING PHASE, 

CONTRARY TO THE SIXTH AND FOURTEENTH AMENDMENTS, 

AND SECTIONS 2-101 and 2-111 OF THE 1976 

- GEORGIA CONSTITUTION. Sasi Na 
  

At the sentencing phase of the trial, the Assistant 

District Attorney, in seeking the death penalty, made an im- 

permissible reference to the Appellate Court process in asking 

that the jury impose the death sentence, as opposed to life 

imprisonment. The prosecutor argued: 

Ladies and Gentlemen; this is the sentencing 
phase of this trial, and I expect the Court 

is going to charge you with a couple of points, 
that you can return a verdict of life in 
Prison or you can return a verdict of death. . . 
{Tr. 1016) If vou find a sentence For this 
man of life for murder, if you sentence him to 
life for armed robbery, and to life for the 
second armed robbery, and if you don't specify _. ou 
how these are to run, they are going to run to- 
gether. .. (Tr. 1017) 

Now, what should you consider as you are deli- 
berating the second time here, and I don't 
know what you are going to consider. 
I would ask you, however, to consider several 
things. . 

I would also ask you to consider the prior 
convictions that you have had with you in the 

-11- 

 



  

jury room, and particularly the one where 
he got three convictions. I believe if 
you look at those papers carefully you are 
going to find, I think, on one of those 
he got three life sentences to begin with, 
and then there is a cover sheet where apparent- 
ly that was reduced to what, eighteen years 
or fifteen years or something, which means, 
of course, he went through the appellate pro- 
cess and somehow got it reduced. 

Now, I ask you to consider that in conjunction 
with the life that he has set for himself. 

(Tr. 1019-1020) 

The Assistant District Attorney's direct request that, 

in considering whether to impose a death sentence or life 

imprisonment, the jury consider the fact that three life 

sentences previously imposed upon the defendant had been reduced 

"in the appellate process" contravened the petitioner's right to 
  

a jury trial, 

The clear implication to the jury was that it should 

impose the death penalty so as to avoid the possibility that, 

like the prior life sentences, the sentences in this case would 

be reduced to "eighteen years or fifteen years or something" 

{Trial Tr., 1019). 

The Courts, including the Georgia Supreme Court, have 

disapproved any references, by counsel or the trial court, re- 

garding the affect of the appellate process upon sentencing 

actions, 'Prevatte v. State, 233. Ga, 929 (1975). As long ago as 
  

1848, the Georgia Supreme Court held improper the remarks of a 

trial judge to the effect of those here by the prosecutor: 

We think, too, that the remark which fell 
from the court, reminding the jury of the 
existence of an appellate tribunal, to which 
the case with which they were then charged 
might be carried up, if the evidence of- 
fered by the prisoner had been wrongfully 
withheld--however well intentioned, was 
calculated, nevertheless, to lessen their 
[the jurors'] sense of their own responsi- 
bility. 

Monroe vy, State, 5 Ga. 85, 139 (1348). The Georgia rule is 
  

consistent with that of a number of American jurisdictions. 

See Prevatte, supra, at 932. 
  

The prosecutor's arguments in this case are very 

similar to those of the prosecutor in Evans v. State, 541 F. 2d 
  

“Dw 

 



  

269 (Court of Criminal Appeals of Oklahoma, 1975): 

The defendant's next assignment of 
error urges that the trial court committed 
reversible error in allowing improper com- 
ments to be made by the prosecutor. During 
closing argument after the second stage of 
the proceeding, the prosecutor made the 
following comments, to-wit: 

"Mr. Hopper: * * *This is September of 
1974. In this judgment and sentence in 
State's Exhibit No. 5, David, the 1st day of 
February of 1973, the Defendant,David Eugene 
Evans was given 12 years in 1973. 

Mr. Burns: Your Honor, I.will object to 
this, move for an admonition and move for a 
mistrial. 

The Court: Overruled. 

Mr. Hopper: Given 12 years in 1973, 
February of 1973, and lo and behold in 
March of 1974, 13 months later, he is back 
here on the streets of Tulsa County com- 
mitting the same crime that he went to the 
penitentiary for." 

* * * * * * * 

"Mr. Hopper: This is the David Eugene 
Evans that sits before you asking for mercy. 
Did he give mercy to the young people that 
got up here and told you how scared they 
were because he was threatening to kill them 
if they didn't give him their money. Give 
him the mercy, give him the mercy he asks 
for and give him another 12 years, so he can 
be out in 13 months like he is today, back 
on the streets in Tulsa, robbing.’ 

* * * * * * * 

"Mr. Hopper: *. *. * And if vou want to 
give Mr. Evans mercy, find him not guilty 
after former conviction and give him the 
minimum sentence of 5 years. He got 12 years 
in 1973, 13 months later he is back out on 
the streets robbing. 

Mr, Burns: I object to that, ask for an 
admonition and a mistrial. 

The. Court: Overruled.” 

The argument appears to be a deliberate at- 
tempt by the prosecutor to comment by inference 
upon the possibility of parole. As stated in our 
recent decision of Sam v. State, Okl. Cr., 523 

  

P. 2d 1146, such references are grossly prejudi- 
cial to an accused and constitute the improper 
injection of administrative procedures into the 
judicial prosess. See also Bell v. State, Okl. 

  

Cr. 381. pr, 28 167. 

Id.,at 272, 

-) 3m 

 



  

On this ground alone, therefore, the Court should set 

aside the death penalty imposed, because of the improper re- 

ferences to what had happened to prior life sentences imposed 

upon petitioner during the course of the appellate prpcess. 

IV. TRIAL COURT'S CHARGE ON PRESUMPTIONS OF 
INTENT WAS CONTRARY TO FOURTEENTH AMEND- 
MENT AND SECTION 2-101 OF. THE 1976 

  

The trial court charged the jury with respect to 

"intent" necessary for proof of malice murder as follows: 

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

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

One section of our law says that the acts 
of a person of sound mind and discretion are 
presumed to be the product of the person's will, 
and a person of sound mind and discretion is 
presumed to intend the natural and probable 
consequences of his acts, but both of these 
presumptions may be rebutted. 

{Tr. 996) 

Because this charge to the jury regarding intent could 

have been understood by the jury to cast upon the defendant the 

burden of producing sufficient rebuttal evidence to carry the 

burden of persuasion regarding intent, the charge contravened 

the due process clause of the Fourteenth Amendment. Sandstrom v.   

Montana, 442 U. S.. 510, 61 1. Bd. 24 39 (1979); Mullaney v. 
  

Wilbur, 421 U. S. £84, 44 1." B4 24 508-(1975). 

It was precisely this kind of instruction which the 

Supreme Court in Sandstrom, supra, rejected as unlawful under 
  

Mullaney, supra. In Sandstrom, the particular instruction was 
  

  

one that said "the law presumes that a person intends the 

ordinary consequences of his voluntary acts." Sandstrom, 61 L. 
  

Fd. 24, at 43. The Supreme Court held that such an instruction 

violated the due process clause of the Fourteenth Amendment 

~I4= 

H 
i { 

| 

i H 

 



  

because "the jury may have interpreted the instruction as a 

direction to find intent upon proof of the defendant's voluntary 

actions (and their 'ordinary' consequences), unless the defen-   

dant [emphasis in original] proved the contrary by some quantum 

of proof which may well have been considerably greater than 

'some' evidence - thus effectively shifting the burden of 

persuasion on the element of intent." Sandstrom, at 47. Under 
  

Mullaney, supra, such a shifting of the burden of persuasion had 
  

been held unconstitutional. 

The Pifth Circuit, in Tyler Vv. Phelps, 622.7. 24 
  

172 (5th Cir. 1980), has recently found constitutionally infirm 

a charge similar to the one at. issue in this case. In Tyler v.   

Phelps, supra, (like this case) there was an issue at trial 
  

both as to (1) whether or not the petitioner had actually fired 

the pistol; as well as (2) if so, whether the requisite intent 

required under the statute existed. 1Id., at 175, fn. 2. 

In this case the charge was critical, because the 

jury returned a verdict of malice murder, although they had the 

choice of returning a felony murder verdict. A proper charge, 

which did not cast the burden onto the petitioner with respect 

to this element of the crime, might have resulted in a felony 

murder conviction, or no conviction whatsoever, as opposed to 

the malice murder verdict. Cf. Holloway v. McElroy, 632 F. 2d 
  

605, at 617 (5th Cir. 1980) ("Had the jury found Holloway guilty 

of malice murder, the trial court's instructions on malice 

would certainly have been relevant"). 

The petitioner should be granted a new trial on 

the basis of this erroneous charge, with its consequent denial 

of due process. 

~~] 5m 

 



  

V. STATE'S FAILURE TO DISCLOSE UNDERSTANDING 

BETWEEN OFFIE EVANS AND ATLANTA POLICE 

BUREAU DETECTIVE REGARDING FAVORABLE 

RECOMMENDATION THAT WOULD BE MADE REGARDING 

ESCAPE CHARGES IN EXCHANGE FOR EVANS' 

COOPERATION VIOLATED THE DUE PROCESS CLAUSE 

AND SECTION 2-101 OF THE 1976 GEORGIA 

CONSTITUTION, wl gel 
  

At the habeas corpus hearing in this case held on 

January 30, 1981, evidence of a promise or understanding be- 

tween Offie Evans and Atlanta Police Bureau Detective Sidney 

Dorsey was revealed for the first time. Evans testified that 

Detective Dorsey, one of the homicide officers with the Atlanta 

Police Bureau who visited him in Fulton County Jail regarding 

his expected testimony in the McCleskey trial, promised him 

"lighter treatment" - that he would "say a good word" on Evans’ 

behalf. Evans had pending against him at the time of his 

McCleskey testimony a federal escape charge. 

The deposition testimony of Russell Parker, the 

Assistant District Attorney who prosecuted the case against 

McCleskey, puts this promise by Dorsey in its proper perspective. 

Parker noted that Atlanta Police were in almost daily contact 

with the Atlanta FBI agents, and that there was certainly the 

opportunity for Atlanta homicide detectives to intervene in 

| Offie Evans' behalf with respect to the escape charges pending 

in the federal system. 

Counsel for McCleskey had requested information 

regarding ‘such witnesses. in his motions filed September 6, 1978. 

No such information was given to petitioner at that time. No 

information regarding the promises to Offie Evans was introduced 

at McCleskey's trial (Trial Tr. 866, et segq.). 

Quite to the contrary, the evidence put to the Court 

and jury at petitioner's trial was all testimony to the effect 

that no deal for Evans' testimony had been made: 

Q: [by assistant D. A. Parker]: Mr. Evans, 
have I promised you anything for testify- 
ing today? 

A: No.sir, you ain't. 

-16- 

 



  

* * * 

Q: Have you asked me to try to fix it 

so you wouldn't get charged with 

escape? 

Ar No, sit. 

{Pr.. 868). 

No one asked whether any one else had made pro- 
  

mises to Evans. 
  

The situation is controlled by the United States 

Supreme Court's decision in Giglio v. United States, 405 U. S. 
  

150, 31 L. Ed. 24 104 (1972). In that case, the Supreme Court 

held that the defendant's due process rights were infringed by 

the failure of the government to disclose at trial the promise 

made to a witness that he would not be prosecuted in exchange 

for his cooperation. The Supreme Court held that, regardless 

of the authority of the Assistant U. S. Attorney to make the 

promise he made to the witness, and regardless of the lack of 

knowledge of the Assistant U. S. Attorney who tried the case 

that such a promise had been made, petititioner was entitled to 

a new trial. 

The importance of the testimony of Offie Evans to 

the prosecution's case is undeniable. Evans was called to 

testify that (1) McCleskey confessed that he was the triggerman; 

and (2) that McCleskey had told Evans he would have done the | 

same thing over again if necessary (Trial Tr. 870-7 sat 

Evans' testimony was the most direct evidence of 

malice offered by the State. 

The Assistant District Attorney thought Offie 

Evans' testimony was important enough to remind the jury of its 

  

4/ 
“Evans testified, in critical part, as follows: 

0: Did he say anything about who shot the officer? 

A: He said he was in there when the police officer come 

in, but like the police wasn't expecting no robber, 

but said after he seen the police come in and he was 

heading towards the other three, what was in court ~- 

I mean the place taking the robbery off, he said that 

he couldn't stand to see him go down there, and I think 

the police looked around and had seen him and he said 

-17- 

 



  

substance on two critical issues ~- (1) whether McCleskey was the 

triggerman; and (2) the existence of malice. 

The following passages from closing argument show the 

importance of Evans' testimony in the mind of the Assistant 

‘District Attorney who tried the case: 

"Then he [McCleskey] goes on and says Ben had 
the shotgun on May the 13th, he had a pistol, 
but he doesn't know if Ben took it in or left 

it in the car. 

Now, is that correct, is that partially correct? 
He is kind of leaving that open isn't he? .,.. . . 
That is what Offie Evans is telling you about, 
they are leaving the thing open so if old Ben 
Wright gets out there and gets killed by some 
old aggressive police officer because he is 
armed with a .45 and is not going to be taken 
alive, all the rest of them are going to fall 
right in and say Ben was the triggerman. . . . 

Tr. . 969] 

  

. «. «and just like Offie Evans says, it doesn't 
make any difference if there had been a dozen 
policemen come in there, he was going to shoot 
his way out. He didn't have to do that, he could 

  

have run out the side entrance. . . .He deliberate- 

ly killed that officer on purpose. . ... That is 
malice.” 

i [Trial Tr. 974-75] 

The applicability of the Giglio principles to the facts 

  

  

47 Continued: 

"Halt," or something, and he had to -- it was him or 
them one, and said that he had to shoot. 

[Trial Tr. 870] 

Q: Did you and Mr. McClesky have any conversation about 
Ben Wright getting killed? 

A: Yeah, he said him and Dupree was talking and he said 
if Ben got killed that would be pretty good, it would 
be more lighter on them. 

Q. Did you have any conversations with Mr. McCleskey 
about other officers that might have been there? 

A: Yeah. He said it would have been the same thing if 
it had been a dozen of them, he would have had to try 
to shoot his way out. 

{Trial Tr. .871) 

No other witnesses, other than the co-defendant, Ben Wright, 
testified that McCleskey was the triggerman; none offered such as 
this regarding malice. 

=18~ 

 



  

of this case is clear. Freeman v., State of Georgia, 599 FPF. 24 
  

65 (5th Cir. 1979) makes clear that the promises made by a 

police officer are to be imputed to the prosecution, just as in 

Giglio the promises of the Assistant U. S. Attorney handling the 

grand jury proceeding were to be imputed to the prosecution. 

Accord, United States v. Sutton, 524 FP. . 24 1239 (4th Cir... 1976). 
  

Indeed, it is promises from police officers, in part, which was 

the basis for the Fifth Circuit's remanding Williams v. Brown, 
  

609 P. 24.216 (5th Cir. 1980) for further factual. development 

regarding the existence of such promises. 

A promise of a recommendation for lighter treatment was 

made to Offie Evans by Atlanta Police Detective Sidney Dorsey, 

and was not revealed at the trial. Such contravened petitioner's 

due process rights. Because the reliability of Offie Evans' 

testimony may well have been determinative of the jury's action, 

both as to its finding of malice murder and its imposition of 

the death penalty, this Court should grant petitioner a new 

trial. 

VI. THE INTRODUCTION INTO EVIDENCE OF TESTIMONY 
REGARDING DEFENDANT'S ALLEGED PARTICIPATION 
IN OTHER ROBBERIES NOT CLOSELY CONNECTED IN 
TIME OR MANNER TO THE DIXIE FURNITURE STORE 
ROBBERY CONTRAVENED PETITIONER'S DUE PROCESS 
RIGHTS UNDER THE FOURTEENTH AMENDMENT AND 
SECTIONS 2-101 and 2-111 OF THE 1976 CONSTIi~- 
TUTION OF THE STATE OF GEORGIA, bl Lo 
  

At petitioner's trial, the State introduced (in both 

documentary and testimonial form) evidence regarding two armed 

robberies which had occurred six weeks prior to the Dixie 

Furniture Store robbery (Tr. 676, et seq.; Tr. 884, et seq.). 

Although the State contended that petitioner had participated 

in those robberies, he had been neither convicted nor indicted 

for those robberies. No instruction was given to the jury re- 

garding what standard of proof the State bore in proving 

petitioner's participation in those robberies. During the course 

of trial, the State also introduced evidence of prior convic- 

tions or guilty pleas of the petitioner for armed robberies which 

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

en 

 



  

Petitioner was cross-examined by the State regarding the details 

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

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

At trial, the State presented testimony by five 

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

they saw petitioner participate in an armed robbery. Of these 

five witnesses, however, only two identified petitioner as a 

participant in the Dixie Furniture Store robbery. The other 

three witnesses testified to details of petitioner's alleged 

participation in other robberies not closely connected in time 

or place with the Dixie Furniture Store robbery. 

The evidence of other robberies not | 

closely related to the Dixie Furniture Store robbery was intro- 

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

respect to the introduction of such evidence, the Court gave the 

jury the following instruction at the time of its admissions | 

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

Now, whether or not the defendant was involv- 

ed in such similar transaction is a matter 
for you to determine, and the Court makes no 
intimation in that regard. 

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

ge 1 | 3 

 



  

5/ 
All right, proceed" (Tr. 673-674). 

The Court repeated this charge almost verbatim in its instruc- 

tions to the jury just prior to its deliberation with respect 

to petitioner's guilt (Pr. 992-993), 

After the jury returned verdicts of guilty on all three 

counts, the Court gave the jury instructions regarding its 

sentencing deliberations. No instruction was given that the 

jury should disregard the "other acts" evidence presented at the 

trial. No instruction was given regarding what weight,if any, 

the jury should give to the evidence presented regarding other 

alleged acts of criminal conduct by the defendant. Rather, the 

Court instructed the jury that all the evidence presented at 

the guilt phase could be considered at the sentencing phase. 

The verbatin instruction given to the jury was as follows: 

"In arriving at your determination of which 
penalty shall be imposed, you are authorized 
to consider all the evidence received here in 

court, presented by the State and the defendant 

throughout the trial before you" (Tr. 1028). 

One of the other alleged robberies was offered for im- 

peachment purposes (Tr. 884), and at the time of its introduc- 

tion, the Court gave a cautionery instruction (Tr. 885). No 

cautionary or limiting instruction regarding the use of such 

evidence was given as part of the general instructions to the 

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

The broad general instruction which was given regarding the use 

of evidence of other criminal acts invited the jury to use this 

evidence for purposes other than those for which it was offered. 

At trial, the defendant testified and on direct 

examination the fact of prior armed robbery convictions was 

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

copies of prior indictments and convictions (Exhibits S-32 =- 

S-35); (Tr. 1066-1078). The State also examined petitioner in 

  

5/ 
~ This broad charge was given even though the State offered 

the evidence only for proof of petitioner's identity (Trial Tr., 

667). 
  

DY 

 



  

detail regarding the acts which were the basis for those prior 

convictions seven to eight years prior to the Dixie Furniture 

Store robbery (Tr. 848-849) 

No instruction was given to the jury at either the guilt 

or the sentencing phase to channel the jury's discretion regard- 

ing its use of the evidence of prior convictions. 

The introduction of this cumulative evidence of other 

acts of criminal conduct was contrary to settled principles of 

law. The Supreme Court recognized in Green v. State of Georgia, 
  

U.S. ,i60°L. Bd. 24.738 (1979) that the due process 
eer—— 

  

clause imposed restrictions upon state evidentiary rules in the 

context of capital felony trials. 

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

prudence that the State should not introduce evidence of other 

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

sition for crime. 1 Wigmore, wvidence, 4455-57; McCormick On 
  

  

Evidence, 2d Ed. §190; "Other Crimes At Trial," 70 Yale Law 

6/ 
Journal 763 (1961). The reason for the distrust of evidence 

  

  

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

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

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

and should be convicted regardless of guilt for the offense for 

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

  

Rev. 168 "Constitutional Problems Inherent in the Admissibility 

7/ 

of Prior Record Conviction Evidence," 1968, at 1727 

  

6/ 
“The Supreme Court noted many years ago the related principle, 

long established in Anglo-American law, that a defendant should 

be tried for a single criminal act. McElroy v. United States, 

164 U. 8. 76, at 79-80 (1896) {". . .TITt is [the] well settled 

rule in England and many of our States, to confine the indict- 

ment to one distinct offense or restrict the evidence to one 

transaction.") 

2/ 
Contemporary studies have shown the longstanding common law 

rule was justified in fact. Recent studies have shown that 

evidence of prior convictions is a potent factor in influencing 

the judgment of judges and jurors. H. Calven and H. Zeisel, 

The American Jury, 122, 147, 389 (1966) . 

  

  

-23 

 



  

Georgia has until relatively recent time, followed the 

commom law rule which generally prohibited the introduction of 

evidence of other criminal conduct. The leading statement of 

the rule favoring exclusion of such evidence is found in Bacon 

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

the Georgia courts have moved away from the Anglo-American 

tradition to the point where evidence of independent crimes or 

alleged crimes is admitted freely. This change in the Georgia 

rule is traced by former Justice Ingram of the Georgia Supreme 

Court in his dissent in Hamilton v. State, 239 Ga. 72, at: 77-78 
  

{19717): 

"1 dissent to the judgment of the Court in 

this case primarily because, without express- 

ly saying so, the majority has greatly weakened 

the doctrine of Bacon v,. State, supra. . .1 

cannot honestly say that this jury was not 

significantly influenced by the illegal admis- 

sion of this evidence of an independent crime. 

If you doubt that the Bacon doctrine is being 
eroded, read the following cases. Cf.  Ros- 

boroagh v. State, 209 Ga. 362(2)(72 8.2. 24 
17) (1954); Howard v. State; 211 Ga. 186(3) 

{84 S.B. 24 455) (1954); Wilson Vv. State, 212 Ga. 

412(2)193 S.E..'28 354) (1956); Wood v. State, 
224 Ga. 121(5){(160 S.EB. 24 368) (1968) with 
Campbell 'v. State, 234 Ga. 130 (214 S.E., 24 656) 

(1975); Bllanson v. State, 233 Ga. 584 (1) (221 

S.F. 28 (3) (1975); and Fears v, State, 236 Ga. 

660(1) (225 S.E. 24 4) (1976). These cases show 

a remarkable trend, in my judgment, towards the 

liberal admission into evidence of independent 

crimes. If this is to be the new rule, why not 

just say, boldly and plainly, that the barrier 

has been lifted and defendants will now be tried 

on their record irrespective of any connection 

with the alleged crime on trial." 

  

  

  

  

  

  

  

  

The majority of American jurisdictions, both State and 

Federal, do not apply the relaxed standards regarding admissi- 

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

jurisdictions, the courts have developed strict standards which 

must be met prior to the evidence of independent criminal 

conduct being admitted to the jury. 

Among the safeguards which the other jurisdictions 

generally impose are the following: 

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

“23 

 



  

probative value of the evidence to an element 

of the crime A 

(2) The evidence will not be admitted if offered for 

proof of an element of the crime which is not 

contested, or is duplicative of other evidence 

on the ts. 

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

ed criminal acts is offered to show the identity 

of the perpetrator of the crime [such as was 

apparently the case in petitioner's trial herein], 

a high degree of similarity between the other 

acts and the act being tried must be shows, 

(4) The evidence regarding the independent acts must 

prove criminal conduct of the defendant by clear 

and convincing evidence or beyond a reasonable 

11/ 
doubt; 

(5) Evidence of other convictions are admissible only 

  

8/ 
“State v. Hernandez, 437 P. 24 952 (Ariz.,1968); State v. Bill- 

' strom, 149 N.W. 2d 281 (Minn.,1967); State v. Stevens, 238 N.W. 2d 

351 (N. Dakota,1975); State v. Viatson, 252 N.E. 2d 305 :{Ohlo, 

1969); State v. Whalon, 464 v.24 730 (Wash., 1970); Bullard v. 

United States, 395 ¥. 2d 658 (5th Cir. 1968); 2 Weinstein's Fyi- 

dence, 4404[08]. 

S/ 
“State v. Bly, 523 P.2d 397 (Kan., 1974); People v. Gay, 104 Cal. 
Rptr. 812, 28 C.A.3rd 661 (1972); People v. Flansburgh, 180 N.W. 

24 373 (Mich. , 1970); Jones v. State, 481 5.1.24 900 (Tex., 1972); 

United States v. Fierson, 2419 F.2d 1020 (7th Cir. 1970); 2 Wein- 

stein's Evidence, at 404-45; Fox v. State, 491 P.2d 721 (Nev., 

1971). 

10/ 
State v. Hernandez, supra. n. 6; People v. Romero, 334 N.E.2d 

305 (T1]. 1575); State v. Billstrom, supra, n. 6; State v, 

Stevens, supra, nN. 6; Bobo v, State, 324 so. 24 336 (Ala. Court of 

Crim. App., 1975); State v. Watson, supra, n. 6; Drew v. United 

States, 331 F. 24 85 (D.C.Cir. 1976); McCormick Evidence, 24 Ed. 

§190 ("The device used must be so unusual and distinctive as to be 

like a signature.”) 

ll/ 
People v..Stanworth, 457 P.24 889 (Cal. 1969); Nami v. State, 

77 S.W.2d 528 (Tex. 1934); State v. Hernandez, supra., n. 6; 

State v. Billstrom, supra., n. 6; State v. Stevens, supra, n.b6; 

Manning v. Rose, 507 F.2d 889, 892 (eth Cir. 1974) : ("American 

jurisdictions nearly universally have rules somewhat similar to 

the Tennessee common law rule allowing 'clear and convincing 

evidence of other crimes to establish identity"); United States 

v.“Klemons, 503 PF. 24 486, 490 (8th Cir, 1974). 

  

  

  

  

  

  

  

  

  

  

  

  

  

  
  

  
  

  

  

  
  

  

  

  

  

  

  

  

  

  

  

  

24 

 



  

by way of record evidence of the conviction them- 

selves rather than testimony regarding the other 

12/ 
acts. 

The Georgia rule regarding admissibility of independent 

acts of criminal activity contains none of these safeguards. 

The Georgia rule denied petitioner a fair trial in contravention 

of the due process clause of the Fourteenth Amendment. The State 

should not have been permitted to introduce evidence of alleged 

crimes which were not sufficiently related to the crime for 

which petitioner was tried so as to be probative of the question 

of his guilt for that crime. The effect of the broad Georgia 

rule was, in petitioner's case, to permit the State to put before 

the jury cumulative evidence designed to create in the jury's 

mind the impression that petitioner was a bad person. The end 

result was the likelihood that the jury convicted petitioner not 

because of the jury's determination with respect to whether or 

not he was a bad person or a person with a criminal propensity. 

This was heightened by the absence of proper limiting instruc- 

tions to the jury to guide its discretion (see Part VII, infra.). 

And, as one scholarly commentator has noted, the prejudice to 

petitioner was "particularly damaging" because the jury determin- 

ed both questions of guilt and the sentence to be imposed. 70 

Yale Law Journal, supra, at 763. 
  

The fact that a large number of other jurisdictions do 

not follow the trial court's practice regarding admissibility of 

other acts evidence, is indicative that the trial court's prac- 

| 
| | 

tice offends principles of justice rooted in the tradition and 

conscience of the American people in contravention of Fourteenth 

Amendment rights. ' Snyder v. Massachusetts, 291 U.S. 97, 78 L. Ed. 
  

674 (1934; McKeiver v. Pennsylvania, 403 U.S. 528, 29 L. Ed. 24 
  

647 (1971); Varetta vy. California, 422 U.S. 806, 4% L. EA. 24 526 
  

  

12/ 
© State v. Stollings, 212 S.E.2d 745 (W.Va. 1975); Commonwealth 
V. Connally, 269 A,2d8 390 (Pa., 1970); People v. CaStronova, 354 
N.Y.S5. 24 250 (N.Y,, 1974); State v. Cote, 235 A.24d 111 (N.H., 
1967), cert denied, 390 U.S. 1025 (1063). 

  

  

  

  

  

  

- 5 

 



  

{1975), 

The constitutional requirements regarding admissibility 

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

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

Georgia, 43% U.8. 14, 16 (1978): Gardner v, Florida, 430 U.S. 349 
  

(1977) Lockett v. Ohio, 432 .U.8. 586, 57 L. Ea. 284 973, at 989 
  

{1978). (See discussion, infra, Part II.) Therefore, this 

petitioner's conviction should be set aside as contrary to the 

due process clause of the Fourteenth Amendment, and Sections 

2-101 and 2-111 of the 1976 Constitution of the State of 

Georgia. 

VII. THE INSTRUCTIONS GIVEN TO THE JURY REGARDING 

ITS USE OF EVIDENCE OF OTHER CRIMINAL ACTS, 

WHICH PERMITTED THE JURY BROAD AND ALMOST 

UNLIMITED DISCRETION AT BOTH THE GUILT AND 

SENTENCING PHASE, CONTRAVENED PETITIONER'S 

DUE PROCESS RIGHTS UNDER THE FOURTEENTH 

AMENDMENT AND SECTIONS 2-101 and 2-111 OF THE 

"1976 CONSTITUTION OF THE STATE OF CLORGIA, 
  

As noted above, the trial court instructed the jury 

just prior to its deliberations regarding petitioner's guilt that 

it could consider the evidence of other alleged acts of criminal 

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

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

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

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

arriving at your determination of which penalty shall be irsosed,) 

you are authorized to consider all the evidence received here in 

court, presented by the State and the defendant throughout the 

trial before you" (Tr. 1023). 

These broad instructions to the jury at both the guilt 

and sentencing stage permitted the jury to use the evidence of 

other acts at the whim and discretion of the jury without 

effective limitations. A number of American jurisdictions have 

expressly disapproved such sweeping instructions to the jury, 

  

13/ 
People v. Romero, 334 N.E,.2d4 305: (Il1l., 1975); State v. Bly, 

523 P.24 397 (Fan., 1974); State v,. Whalon, 464 P. 2d 730 {(Wash., 

1970). 

  
  

  

Dn 

 



  

and nearly every American jurisdiction requires a very narrow 

instruction to the jury limiting the use that the jury may make 
14/ 

of other acts evidence which has been presented to the jury. 

A. Instruction At guilt Phase. 
  

The instructions given to the jury at the guilt phase 

of the trial, rather than restrictively limiting the jury in its 

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

purpose for which limiting instructions in the other jurisdic- 

tions are given to prohibit its use. The instruction given 

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

acts evidence to conclude that petitioner was a bad person, 

whereas, in other jurisdictions, the instructions to the jury are 

very carefully worded to prohibit such use. This substantial 

deviation from long established practice in American jurisdic- 

tions contravenes petitioner's due process rights assured by 

the Fourteenth Amendment. Snyder v. Mass., supra; McKeiver v. 
    

Pennsylvania, supra; Faretta v. California, supra. 
  

B. Instruction At The Sentencing Phase. 
  

The broad instruction given to the jury at the sentenc- 

ing phase - simply that it was authorized to consider all 

evidence received in court - left the jury with unbridled discre- 

tion regarding the use of such evidence. 

The United States Supreme Court has recently considered 

the applicability of Fourteenth Amendment protections to the 

sentencing phase. Green v. State of Georgia, U.S. + 6021, 
  

  

Bd. 24 738 (1979); Gardner yv, Florida, 430 v.S...349, 51 1. Bd. 24 

393, at 404 (1977). As the Court noted in Lockett wv. Ohio, 438 
  

  

14/ | 
Bobo v. State, 324 8c. 2d 336 (Ala. Court of Crim. App., 1975); 
State v, Hernandez, 7 Ariz. App. 200, 437 P.2d 1952 (1968); Ring 

“V. State, 253 Ark., 614, 487 S.W. 28 596 (1972): People v. Perez, 
117 Cal. Rptr. 195, 42 C. A, 3rd 760 (1974); Stull v. People, 344 
P.24 453 (Colo., 1955): State v. Hollidav, 1859 Conn, 169, 268 A. 
24 368 (1970); Martin v. State, 346 A.2d 158 (Del., 1975); People 
V. Romero, subra, fn. 12; State v, Bly, supra, fn. 12: State v. 

 Ghoram, 290 So.2d 850 (La., 1974); People v. Heiss, 30 Mich. App. 
126, 186 N.W.24 63 (1971); State v. Billstrom, 276 Minn. 174, 14° 
N.W.2d4 281 (1976); State v. Patterson, 443 S.w.2d4 104 (Mo., 1969); 
FoX v. State, 491 P.28 721 (Nev., 1971); State v. Cote, 108 N.H. 
290, 235 A.2d..111 (1967), cert. den., 390 0.8. 1025 (1968); 
People v, Castronova, 354 N.¥.S.24 250 (1974); State v. Stevens, 

  

  

  

  

  

  

  

  

    
  

  

  

  

  

  

  

  

es fr 

 



  

438 U. S. 586, 57 L. Fd. 24 973, at 989: "Vie are satisfied 

that this qualitative difference between death and other 

penalties calls for a greater degree of reliability [with res- 

pect to the exercise of the jury's discretion] when the death 

sentence is imposed." 

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

discretion in the sentencing phase is contrary to the heart of 

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

49 1... BA. 28 859, at 887, n. 47 (1976) ("Where the ultimate 

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

discretion violates the Eighth and Fourteenth Amendments"); 

  

Godfrey v. Georgia, US . 64 L., B48, 28,:398. 41980). In 

Godfrey, the Court made clear that in order to meet constitu- 

tional requirements: 

"1t, Ithe State] must channel the sentencers’' 5/ 
discretion by 'clear and objective standards'T6/ 
that provide "specific and detailed guidance,'™ 
and that 'make rationally reviewable the process 
for imposing a sentence of death.'"L 

2/ eres v. Georgia, supra, 428 U.8.,; at 198, quoting 
Coley v. State, 231 Ga. 834, 204 5.E.24 612, (1974). 

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

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

  

  

  

  

64 L. Bd. 24 at 398. 

The standardless instruction to the jury in this case 

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

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

was the jury's interpretation of the statutory language found 

  

14/ Continued: 

238 N.W.24 251 (N.D., 1975); State v. Weston, 20 Ohio App. 28 
115, 252 N.E.24 305 (1969); Commonwealth wv, Connolly, 269 A.24 

390 (Pa., 1970): State v. Lombardi, 319 A.24 346 (R.1., 1974); 
State v. Smalls, I%94 5.£.24 188 (8.C., 1973); Johnson Vv, State, 
509 S.W.2d 639 (Tex. 1974); State v. Redford, 496 P.24 884 
(Utah, 1972): State v. Whalen, 1 Wash. App. 785, 464 P,. 24 730 
{1970); State v., McCardle, 194 S.E.24 174 {(w.Va., 1973). 

  

  

  

  

  
  

  

  

  

= 0w 

 



  

defective in Godfrey, supra. While the Georgia statutory 
  

scheme upheld in Gregg, supra, expressly limits imposition of 
  

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

aggravating circumstance, the jury in this case was not 

instructed to assure that it was not motivated by aggravating 

factors such as petitioner's prior convictions or his alleged 

participation in other criminal acts for which he has not been 

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

scheme. 

Therefore, the instruction given to the jury authoriz- 

ing them to consider all the evidence received in court per- 

mitted the jury to recommend the death penalty because of the 

evidence offered by the State regarding other alleged acts of 

criminal conduct. At least three other State Supreme Courts have 

rejected the practices followed by the trial court herein. In. 

State v. McCormick, 397 N.E.2d4 276 (Ind., 1979), the Court held 
  

that due process rights of the defendant were contravened when 

the State relied upon evidence of other criminal acts for 

which defendant had not been convicted as a basis for a finding 

of aggravated circumstances justifying the death penalty. 

In Cozzlino v, State, 584 8.W.2d 765 (Tenn., 1979), the 
  

Tennessee Supreme Court held that defendant's due process rights 

were violated by the State's introduction of evidence that de- 

fendant committed crimes subsequent to the murder for which he 

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

relevant to the proof of any aggravating circumstances submitted 

to the jury. The Court stated: 

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

mitigating circumstances have been shown that 
would outweigh those aggravating circumstances. 
Any evidence that does not go to the proof of 

one or the other of those issues 1s irrelevant 
to the jury's deliberations. We cannot believe 
that the legislature intended that irrelevant 
evidence would be placed before the jury, fraught 
as such procedure would be with the 'substantial 

  

  

  

-29- 

 



  

risk that (the death penalty) would be in- 
flicted in an arbitrary and capricious manner.’ 

Gregg Vv. Georgia, 428 U.5,. 153, 188." (Emphasis 
supplied.) 
  

  

Supreme Court held improper the admission of evidence of a 

robbery and second murder for consideration by a jury at the 

sentencing phase. 

Because the trial court permitted the jury overbroad 

and, indeed, unlimited discretion with respect to the use of 

evidence of other allegedly criminal acts, at both the guilt and 

sentencing phase, the petitioner should be granted a new trial. 

ViIi. PETITIONER WAS DENIED THE EFFECTIVE 

ASSISTANCE OF COUNSEL GUARANTEED BY 

THE SIXTH AND FOURTEENTH AMENDMENTS 

and SECTIONS 2-101 and 2-111 OF THE 

1976 CONSTITUTION OF THE STATE OF 

GEORGIA. 
  

A. The Constitutional Standard. 
  

Since Powell v. Alabama, 287 U.S. 45 (1932), and 
  

Gideon v. Wainwright, 373 U.S. 335 (1963), it has been firmly 
  

established that a defendant charged in state court with a 

serious crime has a constitutional right under the Sixth Amend- 

ment and the due process clause of the Fourteenth Amendment to 

the "Assistance of Counsel for his defense." This right vests 

not simply upon commencement of the criminal trial, but at the 

very outset of criminal proceedings. 278 U.S. at 57. It is not 

fulfilled merely by the appointment of an attorney or the 

presence of an attorney at one's side: "Despite there being 

perhaps some salutary effect from the mere presence of a compe- 

tent attorney available to a defendant in a criminal proceeding, 

physical presence alone fails to satisfy the mandate of the 

Sixth Amendment." United States v. Woods, 487 F. 24 1218, 1219 
  

(5th Cir. 1973). Rather, the Sixth Amendment guarantee is 

satisfied only when an accused is provided "effective counsel" - 

that is, "counsel reasonably likely to render, and rendering, 
  

reasonably effective assistance." MacKenna v. Ellis, 280 F. 2d 
  

592, 599 (5th Cir. 1960), modified on other grounds and aff'd 
  

  

en banc, 289 PF. 24 928 (5th Cir.), cart. denied, 368 U.S, 817 

3 

 



  

(1961) (emphasis in original). 

The guarantee of counsel "reasonably likely to 

render and rendering effective assistance" (the "McKenna stan- 

dard") has been reaffirmed so consistently and so many Lines 

that it has become the idiomatic formulation of the Sixth Amend- 

mend standard. See, e.g., Easter v. Estelle, 609 F, 24 756, 
  

759 {5th Cir. 1980); Fitzgerald v, Estelle, 505 ¥. 28 1334, 1338   

{5th Cir.), cert denied, 422 U.8. 1011 (1975) (en banc): Herring     

v, Estelle, 491 PF. 24 125, 127:(5th Cir. 1974). But until   

recently courts applied the standard differently depending on 

whether counsel had been appointed or retained. Whereas the 

McKenna Sixth Amendment standard applied without exception in 

all cases in which counsel had been appointed, it was used to 

measure retained counsel's performance only when the defects of 

the attorney's representation were "so apparent that a reason- 

ably attentive official of the state [i.e., the judge or the 

prosecutor] should have been aware of and could have corrected 

it." Pitzgerald v. Estelle, 505 ¥, 24 at 1337. If retained 
  

counsel's incompetence were not thus apparent, a conviction 

would be reversed (under the due process clause and not the 

Sixth Amendment) only when his "ineffectiveness" had rendered 

the trial "fundamentally unfair.” 1I14., at 1336. 

This dichotomy in applying the Sixth Amendment 

standard was recently eradicated by the Supreme Court. In Cuyler 

v. Sullivan, U.S. ,: 804 L. Bd. 24333 (1980), the Court 
    

unanimously concluded that the Sixth Amemdment right to "ade- 

quate legal Aesietonbe” applies - without "distinction between 

retained and appointed counsel" - at all state-conducted "trials 

at which persons. . .face incarceration." 14. at 344. : Thus, 

the McKenna "reasonably effective" standard applies in this 

case, as it does in any case in which the penalty sought is 

as 
imprisonment or death. 

  

#15 / 
~ Cuyler was decided on a writ of certiorari to the Third Cir- 
cuit and considered the question of effective assistance of 
counsel in the context of a claim of conflict of interest by a 

-3]- 

 



  

The "reasonably effective assistance' standard is 

absolute in the sense that it admits of no exceptions; yet it is 

flexible in the sense that what is "reasonable" depends on the 

circumstances of the case. See King v. Beto, 429 F. 24 221, 222 
  

n. :} (5th Cir. 1970), cert. denied, 40) U.S. 936 (1971); Chalk 
  

v, Beto, 429 ®. 24 225, 226 {5th Cir. 1970). Obviously what is 

reasonable in one instance may be unreasonable in another. And, 

although "l[a] brilliant performance in most aspects of the 

defense can redeem a blunder, . . . .a fatal mistake in a con- 

text of generally slovenly representation may require a conclu- 

sion that the quality of the representation was below the 

  

minimum required by the Constitution." Stem v. Turner, 370 F.2d 

805, 900 (4th Cir. 1966) accord, e.g., United States v. Ham- 
  

monds, 425 F. 24 597, 604 (D.C. Cir. 1970). 

Despite the flexible nature of the standard, however, 

two general principles of application do exist, and both operate 

effectively to raise the minimum standard in this case. The first 

is that more is constitutionally required of counsel with trial 

responsibilities than of counsel for a defendant who pleads 

guilty. "Reasonably effective assistance is an easier standard 

to meet in the context of a guilty plea than in a trial. « . ." 

Herring v. Estelle, 491 F. 2d at 128 (5th Cir. 1974). .In the 
  

former case, counsel's duty to investigate extends only to the 

point of ascertaining "if the plea is entered voluntarily, and 

knowingly." Lamb v. Beto, 423 P. 24 85, 87 (53th Cir.), cert. 
  

denied, 400 U. S. 846 (1970). In the latter instance nothing 

  

15/ Continued: 

defendant's attorney. Any possible question of whether, despite 

unequivocal holding, Cuyler might somehow not apply to the 

dichotomy existing in the context of a claim of ineffective 

assistance based on counsel's performance rather than counsel's 

conflicts, was laid to rest by Cuyler's citation to the opinions 

of Judge Godbold in Pitzgerald, 505 F, 24 at 1344, to 1345-46 

(concurring in part and dissenting in part) and Judge Wisdom in 

West v. Louisiana, 473 F. 24 1026, 1032-34 (5th Cir. 1973) 
UECETeq 1n Dart and aff'd. in part en banc,510 P. 24 363 (1275) 

(per curiam), both of which explicitly rejected the retained- 

appointed dichotomy in the context of an ineffective aasistance 

claim based on counsel's performance. See 100 S. Ct. at 1715, 

Nn. 7, 

  

  

  

  

  

  

32m 

 



  

less than "exhustive and plenary investigation. . .will satisfy 

the constitutional mandate." [Emphasis added.] Lee v. Hooper, 
  

499 P, 24 456,462 (5th Cir.) cert. denied, 419 U.S. 1052 (1974); 
  

accord, €. g., Mason v. Balcom, 531 », 24 717, 724-25 (5th Cir. 
  

1976). 

The second general rule in applying the MacKenna 
  

standard is that in cases in which the defendant faces the 

wogelviiley of capital punishment, the Eighth Amendment, to- 

gether with the Sixth and the Fourteenth, establish a particular- 

ly high standard of reasonableness and require that a convicted 

defendant's counsel be subject to the strictest scrutiny. 

Smotherman v. Beto, 276 .F. Supp. 579, 586 (N.D. Tex. 1967); see 
  

generally Powell v. Alabama, 287 U.S. at 71-72; Betts v. Brady, 
  

  

316 U.S. 455 (1942), overruled on other grounds, Gideon v. 
  

Wainwright, 372 U.S. 335 (1963); Roberts v. Dutton, 368 F. 24. 
  

  

465, 471 (5th Cir. 1966). Indeed, this heightened acrutiny of. 

defense counsel's services is one of the very conditions under 

which the Supreme Court has allowed capital punishment to be 

imposed. As the Court has said repeatedly, because "the penalty 

of death is qualitatively different from a sentence of imprison- 

ment, however long. . . .there is a corresponding difference 

in the need for reliability." Woodson v. North Carolina, 428 
  

U.8. 280, 305 (1976) {plurality opinion); accord, e.g., Locket: 

v. Ohio, 438 U.S, 5846, 605 (978); To satisfy this greater 

need for reliability, the Court has held that certain procedures 

not required by the Constitution in other criminal cases are 
16/ 

nonetheless due in capital cases under the Eighth Amendment. 

Effective assistance of counsel is uniquely "a 

right constitutionally guaranteed to protect a fair trial and 

  

16/ 
"E.g., Beck v. Alabama, 48 U.S.L.W, 4801, 4804 (U.S. June 17 

1980) (lesser-included offense instruction); Lockett v. Ohio, 

433 U.S. 586 (1978), (unlimited admissibility of mitigating 

information); Roberts (Harry) v. Louisiana, 431 U.S. 633 (1977) 

(individualized sentencing determinations); Gardner v. Florida, 

430 U.S. 349 (1977); (access to presentence reports); Gregg V. 

Georgia, 428 U.8. 153 (1976) (plurality opinion) (bifurcated 

trials, specialized appellate review). 

  

  

  

  

  

3 J 

 



  

the reliability of the truth-determining process." Schneckloth 
  

v. Bustamonte, 412 U,S. 218, 236 (1973); see Holloway v. Arkansas, 
  

  

435 U.S. 475, 489 (1973); Caraway Vv. Beto, 421 FP, 2d 636, 637-38 
  

(5th Cir. 1970): "Therefore, the same level of error and neglect 

by counsel that might satisfy the dictates of reasonableness in 

a non-capital case will not satisfy the higher degree of 

'reliability' that the Eighth Amendment demands of determinations 

‘decisive [of] life. . .,and. .'.death. Gardner v. Florida, 430 
  

U.S. 349, 399 (1977) (plurality opinion). When a defendant has 

not had consistently reliable assistance at his capital trial, 

therefore, "the state's criminal justice system has operated to 

deny [the] Ene process [required by the Eighth as well as the 

Sixth and Fourteenth Amendments]. . .and the state's consequent 

[execution or] imprisonment or fine of the defendant is funda- 

mentally wrong." Pifzgerald vy. Estelle, 505 F. 24 at 1336. 
  

The reduced tolerance for error in capital cases 

extends to the guilt phase as well as to the sentencing phase of 

A capital trial, This was recognized explicitly, for example, 

in Smotherman v. Beto, 276 F. Supp. at 586, where the court 
  

applied the requisite heightened scrutiny in granting the peti- 

tion for a writ of habeas corpus, notwithstanding the fact that 

the petitioner, convicted of a capital murder, had actually been 

sentenced "only" to 99 years in prison. And application of the 

"heightened scrutiny" standard at the guilt phase provided the 

very ratio decidendi in the Supreme Court's recent decision in 
  

Beck v. Alabama, U.S. , B55 1. Ed. 24 392 (1980). Deal- 
  

ing with a statute under which the jury participated only in the 

guilt phase, the Court struck a provision in the law barring the 

jury from considering lesser-included offenses. Whatever the 

constitutionality of such a bar in non-capital cases, the Court 

ruled, the greater need for reliability in capital trials mandat- 

ed by the Constitution made such a provision intolerable where 

the death penalty was sought.  Id., at 403 & nn. 13, 14. Any 

question that the constitutional requirement of greater reliabi- 

lith extended to the determination as to guilt as well as sen- 

tence was laid to rest by the Court at the very fulcrum of its 

-3 lw 

 



  

decision: " [W]e have invalidated procedural rules that tended 

to diminish the reliability of the sentencing determination. 

The same reasoning must apply to rules that diminish the relia- 

bility of the guilt determination." I1d., at 403 (footnote 

omitted). 

Accordingly, petitioner's conviction and sentence 

must be reversed unless this Court can certify that at every 

stage of the proceedings petitioner's counsel were reasonably 

likely to render and did render him reasonably effective 

assistance. And because (a) petitioner did not Plead gulity, 

but maintained his innocence throughout, and (b) the state at all 

times sought and untimely obtained a sentence of death, the 

range of what errors and defaults might be considered "reasonable" 

is narrow indeed. 

B. The Assistance Denied In This Case. 
  

Application of these standards to the facts of this 

case leads to the conclusion that petitioner was denied effec- 

tive assistance of counsel. 

x. Ineffective Assistance Prior To Trial. 
  

The Supreme Court has stated repeatedly that the pre- 

trial phase of a criminal defense is "perhaps the most critical 

period of the proceedings," a time when "consultation, thorough- 

going investigation and preparation [are] vitally important." 

Powell v, Alabama, 287 U.S. at 57; accord, e.g., Von Moltke v. 
  

  

Gillies, 332 U.S. 708, 721-23 (1948). The rationale for this 

assertion is fundamental: "[alny experienced trial lawyer knows 

that a purported trial without adequate preparation amounts to no 

  

trial at all," Brooks v. Texas, 381 v7. 2d 619, 624 (5th Cir. 

| 1067). "The exercise of the utmost skill during the trial is not 

enough if counsel has neglected the necessary investigation and 

preparation of the case or failed to interview essential witnesses 

or to arrange for their attendance," Moore v. United States, 432 
  

F. 2d at 739 (footnote omitted), for any "intelligent and know- 

ledgeable defense. . .requires investigation and preparation,” 

3 5 

 



  

Caraway V. Beto, 421 Pr. 24 at 637-38, Accordingly, courts have 
  

held consistently and repeatedly that no attorney can provide 

"effective assistance" if he fails "to conduct a 'prompt 

investigation of the circumstances of the case and exviens all 

avenues leading to facts relevant to guilt and degree of guilt 

or penalty.'" Davis v. Alabama, 596 F. 24 at 1217 (quoting ABA 
  

Standards Relating to the Prosecution Function and the Defense 

Punction §4.1 (tent. draft 1970)); accord, e.g., Rummel v. 
  

Estelle, 590 F, 24 103, 104 (5th Cir. 1979), on remand from 

557 F. 24 651 {5th Cir. 1978), aff'd, 100.8. . Ct. 2133 (1980y; 

Friedman v. United States, 583 FF. 24 1010, .1016 {5th Cir. 1979); 
  

Gaines v. Hopper, 575 F. 24 1147, 1149-50 (5th Cir. 1978) slper 
  

curiam); Bell Vv. Georgia, 554 TF. 2d 1360 (5th Cir., 1977); 
  

Brown Vv. Blackburn, 625 P. 24 35. (5th Cir. 1980). 
  

A. Failure To Interview Witnesses. 
  

John Turner admitted at the heabas hearing that 

he did not interview a single witness prior to trial. He did, 
  

however, have available to him a list of the State's witnesses - 

served on him in late September, 1978, less than three weeks 

prior to trial. (R.36-41 ). Included with the list was 

sufficient information for Turner to contact the witnesses if he 

had chosen to do so. 

This evidence alone compels reversal and the 

grant of a new trial. 

In Gaines v. Hopper, 575 FP. 24 1147 (5th Cir. 
  

1978), for example, prior to the defendant's trial and conviction 

for murder (and sentence to life imprisonment), defense counsel 

did not conduct an independent search for witnesses and did not 

interview several of the persons named in the indictment. He 

did interview the law enforcement officers named in the indict~- 

ment. Based on the district court's finding that counsel "made 

no effort to assist his client by finding out what really 

happened other than by talking to the prosecuting attorney and 

law enforcement officials," 1d4., at 1149, the court of appeals 

had no difficulty in affirming the district court's reversal of 

3G 

 



  

the conviction and issuance of the writ, Similarly, in Bell v. 
  

Ceorgia,; 554 P. 2d:1360 (5th Cir. 1977), habeas corpus vas 

granted solely on defense counsel's failure to make "any effort 

to contact" critical witnesses or "otherwise undertake] any 

independent investigation." = Id., at 1361; see, e.g., Caraway Vv. 
  

Beto, 421 F. 24 at 637; MacKenna v. Ellis, 280 F. 24 at 601; 
  

see generally, Pennington v. Beto, 437 F. 24 1281 (5th Cir. 
  

1971). 

Substantial prejudice to the petitioner resulted 

from counsel's failure to conduct an independent investigation. 

The district attorney's own file contained the statements of 

four witnesses to the Dixie Furniture Store robbery which would 

have provided substantial support of one of the defenses which 

counsel recognized was available. Although petitioner pursued 

an alibi defense at trial, trial Counsel recognized, and even 

made efforts through the witnesses which the State called, to 

develop a defense that one of the other co-defendants was the 

triggerman. 

The State's theory was that McCleskey had to be the 

triggerman, because all the other co-defendants were in the back 
  

of the store at the time of the robbery, and therefore, unable 
  

to have pulled the trigger. However, statements by Dan Oliver, 
  

Ben Tyson, Henry Nelloms, and James Grier, given to the police 

investigators within days of the shooting, are inconsistent 

with and cast grave doubts upon the State's Ad Each of 

the four witnesses, held in the back of the store, indicated 

that one or more of the three co-defendants who had been in the 

back of the store, had left prior to the shots being fired. The 

relevant portions of their statements are as follows: 

  

17/ 
~The testimony of Ben Wright, the co-defendant - turned State's 

witness - even suggests that Wright himself was situated where 

he could have been the triggerman. ["I saw the police pull his 

car in and I told them immediately, 'The man is out there, let's 

go. 
Q. Where were you when you said that? 

A Standing where I could see all the eay up the aisle 

+o ‘the front door. {Trial Tr. 709.) 

37 

 



  

Dan Oliver: 
  

"Then they went out of the room (I think 
there were two of them in therisic] with us). 
Right after they left, I heard two shots and heard 
foot steps running on the tile, . . ." 

(Oliver Statement, p. 2.) 

Ben Tyson: 
  

"Then I heard a siren pass the street out 
there and then one (1) of the men said 'Here comes 
the Police." And they took off running, and I 
think they were going toward the front door, from 
the way it sounded to me. When the running stopped, 
I heard 'Bam, Bam', meaning two (2) shots were fired 
and then everything got quiet." 

(Tyson Statement, p. 2.) 

James Grier, Jr.: 
  

"I forgot to say that after the men marched us 
in the storage room, one of the men must have left 
cause I only heard two men talking. I guess they all 
left cause it got real guiet. About two or three 
minutes later I heard two gunshots. . . ." 

(Grier Statement, p. 4.) 

Henry Nelloms: 
  

"As he was taping their hands, I slided[sic] 
down and went between two (2) boxes into another 
room and that is the way that I got out, into another 
room of the store. When I crawled into the room, I 
was peeping around the boxes and could see the front 
door and then I saw the officer come into the front door. 
I saw the officer come down the aisle and then I heard 
a shot, and I saw the officer fall. From where I was 
in the room, I could only see the officer from the chest 
up. Then I heard someone running going towards the back 
door."->3 

(Nelloms Statement, p. 3.) 

Further prejudice is shown from counsel's failure to 

investigate the appearance of Fulton County Sheriff's deputy's 

, names on the witness list. Although counsel recognized that their 

appearance on the witness list might indicate testimony at trial 

- regarding alleged statements from his client, he made no in- 

quiries of the deputies as to what their testimony might be. As 

a result, he was taken by surprise by the testimony of Offie 

Evans. 

  

~ The last sentence, indicating that he heard someone running 
- towards the back door, suggests that someone other than McCleskey 
was in the front at the time of the shooting. 

-3 Ge 

 



  

Counsel also failed to interview the State Crime 

Lab witness prior to trial, As a result, he was unprevared for 

the testimony of Kelly Fite, to the effect that he believed a 

.38 Rossi was "probably" the murder weapon. 

Fite routinely does discuss his "findings" with 

defense counsel who speak to him prior to trial (Fite Dep., 

Pp. 5 ), and if Turner had interviewed Fite, he likely would 

have been able to bring out on cross—-examination that, while 

Fite thought a .38 Rossi was "probably" the murder weapon, Fite 

was by no means sure and it was possible that some weapon, other 

than the .38 Rossi, was the murder weapon (Fite Dep., p.5). 

Had Turner spoken with Fite regarding his testimony 

prior to trial, he could have made a more compelling showing of 

cause for his own ballistics expert to be appointed to inspect 

the bullet fragments. The fact that the State's own expert 

recognized that the bullets could have been fired from two or 

three other makes of weapons (Fite Tr. ) , other than the 

Rossi, suggests that additional expert analysis might have cast 

additional additional doubts on the make of the murder weapon. 

See Part IX , infra. or 

  

What this cumulative evidence shows is that, indeed, 

substantial questions regarding the State's theory of the crime 

existed which were left undeveloped at trial. While counsel could 
  

have developed substantial testimony that other co-defendants had 

left the rear of the store (a) after knowing the police had 

arrived and (b) before the shots were fired, thereby casting 

doubts on the State's claim that only McCleskey could have been 

the triggerman, he did not do so. Nor did he develop evidence 

through cross-examination of the State's ballistics expert that 

the murder weapon could have been one other than the .38 Rossi. 

He interviewed no state witnesses, and he had no witnesses under 

subpoena. He was left to develop defenses haphazardly based upon 

the witnesses which the State itself called. 

Indicative of trial counsel's inadequate preparation 

is the evidence regarding when it was that Turner actually went 

30 

 



  

to the District Attorney's file, to read the statements of wit- 

nesses contained therein. The District Attorney's record shows 

the following schedule of defense counsel reviewing the file: 

July 24, 1978 - Michael Washington (for co-defen- 
dant Dupree) ; 

August 10, 1978 - Michael Washington (for co- 
defendant Dupree) ; 

September 

September 

September 

September 

15, 1978 - D. Stein (for co-defendant 

Wright); 

18,1978 - D. Stein (for co-defendant 

21, 

277 

1978 

1978 

September 27, 1978 - 

Ocltocher 3, 

October 5, 

1978 - 17. 

1978 - J. 

Wright) ; 

J. Gailey (for co-defendant 
Burney) ; 

D. Stein (for co-defendant 

Wright) ; 

W. Hudson (for co-defendant 

Dupree) ; 

Welch (for co-defendant Burney) ; 

Turner (for petitioner). 

Petitioner's trial commenced on Monday, October 9, 

1978. Counsel representing petitioner reviewed the written 

statements in the District Attorney's file for the first and only 

time prior to trial on Thursday afternoon, October 5. Counsel for 

each of the other co-defendants reviewed the file at least twice, 

| ranging in time from July through October. While petitioner was 

the first of the co-defendants to go on trial., his counsel was 

the last to review the file. 

At Trial. 
  

Counsel's representation of petitioner at trial also 

! fell below constitutional standards. (1) Counsel did not object 

to the trial court's instruction to the jury which was contrary 

to the standards of Mullaney v. Wilbur, supra (see Part IV, supra); 
  

(2) Counsel did not object to the District Attorney's argument 

to the jury which directed the jury's attention to the aprellate 

processes, which had reduced petitioner's prior life sentences to 

15 or 18 years (see Part III, supra); (3) Counsel failed to 

develop on cross-examination of Offie Evans any information re- 

garding the promises made to Evans by Atlanta homicide detective 

a ¥y p 

 



  

Sidney Dorsey (see Part V, supra); (4) Counsel failed to move for 

a continuance and/or mistrial to permit the development of 

adequate evidence regarding the line-up procedure which occurred 

in the courtroom on the morning that the trial commenced al- 

‘though he was taken by surprise, and the testimony of a number of 

witnesses was based on a description of that highly suggestive 

line-up kl Tam Counsel failed to move to exclude evi- 

dence obtained from the search warrant executed on May 30, 1978, 

seeking evidence regarding material taken from a robbery that had 

occurred more than two and a half months earlier. 

Perhaps most indicative of counsel's failure was his 

failure to prepare for the sentencing phase of the trial. Al- 

though there is a factual dispute with respect to the question of 

counsel's preparation, the circumstantial evidence supports 

petitioner's claim that trial counsel failed to take reasonable 

steps to prepare for the sentencing phase. 

Petitioner's sister, who was the family member in 

touch with Turner during the trial preparation, testified that 

Turner had never asked her to identify persons who could testify 

regarding her brother's background or character. Petitioner 

  

i 19/ 
~ The prejudice to the petitioner of trial counsel's failure to 
move for a continuance, or a mistrial, in light of the testimony 
regarding the display procedure is evidencedin a number of ways. 
One, the testimony of Classie Barnwell at the habeas hearing shows 
that ,while she once had valuable information - who was it who told 
her that one of the people in the jury box where she observed the 
co-defendants prior to trial was Ben Wright? - the failure to 
determine who that was at the time of the trial makes it unlikely 
that the answer will ever be known. Further, prejudice ensued 
from trial counsel's failure to show that witnesses Ross and 
Umberger, both of whom identified petitioner after the suggestive 
pretrial display of petitioner, had previously been exhibited 
photographs of petitioner, and had either failed to identify him, 
or made only a very tentative identification of him. (See Exhibit 
A, attached to Parker deposition, statement of Paul Ross, June 10, 
1978; and memo for file from Grady Askew regarding Dorothy Umber- 

ger.) 

Had counsel had the opportunity to prepare regarding the sug- 
gestive nature of the in-court display procedure Monday morning, 

“he might well have been able to show that the suggestive nature 

of the procedure irreparably tainted the subsequent in-court 
identifications. {See Part XI, infra.) 

dl 

 



  

himself testified that Turner had failed to do this, and had not 

discussed with him the separate sentencing procedure until after 

the guilty verdict had been returned. 

Further, petitioner's sister showed substantial 

interest in her brother's case - attending the entire trial in 

October, 1978. 

Petitioner's sister testified to the ease in which 

she was able to identify and obtain persons willing to testify in 

her brother's behalf when asked in January, 1981. This provides 

strong circumstantial support of petitioner's claim that Turner 

failed to inquire as to the availability of such witnesses at 

the pretrial stage. There is no reason to believe that peti- 

tioner's sister would be able to identify names of such persons 

when asked in January, 1981, but not in October, 1978. 

Further, the affidavits on file show the prejudice 

to petitioner of counsel's failure to prepare for the sentencing 

phase. The affidavits show substantial information which should 

have been provided to the jury for its deliberation on the 

question of renRltyar 

On the basis of this evidence, then, it is clear 

that petitioner was denied the effective assistance of Sounsel. 

For this reason, a new trial should be granted. 

  

20/ 
A further indication of trial counsel's abdication of his role 

is reflected in the trial judge's sentencing report (Supp'l R.7) 

That report indicates that, although the trial Judge tried on 

repeated occasions to have Turner review the sentencing report 

to provide additional information for the report which the trial 

Judge lacked, Turner failed to respond to the trial Judge's 

requests. 

-42- 

 



  

IX. DENIAL OF DEFENSE MOTION FOR EXPERT 
WITNESS AND INVESTIGATION BREACHED 
PETITIONER'S DUE PROCESS AND FAIR 
TRIAL RIGHTS UNDER SIXTH AND FOUR- 
TEENTH AMENDMENTS, AND SECTIONS 

  

The petitioner moved the trial court, on Septem- 

ber 6, 1978, to "proceed in forma pauperis and for funds for 
  

expert witnesses" (R. 33). The failure to provide funds for an 

expert in ballistics and for an investigator, denied petitioner 

his due process rights and his right to a fair trial. 

The need for an investigator in this case was made 

clear in the motion filed by defense counsel: 

"Defendant is without money to pay for 
his defense and moves the Court for 
leave to proceed in forma pauperis. . . 
The defendant is in dire need of the 
services of a professional criminal 
investigator to assist his counsel 
in the development of exculpatory 
and impeaching evidence in this case." 

  

{R. :33.) 

The need became even more critical when the State 

served upon the defendant an additional witness list of 96 "may 

call" witnesses. The list was served on September 20, 1978, less 

than three weeks prior to the start of the trial. 

Also critical was the defendant's need for expert 

ballistic evidence to counter the State's expert that the murder 

weapon was a -.38 Rossi. As seen in the testimony of Kelly Fite, 

(the State's expert), the conclusion that the .38 Rossi was the 

murder weapon was open to substantial question. Such is an oc- 

casion when defendant should have had his own expert to put the 

evidence in a proper perspective. 

The failure to provide petitioner funds for his 

own expert, and his own investigator, contravened petititoner's 

rights under the Sixth and Fourteenth Amendments and Sections 

2-101 and 2-111 of the 1976 Georgia Constitution. White v. Maggio,   

556-F. 24:1352 (5th Cir. 1977): Barnard v. Henderson, 514 P,. 28 
  

744 (5th Cir. 1975); Glbson v. Jackson, 443 P.Supp. 239 (M.D. Ga. 
  

1977), vacated and remanded on other grounds, 578 F. 2d 1045 

{5th Cir, 1978}. 

il] Some 

 



  

X. TRIAL COURT IMPROPERLY EXCUSED 

PROSPECTIVE JURORS WITHOUT 

ADEQUATE EXAMINATION INTO THEIR 

BELIEFS REGARDING IMPOSITION OF 
PDEATH PENALTY, 0 = boa 
  

The trial court excluded two prospective jurors, 

. Miss Barbara J. Weston and Mrs. Emma T. Cason, because of their 

anti-death penalty views (Trial Tr. 96-99; 128-130). 

Their exclusion came after only a brief examina- 

tion regarding their views with respect to the death penalty, 

in which they both indicated opposition to the death penalty, 

but nowhere did either state her inability to set her convictions 

aside and do her duty as a citizen; neither stated what effect 

the State's request for the death penalty would have upon their 

deliberations with respect to guilt; neither were asked if her 

convictions regarding the death penalty would affect their 

ability to abide by their oath as jurors. 

The evidence upon which the Court excluded the 

jurors was inadequate; the Court's failure to inquire further 

before excluding both was error. * Burns v, Estelle, 592 F.24 
  

1297 (5th Cir. 1979), approved en banc, 626 F. 2d 396 (5th Cir, 

21/ 1 
1980). 

As a result of the trial court's action, the 

petitioner's jury did not constitute a representative cross- 

section of the community, and was incapable of reflecting con- 

temporary community attitudes regarding the appropriateness of 

the penalty of death in petitioner's case. Further, petitioner's 

trial jury was unrepresentative and biased in favor of the 

prosecution on the issue of petitioner's guilt or innocence. 

  

21/ 
T See the discussion in Hovey v, Superior Court of Alameda 

County, 66 P.2d 1301 (Supreme Court of California, 1930) of the 

empirical evidence available in support of petitioner's claim 

that the exclusion of jurors in this case resulted in an un- 

representative jury on the issue of gullt. 

  

wd lm 

 



  

XI. EYEWITNESS TESTIMONY TAINTED BY 
SUGGESTIVE PRETRIAL IDENTIFICATION 
PROCEDURE CONTRAVENED PETITIONER'S RIGHTS. Ek ine % 
  

The identification of McCleskey at trial by three 

witnesses who were shown the petitioner on the morning of the 

trial in a suggestive identification procedure (Trial Tr. 239, 

737), contravened petitioner's Sixth Amendment rights, and rights 

guaranteed by Sections 2-101 and 2-111 of the 1976 Georgia 

Constitution. 

The testimony of Paul Ross (Trial Tr. 732, 733) 

shows the very tentative nature of his identification. ("He 

looks similar to the one that took the pistol from me, but I only 

saw him for a few seconds and I'm not positive.") Further, Ross 

had been shown a photograph of MoCldshey previously, and had 

been unable to identify him. (See 6/10/78 Ross Statement, Exhibit 

A, attached to R. Parker Deposition.) 

Similarly, Dorothy Umberger testified that her view 

of the robber amounted to "a very short glance" (Tr. 747), and 
  

"at the time had a stocking over his head" (Tr. 747). Further, 

she had made only a very tentative identification of McCleskey 

when shown a photo display earlier. (See Grady Askew memo to 

file, Exhibit A, attached to Parker Deposition.) 

The in-court identification should, therefore, 

have been excluded; petitioner should be granted a new trial. 

XXII. INTRODUCTION OF PETITIONER'S INVOLUNTARY 
STATEMENT CONTRAVENED PETITIONER'S RIGHTS 

GUARANTEED BY THE FIFTH, SIXTH AND FOUR- 

TEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION AND SECTIONS 2-101, 2-111, 
AND 2-113 OF THE 1976 GEORGIA CONSTITUTION. 
  

Testimony regarding a statement given by petitioner 

| to Atlanta Police Bureau detectives was introduced at petitioner's 

trial, {Trial Tr. 506, et seq.) Because the statement was not 

freely, voluntarily given, after a knowing waiver of petitioner's 

| rights, it was error to admit such testimony. 

The involuntary nature of petitioner's testimony 

is shown in petitioner's testimony: 

—d] 5 

 



  

"A. Yes. After -- [Li. Perry) questioned me 
for a while, you know, after I kept telling him I 
didn't know anything about it and I didn't have no 
involvement in it, and he said, 'They are trying to 
stick it. to you,' I sald, What?! He said 'If you 
know anything, you ought to tell me or you are in a 
world of trouble.’ 

Q. Did he explain what a world of trouble 
meant? 

A, Yes. 

Q. What did he say? 

A. He said that my car had been seen in the 
robbery and they had a tag number, that they had two 
eyewitnesses that seen me around the place, and he 
said with the evidence they had got they had enough 
to burn me. 

Q. Okay. Did he mention anything about Earl 
Lee? 

A. Yes. Before he mentioned that he mentioned 
something about Earl Lee. He -- he had got bored from 
me telling him I didn't know anything about it, and he 
said I was a.damn lie, [sic]said he ought to just 
throw me out of the car and do me like Earl Lee did 
Knowles. 

Q. Did he explain what that was? 

A. No. 

Q. What else was said? 

A. After he told me he had two eyewitnesses to 
verify that they seen me come out of the place running, 
and that he said they had a description of my car, had 
the tag number, and he said they had enough to burn me, 
you know, and he said with the evidence =-- he said with 
the evidence that he has got, he said the best thing for 
me to:do is; if I didn't do no shooting, is +0. try to own 
up to my part that I played in it, the robbery part, you 
know." 

{Trial Tr. 822-23.) 

The statement elicited from the petitioner within a short period 

of time of these statements by Lieutenant Perry cannot be a 

voluntary statement. Therefore, it was error to admit such 

into evidence. 

XIII. THE PETITIONER WAS CONVICTED ON THE 

BASIS OF EVIDENCE WHICH FAILED TO 

  

The evidence presented to the trial jury was in- 

sufficient to prove, beyond a reasonable doubt, that the 

petitioner was the triggerman who shot Officer Frank Schlatt. 

-46- 

 



  

The State's witnesses, such as Classie Barnwell, 

were unable to state which of the co-defendants who were in the 

front of the store during some portion of the robbery was the 

triggerman (Trial Tr. 245). Similarly, another of the State's 

witnesses, Mamie Thomas, was unable to tell from what direction 

the shots originated (Trial Tr. 293-94). 

Even the identity of the gun used to kill Officer 

Sohlath was open to substantial doubt. While the State's 

theory was that it was a .38 Rossi in the possession of Warren 

McCleskey, the State's ballistics expert was able to testify 

only that it was "probably" a .38 Rossi. Further, Ben Wright, 

one of the co-defendants, testified that he himself had carried 

such a weapon with him on occasion. The State's theory on 

the source of the gun was open to substantial doubt. The State 

theorized that the murder weapon was taken in a robbery of a Red 

Dot Grocery Store weeks before, but the owner of the weapon taken 

in that store could only be identified by the owner as a 

"Brazilian made, nickle-plated .38" - manufactured by "McClusky" 

{Trial Tr. 725). 

Nor did the evidence support, beyond a reasonable 

doubt, the State's theory that only McCleskey had the opportunity 

to see Officer Schlatt drive up and enter the store, thereby 

making McCleskey, necessarily, the triggerman. The statement of 

Ben Wright himself was as follows: 

"Q. Let me ask you this question. Did anyone 
ever say, 'Here comes the police officer,' or 'Here 
comes the cops'? 

A. I said, 'Here is the police out here, man, 
let's go.' 1 said, 'Here is the man, let's go.!' 1 saw 
the police pull his car in and I told them immediately, 
'The man is out there, let's go.' 

Q. Where were you when you said that? 

A. Standing where I could see all the way up 
the aisle to the front door." 

(Trial Tr. 709), 

Wright's own testimony offered little reason to 

believe that it was reliable. Wright readily recognized that, 

in 7 

 



  

when it came to saving his own skin, he would lie: 

"0. That is true, very true. Let me 
ask you this one last question. Would you lie to 
keep from getting convicted of murder in this case? 

A. Every person will lie to keep from 
getting convicted. 

Q. Would you, personally? 

A. Me? 

O. Yes, sir. 

A, Yes, sir, I would." 

22/ 
{Trial Tr. 716-17). 

The evidence, then, that was the basis for 

petitioner's conviction as the triggerman was insufficient to 

meet constitutional standards. Jackson v. Virginia, 443 U.S. 307, 
  

61 L. Fd. 24.560 (19 .). 

Therefore, petitioner should be granted a new 

trial. 

- CONCLUSION 
  

For the foregoing reasons, this Court should issue the 

writ. 

Respectfully submitted, 

ROBERT H. STROUP ’ 

1515 Healey Building 
Atlanta, Georgia 30303 

  

JACK GREENBERG 

JAMES N. NABRIT, III 

JOHN CHARLES BOGER 

10 Columbus Circle 
New York, New York 10019 

ATTORNEYS FOR PETITIONER 

  337 
~ The only other evidence suggesting McCleskey was the triggerman 
was the statement from Offie Evans, the witness whose under- 
standing with police officers regarding lighter treatment was 
withheld from petitioner and the jury. 

wd Gon 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that I have this day served copies of 

the within and foregoing "Petitioner's Post-Hearing Memorandum 

upon: 

Arthur. X. Bolton, Esq. 
Nicholas G. Dumich, Esq. 
132 State Judicial Building 
Atlanta, Georgia 30334 

by depositing a copy of same in the United States Mail, first- 

class postage prepaid. 

LIYA 
This 2 day of February, 1981. 
  

-~ 
  

ROBERT H. STROPP