McCleskey v. Zant – Georgia State Habeas Corpus
Public Court Documents
December 19, 1980 - January 30, 1981
75 pages
Cite this item
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Case Files, McCleskey Legal Records. McCleskey v. Zant – Georgia State Habeas Corpus, 1980. 6ad928ca-5aa7-ef11-8a69-6045bdd6d628. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/91e0dcd7-d821-4afb-b67b-bb9f75b7c74b/mccleskey-v-zant-georgia-state-habeas-corpus. Accessed October 09, 2025.
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BUTTS SUPERIOR COURT
COURT CALENDAR
JANUARY 30, 1981
10:00 A. M.
JUDGE R. ALEX CRUMBLEY, PRESIDING
CASE NO. CASE TYL
4909 Warren McCleskey Petition for
Writ of Habeas
vs Corpus
(Stay of
Walter Zant, Warden Execution)
ATTORNEYS
Robert H. Stroup, Jack
Greenberg, James M.
Nabrit 111 & John
Charles Boger
Nicholas GCG. Dumich,
Assistant Attorney
General
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IN THE SUPERIOR COURT OF BUTTS COUNTY
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STATE OF GEORGIA
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| WARREN MCCLESKEY,
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L WALTER ZANT, Warden,
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* ORDER i
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$ Upon application by petitioner for a Stay of Execution
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4 of the sentence of death imposed upon petitioner by the | :
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i superior Court of Fulton County,
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ft TT IS HEBEBY ORDERED that the petition for a stay of
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hi execution is hereby granted pending further order of this Court.
17 IS FURTHER ORDERED THAT the Clerk of this Court shall
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give immediate telephonic and telegraphic notice to the
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L A “covernor of the State of Georgia, the Attorney General of the
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|| State of Georgia, the commissioner of the state Board of
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Center, and mail each 2
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certified copy of this order, registered mail return receivnt
i requested, that the petitioner's Ersoision as stayed by order |
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do ARDERED AND ADJUDGED this . & "= day of January, 1981.
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Judge
superior court of Butts
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IN THEE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
WARREN MCCLESKEY,
Petitioner, -
2 H.C. No.%# 909
Ve
WALTER ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
E
T
- MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
The petitioner, WARREN MCCLESKEY, by his undersigned
counsel, moves the Court for leave to file his petition for.
i habeas corpus, without prepayment of costs, and to proceed
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{in forma pauperis. An affidavit by petitioner in support of
i this motion is attached hereto.
Respectfully Submitted,
[hunt R160
ROBERT HEH. STROUP
1515 Eealey Building
57 Forsyth St. N.W,
Atlanta, Georgia 30303
JACK GREENBERG
JAMES M, NABRIT III
JOEN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
{ ATTORMEYS FOR THE PETITIONER
AFFIDAVIT OF INDIGENCY
I, WARREN McCLESKY, being first duly sworn according to
law, depose and say, in support of my motion for leave to proceed
without being required to prepay costs or fees and to proceed in
forma pauperis:
1. I am the petitioner in the above-entitled cause.
2. Because of my poverty, I am unable to pay the costs of
said cause; I own no real or personal property; I have been
incarcerated since 1978 and receive no income from earnings.
3. I am unable to give security for said cause.
4. I was permitted to file an in forma pauperis certiorari
petition in the Supreme Court of the United States, McCleskey v.
Georgia, No. 79-6830, petition filed June 23, 1980; denied
October 6, 1980;
5. I believe that I am entitled to the redress I seek in
said cause;
6. The nature of said cause is briefly stated as follows:
I was convicted in Fulton County Superior Court, a trial
court of the state of Georgia, on October 12, 1978 of one count
of murder, and sentenced to death. I am being held under sentence
of death at the Fulton County Jail, Atlanta, Georgia. My con-
viction and sentence was affirmed on January 24, 1980 by the
Supreme Court of Georgia and the Supreme Court of the United
States denied certiorari on October 6, 1980. I believe that
errors were committed during the course of my trial in violation
] of my constitutional rights and that the death sentence was
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“oon imposed upon me in violation of my constitutional rights.
fora iAg ed
: Sl : ; ; :
A pens by oY s tr”
XE IIRATAE WARREN McCLESKEYO
4! it oy ne 3 :
UC TIRTITIRIA oto) 3 ¢! to and subscribed fefore
, ' TAT hs hh \!
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a TILIALE me, this (1 ol day of
Rlunbher , 1980.
NOTARY PUBLIC ,
Tiatp zt! ares
Notary Public, Georgia, Sia li
rarpic Jui 27. 1952
My COMmussion Expes July < 7. 1302
IN TEE SUPERICR COURT OF BUTTS COUNTY
STATE OF GEORGIA
WARREN MCCLESKEY, K
Petitioner, [
ve | E.C. No. 4G 0 9
WALTFR ZANT, Warden,
Georgia Diagonistic and
Clascification Center,
PETITION FOR A WRIT OF HABFAS CORPUS,
FOR A STAY OF EXECUTION, AND FOR
LEAVE TC PROCEED IN FORMZ PAUPERIS
I. Tntroduction
(1) This is a petitfon for a writ of habeas corpus
to relieve the petitioner of restraint under a conviction
and sentence of death imposed upon him by the State of
Georgia in violation of his rights under the Constitution
| of the United States and of the State of Georgia.
II. Parties
| (2) Petitioner Warren McCleskey is a citizen of the
United States and a resident of the State of Georgia. He
is presently imprisoned under sentence of death at the Georgia
i Diagonistic and Classification Center in Jackson, Georgia. |
(3) Petitioner is a pauper. Because of his poverty,
he is unable to pav the fees and costs of this action or to
give securitv therefor. Petitioner believes that he is entitled
to redress.
(4) Pespondent Walter Zant is the Warden of the Georgia
Diagonistic and Classification Center, Jackson, Georgia,
and has custodv of the petitioner in his official capacity.
Respondent is currently confining vetitioner for the
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ultimate execution of his death sentence at the Diagnostic
and Classification Center,
IIT. Prior Proceedings
{5) On October 12, 1978, petitioner was convicted
in the Superior Court of Fulton County of the murder of
Atlanta police officer Frank Schlatt and was sentenced to
death. He was also convicted on two counts of armed robbery,
and given two consecutive life sentences.
(6) On January 24, 1980, the Supreme Court of
Georgia affirmed petitioner's convictions and sentences.
McClesky Vv, The State, 245 Ga, 103 (1980) .
(7) On June 23, 1980, petitioner filed a petition for
certiorari in the Supreme Court of the United States (Mo. 79
6830). On October 6, 1980, that court declined certiorari,
McClesky v. Georgia, U.S. , 49° U.S. 1... 3251..(1980).
(8) On December 19, 1980, the Superior Court for Fulton
County set January 8, 1981, as the date for execution of
petitioner's death sentence. On December 19,1980, petitioner
filed an extraordinary motion for a new trial and asked the trial
court to delay re-sentencing pending disposition of said
motion, but the trial court denied petitioner's request.
IV. Respects in Which Petitioner's
Rights Were Violated
(9) Petitioner is in custody in violation of the
Constitution of the United States and of the State of Georgia
for the reasons set forth herein.
(10) The death penalty is in fact administered and |
applied arbitrarily, capriciously, and whimsically in the |
State of Georgia and petitioner was sentenced to die, and will |
be executed, pursuant to a pattern and practice of wholly
arbitrary and capricious infliction of that penalty in violation
of his rights guaranteed by the Eighth and Fourteenth
Amendments to the Constitution of the United States, and
Do
Sections 2-101 and 2-114 of the 1°76 Constition of the State
of Georgia,
(11) Petitioner's death is being exacted pursuant
to a pattern and practice of Georgia prosecuting authorities,
courts, juries and Governors to discriminate intentionally
and purposefully on grounds of race, sex and poverty in the
administration of capital punishment. For this reason, the
impositon and execution of petitioner's death sentence under
Georgia law and practice violate the Eighth Amendment and the
Equal Protection . Clause of the Fourteenth Amendment to the
Constitution of the United States, and Sections 2-101 and
2-114 of the 1976 Constitution of the State of Georgia.
(12) The theoretical justifications for capital
punishment are groundless and irrational in fact, and death
is thus an excessive penalty which fails factuallv to serve
any rational and legitimate social interests that can justify
I! its unique harshn2ss, in violation of petitioner's rights
guaranteed by the Eighth and Fourteenth Amendments to the
Constitution of the United States, and sections 2-101 and
2-114 of the 1976 Constitution of the State of Georgia.
i (13) Petitioner's punishment is cruel and unusual in
consideration of all factors relating to the offense and
the offender, including mitigating circumstances. For this
reason, the imposition and execution of his death sentence |
| violates petitioner's rights guaranteed by the Eighth and
I Fourteenth Amendments to the Constitution of the United States, |
and Sections 2-101 and 2-114 of the 1976 Constitution of the |
State of Georgia.
(14) The penalty of death was assessed against peti-
sioner on the basis of fundamentally unfair proceedings in which
he was not afforded adequate notice and an opportunity to
present evidence and argument directed to specific issues
determinative of the question of life and death, The imposition
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and” execution of the sentence of death under such circumstances
violates petitioner's rights guaranteed by the Fourteenth
Amendment to the Constitution of the United States, and fections
2-101, 2-111 and2-114 of the 1976 Constitution of the State of
Georgia.
(15) Petitioner's trial jury did not constitute a
representative cross-section of the community and was incapable
fof reflecting contemporary community attitudes regarding the
| appropriateness of the penalty of death in petitioner's case,
'vecdise all persons with conscientious i religious scruples
against capital punishment were systematically excluded in
violation of petitioner's rights guaranteed by the Sixth, Eighth
and Fourteenth Amendments to the Constitution of the United States,
‘and Sections 2-101, 2-111 and 2-114 of the 1276 Constitution of
lene State of Georgia. A copy of the relevant portions of the
terial transcript are attached hereto as Exhibit A,
| (16) Petitioner's trial jury was unrepresentative
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‘and biased in favor of the prosecution on the issue of petitioner's
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guilt or innocence of the crime with which he was charged, in
‘violation of his rights guaranteed by the Sixth and Fourteenth
‘Amendments to the Constitution of the United States, and |
iSections 2-101, 2-111 and 2-114 of the 1976 Constitution of the
i
state of Georgia.
(17) The Court's failure to adequately instruct
N{utors with conscientious and/or religious scruples against
‘capital punishment of their duty to subordinate their personal
| views and to abide by their oath as jurors, and to inquire
further into their beliefs prior to excusing said jurors
llcontravened petitioner's rights guaranteed by the Sixth and
‘Fourteenth Amendments to the Constitution of the United States
‘and Sections 2-101, 2-111 and 2-114 of the 1976 Constitution of
the State of Georgia.
(18) The introduction into evidence of petitioner's
post-arrest statement to police obtained after and as a direct
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result of his arrest without a valid warrant and without
probable cause, violated petitioner's rights guaranteed by the
Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution
of the United States, and Sections 2-101, 2=)1l and 2-113 of
the Constitution of the State of Georgia,
(19) Petitioner's post-arrest statement to
Atlanta police was involutarily extracted from petititioner
by promises and threats made to petitioner after Atlanta police
had made him aware of the highly emotional context within which
they were conducting the investigation into the death of one of
their fellow police officers. In this context, petititioner
was incapable of either maintaining his right to silence or of
making ’ Voluntary, knowing and intentional waiver of his rights.
Introduction of his statement into evidence under such circum-
stances violated netitioner's rights guaranteed by the Fifth,
Sixth and Fourteenth Amendments to the Constitution of the United
States and Sections 2-101, 2-111, and 2-113 of the 1976 |
Constitution of the State of Georgia. |
(20) The State's failure to disclose its arrangement
made with a police agent or informer, who testified at trial and
who was not prosecuted for an outstanding escave charge because
of his cooperation and testimony, violated petititicner's rights
guaranteed by the due process clause of the Fourteenth Amendment 3
and Sections 2-101 of the 1976 Constitution of the State of |
Georgia.
(21) The deliberate withholding from petititioner
of a statement by defendant, allegedly made to a government
agent or informer while petitioner was incarcarated and awaiting
trial, denied petitioner due process rights guaranteed by the
due process clause of the Fourteenth Amendment to the United
States Constitution and Section 2-101 of the 1976 Constitution
of the State of Georgia.
(22) Prior to trial, the petitioner filed a motion
to proceed in forma pauperis and to have benefit of appointed
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experts to prepare his defense, including an investigator to
contact potential witnesses. Less than three weeks prior to
trial, the State listed 96 additional Vivhesses which it might
call at the trial. The Court's failure to permit petitioner to
proceed in forma pauperis and to appoint experts and an investi-
gator contravened the petitioner's Fighth and Fourteenth
Amendment rights and Section 2-101 and 2-114 of the 1276
Constitution of the State of Georgia.
(23) Prior to the commencement of the petitioner's
trial, the State exhibited petitioner and co-defendants, along
with one other person,in a highly suggestive display in the
jury box surrounded by Sheriff's marshals. State witnesses who |
had not previously identified petitioner ‘by photograph or in |
persondid so during their observation of petitioner (the only
light-skinned person) in the jury box. This display of
petitioner, without advice of counsel, and the subsequent
tnsvodaceion of witness identification testimony tainted by
the procedure, violated petitioner's rights guaranteed by the
Sixth Amendment to the United States Constitution and Sections
2-101 and 2-111 of the 1976 Constitution of the State of Georgia.
(24) The trial court's instructions to the jury on
presumptions of mental states which were elements of the offense
at the guilt-innocence phase of petitioner's trial violated his
rights against conviction except upon proof beyond a reasonable
doubt of elements of the offense and shifted to him the burden
of persuasion upon issues relating to his mental state in
violation of his rights under the the Fifth and Fourteenth
i Amendments to the Constitution of the United States, and
i Sections 2-101 and 2-113 of the 1976 Constitution of the State
| of Georgia. A copy of the Court's instructions at both the guilt
and sentencing phase are attached hereto as Exhibit B.
(25) The Assistant District Attornev's knowing,
calculated and intentional direction to the jury during the
closing argument at the sentencing phase of petitioner's trial
“lw
that, in reaching their decision, they should pay particular
regard to the fact that the appellate courts had reduced
petitioner's life sentence on a prior conviction, violated
petitioner's rights under the due process clause of the Fourteenth
Amendment to the Constitution of the United States, and Sections
2-101 and 2-111 of the 1976 Constitution of the State of Georgia.
A copy of the trial transcript relevant hereto is attached as
Exhibit C.
(26) At the trial of the defendant for the murder
of Officer Schlatt, the State introduced into evidence, over
defence counsel's objection, testimony from several witnesses
regarding defendant's alleged participation in other robberies
not <¢locely connected in time or manner to the Dixie Furniture
Store robbery, and for which defendant had been neither indicted
nor tried. The trial court permitted the State to introduce
such evidence without prior showing of the probative value of
the evidence, and without reguiring adequate proof that peticiones
had engaged in such independent acts. Further, the trial court |
gave the jury no instructions with respect to the State's burden
of showing defendant actually participated in the other acts, and
gave the jury an overly-broad instruction as to the use the |
jury could make of such evidence. The admission of such
evidence of independent acts, and the failure to give proper
limiting instuctions when admitted, 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 Georgia.
A copy of the Court's instructions to the jury are attached |
hereto as Exhibit D.
(27) At the guilt phase of the jury's delibera-
tions, the trial court gave the jury overly-broad instructions
with respect to the use which the jury could make of the evidence
of independent acts of crime, and those instructions contravened |
the petitioner's rights guaranteed by the due process clause
of the Fourteenth Amendment and Section 2-101 of the 1976
er
Constitution of the State of Georgia.
(29) Georgia statutory privisons and actual
practices governing appellate review of death sentences:
(A.) deny petitioner the effective assistance of counsel;
(B.) deny petitioner a fundamentally fair hearing and
a reliable determination of the issue of life or
death; and
(C.) deny petitioner the effective assistance of counsel
and the basic tools of an adequate defense and
appeal because of his indigency,
all in violation of his rights guaranteed by the sixth, Eighth
and Fourteenth Amendments to the Constitution of the United
States and Sections 2-101, 2-109, 2-111 and 2-114 of the 1976
Constitution of the State of Georgia,
(30) The means by which the death penalty will be
administered to petitioner inflict wanton and unnecessary
torture and torment upon him, in violation of his rights
guaranteed by the Eighth and Fourteenth Amendments to the
Constitution of the United States, and Sections 2-101 and 2-114
of the 1976 Constitution of the State of Georgia.
(31) Petitioner's conviction and the imposition
upon him of a sentence of death violate the Sixth and Fourteenth
Amendments to the Constitution of the United States and sections
2-101 and 2-111 of the 1976 Constitution of the State of Georgia
because petitioner was denied the effective assistance of |
counsel at his trial. Counsel failed to contact witnesses,
failed to seek a continuance when necessary to adequately
prepare for trial, failed to object to improper instructions
to the jury, failed to object to improper arguments to the
jury, and failed to adequately prepare and present evidence
at the sentencing phase.
Va. . previous Proceedings That
* Petitioner Has Undertaken
To Secure Relief From Conviction
(32) Except as set forth in paragraphs 5-8 of
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this petition, petitioner has undertaken no other proceedings
to secure relief from his convictions and sentences.
VI. Necessity for a Stay of Fxecution
(33) Petitioner was sentenced to death, and on
December 19, 1980, the Superior Court of Fulton County set the
date for his execution for January 8, 1981. Petitioner faces
irreparable injury if his execution is not stayed.
VII. prayer
(34) WHEREFORE, PETITIONER RESPECTFULLY REQUESTS:
(A.) that this Court forthwith issue an order staying
petitioner's execution pending final disposition of this matter; |
(B.) that a writ of habeas corpus be directed to respon:
dents;
(C.) that respondents be required to appear and ansver
the allegations of this petitions
(E.) that, after a full and complete hearing, petitioner
be relieved of the unconstitutional convictions and sentences |
of death imposed on him;
(F.) that petitioner be allowed such other, further and
alternative relief as may seem just, equitable and proper under |
the circumstances, and
(G.) that petitioner be allowed to file this petition
without prepayment of costs, and to proceed in forma pauperis.
Respectfully Submitted,
rt Fug
FOBERT H. STROUP
1515 Healey Building
57 Forsyth St. N.W.
Atlanta, Georgia 30303
JACK GREENBERG
JAMES M, NABRIT III
JOHM CEARLES BOGER
10 Columbus Circle
New York, New York 10012
ATTORNEYS FOR THE PETITIONER
i le i rs al ih
pa AER oat pAb ne ae he te ac pat hot eo. Solidi daa Le. tin hues
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THE CLERK: Miss Barbara J. Heston
THE JUROR: I work for pavison's Department Storeo
I am & marker.
BY MR. PARKERS
| ¢ How long have you heuon with Davison's?
| A About eight years.
|
| Ly And vou do what with them, a marker, you say?
A Yes,
| XQ Is that pricing merchandise?
| A Yes. |
¥; Have you ever been married?
| A HO.
Q dave you ever been called for jury duty before?
| A Yes.
i ¥; Have you ever served?
1A
i A Yes,
i Q Civil case, criminal case?
A I guess it was criminal.
iS; Pardon?
A I think it was criminal.
QO was it where someone was charged with a crime?
A It was a misdemeanors
Q A misdemeanor? |
A I think it was.
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"EXHIBIT A"
NIT No Se TA
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Q Are you from the Atlante area?
A row I live here in Atlanta.
Q Where were you raised?
A In Fayette County.
Q How long have you been in Atlanta?
2s About sevan Years.
; Do you regularly attend church?
A Yes,
Q bo you mind telling me which one? You don't have
to.
A Oi, yes, Pentecostal.
Q low, Miss Weston, ave you conscientiously opposed
to capital punishment?
A Yes,
Q Your opposition towards capital punishment, would
that cause you to vote against it regardless cf what the facts
Pi of the case night ba?
A Yes, I would say so, because of the doctrine of our
church. We have a manual that we go LY o
GQ Does your church doctrine oppose capital punishment?
A Yess
-Y 80 you would oppose the imposition of capital
punishment regardless of what the facts would be?
A Yes.
€ you would not even consider that as one of the
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alternatives?
A No, I wouldn't.
oHE COURT: Mr. Turner, any questions you want to
: ask?
KR. TURHER: NO guestions from Mme.
wil COURT: Miss Weston, I will excuse you from
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this case.
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MB, TUEEER: I have an chijection to thato She hag
a right to sit on the case regardless of what her attitude
ig. If the learned prosecutecr wants to use one of his
strikes to strike ber, 1 think that would be proper.
have seen nothing that says she can’t sit.
oHE COURT: The Court is not passing on the attitude,
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f am taking it on what she said. Do either one of you
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have any law you want to submit to me in this regara?
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MR, TURNER: 1 have no law at hand right now. All
I can say is 1 have heavd nothing that she said to indicate a lack of ability to sit as a juror. If the Court excuses
|| ign her, I would like tc note for the record my objection at
this time,
mug COURT: Yes, sir. Hiss Weston, I will excuse
you, and 1 suggest you go to lunch and report Back to the
jury room on the fourth floor at five minutes of two. Ee
gure and tell them when you yet back where vou have been
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and report back there in an hour.
(Whereupon, the Juror wae excused from Che courts
LOO )
wii CLEKK: Robert C. Sears.
THE JUROR: Chief building inspector of Fulton
County,
BY MR, PARKER: *
GC Where is your office located?
A 7n the Fulton County Administration Building.
Q The building back benind us?
A Yes, sir.
| Q And how long have you been with the County?
| A Four years.
Q Four years?
A Yes, sir.
GQ what did you do prior to that?
A 1 was an engineer at Lockheed Georgia Company,
Poy | electronics engineer,
Q For a good number of years?
A Ten YeHATS.
| Q And how about before that, sir?
: & U.S. Alr Force for twenty-four years.
| 0 pid you retire from the U.S. Air Force?
A Yes, sir.
G What did you do with the Air Force, gir, were you
-G
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3 Okay. Have you read or heard anything about the
Gixie Furniture Store holdup and the officer who was shot in
that occurrence?
A No, Sire.
HR. TURMERs No further questions.
THE COURT: Nrs. Lutton, don't discuss thls case
with any of the other jurors in any way. You nay go to
the jury room. Thank you, maa
(Whereupon, the juror was excused fron the courte
rOOR )
THE CLERK: Hrs. Emma T. Cason.
THE JUROR: I work for Evelyn Ellis Mailing Servicej
direct mailing service in the Rhoedegs-Haverty
Building.
BY HR. PARKERS
Q And how long have you worked for them?
A Oh, ten or fifteen years. I work part-time, 1
don't work all the time. It's kind of a seasonal thing.
¢ and what does itr. Cason do?
A Be is retired from the Department of Argricultureo
0 and what did he 40?
A U.S. Government, What did he do?
¢ Yes.
rag re - ul E fle = Bi LAP J Rie arto dl ati A 450 eo
A lle was a statistician, clerk.
Q Do you have children?
A Yes, I have two boys,
Q Their ages?
A Their ages?
Q Yes, ma'an,
A Twenty=six and thirty-one.
0 Are they both married?
A Bo, one single and one married.
GC Both on their own?
A Yes,
Q Have you served on jury duty before?
A No, I haven't.
Q Have you ever been called before?
A One time.
4; Mrs. Cason, are you conscientiously opposed to
capital punishment?
A Yas.
Q You are?
A Yas.
Q If you had two alternatives in a case as far as
penalties go, that is, irposze the death sentence or life
penalty, could you at least consider the imposition of the
death penalty?
A 1 don't think s0, no. I would have to say no.
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Q Under any circumstances you would not consider
it?
A Ho.
Mk. PARKER: Thank you.
THE COURT: Any questions?
HE. TURNER: Ho questions.
THE COURT: HMrse. Cason, I will excuse you and let
you return to the jury assenbly roo@ on the fourth floor.
| (Whereupon, the jurcr was excused from the courte
roOf, )
MR. TURNER: For the purposes of the record, again,
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| 1 would note the objection I made in the last similar
| situation and would renew it at this time insofar as this
| particular juror is concerned,
| HE COURT: Yes, gir.
THE CLBRK: MES, Lorothy W, Smitho
| THE JUROR: Dorothy Smith, Motor Transport, City of
| Atlanta.
BY ME. PARKDRS
Q Mrs. Smith, could you be a fair and impartial juror
in this case?
A tes.
GQ are you conscientiously opposed to capital puinish=
ment?
-130G~-
Es ga TIL SEEING RR RS RR
‘® »
GUILT CHARGE
Ladies and gentlemen, it is now the duty of ‘the Court
to charge you the law that you are to take and apply to the
facts as you find the facts to be in this case. isi
iow, this case reaches us by reason of an indictment
returned by the Crand Jury of this County charging this
defendant and three others with the offense of murder, and
two separate counts of arsed robbery.
To those alleged offenses Mr. MeClesky has filed his
plea of not guilty, and you will see that on the indictment,
on the back of the indictment.
How, the indictment nor the plea, neither of them ave
evidence, but they will be in the jury room with you becsuse
they frame the issues which you will be called upon to
decide in this case, that is, the guilt or innocence of this
defendant of one or more of the alleged crimes charged
against him.
iow, I am not going to read the indlctaent to you, it
sets forth three separate charges. Count Une charges the
defendant on trial with the offense of uurder; Count Two
charges the defendant on trial with the offense of armed
robbery and it says and uses the tern bailee, and that neans
one who 1s holding tiie noney for another, that charges hin
viitn the armed robbery of the manager of the furniture stove;
and Count Three charges him with the armed robbery oi another
-987~-
"EXHIBIT B"
NL
individual of an autcmatic pistol.
The indictment will be in the jury room with you and
the plea of not guilty on it. Since that frauwes the issues
which you will be called upon to decide, you look at the Tae
indictment as many tines as you need to to see what the
defendant on trial is charged with. I will not take your
time to ruad it because it speaks for itself.
Bow, to that indictment, as I told you, the defendant
filed his plea of not guilty, and he has pled not guilty LO
all three counts,
iow, the defendant enters upon the trial of this case,
of all three charges set forth in the indictment, with the
presumption of innocence in his benalf, and that presumption
remains with him throughout the trial of the case unless and
until the State introduces evidence proving the defendant's
guilt of one or more or all of the charges beyond a reason-
able doubt.
The burden rests upon the State to prove the case by
proving the material allegations of each count to your
satisfaction and beyond & reasonabla doubt. In determining
whether or not the State has carried that burden vou would
conaider all the evidence that has been introduced here
before you during the trial of this case.
How, I am about to define reasonable doubt for you,
although I don't think it needs any definition. It means
-9g8-
exactly what those two words imply, a deubt founded upon
reason and for which a reason can be giveno
* » reasonable doubt may arise out of a consideration
of the evidence or from a lack of or insufficiency of the
evidence, A reasonable doubt is not a vague or conjectural
doubt, it is not an imaginary or arbitvsry doubt,. it is nog
a capricious or fanciful doubt, neither does it wean a
vossibilicy that the defendant may be innocence, but as the
Court has pointed cut to you, a reasonable doubt is a doubt
which is founded upon reason and cne for which a reason can
be given.
tow, while the law reguires the State to prove a
defendant's guilt beyond 2 reascnable doubt, yet the law
doug not require the State to prove a defendant's guilt to
an absolute or mathematical certalnty.
row, you ladies and gentlemen of the jury are wade by
the law of this state the sole and exclusive judges of the
credibility of the witnesses who have testified in this
case, and you are the judge of the weight to be glven to
their testimony. That applies to all the witnesses who
have testified in this case.
In determining their credibility you may consider all
the facts and clrcumstances of the case, You may consider
the witnesses! manney of testifving, his or her interest or
went of interest in the outcome of this case, their
wt 3 hai
intelligence, the means an opportunity that they nave had
for knowing the facts about which they testified. You nay
consider the nature of the facts to which they testified,
the probability or lmprobability of their testimony, and
their personal credibility insofar as that may legitimately
appear from the triel of this case,
tow, the law says, ladies and gentlemen, that if you
find there are conflicts in the evidence, it is your duty
to first try to reconcile those conflicts s0 as to make all
the witnesses speak the truth and so as to impute perjury
to none, hut the
says 1f you find
law in its wisdom goes one step further and
there is conflict in this testimony or this
evidence which cannot be reconciled, it then becomes your
duty to believe that evidence which is most reasonable and
Delievable and credible to you under all the facts and cire
cunstances as shown bv the evidence.
Now, I will charge you the law of impeachment, and by
charging vou this principle or any other principle of law
he Court makes no intimation as to what the facts are in
this case. I have told yeu in the middle of the trial that
you are the sole
case, and I told
judge to comment
it is not proper
and exclusive judges of the facts in this
you that the law doesn't allow a trial
on the evidence If it is in dispute, and
for a judge to do anything to indicate what
he thinks the jury's verdict should be. I have tried to
~990-
faithfully follow that law, and if I have given you any
impression otherwise, disabuse your mind of that. Don't
take any inflection in ay veice, any unconscious gesture
I might be guilty of or that I might make in this case as
an indication of what the Court wight think your verdict
or verdicts should be, because vou have tO return three
verdicts in this case. That would be doing by indirection
that which the law does not permit me to do directly, and
that would not be my intention.
how, the law savs to inpeach a witness is to show to
Of belief,
There are several ways in which a witness may be
impeached. A witness way be impeached by disproving the
facts testified to by him or her, or by proof of contradice
tory statements previously made by hin or her as to matters
relating tu bis or her testimony and to the case.
Mow, when & witness shall have been successfully con-
tradicted az to a material matter, his or her credibility
a8 to other watters shall be for you, the jury, to determine,
but 1f a witness shall swear wilfully and knowingly falsely,
you have the right, though not the duty, to reject his or
her testimony in its entirety, unless you find his or her
testimony to be corroborated by other unimpeached evidence.
In the final analysis, ladies and gentlemen, the
-991=-
‘’ »
welght and credit that you will give to any testimony is
for you, the jury, to determine, the credibility of the
witnessed belng always a matter solely in the province of
the jury, governed by the law given them in charge as to
that matter,
iI charge you that the opinion of experts on-any ques
tion of science, skill or medicine or like questions shall
be admissible if it relates to the subject matter of the
Investigation and if it relates to the subject matter of
hig or her expertise. Such opinions may be given on facts
as proven by other witnesses. The weight of such testimony
and whether its application te the proven facts is illus-
trative of a particular matter before vou is a question foy
you, the jury, to determine.
You are net bound by expert testimony, expert or othop-
wise, but you should consider it along with all the other
evidence and give it just such weight and credit as you
think it iz entitled to raceive.
How, ladies and gentlemen, there was certain evidence
that was introduced here, and I told you it was introduced
for a limited purpose, and I will repeat the cautionary
charge 1 gave you at that time,
I told you that in the prosecution of & particular
crime, evidence which in any manner tends to show that the
accused has committed another transaction, wholly distinct,
-992-
independent and separate from that for which he is on
trial, even though it ray show a transaction of the same
nature, with similar methods and In the game localities,
it fs adnitted into evidence for the limited purpose of ia
aiding in identification and illustrating the state of
mind, plan, motive, intent and scheme of the accused, 1£,
in fact, it does to the jury so do that.
You, whether or not this defendant was involved in
such similar transaction or transactions is a matter for
you to determine. Furthermore, if you conclude that the
defendant was involved in this transaction or these trans-
actions, you should consider it solely with reference to
the mental state of the defendant insofar as it is applicable
te the charges set forth in the indictment, and the Court in
charging you this principle of law in nO way intimates whethe
such Sr ansotion or transactions, if any, tend to illustrate
the state of mind or intent of the defendant or aids in
identification, that is a matter for you to determine.
low, I will define for you what the law means by a
conspiracy. A person is involved in a conspiracy to comnit
a crime when he, together with one or more persons, conspires
to commit any crime, and any one or more of such persons
does any overt act to affect the object of the conspiracy.
To show a conspiracy 1 charge you that it is sufficent
that two or more persons in any manner positively or tacitly
-993=~
™
come to a mutual understanding that they will accomplisn
an unlewful design or erviminal act. Anvong, atter a
conspiracy is formed, wine knows of its existence and
FUrLOses, ang joins tnerein, becomes ag much a party theret
as if he had been an original member.
how, the same theory of law is expressed gsomawhat
differently in the criminal code under the teading of
Parties to a Crime. That statute says that every person
concerned in the commission of a crime is a party thereto
and pay be charged with ang convicted of commission of the
crime, and then it has several subsections, It says that
& person is concerned in the commission of a crime oniy if
he directly commits the crime, intentionally aids or abets
in the commission of the crime, or intentionally advises,
encourages, hires, counsels or procures another to commit
tie crime,
How, I charge you that in a felony case the testimony
of an accomplice or co-conspirator must be corroborated,
and the testimony of a co-conspirator is not in and of itself
sufficient to sustain a conviction unless such testimony is
corroborated by other competent evidence which you believe,
The corroborating evidence should be independent of
nis testimony to lead to the inference that the defendant
is guilty, if it does. Facts which merely cast a grave
suspicion of quilt on the defendant are not sufficient.
-994~
® »
Now, as I sald earlier to you, ladies and gentlemen,
in a criminal case such as the one we are trying now where
ong is charged with a violation of the criminal statute,
CRIBS
you are made both the judges of the law and the facts. The
Fn
facts you obtain from the evidence produced to you through=
out the trial, and the law you obtain from the Court as
given vou in charge.
lige) 2 Court instructs you that any verdict you may
render in connection with the matter now before you for
consideration should be arrived at from those facts as you
find them to be, applying to those facts the law given you
in charge by the Court,
How, I will charge you the law -as Lt deals with cone
fessions., It is your duty to consider the evidence submitted
to you and determine whether or not this defendant has nade
a confession of his guilt to a crime or crimes charged in
this indictnent,
For a confession to be aimisaible it must have been
freely and voluntarily made, that is, without being induced
vy the slightest hope of benefit or the remotest fear of
injury.
It you £ind that a confession has been made by the
defendant, you would then decide whether or not it was nade
freely and voluntarily. If a confession was not freely and
voluntarily made, vou would ignore it and disregard it
-~995=
entirely and determine tlie guilt or innocence of this
Gulentiont from the other evidence in the case.
I£, on the other hand, you find that there was a
REG PS 2
confession, and that confession wag voluntarily made, it =
would then be your duty to determine the truth or reliability
of the confession and afford {t just such welght and credit
as you find it should receive.
“he lav saves that all confessions of guilt should be
scanned with care and received with great caution, A cone
fession alone, uncorroborated by any other evidence, shall
v a conviction. not justify
Bow, in every criminal prosecution, ladies and gentle
men, criminal intent is & necessary and material ingredient
thereof. To put it differently, a criminal intent is a
raterial 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 deal=
ing with intent, and 1 will tell you how the last section
uplies 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 dis-
cretion is presumed to intend the natural and probable
consequences of his acts, but both of these presumptions
may be rebutted,
1 charge you, however, that a person will not be
presumed tO act with criminal intention, but the second
code section says that the trier of facts may find such
NM
intention upon consideration of tne vords, conduct, AeneancT
motive and all other circumgtances connected with the act
for which the accused is prosecuted,
tow, that second code section I have read you has the
term the trier of facts. In this case, ladies and gentlemen,
ycu are the trier of facts, and therefore it is fox you, the
jury, to determine the question of facts solely from your
determination as to whether there was a criminal intention
on the part of the defendant, considering the facts and
circumstances as disclosed by the evidence and deductions
which might reasonably be drawn from those .facts and circum
stances.
Now, the defendant in this case has introduced evidence
tending to show that he was not present at the time and
place during the commission of the elleged offenses for which
he is charged,
I charge vou that alibi as a defense invelves the im-
possibility of the accused's presence at the scene of the
offense at the time of its conmission, and the range of
evidence in respect to time and place must be such as to
reasonably exclude the possibility of presence of the
cefendant.
-997~
ir Bane oe gy ey
@ "
I charge you that if after consideration of all the
evidence you have a reasonable doubt that the defendant was
bresent at the tine the crime was committed, he is entitle
tiow, the offense charged in Count One of the indictment
is murder, and I will charge you what the law saya about
murder,
I charge you that a person commits murder when he
unlawfully and with malice aforethought, either express ov
implied, causes the death of another human being. Express
malice is that deliberate intention to take away the life
of a fellow creature which is manifested by external cire
cumstances capable of proof. Malice shall be implied vhen
no considerable provocation appears and where all the cive
cumstances of the killing show an abandoned and malignant
heart. %hat is the language of the law, ladies and gentle
men, |
I charge you that legal malice is not necessarily {lie
will or hatred. It is the intention to unlawfully kill a
human being without justification or mitigation, which
intuntion, however, must exist at the time of the killing
ag alleged, but it ies not necessary for that intention to
have existed for any length of time before the killing,
In legal Contant ation , a man may form the intention
to kill a human being, do the killing instantly thereafter,
-99§~
and regret the deed as soon as it ig done. In other words,
rnurder is the intentional killing of a human being without
justification or witigation.
Wow, [ also charge you what the law says about the a
offense of felony murder, Before I get Lo that, BOWOVOL
let me finish my charge on murder.
I charge you 1f vou believe beyond a reascnable doubt
that at any time before this bill of indictment was returned
by the Grand Jurors named therein, that this defendant on
trial did kill the person named in the indictient in the
manner as alleged, and that this killing was with malice
alorethought, either express or implied, and further, that
the intent to kill such person was present as a necessary
ingredient to such 47
4 crime, then you would be authorized to
find the defendant guilty of murder as charged.
Cn the other hand; if vou have a reasonable doubt as
to the defendant's quilt of the offense ¢f murder as charged,
it would be your duty to give him the benefit of that doubt
and acquit hin insofar as the charge cof murder is concerned.
tow, ladies and gentlemen, I charge you that if you
find beyond a reascnable doubt that the defendant committed
the homicide alleged in this bill of indictment at the time
he was engaged in the commission of a felony, that is, an
armed robbery, you would be suthorized to find him guilty
of felony nurder,
-999-
(@ »
How, a person commits armed robbery when, with
intent to. .cowmit theft, he takes the property of another
from the person or the immediate presence of another by
use of an offensive weapob.
(Ea
In this connection I charge you that in order for a
homicide to have been done in the perpetration of this
particular felony, that is, armed robbery, there must have
been sone conhection between the felony and the homicide.
The homicide must have been done in pursuance of .the unlaw-
ful act and not collateral to it, The honicide is committed
in the perpetration cf a felony when it is committed by the
accused while he is engaged in the performance of an act
required for the full exscuticn of such a felony.
I charge you if you believe and find beyond a reason—
able doubt that the homicide alleged in this indictment was
caused by the defendant while he, the said accused, was in
the commission of an armed robbery, the definition of which
I have just given vou in charge, you would be authorized wo
convict the defendant of murder, felony murder, and this
vou would De authorized to do whether the defendant intended
to kill the decessed or not,
A homicide, though unintended, committed by the accused
at the time he is engaged in some otner felony constitutes
telony wurder.,
Now, ladies and gentlemen, I instruct you that
1f you should £ind the defendant guilty cof murder as
-1000-
I have defined the vffense of murder to you, it would be
vour duty to specify to the Court wheather you find the
defendant guilty of malice murder or felony murder, and FT
ro
the Court in this instruction wakes no intimation on what
your verdict should be but is merely instructing you as to
the law.
Now, going to che second and third counts of the indict-
ment, I charge you that the second cffense charged in the
indictment is that of armed robbery, and I have already
defined it for you once, but I will do it again to make it
a complete Charge.
A person commits armed robbery when, with intent to
commit thuft, he takes the property from ancther or the
immediate presence of another by the use of an offensive
Weapon .
If you believe heyond all rvasonable doubt that this
defendant at any time within seven years immediately pre-
ceding the date of this indictment, the date it was returned
by the Crand Jurors named therein and filed in this court,
that the defendant did commit the offense of armed robbery
by taking the property described therein from the person or
immediate presence of the person named in Count Two of the
indictment, and further, if you believe that the defendant
used a pistol, an offensive weapon, in the commission of
this offense, then in zuch event you would be authorized to
-150]1=
find the defendant guilty of armed robbery as charged in
count Two.
In the event you should entertain a reasonable doubt
#8 to his guilt as charged in Count %Swo, it would be your
*
- Pi
e duty to give hin the benefit of that doubt and to acqgu
him, and the sane law would arply as to Count Three which
charges armed robbery also. |
How, ladies and gensienen, there are three counts in
this indictment and it will be necessary for you to have a
separate verdict on each count.
Az I do in ail cases, I had py secretary prepare a
form verdict for you. It gives the name of the court at
the top, the name of the case, (he State vs. Harren HoClesky,
it gives the indictment number and what is charged in the
indictment.
The forms says verdict of the jury. As to Count Ome
of the indictment, which is the cffense of nurier, we, the
jury, find, and if you find the defendant not guilty, just
put not guilty. If you find him guilty of murder, that is,
malice murder, say malice curder. If you don't find hin
guilty of malice murder and you find hin guilty of felony
murder, you would put, we, the jury, find the defendant
guilty of felony murder.
How, those are the only three possibilities that vou
have as to Count Che, not guilty, or guilty of murder as
_lUuyle
alleged in the indictment, that is, malice nurder, or
three, guilty of felony nurder,
Now, by repeating those things I am not trying to
An TR
¢
influence you as to what your verdict should be. but it is
necessary that you be precise as to what your verdict is as
to Count Cne.
As to Count Two of the indictment, which: the offense
of armed robbery against Ronald Warren Dukes, the form says
we, the jury, find, and there is another two blanks. If you
tind the defendant not guilty or if you have a reasonable
doubt, as I have defined that tern for you, as to the
defendant's guilt of Count Two, put not guilty.
On the other hand, 1f you believe beyond a reasonsble
doubt that he is guilty as charged in Count Two, then you
would merely have to put guilty as charged, ov something
like that.
As to Count Three of the indictment, which is the
cffense of armed robbery against George A. Malcom, the
form says we, the jury, find the defendant, and again
there are blanks, and be sure that your verdict speaks
what your findingz are in regard to Count ‘three, and then
the form says this blank day of blank, 1978, and then it
hag another blank line, and beneath that is the word
"foreperson®,
tow, be sure that you meke clear what your verdict
RT AY, 098 IES PA Fea i ET a ETA Fr
is as to Count One, as to Count %wo and as ¢o Count
Three, and pe sure you date vour verdick, and aiso be
sure that the person chosen by you as the forepevson of
this jury does, in fact, sign the verdict, and then you To
will return into open court and the verdicts, whatever they
are, will be published az provided by law.
vow, there is just one more principle I want to chargs
vou on, and it won't take me but a minute, but I ask you to
oe patient.
Whatever your verdicts are, ladies and gentlemen, thay
must be the verdict of all twelve jurors. Hotwithstanding
anything you have read or heard to the contrary, there is no
provision under Georgia law for a majority verdict. Along
with that I want to charge you in regard to the raguirement
that your verdicts be unanimous,
Ho juror is required to surrender his or her honest
opinion because of an honest different opinion of another
juror or other jurors for the purpose of reaching a
unanimous verdict,
Jurors should consult with one another and deliberate
with a view to reaching a unanimous verdict consistent with
their conscience and oaths as jurors,
Each juror must make an individuel decision, but only
efter a fair and impartial consideration of the entire case
with their fellow jurors.
-10C4-
A Juror should not hesitate to reexamine his or her
opinions Or views {ff after a fair and impartial delibera-
tion with tie other jurors that juror is convinced that he
or she should change his or her views or opinions, = F&F vadig
rvery effort consistent with the instructions that
the Court has given you and with vour conscience and cvaths
as jurors should be fairly and honestly made to reach a
unanimous verdict as to each of the three counts set foreh
in the indictment,
In submitting this case to vou, ladies and gentlemen,
I will close by saying this. This case must pe decided by
some jury selected in the same manner you were selected,
and there is no reason to believe that a better gualified
jury would ever be selected,
I submit the matter to yeu for vour deliberations.
When you have reached your verdicts, activate the light
over the jury room door and we will bring you back into
open court and have your verdicts published as provided bw
How, will the alternate juror stay in the courtroom
just a mcument and I will give you some separate instuctions.
(Whereupon, the jury retired from the courtroom at
4:10 o'clock, P.i., after which the followiixy proceedings
were had.)
THE COURT: #r. Alternate, I don't know anvthing more
-lU05-
SENTENCING CHARGE
Ladies and gentlemen, you have found the defendant
guilty of the offense of malice murder, and it is now your
wie fom
duty to determine within the limits prescribed by Tay the
penalty which shall be imposed as punishment for that
offense,
Under the law of this state every person found guilty
cf murder shall be punished by death or Ly confinement in
the penitentiary for life,
I charge you that in arriving at your determination
you must first determine whether at the time the crime was
committed either of the following aggravating circumstances
was present and existed beyond a reascnable doubt; one, that
the offense of murder was committed while the offender was
engaged in the commission of another capital felony, to wit,
armed robbery; and two, the offense of murder was committed
against any peace officer, corrections employee or fireman
while engaged in the performance of his official duties.
liow, if you £ind one or both of these aggravating
circumstances existed beyond a reasonable doubt, upon con=-
glderation of the offense of murder, then you would be
authorized to consider imposing a sentence of death relative
to that ctfense.
If you do not find beyond a reasonable doubt that one
Of the two of these aggravating circumstances existed with
-1027~
reference to the offense of murder, then you would not
be authorized to consider the penalty of death, and in
that event, the penslty imposed would be imprisonment for
TE
life as provided by law.
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.
You should consider the facts and clroumstances in
mitigation, Mitigating circumstances ave those which do not
constitute a justification or excuse for the offense in
question, but which in fairness and wercy may be considered
as extenuating or reducing the degree of moral culpability
or blane.
In the event that your verdict ig life imprisonment,
you would add to the verdict already found by vou an addi
tional verdict as follows, aml we fix his punishment as
life inprisonment,
If you find one or two of the aggravating circumstances
submitted for your consideration beyond a reasonable doubt,
this also should be set forth in your verdict. State what
aggravating circumstances did exist and then you would add,
if you do sco find beyond a reasonable doubt, "And we 2ix his
punishient at death.”
Low, it is not nendatory that vou impose the death
-lU28=-
penalty even if you should find one of the aggravating
circumstances does exist or did exist. You could only
inigose the death penalty if you do find one of the two
Ele LE IA
statutory aggravating clrcumstances I have submitted to
kh you, but if you find one tc exist or both of them to
exist; it is not mandatory upon you to impose the death
penalty.
how, once you have written your verdict, dated it and
had your foreperson sign it, activate the light and we'll
bring you back in court and have your verdict published as
provided by law.
Now, ladies and gentlemen, I am going to submit to you
this time a form that just gives the name of the court, the
nama of the parties, the indictment number and says verdict
of the jury, we, the jury, find as follows, and then you
will £111 it out and date it and have it signed by your
foreperson.
how, you may retire and begin your deliberations,
(Whereupon, the jury retired from the courtroom at
6:36 o'clock, P.M., after which the following proceedings
were had.)
THE COURT: Gentlemen, do either of you have anything
to say about whether I should submit in writing the matters
in the statute that list the aggravating circumstances, or
do elther of you think I ought to submit the two in writing?
=1U0Ll9-
AR
should be
MEe
THE
it before,
All
fhe
PARRKERs X believe the two the Court charged
sulnsitted in writing.
and I
right,
be] Ceupon, a
All right ®
I will
I
pEY
De
1 agree with that, Your lonor.
t is the way 1 have done
will do i¢ thet way thig time.
in chambers.
recess was taken for the jury's
deliberation upon thelr verdicts.)
THE COURT: All right, bring the jury in.
(Whereupon, the jury returned to the courtroom at
$316 o'clock, P.M., after which the following proceedings
were had.)
“HEE COURT: Hr, Foreman, has the jury reached a
verdiet?
CHE JURY FOREMAN: Yes, we haves
THE COURT: If you will hand it to the sheriff, he will
publish it.
Mik.
circumstances for the count of murder; one,
PARKERS
give it to the Assistant District Attorney and well let him
we, the jury, find as follows: We fix
the penalty as death, pased on the following two agyravating
the offense of
murder was committed while the offender was engaged in the
commission of another capital felony; two, the offense of
murder was committed aginst any peace officer, corrections
-1030-
~»
3
—
—
d
kn
’ re
4
» fo ,
UROGH Go
THE CLERK: Were these your verdic
HE CLEK¥: Are these now your verdicts? RR
ol JUBOR: Yes,
THE CLERK: John NB. asbernathy, Jr
Were these your verdicts?
THE JUEKEGR: Yes.
£
THE CLERK: Were these your verdicts in the jury room?
THE JUROR: Yes
THE CLERK: Are these now your verdicts?
THE JUROR: Yes.
“HE CLERK: That is the jury, sir.
THE COURT: All right Altarnace, since vou
weren't impaneled, I will excuse you now and thank you fou
serving.
All right, gentlemen, are you ready for argument?
Mile PARKER: The State
PRE COURT: Proceed.
MR. PARKFRR: Ladies and gentlemen,
is ready, Honor.
this is the
sentencing phase of this trial, and I expect the Court is
going toe charge vou a couple of points, that you can return
a verdict of life in prison or you can return a verdict of
death.
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"EXHIBIT C"
ipl a > ASIP WE | CE “ oa a Atiitatirna, smbe ig ag IR nm ean le A aii
"RRR MA Ey
: Now, to return a verdict of death you have to find
certain aggravating circumstances which the Court will
charge you. without finding those, of course, you cannot
i H LAR vel
return a verdict of death.
As the Court will charge you, 1 think, you have only
two alternatives. In actuality, you have a third alter-
native, which I will mention to you, but which the Court
will not charge vou,
If you should find that the defendant should serve
life in prison and vou just put life, life, life, the
courts of this state are going to construe that as just
cne concurrent life sentence, so if you want life to follow
life to follow life, which the Court is not golng to charges
you, you are going to have to specify that, That may sound
odd to you that I would ask you to do something the Court
is not going to charge you on, but if you decide to go that
route, I an not saying that is the way you should go, and ¥
arm not suggesting that to you, but I want that to be clear
to you,
If you find a sentence for this man of life for
murder, 1f you sentence him to life for armed robbery and
to life for the second armed robbery, and if you don't
specify how those ave to run, they are going to run together,
Now, 1f you want them to run any different way, you
are going to have to write on there how you want them to run,
-1017-
1f you want Count Two to follow Count One, you are going
to have to say that, and you are going to have to write
right on there, If you want Count Three to follow Count
TWO, you are going to have to write it on there,
I hope that is not confusing to vou,
tow, I expect the Court is going te charge you, howe
evar, two aggravating circumstances from the Georgia Crimins’
Code as follows, that the offense of murder wes committed
while the offender was engaged in the commission of anothew
capital felony, and that is, in this case two armed robberies.
The other aggravating circumstance that I expect the
Court te charye wou is that the offense of murder was
committed against any peace officer while engaged in the
perforiance of his official duties.
How, vou will have to find cone or both of those, or at
least one, before the death penalty could be inposed in this
case for the offense of wurder, anc I would suggest to you
at this time that 1{ you get back in the jury room and you
decide that the penalty of death is the appropriate sentence
in this case that you find both of those aggravating clrcum-
stances, that you don't leave any room for doubt as to What
vour intentions were, that is, malice murder was committed
while the offender was engaged in the cowrnission of anothur
capital felony, that is, the armed robbery, and also along
with thet, the offense of murder was committed against any
-1C01la-
ATR NT TT MC TN ATI TERY INN Op TR BMI Se 1 Sy er TNL NAS 1 I IMAC Rn NR IT A Spey
C | 3
8 — ET,
peace officer while engaged in the performance of his
duties, official duties.
tiow, what should you consider as you are deliberating
the second time here, and I don'k know what you are going see
to consider.
% would ask you, however, to consider several things.
Have you observed any venorse being exhibited during this
trial bv Mr. #McClesky? Have you observed any rencrse
exhibited while he was testifying?
Have you observed any repentence by Mr. MclClesky,
either visually as you lock at him now or during the trial
or during the time that he testified? Has he exhibited to
you any sorrow, both visually or during the time that he
wag testifying?
Have you seen any tears in his eyes for thi aad
ia
fe
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jo
Le has uone?
I would also ask you to consider the prior convictions
that you have nad with you in the jury room, and particularly
the one where he got three convictions, I believe if you
look at those PaparS carefully you are going to find, I
think, on one of those he got three life sentences to begin
with, and then there is a cover sheet where apparently that
was reduced to what, cighteen years or fifteen years or
something, which means, of course, he went through the
appellate process and somehow 1t got reduced.
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ricw, I ask you $0 consider that in conjunction with
tha 1ife that he has set for himself.
You knew, I haven't sct bis goals, you haven't set
Nis goals, he set hie own goals, and here is a man that's
served considerable periods of tine in prison for armed
robbery, just like Ben dright sald, you know, that is hie
Gi] srofession and he gets in safely, takes care of whe victino
although he may threaten them, and gets out safely, that iz
what he considers doing a yood job, but of course you may
not agree with him, but that is job safety.
I don't know what the Health, Education and Welfare
or whatever organization it is that checks on job safety
would say, but that is what Mr, Ben Wright considers his
responsibility.
Kow, apparently Br. McClesky does not consider that
his responsibility, so consider that, <The life that he has
set for himself, the direction that he has set his sails,
and thinking down the road, are we going to have to have
another trial sometime for another peace officer, another
corrections officer, or some innocent bystander who happens
to walk into a store, or some innocent person who happens
to be working in the store who makes the wrong move, who
makes the wrong turn, that makes the wrong gesture, that
moves suddenly and ends up with a bullet in thelr head?
“his has not been a pleasant task for me, and I an
A Yes, sir, I do.
Q And would you tell us?
A It came out of a Red Dot -Htore over on Edgewood
some place
store?
Q All right, sir. And how did it come out eof that
A During a rohbery.
MRo TURNER: All right. Your Honor, before we go
any further, I would ask the Court to admonish the jury
on your iimiting instruction.
THE COURT: All right. Ladies and gentlemen, in the
prosecution for a garticular crime, evidence which in any
manner shows or tends to show that the accused, that is,
the defendant in this cage, has committed another transe—
action, wholly distinct, independent and separate from that
for which he is on trial; even though it may show & trans-
action of the same nature, with sluilar methods, in sinllar
locations, it is admitted Into evidence for the limited
purpose of aiding in identification end illustrating the
state of mind, vlan, motive, intent and scheme of the
accused, if, In fact, it does to the jury illustrate those
matters,
low, whether or not thirg defendant was involved in
such ginilar transaction ls a matter for you to deterunine,
and the Court makes ne intimation in that regard.
wt 2% Le
"EX3IBIT D"
I TE Lh I MO A YY NR ap Spe mp gh AE,
* i nS EA PERL ALA Gi) 3 4 a FREE als Ba £ A! cil ,
Furthermore, if you conclude that the defendant
now on trial was involved in this similar transaction or
these similar transactions, you should congider it golely
with reference to the mental state or 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
vay intimates whether such sransaction, 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 ycu will consider it for no other purpose
except the purpose for which it is admitted.
All right, proceed.
G (By ¥r. Parker) Low, Kr. Wright, have I talked to
you about this other robbery?
A Yes, sir, you have,
0 Was your lawyer present at the time?
pi Yes, sir, he vere,
Q Are you officially charged with that crime at this
ig time?
A Hot really, no, sir.
Q that is your understanding concerning what penalty
you will receive for thet crime?
h Viell, I am to receive, if it's -- whatever time IX
receive for that crime, it will be run concurrent with the other
-674~
i
VERIFICATION
STATE OF GEORGIA
COUNTY OF FULTON
Comes now ROBERT H. STROUP, counsel for petitioner, and
states on behalf of petitioner, that the facts contained
herein are true and correct, to the best of his information
and belief.
This By day of January, 1981,
N. |
Jr ! py 2 Gerd ¥. Savy
NOTA ROBERT H, STROUD
E
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Sworn to and subscribed before
me this nd day of January, 1981.
Alper. TV Ferd? |
NOTARY PUBLIC | H
: Notary Public. Georgia, State at Large
My Commission Expires june 19, 18Fe
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- CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy
of the within and foregoing "Petition for Habeas Corpus"
and "Motion for Leave to Proceed In Forma Pauperis" upon the
Attorney General for the State of Georgia by mailing a copy of
same, first-class postage prepaid, to:
Arthur K. Bolton, Esq.
Nicholas G. Dumich, Esq.
132 State Judicial Bldg.
40 Capitol Square, S.W.
Atlanta, Georgia 30334
B
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This 5th day of January, 1981.
bent A 2
ROBERT H. STROUP |
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; 627
In the Supreme Court of Georgia
Decided: APK 0Y 1480 re
i, 35701; FAIR Vv. STATE
BOWLES, Justice.
: leith Fair, the appellant, pled guilty in the Superior Court
of Hall County to the murder of Jackie Morris. The trial judge
’
« after a two day pre-sentence trial, found the existence of two
statutory amgeava ting Sirbuns tances and imposed the death penalty.
The case is here on direct appeal.
This case involves two killings by appellant. The trial
Judge, as the finder of Tact, was authorized to find that the
first killing occurred in Habersham County as a result of a
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dispute over a money matter. Apparently the Habersham County
victim had hired appellant to burn a trailer for him and then did
not have the money to pay. In front of his other accomplices
including Jackie Morris, hereinafter the Hall County victim,
appellant shot the Habersham County victim at point blank range
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in the face, then threw him on the ground and shot him again,
laughing all the while. The body was disposed of in Lake Lanier.
APPENDIX B
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Later that night, appellant determined that the Hall County
victim would have to be killed as well since he had been a 'rat"
in prison. Appellant pretended to need help with a wheel on an
automobile and when the victim leaned over to hain, appellant shot
him in the head, laughing and saying, ''you wasn't nothing but a
rat you son-of-a-bitch no way, you pulled a knife on me when I
was thirteen years old and scared the hell out of me." The body
was placed in the car; the victim's throat was cut by another
accomplice; and the car was set on fire.
After his arrest, the appellant bragged about the killing of
the Hall County victim to other inmates. He also stated that
when he got out he was going to kill the other witnesses. In
conversation with other inmates he said that he was not Sorry
about the killing and did not lose any sleep over it. Appellant
escaped from jail with another inmate to whom he admitted both
killings. During the period he was a fugitive, he told the inmate
he escaped with that the victims were criminals like him and
deserved it but that he did not want to be shot because when he
shoots pcople they "squeal like it hurts." Appellant ‘was we-
captured within a day and a half.
IS eee
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£222 SE2d 308) (1976); Mason v, State, 236 Ga, 46 (222 SE2d 339)
1. The appellant attacks the constitutionality of the
Georgia Death Penalty Statute, Ga. Laws, 1973, pp. 159,
(Code Ann. § 27-2634.1) as written and applied. Both this
and the Supreme Court of the United States have upheld the
stitutionality of the Georgia statute in a number of cases
etl. seq.
court
cCon-
and
> 233 Ga. 369 (211 SE2d 517) (1974); Smith v. State,” 236 Ga. 12
= NL,
appellant has advanced no new reason for us to reconsider our
position. See Gregg v. Georgia, 428 U. 5. 153 (1976); Eberheart
v. State, 232 Ga. 247 (206 Sr2d 12). (1974); McCorquodale v. State
(1978); Birt v. State, 236 Ga. 815 (225 SE2d 248) (1976); Lepare
State, 243 Ga, 744 .(257 SE24 247) (1979). Appellant's First
enumeration of error is without merit.
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2. The appellant in his second enumeration of error argues
that the trial court erred in admitting evidence of the murder of |
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the Habersham County victim and relying upon that evidence in its
finding of one of the statutory aggravating circumstances warrant-
ing the death penalty.
Appellant was given proper notice that the evidence of the | Habersham County murder would be tendered in aggravation. At the
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. pre-sentence trial, his appointed attorney in the Habersham
County case advised appellant to assert his Fifth Ancndment privi-
lege as to any question concerning the first murder. However,
this in itself would not have prevented appellant from presenting
evidence in defense of the Habersham County murder before the
trial court in the instant case. The appellant had to choose
i which course to follow. Though a defendant may have a right,
I aven. a constitutional right to follow a. certain course of action,
| it does not necessarily follow that to require him to choose a
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course of action is constitutionally forbidden. Decisions as fo
"what course to follow in a criminal case are many times difficult. See McMann 'v. Richardson, 397 U. 8.739 (1970). The appellant
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+ contends that the evidence of the Habersham murder should not have!
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been introduced against him in aggravation because he had only
been charged with that murder, had not been convicted, but was
awalting trial ‘thereon. It is the rule in this state that it is
not required that a defendant be convicted of the crime introduced
as an aggravating circumstance. Hooks v. State, 233-Ga. 15}
(210 SE2d 688) (1974); Collier v. State, 244 Ga. 553 (261 SE2d 364)
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(1979). Appellant's reliance upon Code Ann, § 27-2534.1(b)(1) is
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misplaced in that the record clearly shows that the state relied
upon and the trial court found that the murder occurred during
the commission of another capital felony. Code Ann. § 27-2534.]
(b) (2).
Appellant further argues that the evidence was totally ir-
relevant and, therefore, inadmissible. We do not agree. The
<
first murder was committed within hours of the second. The
motive for the murder of the Hall County victim was to silence him
so he would not be able to testify against the appellant regarding
the first murder. The arson of the trailer, the murder in Haber-
sham County, the murder in Hall County and the arson of the car
in Hall County were all part of a continuous transaction and all
were mutually dependent crimes. Collins v. Srapd, 239 Ga. 45
(235, SE2d 523) (1977); Stewart wv. State, 239 Ga. 585 (238 SE24 540
(1977). lad the appellant plead not guilty and clected to go to
trial on guilt-innocence, the evidence complained of would have
been admissible to show scheme, motive, or intent. McClesky vv, -
State, 245 Ga. 108 ( SE2d 41930). - It, thercofore. follows
that such evidence was certainly admissible during the pre-
sentence trial in which additional evidence, not admissible
during the guilt-innocence phase, is allowed. Code Ann. § 27-2503
‘See, Splvey v. State, 24) Ga.. 477 (246: SE2d 288) (1978). Further-
. more, such evidence is not inadmissible on the ground that ic
places the defendant's character in evidence. During the pre-
sentence hearing, the State, subject to notice limitations, is
allowed to place the defendant's character in issue through his
prior record or other criminal acts. Code Ann.§§ 27-2503;
27-2534.1. A defendant in a capital case stands before the trial
court or jury in a pre-sentence trial a convicted felon with no
presumption of innocence. All aspects of his erie or crimes,
his character and his attitude are admissible, subject to the
applicable rules of evidence regarding reliability, to guide the
fact finder in determining appropriate sentence. See, Lockett v.
Ohio, eS. 4 (98-5. C. 2054) (1978); Collier v. State,
supra. -
Appellant asserts that the trial court's finding that the
offcusc of murder occurred while the offender was engaged in
another capital felony: to-wit, the murder of the Habersham County:
victim, cannot stand because at his subscquent trial for that
offense in Habersham County, the appellant was acquitted.
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! Appellant's subsequent acquittal is not part of the record in this
case. Nevertheless, assuming such an acquittal, we find no error,
Necessarily, two different triers of fact were involved. Different
‘ triers of facts may rcach different results. Sce, Chaffin v.
Stynchcombe, 412 U. S. 17 (1973). ‘Under. our statule, the fact
finder in a pre-sentence trial must determine whether beyond a
reasonable doubt any of the statutory aggravating circumstances
exist under the evidence presented. Code Ann. §§ 27-2503; 2525,
2534.1. A review of the evidence presented to the trial judge in
this case overwhelmingly supports a finding by a rational trier
of fact that the appellant was engaged in the commission of .
another murder when he killed the Hall County victim. Jackson v.
c
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.
Virginia, U.S. (99 S. Cc. 2781) (1979).
In the instant case, the murders were committed in separate |
counties which of necessity required that one murder be tried
3
before the other. The subsequent acquittal simply has no bear-
ing on the issue of whether the trier of fact is presented with
sufficient evidence to find beyond a reasonable doubt the
existence of an aggravating circumstance.
1/7 What evidence may have been presented in the sccond murder
rial regarding the first homiclde-is not before the court, but
we can unhesitatingly say that the evidence of the first homicide!
presented in the instant case was entirely sufficient to prove it.
3. The trial court also found an additional aggravating
circumstance in that the murder of the victim in this case was
outrageously and wantonly vile, horrible and Stan in that ‘it
involved depravity of mind on the part of the defendant.: The
. appellant argues that such a finding under Code Ann. § 27-2534.1
(b)(7) is incomplete in that the statute requires a finding of
either torture or aggravated battery in addition to a finding of
depravity of mind. Code Ann. § 27-2534.1(b) (7) provides as
| follows: "The offense of murder, rape, armed robbery, or kid-
napping was outrageously or wantonly vile, el 0 0x inhuman in
that it involved torture, depravity of mind, or an aggravated
battery to the victim." The statute 1s worded in the disjunctive,
not the conjunctive. ‘It is not required that a trier. of fact find
the existence of each disjunctive phrase of the stagyte, only that
at least one phrase of the first clause of the statute exists due!
to the existence of at least one phrase of the second clause of
the statute. Furthermore, this court has upheld an identical
finding of this statutory aggravating circumstance in Corn v.
The evidence supports a finding of this aggravating circum-
i stance by a rational trier of fact beyond a reasonable doubt,
Jackson v. Virginia, ‘supra.
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State, 240 Ga. 130 (240 SE2d 694) (1977).
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The evidence shows that the appellant killed his accomplice in an arson case who also happened to be a witness to a murder to
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cold blooded, performed in a methodical, execcution-type manncr,
and the body was burned to destroy any evidence against the
' appellant. The appellant laughed during the murder of his victim,
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| the killing. He described how people "squealed" when he shot them,
; Such evidence shows a vile, inhuman murder duc to a complete and
absolute disregard for human life which is shocking to the .con-
-
science of civilized man. 1t cannot be argued that such actions
| on the part of the appellant do not evidence a complete depravity | of mind. Appellant's third enumeration of error is, therefore,
without merit.
4.» In his fourth and eighth enumerations of error, the
appellant argues that the court erred in admitting cvidence of the
subsequent escape from jail and his conversations with other
inmates. The appellant contends the evidence is inadmissible
because it places his character in ev'dence.. As noted above, the
instant case was a pre-sentence trial. The appellant admitted
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' his guilt in open court and waived any right to trial on guilt or
. innocence. The purpose of a pre-sentence trial is to intxyoduce
. different evidence from that at trial to determine guilt or
i innocence. On the issue of guile or innocence, the only relevant
evidence is that which pertains to the offense with which the
defendant is charged. In .a pre-sentence trial the trier of
fact must make a determination as to the sentence to be imposed,
taking into consideration all aspects of the crime, the past
criminal record or lack thereof, and the defendant's general moral
1 \}
character. Johnson v, State, 126 Ca. App. 757 (191 SE2d 514)
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(1972): Code Amn. §§ 27-2503, 2523, 2534.1. Any lawful evidence
: which tends to show the motive of the defendant, his lack of
remorse, his general moral character, and his predisposition to :
commit other crimes is admissible in aggravation, ‘subject to the
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notice provisions of the statute. Each casc ls neccessarily
different; however, such evidence, by way of illustration, may
- consist as it did here of the defendant's attitude concerning his
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crime and the victim, the trier of fact's personal observation of
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| the defendant, his conduct after incarceration and evidence of
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| subsequent crimes. See, Ingram v. State, 134 Ga. App. 935
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. error in the introduction of photographs of the bodies of his
. evidence.
(216 SE2d 608) (1975). 1n a capital felony pre-sentence trial,
the State is not limited to the introduction of evidence to
support the particular statutory aggravating circumstances 1it is
relying upon. Upon review of the record, ve conclude that the
evidence was relevant to sentence and admissible, The evidence
being admissible, the trial court did not abuse its discretion in
failing to allow the withdrawal of the appellant's guilty plea on
the ground that sentence was based upon erroncously admitted
5. ‘In his Fifth enumeration of error, appellant asserts
victims over objection. This enumeration is clearly without
merit, especially in view of the fact that such evidence was pre-
sented. to the trial judge sitting without a jury. Tucker v., State,
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245 Ca, 68 Sk2d } £1979); Stevens v. State, 2472 Ga. 34 i
(247 SH2d 838) £1978): White v. State, 242 Ca. 21 (247 SE2d 759)
(1978); McCurquodale v. State, supra. Sce lngyam v. State, supra.
6. Appellant contends in his sixth enumeration of error that
the trial judge did not consider the appellant's intoxication as a
mitigating factor in imposing sentence. While it is undisputed |
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that the appellant was drinking intoxicating beverages on the day
in question, there was no evidence presented which in any manner
showed that the appellant was so intoxicated as to not be able to
form the requisite criminal intent nor understand the nature of
his actions. Tucker v. State, 244 Ga. 721 (26) 52d 635) (1979),
Plaintiff argues that the trial judge did not include intoxication
to the extent of impairment of intent and ability to comprehend
the criminality of his actions as a mitigating circumstance on
the judge's report. llowever, this does not indicate that the
judge failed to consider it as a possible mitigating circumstance. The appellant relies on an isolated portion of the judge's
sentence to show that the trial court failed to take into consid-
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+ eration any mitigating circumstances and sentenced solely on the |
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‘basis that statutory aggravating circumstances were found, thereby.
requiring the imposition of a death penalty. Fleming v. State,
240 Ga. 142 (240 SE24 37) (1972). However, a review of the record
in this case shows that the judge considered all the circumstances
both in mitigation and aggravation in arriving at his sentence.
In fact, the trial judge recited that he considered all the
evidence, both in aggravation and mitigation in his finding of
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aggravating circumstances as required by Code Ann. § 27-2525.
Spivey v. State, supra.
/. The appellant upon call of the case tendered a guilty
plea. The trial court exhaustively examined the appellant to
determine if the plea was voluntarily and intelligently given.
: The court thereafter informed the appellant and his counsel that
the court was not conscientiously opposed to capital punishment
and would impose such a sentence if the facts warranted it. The
court then required the appellant to confer with his counsel and
recessed for that purpose. Thereafter, the appellant again
insisted on a guilty plea. A pre-sentence trial was held pursuant’
to Code Ann, §§ 27-2523, 27-2503 and 27-2534.1. ‘The State intro-
: duced proof not only of the aggravating circumstances but of the
crime itself. After the trial court made its findings of fact
and orally announced sentence the appellant moved to withdraw his
plea. Withdrawal came prior to the clerk receiving the sentence
and spreading it upon the record. Appellant enumerates as HW
the trial Judge's refusal to hold an evidentiary hearing to
correct the record. However, the appellant's EN was allowed
to perfect the record, and the record adequately reflects the
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attempt to withdraw the plea prior to the clerk's receiving it.
Neither the trial judge nor the State contest appellant's assert-
. ion that the withdrawal came prior to the clerk's receiving the
' sentence. Appellant's ninth enumeration of error is without
! Code Ann. § 6-805(f). 8. Appellant asserts error on the trial court's refusal to
. entered upon the docket, a defendant, as a matter of right, may
withdraw his plea of guilty. Appellant cites as authority "Code
provides in relevant part as follows:
+1f he .shall plead 'guiltfy,' such plea shall be
immediately recorded on the minutes of the court by
the clerk, together with the arraignment; and the
court shall pronounce upon such prisoner the judgment
of the law, in the same manner as if he had been con-
victed of ‘the offense by the verdict of a jury; but,
at any time before judgment is pronounced, the
prisoner may withdraw the plea of ‘guilty, and
plead 'not guilty,' and such former plea shall not
: ; : ; : : 2
be given in evidence against him on his trial."%/
‘merit. See, Patterson v. State,:233 Ga. 724 (213 SE2d4:612)(1975);
allow withdrawal of his guilty plea. The avpellant contends that
at any time prior to the sentence being received by the clerk and
Ann. § 27-1404 and cases decided thereunder. Code Ann. § 27-1404
T7 The statute first appeared at page 334 in Cobb's Digest of the !
Laws of the State of Georgia published in 1851. Under the common
law, a prisoner had no absolute right to withdraw his plea either
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before or after sentence. Therefore, the statute is in derogation
+ of the common law. Woodward v. State, 13 Ga. App. 130 (78 SE 1009),
) £1913), dissent of PoECle TI.
Ys
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[Code Ann. § 27-2528). llowever, under the new Act, there is no such
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The question thus presented is whether or to what extent Code Ann.
§ 27-1404" applies to Ga. Laws 1973, p. 159 et. seq. which provided
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| This is a question of first impression as guilty pleas are
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3)
rare when the State has not waived the death penalty.” From 1956
until the present death penalty statute, if a defendant plead
‘guilty and such a plea was accepted, the maximum penalty that could
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be imposed was life imprisonment. Ga. Laws 1956, p. 737 (Former
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limitation and the trial judge, provided he finds the existence of
la statutory aggravating circumstance, may impose a death penalty.
Ga. Laws 1973, pp. 139, 171 (Code Ann. § 27-2528).
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: The present death penalty statute, Ga. Laws 1973, p. 159
at. seq. created a comprehensive new procedure for the trial and
‘imposition of the death penalty in capital felony cases. The
‘statute requires a finding by the trier of fact of at least one
specific statutory aggravating circumstance before a death sentence
1s authorized. The State must prove the existence of such an
aggravating circumstance beyond a reasonable doubt.
.3/ There are only two cases involving a plea which resulted In a |
sentence of death under the presont statute; looks v. State, 233
Ga. 149 (210 SE2d 688) (1977) and Mitchell v. Htafe, 234 Ga, 160
(214 SE2d 900) (1975). These cases do not address the question.
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one to determine guilt or innocence and the other to determine
"evil and the remedy. Code Ann. § 102-102,
‘Smith 'v. State, 231 Ga. 23 (200 SE2d 119) (1973). Its provisions
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The trial of a capital felony is, therefore, in two parts;
sentence. In both phases, the State carries the burden of proof.
In a non-capital felony, the judge conducts a pre-sentence hearing
to determine sentence and the State may tender cvidence of aggra-
vation if it so chooses, but no factual finding is required to
authorize imposition of any sentence within the statutory limits.
Code Ann. § 27-2503.
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Against this background we must construe the two statutes in |
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question, keeping in mind the legislative intent, the old law, the:
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The purpose of the withdrawal provision of Code Ann. § 22-1404
is to provide a neccessary part of the plea bargaining procedure,
have been held to apply to nolo contendre pleas, Wright v. State,
75 Ga. App. 764 (44 SE2d 569) 1947), but not to pleas which
result in first offender treatment, Health vv, Stake. 148 Ga. App
559 (252 SE2d 4) (1973), because to do so would frustrate the
purpose of the First Offender Act.
Where a plea of guilty is entered in a capital felony case and the State secks the death penalty under Code Ann. § 27-2534.1,
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. judgment does not rest upon the results of a trial, but upon the
plea bargaining is not involved nor could it ever be involved.
Therefore, Code Ann. § 27-1404 would have no purpose under such a
circumstance. Furthermore, to apply Code Ann. § 27-1404 to such
a situation would frustrate the purpose of Ga. Laws 1973, pp. 159,
171, in that the plea could be withdrawn as a matter of right
after the defendant learns a death sentence has been announced.
Therefore, under this construction a death sentence could necver
be imposed upon a guilty plea if the defendant wished to avoid it.
Where a plea of guilty is filed in a non-capital felony, the
plea, which is nothing more than a confession in judicio. Code
Ann. § 27-1404 provides that the court, '"...shall pronounce...
the judgment, in the same manner as if he had been convicted of
the offense by the verdict of a jury." However, in capital cases, y jury |%
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the judgment does not rest upon the plea but rather upon the leh
and the proof of an aggravating circumstance except in rare cases
4/
of treason or aircraft hijacking. Code- Ann. §.27-2534.1(a)..
Capital ‘cdses, therefore, require further proceedings in all but
two instances, a procedure not envisioned by Code Ann. § 27-1404. 1
The decision of the trial court after a seulencing trial is
47 The reports contain no such cases under the new statute, 1n
which a death penalty was given. —
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tantamount to a jury verdict. For this reason and the others
enumerated herein, this court concludes that the provisions of
Code Ann. § 27-1404 relating to withdrawal of guilty pleas as a
matter of right do nol apply to guilty pleas tendered in capital
cases other than treason or aircraft hijacking in which the State
5/
seeks the death penalty. We hold that a guilty plea, volun-
tarily and knowingly entered in a capital felony case other than
treason or aircraft hijacking wherein the State secks the death
penalty under Ga. Laws 1973, p. 159 ct, ‘seq. may not be withdrawn |
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as a matter of right.
9. In his last enumeration of error the appellant contends
that the trial court erred in denying appellant's motion for new
trial on Shara) grounds and on the grounds previously considered.!-
This enumeration has no merit. Upon review of the transcript and
récord we find that the verdict is factually substantiated and
that the evidence supports such a verdict by a rational trier of
fact beyond a recasonable doubt. Jackson v. Virginia, supra.
10. As mandated by the statute, Ga. Laws 1973, pp. 159 305
(Code Ann. § 27-2537) we have reviewed the transcrint and record
57 Nothing herein should be construed as approval by this court
of the Court of Appeals’ interpretation of Code Ann. § 27-1404
as permitting withdrawal of a guilty plea after sentence is
orally pronounced.
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‘in this case as we have in all prior cases under this statute. |
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‘We find that the sentence of death was not imposed under the
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influence of passion, prejudice or any other arbitrary factor.
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In reviewing the death penalty in this case, we have con-
* sidered the cases appealed to this court since January 1, 1970,
hin which a death or life sentence was imposed. We find the |
similar cases listed in the appendix support affirmance of the
death penalty.
Appellant's sentence of death is not excessive or dispropor-
i tionate to the penalty imposed in similar cases, considering both
the crime and the defendant.
Judgment affirmed. All the Justices concur, ipl
: y 1 poi cecally. . ‘ : \ YL AE Ade Kleeb N ., Cond Z 4
«10.
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