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June 13, 1991 - September 13, 1991
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IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
WARREN McCLESKEY,
CIVIL ACTION NO.
Petitioner, 91-v-3669
Vv.
WALTER D. ZANT, WARDEN,
*
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X%X
X
XX
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Respondent.
NOTICE OF FILING
Petitioner has already tendered to this Court several
documents pertaining to prior proceedings. Respondent would
specifically ask this Court first of all to take judicial
notice of its records in the two prior habeas corpus actions,
that being No. 4909 and No. 87-V-1028. Additionally, to
supplement the exhibits submitted by the Petitioner, Respondent
submits the following:
(1) Respondent's Exhibit No. 1 -- Amendment to
rst state habeas corpus petit?
Respondent's Exhibit No. 2°'-- ‘Amendment to
the second state habeas corpus petition;
(3) Respondent's Exhibit No. 3 -- Order allowing
the withdrawal of the extraordinary motion
for new trial with accompanying letter from
counsel for the Petitioner;
(4) Respondent's Exhibit No. 4 -- Testimony of
Petitioner's counsel Robert H. Stroup before
the United States District Court on July 8,
1987;
(5) Respondent's Exhibit No. 5 —-— Order of the
United States District Court denying habeas
corpus relief in the case of Bernard Depree
v. Lanson Newsome, No. 1:85-cv-3733-RLV
(Petitioner's co-indictee).
WHEREFORE, Respondent prays that these documents be made a
part of the record in this case.
Respectfully submitted,
MICHAEL J. BOWERS 071650
Attorney General
4 y p :
Nl TS CL ar D0 ec Voant
SUSAN V. BOLEYN 65850
Senior Assistant Attorney
JL ENS) (Ci fp ec Lax
MARY BETH WESTMORELAND 750150
Senigy Assistant Attorney General
Please serve:
MARY BETH WESTMORELAND
132 State Judicial Building
40 Capitol Square
Atlanta, Georgia 30334
(404) 656-3349
CERTIFICATE OF SERVICE
I do hereby certify that I have this day served
the within and foregoing Return and Answer, prior to filing
the same, by depositing a copy thereof, postage prepaid, in
the United States Mail, properly addressed upon:
Robert H. Stroup
141 Walton Street
Atlanta, Georgia 30303
John Charles Boger
University of North Carolina
School of Law
CB No. 3380
Chapel Hill, North Carolina 27599
Mark E. Olive
Georgia Resource Center
920 Ponce de Leon Avenue, N.E.
Atlanta, Georgia 30306
77
This AL A day of July, 1991. ft”
8% \ BO Ey WE ae / .
LIL FT ALLL HL ELE A Fo tad j
MARY BETH WESTMORELAND
Senior) Assistant
Attorney General
IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
WARREN McCLESKEY,
Petitioner,
CIVIL ACTION NO. 4909 !
vs.
WALTER ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
>
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Comes now the petitioner, WARREN McCLESKEY, and files this
Amendment to his Petition for Writ of Habeas Corpus. The follow-
ing additional paragraphs are added to the petitioner's claims:
: (35) The introduction into evidence of the petitioner's
statements to an informer, elicited in a situation created to
induce the petitioner to make incriminating statements without
the assistance of counsel, violated the petitioner's right to
i counsel under the Sixth Amendment to the Constitution of the
United States and Section 2-111 of the 1976 Constitution of the
State of Georgia.
(36) Petitioner was convicted of the charge of murder and
two counts of armed robbery without proof of his guilt beyond a
| reasonable doubt, in contravention of the due process clause of
the Fourteenth Amendment and Section 2-101 of the 1976 Constitu- |
i tion of the State of Georgia.
Respectfully submitted,
| (eho Fasen
| ROBERT H. STROUP |!
; 1515 Healey Building
iy Atlanta, Georgia 30302
| ATTORNEY FOR PETITIONER
case N0.GU= Feb T
CASE iN Ve sisi V: tren a tresoff memmeonmemey
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I Remondent’s Ex
1
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IN THE SUPERIOR COURT OP BUTTS COUNTY
STATE OF GOERGIA
WARREN McCLESKEY,
Petitioner,
CIVIL. ACTION. NO. 4909
vs.
i WALTER ZANT, Warden,
Georgia Diagnostic and
Classification Center,
Respondent.
ACKNOWLEDGEMENT OF SERVICE
| I, NICHOLAS DUMICH, hereby acknowledge service of the
Amendment to Petition For Writ of Habeas Corpus filed by the
Petitioner Warren McCleskey, and waive further service on the
defendant.
This day of January, 1981.
NICHOLAS D. DUMICH
CERTIFICATE OF SERVICE
i} I hereby certify that I have this day served a copy of
the within and foregoing Amendment to Petition for Writ of
Habeas Corpus upcn Nicholas G. Dumich, Esq., Assistant Attorney
General, by hand delivering a copy of same to him at 132 State
Judicial Building, 40 Capitol Square, S. W., Atlanta, Georgia
: HA
30334, “this |= == .Qay of January, 1981.
F Ret 2 BALA
ROBERT H. STROUP |
3 oft . ’ Sp
w IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
WARREN McCLESKEY
Petitioner,
vs. HABEAS CORPUS
: No. BTV 028
RALPH M. KEMP, Superintendent
Georgia Diagnostic and 3
Classification Center, :
Respondent.
PETITIONER'S FIRST AMENDMENT TO
PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Warren McCleskey submits the following amendment
to his petition for a writ of habeas corpus, filed in this Court
on June 9, 1987:
JII. CONSTITUTIONAL GROUNDS ESTABLISHING THE INVALIDITY OF
PETITIONER'S CONVICTIONS AND SENTENCES
F. The State's Use At Trial Of Incriminating Statements Made By
Petitioner To A Jailhouse Informant Acting On Behalf Of The
State
74. The State's use at trial of incriminating statements
allegedly made by petitioner to jail inmate Offie Evans, who--
newly uncovered evidence demonstrates —- was acting on behalf of
the State as an informant in the Fulton County Jail, violated (1)
petitioner's right to be represented by counsel at every critical
ease NO. A= V -3B6to 9
2 aad
Respondent's Exhibit No A BREE ————————
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2
stage in a criminal proceeding against him, guaranteed by the
Sixth and Fourteenth Amendments; and (ii) his right to the due
process of law, guaranteed by the Due Process Clause of the
Fourteenth Amendment of the Constitution of the United States.
FACTS SUPPORTING PETITIONER'S CLAIM THAT
THE STATE'S USE OF INCRIMINATING STATEMENTS
ALLEGEDLY MADE BY PETITIONER TO A STATE INFORMANT
VIOLATED HIS CONSTITUTIONAL RIGHTS
75. Petitioner repeats and realleges the allegations of
paragraphs 26 through 32, supra.
76. Pursuant to a change in Georgia law broadening the
scope of a criminal defendant's access to police investigative
files, see section IV, § 92, infra, petitioner has recently
obtained a 21-page statement made by Offie Evans on August 1,
1978, to State aunts including prosecutor Russell PRIEST A (A:
copy of the statement is annexed as Exhibit I.) This statement
describes in great detail a number of conversations which Evans
claims to have had with petitioner and one of his co-defendants,
Bernard Dupree, during Evans' one-month incarceration in a Fulton
County jail cell next to that of petitioner. |
77. According to this statement, on July 9, 1978, shortly
after he was placed in solitary confinement in the cell directly
adjacent to that of petitioner, Evans actively initiated a
conversation with petitioner. Evans deliberately elicited
incriminating statements from petitioner about the Dixie
Furniture Store crime by falsely claiming that he, Evans, was Ben
Wright's uncle, named "Charles":
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" .. I told Warren McCleskey [sic] "I got a nephew man,
he in a world of trouble... McCleskey asked me, "What
is his name." I told him, "Ben Wright." McCleskey said
"You Beens' [sic] uncle.” I said, "Yeah." He said
"Whats' [sic] your name?" I told him that my name was
Charles. McCleskey said, "They got me and Ben on the
same case." I said, "Oh, Ben was telling me about yawl
[sic] the last time that I seen him." He said "When you
see him" I told McCleskey that I had seen him about a
couple of weeks ago.... I said "Ben said that all of
vawl [sic] are trying to put the weight on him trying
to make like he shot the man in the robberty when he
did not do it."... I told them that "Ben told me that
vou shot the man yourself." McCleskey said "Can't
nobody prove that I shot the man, cause the lady can't
identify me no way."
{Exhibit I, 3-4).
78. Evans also deceived petitioner's co-defendant, Bernard
Dupree -- who was present in a nearby cell -- about his
relationship with Ben Wright in order to assuage Dupree's
‘suspicion, gid thereby permit Evans to thterrogate petitioner and
Dupree further:
"Dupree asked McCleskey "Is your partner still down
there? McCleskey said "Yeah, say he's Bens' [sic]
uncle." Dupree said "I didn't no [sic] nothing abou
[sic] Ben had no uncle man. You don't know who the
hell you talking to, you could be talking to the man.”
McCleskey told Dupree "Naw man, he ain't no man, cause
he know a lot of people that I know and I'm just about
sure that I know him." Than I started talking to Dupree
about Reidsville. I had just about made Dupree know me
himself from telling him about Reidsville. I talked
about a lot of things that happened down there, a lot
of things Dupree did while he was in Reidsville..., but
see ... was the one who had told me about that hisself.
Thats' [sic] how I knowed about that cause I had seen
... back in 1976 ... Dupree got allright then, kind of
talked a little better. Allright then McCleskey
started talking about a job."
(Exhibit I, 9-10). [1
3
79. According to Evans' statement, both petitioner and
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4
Dupree, having been falsely persuaded that Evans was trustworthy,
discussed in detail the events surrounding the Dixie Furniture
Store robbery. Petitioner allegedly stated that he visited the
store before participating in the robbery (Exhibit I, 4) and that
he had made up his face With pimple=iite marks and a scar on the
day the robbery took place. (Id.) Petitioner allegedly recounted
how the participants gathered at Ben Wright's house with a
shotgun and a pistol, and how they planned to rob the store. The
statement also claims that petitioner shot Officer Schlatt in a
panic when the officer entered the store. (Exhibit I, 5-6).
80. Evans further avers that petitioner and Dupree hoped
that Ben Wright would be killed because "it would be better in
their favor, because he know that Ben was mad about them pointing
the killing at him, cause they know that Ben would go and teil
the truth..." (Exhibit I, 12). He also alleges that petitioner
told Evans that "he didn't give a damn if it had been a dozen of
them [police officers] that he would still have tried to shoot
his way out.” (Exhibit I, 16).
81. All of these incriminatory statements, allegedly made
by petitioner McCleskey to Offie Evans, were later introduced
against him, by the State, through Evans' testimony at his trial.
(See Tr. T. 870, 871). These statements were allegedly made to
Evans by petitioner long after defense counsel had been
dhpointed, and at a time when defense counsel obviously was not
present to assist petitioner. No warning or disclosure was given
by Evans or any other State agent before the statements were
\ ’
elicited.
82. Evans' 21-page statement contains explicit references
demonstrating that he was acting in direct concert with State
officials during these conversations. At one point, Evans' noted
that petitioner McCleskey asked him to place a telephone call to
petitioner's girlfriend. Petitioner wrote down his girlfriend's
telephone number on a piece of paper for Evans. Evans' statement
reveals that, after he was led from the cell to another area of
the jail, he "tried to call [petitioner's girlfriend] while the
D.A. and the detectives were sitting there but I was unable to
get an answer... That's (sic) what I told [McCleskey] when I got
back to the cell. (Exhibit I, 14) (emphasis added) Additional
questioning by Evans occurred after his return to the cell.
83. Petitioner alleges, on information and belief, that the
State possesses extensive additional evidence, which it has
refused to disclose, which would further demonstrate that Evans
served as an active, State-sponsored informant. Evans' 21-page
statement alone is nevertheless sufficient to establish
petitioner's claim that his Sixth Amendment right to counsel and
his due process rights were violated.by the State's resort to
"indirect and surreptitious interrogations," Massiah v. United
States, 377 U.S. 201, 206 (1964), through Evans. The United
States Supreme Court has consistently held that use at trial of
an accused's incriminating statements which were "deliberately
elicited" by a State, informant after the appointment of defense
counsel violate an accused's Sixth Amendment right to counsel.
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Massiah, 377 U.S. at 206; United States v. Henry, 447 U.S. 264,
274 (1980); Maine v. Moulton, D.S. , 86 L.Ed.24 (1985);
Kuhlmann v.Wilson, D.S. 91 L.RA.20 364 (19886). In
Kuhlman, the Court expressed its concern about "secret
interrogation by investigatory techniques that are the equivalent
of direct police interrogation." Id. Evans' successful efforts to
deceive petitioner and Dupree, gaining their trust in order to
guestion them about the robbery, and his persistent questioning
of petitioner over a period of several days for the purpose of
obtaining incriminating statements from him, demonstrate that
"the police and their informant took ... action, beyond merely
listening, that was designed delibereately to elicit
incriminating remarks." Kuhlmann, 91 L.Ed.2d at 385.
G. The State's failure to correct key witness' misleading
testimony at trial
84. The State's failure at trial to correct the misleading
testimony of Offie Evans violated (i) petitioner's right to be
free of cruel and unusual punishment, guaranteed by the Eighth
and Fourteenth Amendments; and (ii) his right to the due process
of law, guaranteed by the Due Process Clause of the Fourteenth
Amendment of the Constitution of the United States.
FACTS SUPPORTING PETITIONER'S CLAIM THAT
THE STATE'S FAILURE TO CORRECT EVANS' MISLEADING
TESTIMONY VIOLATED HIS CONSTITUTIONAL RIGHTS
we
85. Petitioner repeats and realleges the allegations of
paragraphs 26 through 33 and paragraphs 76 through 82, supra.
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3?
86. The newly-discovered 21-page statement of 0ffie Evans
reveals significant discrepancies between what Offie Evans told
Atlanta detectives and prosecutors in a sworn statement on August
1, 1978 and what he subsequently told petitioner's jury under
cath at trial. Evans carefully suggested to petitioner's jury
that petitioner, not Evans; had initiated their conversation
about the crime. (Tr. T. 870). He failed to disclose to the
jury how he deliberately had deceived petitioner about his name
and his claim that he was Ben Wright's uncle, (Exhibit I, 3-4).
Evans testified to the jury as follows:
A. "We talked around there about two or three
days and we got into a conversation about
Ben, and so he -- of course, I told him that
I knowed Ben real good, and that we used to
be together a lot, and I told him that I had
. been seeing Ben since that robbery, but I
hadn't seen him, you know, so we kept on
talking, and so we just kept talking until he
started talking about how the robbery went
down and how it was, and he told me, said he
went in and checked that place out a few days
before they robbed it, but then they went
back to rob it."
{T». T. 870)
87. Although Evans' trial testimony created the impression
that petitioner had shot Officer Schlatt intentionally and
maliciously, he failed to disclose that, in his statement to the
police, he noted that petitioner had fired his gun in panic:
¥...[McCleskey] said that he did see the police put the
hand on his gun. And he said that he knowed right then
that it was going to have to be him or McCleskey one.
Cause the police was headed toward where Ben was back
there. And McCileskey [sic] said that he panicked, he
just shot.”
(Exhibit I, 6)
tad
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88. Evans withheld from the jury the truth concerning both
the extent of his cooperation with the State as an informant, and
"when that cooperation first began. In fact, Evans suggested at
trial that he informed the State about his conversations with
petitioner only after "[t]lhe deputy out there heard us talking."
(Tr. TT. 872). Questioned further by petitioner's counsel about
when he first contacted the jailer, Evans answered:
A. "[The deputy] heard us talking about it and
everybody in jail knowed about Ben, so that
is how it come about, and that is why I am
here right now."
{Tr. 7. 880). Yet, in his statement to police, Evans clearly
indicates that he telephoned petitioner's girlfriend, in the
presence of police and the district attorney, midway through his
interrogation of petitioner. (See q 81 supra).
89. Evans also lied to petitioner's jury about his motive
for cooperating with the State. In his trial testimony, Evans
indicated that he agreed to speak with the police because he did
not wish to be considered as a "conspirator":
Q. What did you tell [the deputy]?
A. I told him what we was talking about. He said did I
‘want him to call Homicide, would I tell them that. I
said yeah, so he called then.
Q. What were expecting to get out of that?
A. Just like that I had been talking to Ben and something
like that.
RA
Q. Had they considered you as a suspect in this?
A. It could have been led me to one.
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9
Q. What would have led to you being a suspect?
A. Laying around talking with a man about something or
other that went down like that.
How would that make you a suspect?
A. It could make me a conspirator, couldn't it?
Q. So in short, you were interested in covering up your
own rear end at that point, is that right?
A. Yeah.
Q. So you cooperated with the deputy in order that you
couldn't have any hassle in this, is that right?
A. Yeah, you can say that. |
(Tr. T. 881). Yet, as petitioner alleges in para. 32-33 supra,
and as Evans has admitted during petitioner's state habeas
proceeding, EVahs had a different and much stronger interest in
acting as the State's key witness against petitioner. He
deliberately and actively sought to elicit incriminating
statements from petitioner for use in obtaining a volice
detective's promise to "speak a word" for him on his pending
federal charges. (St. Hab. Tr. 122). Evans' misleading testimony
at trial left petitioner's jury with the erroneous impression
that Evans was a disinterested witness, whose only motive for
cooperating with the state was to "[tell] it straight, whoever it
helps, it helps,” (Tr. T. 881).
90. Petitioner did Rot have access to Evans' 21-page
statement in 1978 ar in his initial state and federal habeas
corpus proceedings. It was made available to petitioner only
10
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-
recently, due to a change in Georgia law. Thus, counsel did not
have the opportunity to detect the discrepancies and the
misleading nature of Evans' testimony during trial. The State,
although obviously aware of Evans' relationship with the State,
failed to correct Evans' testimony when he misled the jury. As
petitioner demonstrates in paragraphs 34-36, at least two members
of petitioner's trial jury would not have agreed to impose a
death sentence had they known of Evans' relationship with the
State.
91. The United States Supreme Court has consistently ruled
that a criminal conviction may not be obtained by the knowing use
of perjured testimony, nor may a prosecutor permit false or
misleading testimony to go uncorrected. Mooney v. Holohan, 294
U.S. 103 (1935); Pyle v. Kansas, 317 U.S. 213 (1942); Alcorta v.
Texas, 355 U.S. 28 (1957): Napue V. tllinois, 360 U.S. 264
(1959). A conviction obtained through such means must be set
aside if there is "any reasonable likelihood" that the false
testimony could have affected the judgment of the jury. United
States v. Agqurs, 427 U.S. 97, 103 (1976); United States Vv.
Bagley, 103 S, Ct. 3375, 3382 (1985). "Materially false
testimony" includes not only direct lies but also testimony which
conveys a false impression to the jury. Here, petitioner's
conviction and death sentence rested on the jury's erroneous
belief that Evans was a disinterested witness. That belief,
carefully nurtured by the State, was materially false. The
State's actions and inactions designed to foster that belief
11
constitute a clear violation of petitioner's due process rights,
and requires that this Court vacate his conviction and death
sentence.
IV. EXPLANATION FOR PRESENTING THESE CLAIMS IN A SECOND OR
SUCCESSIVE PETITION
2. F. Petitioner's Massiah Claim and Moonev Claims
Petitioner's claims (i) that the State's use at trial of
incriminating statements made by him to Offie Evans violated his
Sixth Amendment and Due Process Clause rights, and (ii) that the
State failed to correct Evans' misleading testimony at trial,
should be entertained on their merits in this successive petition
because the facts that support these claims "could not
reasonably have been raised in the original ... petition,” within
the meaning of 0.C.G.A. §9-14-51.. These claims are based ona
written statement given by Offie Evans to the police, describing
in detail the alleged conversation between Evans and petitioner
in July of 19178. Although trial counsel for petitioner made a
proper and timely pretrial Brady request to the State for all
exculpatory material (see annexed Exhibit J), only recently did
the City Attorney of Atlanta permit petitioner to gain access to
this 21-page statement, responsive to a recent change in Georgia
law.
93. Before petitioner's trial, defense counsel requested
from the State all exculpatory and impeaching information,
including "[a]ll written statements of witnesses in the
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possession of the prosecutor relating to the charge against ...
defendant." (See Exhibit J, Motion for Information Necessary to
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Receive a Fair Trial, and Motion for Disclosure of Impeaching
Information.) Offie Evans' statement to the police was not made
available to petitioner's counsel. (St. Hab. Tr. 77).
94. On February 20, 1987, in Georgia Television Company Vv.
Napper, Civil Action No. D-40209, the Fulton County Superior
Court ordered the City of Atlanta must disclose to the plaintifes
in that case the contents of certain police investigative files.
The City of Atlanta appealed that order, but the Georgia Supreme
Court affirmed on April 6, 1987, in Napper v. Georgia Television
€O., No. 44381. The City immediately filed a petition for
rehearing, challenging the Court's decision ordering the City to
release investigative file records in a criminal case after the
completion of direct appellate proceedings, even prior to the
completion of habeas corpus proceedings.
95. Petitioner's counsel in this case contacted the City of
Atlanta on May 29, 1987. He cited the Napper decision and
requested access to the police investigative files concerning
Officer Frank Schlatt's murder. Counsel was told that the City
was unlikely to permit access until the Georgia Supreme Court
ruled on its request for rehearing in Napper.
96. On June 1, 1987, petitioner's counsel formally filed
with the City a written request for inspection of the
investigative file. (See Exhibit XK, copy of letter to Chief
Reading).
87. On June 3,_ 1987, the Georgia Supreme Court denied the
City's rehearing request in Napper. On June 4, 1987, the City
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contacted petitioner's counsel, asking for additional time to
respond to his request, in light of the June 3 Supreme Court
decision. Counsel agreed to an extension of time until June 8,
1987. (See Exhibit L, copy of letter from Deborah Floyd.)
98. On June 10, 1987, the City released Evans' 21-page
statement to petitioner's counsel, promising to rule on counsel's
broader request at a later time. (See Exhibit M, copy of letter
to Roy Mays.).
99. Petitioner's efforts to obtain Evans' 21-page statement
have been timely and in good faith, hindered only by the
continuing dispute over the applicability of the Napper decision.
Petitioner could not have reasonably obtained this evidence in
his first habeas corpus proceeding. The Georgia Supreme Court
has only recently made it clear that such files must be made
available.
100. Under the clear precedent of the Georgia Supreme Court,
constitutional claims such as petitioner's that are based on
evidence which was unobtainable during the first habeas
proceeding, due to no fault of petitioner, must be addressed on
the merits. See Smith v. Zant, 250 Ga. 634, 301 S.E.24 32
(1983).
Dated: June 22, 1987 Respectfully submitted,
ROBERT H. STROUP
141 Walton Street
Atlanta, Georgia 30303
JULIUS L. CHAMBERS
JAMES M. NABRIT III
”
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JOHN CHARLES BOGER
89 Hudson Street
New York, New York 10013
ATTORNEY FOR THE PETITIONER
By _CePdert A. XE weap
L]
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CERTIFICATE OF SERVICE
I hereby certify that I am one of the counsel for petitioner
Warren McCleskey in this action, and that I served the annexed
document on respondent, by placing copies in the United States
mail, first class mail, postage prepaid, addressed to his
attorneys, as follows:
Mary Beth Westmoreland, Esq.
Assistant Attorney General
132 State Judical Building
40 Capitol Square S.W.
Atlanta, Georgia 30334
yar bi Done this — day of June, 1987.
on —— nn rae eer
ROBERT H. STROUP
Attorney for Petitioner McCleskey
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IN THE SUPERIOR COURT OF FULTON COUNTY
\
STATE OF GEORGIA
THE STATE OF GEORGIA, )
vs ) INDICTMENT NO. A-40553
.
WARREN McCLESKY )
ORDER
At the request of the State, a status conference
was held on this date. Present were Mr. Robert H. Stroup,
Counsel for Defendant McClesky, Mr. Nicholas Dumich, Assistant
Attorney General and Mr. H. Allen Moye, Assistant District
Attorney, Atlanta Judicial Circuit.
-~
By the attached letter, Mr. Stroup advised the Court
of the request of his client to withdraw the extraordinary
motion for new trial filed on December 19, 1980. At the con-
ference, Mr, Stroup reaffirmed the request of Mr. McClesky,
No objection having been interposed, the Court
hereby allows counsel to withdraw the pending extraordinary
motion for new trial. The Court now deems the record in the
above-styled case closed.
2
SO ORDERED, this 2] day of April, 1982,
sn
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ALT er it ‘ A de = AOA
JUDGE, SUPERIOR CQURT CS
ATLANTA JUDICIAL CNRCUIT
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case NO. DLV - 366 CAOL INU,
P | of o
Respondent's Exhibit No.x 5
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ie C ( |
JOHN rR” MYER
15% HEALEY BUILDING : . 57 FORSYTH ST.. N. W. ROBERT H. STROUP
ATLANTA, GEORGIA 30303
[ GARY FLACK - 404/522-1934
ATTORNEYS AT LAW
April 23, 1982
Honorable Sam P. McKenzie
Judge, Superior Court
Atlanta Judicial Circuit
816 Fulton County Courthouse
136 Pryor Street, S. W.
Atlanta, Georgia 30303
Re: State v. Warren McCleskey, No. A-40553
Dear Judge McKenzie:
This letter is to advise you that my client wishes to
withdraw the Extraordinary Motion for New Trial present-
ly pending before this Court. Please treat this letter
as his formal request to withdraw that motion.
Very truly yours,
Leben.
Robert H. Stroup
RHS/1
cc: Allen Moye, Esq.
Russell Parker, Esq.
Nicholas Dumich, Esq.
3
rd
| WARREN MCCLESKEY.,
- FOR THE RESPONDENT:
| IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TRANSCRIPT OF PROCEEDINGS
| APPEARANCES OF COUNSEL:
FOR THE PETITIONER: ROBERT H. STROUP. ESO
¢ JOHN CHARLES BOCER,
SYDNEY HUSEBY
OFFICIAL COURT REPORTER
UW. SS. COURTHOLSE
ROOM 2347, 75 SPRING STREET, S.W.
ATLANTA. GEORGIA 20303
C87-1%17A ) DOCKET NJ.
)
)
~ PETITIONER, ) ATLANTA, GEORGIA
)
—y5- ) JULY 8, 1987
| )
| RALPH M. KEMP, SUPERINTENDENT, )
| GEORGIA DIAGNOSTIC AND )
| CLASSIFICATION CENTER, )
: )
RESPONDENT.
VOLUME 1
i BEFORE THE HONORABLE J. OWEN FORRESTER, UNITED STATES DISTRICT
MARY BETH WESTMORELAND, ESQ.
ase No. QU-V -366T
Respondent's Exhibit vo.
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1 THE COURT: ALL RIGHT. COME UP TO BE SWORN.
2 THE CLERK: IF YOU WILL PLEASE RAISE YOUR RIGHT HAND.
3 DO YOU SOLEMNLY SWEAR THAT THE EVIDENCE You SHALL GIVE AT THE
4% HEARING NOW BEFORE THIS COURT SHALL BE THE TRUTH. THE WHOLE
= TRUTH, AND NOTHING BUT THE TRUTH, S0 HELP YOU GOD?
6 THE WITNESS: I DO.
7 | THE CLERK: IF YOU WILL HAVE A SEAT, PLEASE, SIR. AND
= STATE YOUR FULL NAME FOR THE RECORD.
9 THE WITNESS! ROBERT H. STROUP.
11 | | ROBERT HH. S5STRDIUP
12 CALLED AS A WITNESS ON BEHALF NDF THE PETITIONER, BEING FIRST
§ 132 DULY SWORN, TESTIFIED AS FOLLOWS:
14 | DIRECT EXAMINATION
15 BY MR. ROGERS
2. MR. STROUP, ARE YOU PRESENTLY ONE OF THE COUNSEL FOR
17 | WARREN MCCLESKEY. THE PETITIONER IN THIS MATTER?
18 | A. I AM.
Ll WHEN IID YOU FIRST RECOME COUNSEL Nd THIS CASE?
20 | A. APRIL OF 1920, 21 2. UNDER WHAT CIRCUMSTANCES?
22 | A. I WAS CONTACTED BY FPATSY MORRIS OF THE ACLU ASKING ME IF
23 | I WOULD AGREE TD REPRESENT WARREN MCCLESKEY ON HIS
<4 POST-CONVICTION PROCEEDINGS,
2% 3. AT THAT POINT. WHAT WERE THE STAGE —— WHAT WAS THE STAGE
1
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OF HIS PROCEEDINGS?
A. THE GEORGIA SUPREME COURT DECISION ON NIRECT APPEAL HAD
BEEN ISSUED IN. I BELIEVE, JANUARY OF 1980, AND THERE WAS A
CERT. PETITION THAT NEEDED TO BE FILED TO THE WLS. SUPREME
COURT,
a, DID YOU PREPARE THAT PETITION?
A. YES, I DID.
Gl. WHAT KINDS OF CLAIMS DID YOU INVESTIGATE AT THAT TIME
| WITH RESPECT TQ THE CERTIORARI PETITION?
A. MY RECOLLECTION IS THAT THE THE CLAIMS WERE RASED ON
| CLAIMS THAT WERE RAISED ON DIRECT APPEAL BY JOHN TURNER.
| RQ. DO YOU RECALL WHY YOU SO LIMITED YOURSELF?
| A WELL, IT WAS MY UNDERSTANDING THAT I WAS RESTRICTED TD
| THE ISSUES THAT HAD BEEN RAISED ON DIRECT APFEAL.
Loh RESTRICTED IN WHAT FORUM?
A. IN THE == IN THE SUPREME COURT, IN THE UNITED STATES
| SUPREME COURT, THAT THE CERT. ISSUES NEEDED TO BE ISSUES THAT
| HAD BEEN RAISED ON DIRECT APPEAL TO THE GEORGIA SUPREME COURT.
0 DID YOU, IN FACT FILE THAT PETITIONS
A. YES. 1 DID.
Fo, WAS IT GRANTED OR DENIED?
LA IT WAS DENIED IN QCTOBER OF “80,
i. DID YOu AT SOME POINT THEREAFTER BEGIN TO PREPARE ANY
FURTHER DOCUMENTS OR PLEADINGS FOR MR. MCCLESKEY?
A. RIGHT. ACTUALLY, SOME AMOUNT OF INVESTIGATION HAD GONE
Be Lo
| PETITION. I SORT OF, AZ I READ, I WAS TRYING TO IDENTIFY
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ON WHILE THE CERT. PETITION WAS PENDING.
a. TOWARD WHAT END? WHAT —-
A. ANTICIPATING A —- A HABEAS CORPUS PROCEEDING IN STATE
COURT.
0. AND WHAT WAS THE SCOPE OF YOUR INVESTIGATION, GENERALLY
SPEAKING. IN PREPARATION FOR THAT STATE HABEAS CORPUS FILING?
Ra WELL, I SPOKE WITH --~ JUST GENERALLY SPEAKING WHAT DID I RO TO GET ~~
1. YES, LET'S TALK GENERALLY AND THEN FOCUS MORE |
SPECIFICALLY ON THE POSSIBLE MASSIAH DR HENRY CLAIMS.
A. WELL, I SPOKE WITH THE CLIENT SEVERAL TIMES. 1 READ THE
TRANSCRIPT. 1 AM CERTAIN I READ THE TRANSCRIPT OF THE TRIAL
PRIOR ™m FILING THE -- THE CERT. PETITION IN THE UNITED STATES
SUPREME COURT. I AM CERTAIN THAT I REREAD THAT TRANSCRIPT
AGAIN AT SOME TIME PRIOR TO THE FILING OF THE STATE HABEAS
J
ISSUES, BOTH ISSUES THAT HAD BEEN RAISED OR SUGGESTED ON
DIRECTED APPEAL AS WELL AS NEW ISSUES THAT HAD NOT BEEN RAISED
AND ~--
Q. ULTIMATELY, FOR THE RECORD, HOW MANY ISSUES DID YOU
PRESENT TO THE STATE HEY HABEAS CORPUS COURT?
A. IN EXCESS OF 20. THE PRECISE NUMBER I CANT SAY, 29
MAYBE. I THINK IT DEPENDS, IN PART, ON HOW YOU COUNT THE
PARAGRAPHS AND WHETHER A FARTICULAR PARAGRAPH COUNTS AS A
SEFARATE ISSUE OR IS ENCOMPASSED IN A PRIOR PARAGRAPH,
13
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| PARTICULARLY BECAUSE MCCLESKEY WAS IN SOLITARY.
| Ci. LET ME ASK YOU, MR. STROUP, DID YOU TAKE YOUR SUSPICION
| A STEP FURTHER AND CONTACT ANYONE TO FIND OUT INFORMATION ABOUT
| A POSSIBLE RELATIONSHIP?
| A. YES I -— I INTERVIEWED A NUMBER OF —— I SPOKE WITH A
| THAT IS, THAT HE WAS —-— THAT EVANS WAS ASSIGNED TO THE CELL
31
Re BUT QVER 20. THE DISTRICT COURT HAS NOTED THAT MR.
EVANS, ONE OF THE WITNESSES AT TRIAL AGAINST YOUR CLIENT,
WARREN MCCLESKEY. HAD BEEN A CELLMATE AT SOME POINT PRIOR TQ
THE TRIAL AND HAD ULTIMATELY GIVEN TESTIMONY AGAINST MR.
MCCLESKEY. AT ANY POINT DID IT OCCUR TO YOU THAT THERE MIGHT
BE A SO-CALLED MASSIAH OR HENRY CLAIM TO BE RAISED?
A. YES, IT DID, AND IT OCCURRED DURING THIS INVESTIGATION
FOR THE STATE HABEAS HEARING. IT WAS SUGGESTED TO ME JUST ON
THE SORT OF THE BEAR FACTS THAT WE HAD, WHICH WERE MIT MANY.
IMMEDIATELY ADJACENT TO WARREN MCCLESKEY. I WONDERED ABOUT THE
CIRCUMSTANCES OF THAT. FARTICULARLY AS IT RELATED -—-
COUPLE OF ATLANTA BUREAU OF POLICE SERVICES OFFICERS, THE
PEOPLE WHO I KNE UHT F 4M RIOR LITIGATION, THE ATLANTA
BUREALI OF POLICE SERVICES, FOR THE PURPOSE OF GETTING
BACKGROUND INFORMATION DN HOW I MIGHT GO AROUT REASONABLY
DEVELOPING FACTUAL EVIDENCE IN SUPPORT OF A CLAIM.
3. LET ME JST MAKE THE RECORD CLEAR. YOU MENTIONED FRIOR |
LITIGATION WITH THE ATLANTA BUREAL OF POLICE SERVICES. THAT |
WAS LINRELATED TO THIS CASE?
(
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A. YES. I HAD BEEN FOR A NUMBER OF YEARS COUNSEL IN A
TITLE SEVEN. PROCEEDING THAT INVOLVED THE ATLANTA BUREAU OF
POLICE SERVICES.
(2. ALL RIGHT. DID yOu AT ANY POINT SPEAK WITH ANY
PARTICULAR OFFICERS OF THE ATLANTA BUREAU OF POLICE SERVICES
ABOUT THE RELATIONSHIP BETWEEN OFFIE EVANS AND THEIR
DEPARTMENT?
A. I THINK MY CONVERSATIONS WITH THE ATLANTA BUREAU OF
POLICE SERVICES PERSONNEL WAS, BASICALLY, ALONG THE LINES OF —e
MY RECOLLECTION AT THIS POINT IS THAT MY CONVERSATIONS WERE
ALONG THE LINES OF, IF EVANS IS AN INFORMER, HOW WOULD I ~-
| WELL, NO. FIRST OF all. GIVEN THE PRACTICES OF THE BUREAU,
THERE REASON TO THINK THAT EVANS COULD BE A ~- AN INFORMER
PLANTED THERE IN THE CELL, AND IF SQ, HOW WOLD I GO AROUT
DEVELOPING FACTUAL SUPPORT FOR THAT.
QR. AND DID YOU RECEIVE ANY ANSWERS TO THOSE QUESTIONS?
A. RIGHT, I —-= I, IN FACT, WAS TOLD THAT -- THAT IT WOULD
NOT BE SURPRISIMG FOR THAT TO HAVE OCCURRED, AND THE SUGGES
FWAS I NEEDED TO SPEAK WITH A NUMBER OF PEOF
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WERE DEPUTIES AT THE FULTON COUNTY JAIL REGARDING WHAT
INFORMATION THEY WOULD HAVE.
(2. NOW. THESE ARE DEPUTY SHERIFFS SERVING LUMDER THE SHERIF
WHO ARE AT THE JAIL?
A. THAT WAS MY UNDERSTANDING,
. DID YO SPEAK WITH SUCH JAILERS?
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A. I KNOW THAT I SPOKE WITH TWO PEOPLE WHO WERE
SPECIFICALLY IDENTIFIED TO ME AS FEOPLE WHD MIGHT HAVE
INFORMATION. AND I HAD A THIRD NAME. I AM UNABLE TO STATE AT
| THIS POINT WHETHER I EVER WAS ABLE TO MAKE CONTACT WITH HIM. I
KNOW I MADE EFFORTS TO CONTACT HIM BUT WHETHER —- I CAN‘T SAY
| AT THIS TIME WHETHER I ACTUALLY SPOKE WITH HIM OR NOT.
| =P SO YOU SPOKE WITH AT LEAST TWO. DID EITHER ONE OF YOU
| GET -— DID EITHER ONE OF THEM GIVE YOU INFORMATION RESPECT ING
MR. EVANS’ STATUS AS AN INFORMANT?
A. NO, THEY --— NONE OF THEM HAD ANY INFORMATION.
BASICALLY. THEY HAD NO RECOLLECTION OF THE CIRCUMSTANCES
REGARDING HOW EVANS CAME TO BE ASSIGNED TO THE JAIL OFLL THAT
HE WAS ASSIGNED TO OR OF ANY CONVERSATIONS WITH THE ATLANTA
PUREAU OF POLICE SERVICES DETECTIVES REGARDING OFFIE EVANS”
ASSIGNMENT TD THAT JAIL CELL.
AT SOME POINT A DEPOSITION OF RUSSELL PARKER, THE ASSISTANT
DISTRICT ATTORNEY IN THIS CASE, WAS TAKEN. DID YOU TAKE THAT
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DEFOISITION?
A. YES, I DIN,
is DO YOU RECALL WHEN IT WAS?
A. IT WAS —— MY RECOLLECTION IS THAT IT WAS MID FEBRUARY OF
“81. IT WAS AFTER THE HEARING THAT WE HAD IN BUTTS SUPERIOR
COURT ON THE FIRST STATE HABEAS HEARING, WHICH I RECALL WAS
LATE JANUARY. MAYBE JANUARY 30TH,
. NOW, THERES BEEN SOME REPRESENTATIONS THIS MORNING THAT
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FOR INCLUSION OF THIS DEPOSITION IN THE STATE HABEAS
PROCEEDING?
A. MR. PARKER WAS NOT AVAILABLE TO COME TO THE HEARING
ITSELF, AND THE RECORD HAD BEEN HELD OPEN FOR HIS DEPOSITION.
Q. DURING THAT DEPOSITION, DID YOU QUESTION MR. PARKER
ABOUT WHETHER THERE HAD BEEN AN INFORMANT RELATIONSHIP BETWEEN
MR. EVANS AND THE ATLANTA BUREAU OF POLICE SERVICES OR THE
PROSECUTORS OFFICE?
A. YES, I DIR,
a. DO YOU RECALL HIS ANSWERS?
A. I ~— I ASKED I DON’T RECALL THE SPECIFIC QUESTION, BUT
THERE IS A QUESTION IN THERE ABOUT POLICE INFORMER.
Q. IF YOU DON‘T RECALL, LET ME ASK YOU, IF I MIGHT, IF I
CAN APPROACH THE BENCH, IF I CAN SHOW COUNSEL, MY WITNESS, A
COPY OF THE DOCUMENT. CAN YOU IDENTIFY THAT DOCUMENT?
YE: COPY OF THE DEPOSI
THAT WAS TAKEN AS PART OF THE PROCEEDINGS FOR THE FIRST STATE
HABEAS.
a. DOES THAT REFRESH YOUR RECOLLECTION ABOUT WHEN IT WAS
TAKEN?
A. RIGHT, IT SAYS FEBRUARY 14TH,
2. 19817? LET ME DIRECT YOLIR ATTENTION TO THE BOTTOM OF
lu WAS THE RECORD -- FORGIVE ME. WAS THE RECORD STILL OPEN
FAGE 14 OF THAT DEPOSITION. PR
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2 ‘Lv YES, I ASKED ~-
3 | @ NO, WHO IS QUESTIONING AT THIS POINT?
a ‘i A. THE -- IT’S =- ACTUALLY. IT SEEMS TO BE EXAMINATION BY
S | NICK DUMICH.
6 | a. AND WHO IS NICK DUMICH?
7 A. HES THE ASSISTANT ATTORNEY GENERAL WHO WAS REPRESENTING S | THE STATE IN THIS PROCEEDING,
9 | Gla DO YOU RECALL THE QUESTION AND THE ANSWER NOW THAT You
HAVE REVIEWED THESE DOCUMENTS? dhs
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11 Aa WELL, IT INDICATES THAT NICK ASKED RUSS PARKER, DO YOu
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{ 13 | FOR THE ATLANTA POLICE OR ANY POLICE AUTHORITIES WHEN HE WAS 14 FLACED IN THE FULTON COUNTY JAIL AND WHEN HE OVERHEARD THESE
1% CONVERSATIONS OF MR, MCCLESKEY?
14 | Bl, AND WHAT WAS THE -- |
17 A ANDO THE ANSWER WAS, I DON'T KNOW DE ANY INSTANCE THAT
18 OFFIE EVANS HAD WORKED FOR THE ATLANTA POLICE DEPARTMENT AS AN oud
INFORMANT PRIOR TO HIS OVERHEAR] WVERSATIANS AT THE FULTON
20 COUNTY JAIL.
21 12. DID vou HAVE ANY REASON TO DOUBT MR. PARKERS TESTIMONY
L2 AT THAT POINT?
NI WN - 24 | Gl. You INDICATED THAT YOU HAD -—- YOU WERE SUSPICIOUS AND
4 RE 8
25 | YOU MADE SOME FREHEARING ATTEMPTS TO DEVELOP EVIDENCE. AT ANY
1 | POINT, DID YOU FILE A CLAIM BASED ON MASSIAH®
2 {aA RIGHT. WELL =~ YEAH, I WISH I HAD ILOOKED AT THE
PLEADINGS MORE RECENTLY, BUT MY RECOLLECTION IS THAT I AMENDED
4 | THE STATE HABEAS PETITION TO SPECIFICALLY INCLUDE A PARAGRAPH
= | WHERE 1 VIEWED MYSELF AS RAISING A HENRY CLAIM, A U.S. VERSUS
6 | HENRY CLAIM» QUITE SPECIFICALLY.
72 La, AT THAT POINT. DID YOU HAVE SUBSTANTIVE EVIDENCE
& | ACQUIRED FROM YOUR SUSPICIONS TO SUPPORT IT?
via, RIGHT. AT THE TIME ALL I HAD WAS THE —-- THE BARE BONES
{0 | KIND OF EVIDENCE THAT I HAD. MY RECOLLECTION IS I —- I FILED
11 | THE PETITION AND THEN REALIZED THAT I STILL MIGHT VERY WELL BE
12 | ABLE TO DEVELOP SOMETHING IN SUPPORT OF IT AND THAT I SHOULD
INCLUDE XT AND, THEREFORE, AMEND IT TO ADD THAT FARAGRAPH, N
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14 | &. DURING —— DURING THE STATE HABEAS PROCEEDING, DID you
15 | MAKE ANY INQUIRIES WITH RESPECT TO OFFIE EVANS ON THIS ISSUE?
14 | A. I DID TRY TO DEVELOP ON MY EXAMINATION WITH OFF IE EVANS |
37 | THE =~ THE MATTER OF THE CIRCUMSTANCES FOR HIS BEING PLACED IN
12 | SOLITARY CONFINEMENT AND SPECIFIC QUESTIONS ABOUT WHO THE
19 | ARRESTING OFFICER, WHO HIS ARRESTING OFF ICERAWAS { FOR
20 | TO THEN FURTHER DEVELOP THE CIRCUMSTANCES SURROUNDING HIS
21 | ARREST AND PLACEMENT IN SOLITARY.
22 | GQ. WERE THOSE EFFORTS SUCCESSFUL? DID ANY EVI DENCE COME
A. NO, HE HAD NO RECOLLECTION OF WHD THE ARRESTING OFFICER |
2% | WAS, AND HE HAD NO NOTION AS TO THE REASONS FOR HIS BEING
4
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PLACED IN SOLITARY CONFINEMENT. AT LEAST THATS WHAT HIS
TESTIMONY WAS. |
THE COURT: WAS THIS ON DEPOSITION OR AT THE HEARING?
THE WITNESS: NO, NO, THAT IS AT THE STATE HABEAS
BY MR. BOGER:
2. HAD YOU MADE ATTEMPTS PRIOR TD THE STATE HEARING TO
SPEAK TQ MR. EVANS?
A. ACTUALLY, YES, I HAD. MR. EVANS, WE HAD —- I HAD
SUBSTANTIAL PROBLEMS IDENTT FYING —- LOCATING OFFIE EVANS PRIOR
TO THE STATE HABEAS HEARING, AND I SPENT MUCH MORE TIME THAN I
WOULD HAVE LIKED IN THE —— IN THAT TIME PERIOD, THAT MONTH OR
MONTH AND A HALF TIME PERIOD PRIOR TO TRIAL, TRYING TO LOCATE
HIM. IT TURNED QUT, ACTUALLY, THAT HE WAS IN THE —— IN
JACKSON, AND ~-
(3. ET ME == JET ME =
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. ON SOME PECULIAR CIRCUMSTAN
SHOWING UP ON THE STATE SYSTEM. AND WHEN WE —= OR WHEN WE
WHEN WE MADE INQUIRY ~-- AND I“M SORRY, I REALLY HAVE FORGOTTEN
THOUGH WE WERE MAKING INQUIRIES, WE THE DETAILS, BUT EVEM .
WERENT ASKING THE RIGHT QUESTION OR SOMEHOW AT ANY RATE WE
KEPT —— YOU KNOW, WE -~ THEY.
2. YOUR EFFORTS WERE UNSUCCESSFUL?
2 0
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1 EB, RIGHT.
2 =. LET ME JUST SUMMARIZE YOUR TESTIMONY AND ASK YO! ONE —-
3 A NO, NO, I SHOULD SAY —~-— NO, NGO, I DID THEN LOCATE MIM
4 | LIKE VERY CLOSE TO THE DATE OF THE HEARING, SIX, SEVEN DAYS, I 5 | DON'T KNOW, PRIOR TO THE HEARING, ACTUALLY LONG ENOUGH IN
6 | ADVANCE THAT WE WERE ABLE TD GET A WRIT ISSUED BY THE BUTTS
7 | SUPERIOR COURT FOR HIM TO BE BROUGHT TO THE STATE HABEAS 3 | HEARING BUT NOT —= JUST —- THERE REALLY WASNT ENOUGH TIME,
5 | GIVEN THE PRESS OF MY —- THE ORDERING OF My PRIORITIES TO GET
10 | IN AND INTERVIEW HIM FRIOR TO THE HEARING.
iy la, 80 YOU ATTEMPTED DURING THE HEARING TO SPEAK TO HIM. |
12 | YOU INDICATED THAT IN A DEPOSITION MR. PARKER HAD INDICATED HE |
KNEW OF NO SUCH RELATIONSHIP. YOU HAD SPOKEN WITH ATLANTA |
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14 | POLICE BUREAL OFFICIALS WHO POINTED YOU TOWARD FULTON COUNTY.
13 | MS, WESTMORELAND: YOUR HONOR, ILL OBJECT TO MR. ROGER |
16 | SUMMARIZING THE TESTIMONY OF COUNSEL, HI S OWN WITNESS CAN
17 | TESTIFY FOR HIMSELF.
12 THE COLIRT: SUSTAIN THE OBJECTION, |
19 BY MR. BOGER:
20 Bt. MR. -- MR. STROUP LET ME ASK YOU ONE ADDITIONAL QUESTION
21 ON THIS LINE. DURING THE HEARING, DID YOU ATTEMPT ANY OTHER
22 | EFFORTS TO SUBSTANTIATE EVEN INFERENTIALLY AN INFORMANT
23 | RELATIONSHIP BETWEEN MR. EVANS AND THE STATE?
24 A. WELL, I —= EXCUSE ME. I THOUGHT IN ~- AND THE
2% | DEPOSITION RECORD WILL REALLY SPEAK FOR ITSELF. I'D HAVE TO
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LOOK AT IT. I THOUGHT I HAD SOME EXAMINATION OF RUSSELL PARKER
DIRECTLY AS OPPOSED TO NICK DUMICHS QUESTIONS ALONG THE LINES
OF WHAT HIS -~ HIS OWN RELATIONSHIP WAS WITH OFFIE EVANS PRIOR
TO JULY OF 19783.
MR. BOGER® YOUR HONOR, WE CAN [00 THIS ONE OF TWO WAYS .
I CAN EITHER REFRESH HIS RECOLLECTION THROUGH VARIOUS PAGES, Of
WE CAN SUBMIT THE DOCUMENT, WHICH THE STATE IS WELL AWARE NF
AND HAS MADE REFERENCE TO. IT APPEARS TO ME IT MIGHT SPEED
THINGS IF WE SIMPLY SUBMIT THE DOCUMENT BECAUSE I THINK WHAT 1
WILL REFLECT IS SOME QUESTIONS OF THAT SORT. BUT ID OFFER IT
THE COURT: I THINK WE NEED IT IN THE RECORD BUT WHILE
YOUVE GOT HIM ON THE STAND. MS. WESTMORELAND?
MS. WESTMORELAND: YOUR HONOR, I WAS JUST GOING TO - ” a J SA + le Bee
COMMENT, AS WE NOTED PREVIOUSLY, I BELIEVE THIS WAS © EMITTED
AS RESPONDENT'S EXHIBIT NUMBER SIX IN THE FIRST FEDERAL HAREAS
FROCEEDING, IF IT WOULD SIMPLIFY THINGS TO HAVE AN ADDIT TONAL
COPY PRESENTED IN THE RECORD OF THIS CASE, WE HAVE ABSOLUTELY
NO OBJECTION AND CERTAINL AGREE TO HAVING THA L. 1 fe
THE COURT: WELL. AT SOME POINT PUT IT IN AS YOUR Hy RU
RIGHT NOW WHILE YOUVE GOT HIM SO HE CAN TALK ABOUT WHAT HE
SEES, REFRESH HIS RECOLLECTION AND ASK HIM TO
BY MR. BOGER:
(3 LET ME
OF THE DEPOSITION, MR. STROUP, IF YOU COULD REVIEW THOSE PAGE
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DIRECT YOUR ATTENTION TO PAGES NINE AND FOLLOW] IN
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1 - AND THEN HAVING REVIEWED THEM LSE YOUR RECOLLECTION TO TESTIFY
2 | FURTHER. ACTUALLY, PERHAPS I MISDIRECTED YOU. IF YOu COULD
3 BEGIN AT PAGE EIGHT.
4 | A. WELL, YES, IN RESPONSE TO YOUR QUESTION, I DID ASK
5 | RUSSELL PARKER DURING HIS DEPOSITION SPECIFICALLY AS TO HIS CW
& | INVOLVEMENT WITH OFFIE EVANS, WHETHER HE HAD ANY PRIOR DEALINGS |
|
7 | WITH EVANS PRIOR TO HIS —— WHAT I MEANT WAS EVANSY BECOMING
2 | INVOLVED IN THE FRANK SCHLATT CASE. AND HE INDICATED THAT, NO,
Ww | HE DIDNT KNOW EVANS PRIOR TO THAT TIME, AND THERE WAS ALSO
11 | REGARDING ATLANTA POLICE DETECTIVES AND THEIR CONTACTS WITH
12 | QFFIE EVANS,
( 13 la, LET ME --— LET ME ASK YOU FURTHER NOW. DURING THE STATE
14 | HABEAS PROCEEDING ITSELF, DID YOU QUESTION MR. EVANS ABOUT ANY
15 | OTHER RELATIONSHIPS HE MAY HAVE ENTERED INTO WITH RESPECT TO |
14 | THE STATES |
17 lA. YES. ACTUALLY, THE OTHER PIECE OF-INFORMATION THAT WE |
18 | HAD ON AN INFORMER KIND OF RELATIONSHIP INVOLVING OFFIE EVANS |
WAS A SITUATION THAT OCT ) AFTER MCCLESKEY'S TRIAL, IN WHICH
EVANS APPEARED AT A TRIAL IN FULTON COUNTY WITH RUSS PARKER AS
21 | THE DISTRICT ATTORNEY.
22 | on. THATS THE SAME RUSSELL PARKER AS THE DISTRICT ATTORNEY |
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23 | IN MR, MCCLESKEY"S CASE?
24 fA. RIGHT, IN WHICH OFFIE EVANST TESTIMONY BASICALLY WAS
23 THAT WHILE IN FULTON COUNTY JAIL HE RECEIVED A JAILHOUSE
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CONFESSION FROM THE DEFENDANT.
BY THE DEFENDANT, YOU
EFENDANT IN THAT i “AS E.
0, WHAT DID You PROERF £ -
WE —— THAT“S THE ONLY
THAT WE“VE BEEN ABLE TO DEVELOP,
AT THE STATE HABEAS HE
HAD OF —--=- AS TO EVANS’ RELATIONS
RELATIONSHIP AFTER THE MCCLESKEY TR
WAS WHAT WE HAD OF A CONCRETE NATUR
:VIDENCE THROUGH CROSS-EXAMINATION
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Q DID THE STATE -—- THE STATE
A. I DON'T RECALL AT THIS
(A LET ME, IF I MIGHT, APPROACH
DOCUMENT, AND SEE IF IT WILL HELP
RECOLLECTION,
MS. WESTMORELAND!
I BELIEVE THE STATE HABEAS
"ROCEEDINGS AS RESPONDENTS EXHIBIT
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1. | 4A, YES. THIS IS A COPY OF THE TRANSCRIPT FROM THE STATE
2 | HABEAS. THE FIRST STATE HABEAS PROCEEDING IN WARREN MCCLESKEY‘S
3 | BEHALF, AND YOU‘VE DIRECTED ME TO PAGE 123, WHICH IS WHERE I
4 | BEGIN TO EXAMINE OFFIE EVANS. I ASKED HIM, "OTHER THAN THE
S | MCCLESKEY TRIAL, HAVE YOU EVER YOURSELF TESTIFIED THAT SOMEONE
4 | HAD CONFESSED TO MURDER TO YOU?" AND IT WAS MY EFFORT THEN TO
7 | GO IN AND DEVELOP THAT.
3 io, WAS THERE ANY IMPEDIMENT TO THAT EFFORT?
9 A. THERE WAS AN OBJECTION RAISED.
w a, BY WHOM?
11 la THE STATE.
312 Aa ON GROUNDS. OF WHAT?
13 | A. ON THE GROUNDS OF RELEVANCY, AMD I INDICATED THAT WED
14 | RAISED THE SIXTH AMENDMENT CLAIM BASED ON THE RECENT SUPREME
15 | COURT CASE, UNITED STATES VERSUS —-— THE COURT REPORTER
14 | IDENTIFIES IT AS UNITED STATES VERSUS TANNER, WHICH MAY BE MY ~~
17 | HER READING OF MY ACCENT, 1 SUPPOSE, RELATING TO THE USE OF
13 | INFORMERS AND A PAID INFORMER, AND I WENT ON TO SAY THAT THE
OF QUESTIONING 15 571MPL EVELOP A PATTERN IN THIS CASE
20 THAT AMOUNTS TO A PAID INFORMER BEING ASSIGNED TO THE FULTON
21 | COUNTY JAIL IN A SITUATION WHERE HE CAN, IN ONE FASHION OR
22 | ANOTHER, ELICIT INCRIMINATING EVIDENCE FROM PERSONS WITHIN THE
23 | CUSTODY OF THE FULTON DFFICIALS.
24 AND MR. DUMICH INDICATED THAT THERE WAS NO TESTIMONY |
2% THAT HE WAS A PAID INFORMER AT ALL. I AGAIN ARGUED THAT WE
r (3 - emery FERRI 1 —
~~
1 | WERE TRYING TO SHOW A FPATTE RN. THERE'S A F URTHER CORJECTION ON
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RELEVANCY BY NICK DUMICH, AND THEN THE COURT INGUIRED AS TD
3 | WHETHER HE HAD EVER TESTIFIED IN A CASE BEFORE. YOU TESTIFIED IN
4 | MCCLESKEY*S CASE ABOUT SOMETHING SOMEBODY HAD TOLD YOLI IN
S | PRISON AND --
fa (A RY "HE" YOU} MEAN EVANS AT THIS FOINT?
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2 | THEN THERE IS FURTHER -—- A FURTHER EXCHANGE BETWEEN THE COURT |
by | AND MYSELF. AND THEN AT 124 I DO RESUME QUESTIONING REGARDING vod SEL |} 2% opt
10 HIS SUBSECUIENT TESTIMONY AT THE TRIAL OF ANOTHER DEFENDANT WITH | - Ne
11 RUSS PARKER AS THE DISTRICT ATTORNEY HANDLING THE CASE
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=0 YOU WERE ALLOWED TO INGUIRE?Y § ¥ Ss Soe
{ 13 BY MR. BOGER?
14 a. APART FROM THAT SUBSTANTIVE ACTIVE EVIDENCE ~- |
: | 15 THE COURT: THATS A QUESTION. YOU WERE THEN ALLOWED TO —-
16 THE WITNESS: YES, IT APPEARS THAT I WAS.
|
17 THE COURT! ALL RIGHT, - |
18 BY MR. BOGER:? |
i. APART FROM THAT SUBSTANTIVE EVIDENCE OF SUBSEQUENT
20 TESTIMONY BY MR. EVANS, WERE YOU ABLE TO DEVELOP ANY OTHER
21 EVIDENCE IN SUPPORT OF A HENRY, MASSIAH CLAIM?
22 A. NONE THAT I CAN RECALL, | EL “ALL |
23 a. WERE YOU AWARE OF ANY WRITTEN STATEMENT RY —-
24 THE COURT: LET ME STOP YOU THERE.
25 la ~= DOFFIE EVANS?
|
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44
THE COURT: LETS TAKE A MORNING RECESS NOW. BE IN
2 | RECESS ABOUT 1% MINUTES.
kg (WHEREUPON, A BRIEF RECESS WAS HAD.)
oe. | THE COURT: DURING THE RECESS, I FLIPPED THROUGH THE
& FEDERAL -—- MY DECISION IN THE 1ST HABEAS, AND I DON’T SEE A
=] | MR. ROGER: I WAS GOING TO —-
<Q | THE COURT: DOES THE PETITIONER CONTEND THAT IT WAS
10 | RAISED?
5 MR. BOQGER: NO, YOUR HONOR, I WAS GOING TO GET TO THAT
12 | NEXT.
13 | THE COURT: QKAY.
14 | R MR. STROUP LET ME PURSUE THAT LINE OF QUESTIONING NOW.
be’ YOU INDICATED THAT YOU HAD FILED AM AMEMDOME NT TO THE STATE
14 | HABEAS PETITION RAISING A MASSIAH HENRY TYPE OF CLAIM. DID you
17 ADVANCE THAT CLAIM SUBSEQUENT TO THE FEDERAL OR TQ THE STATE p ¢ ho baer wel
13 | HABEAS CORPUS HEARING?
i. THE CLAIM WAS NOT CARRIED OVER INTO THE FEDERAL HABEAS
20 | PETITION.
21 ey. WHY NOT?
oe A, I THINK THAT I LOOKED AT WHAT WE HAD BEEN ABLE TO
23 DEVELOP IN SUPPORT OF THE CLAIM FACTUALLY IN THE STATE HABEAS
PROCEEDING AND MADE THE JUDGMENT THAT WE DIDN'T HAVE THE FACTS
25 | TO SUPPORT THE CLAIM AND, THEREFORE, DID NOT BRING IT INTO
4%
“ | EH. DID YOU CARRY DOVER ANY RELATED CLAIMS SUCH AS THE GIGLIO
2 | VERSUS UNITED STATES CLAIM? > Yet Bs §
GOOD CLAIM
4 | A. WE DID THINK. THAT WE HAD A
6H THE COURT: GIGLIO CLAIM?
? | MR. STROUP, LET ME ASK YOU A FEW ADDITIONAL GUEST
10 | AT THE TIME OF THE STATE HABEAS CORPUS PROCEEDING, DID YOU HAVE
OF ANY WRITTEN STATEMENT THAT HAD BEEN MADE BY
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17 Q. WHEN WAS THE FIRST TIME THAT YOU ARE 'HAT THERE |
= WAS A WRITTEN STATEMENT BY OFFIE EVANS GIVEN TO THE POLICE?
A. 'HE FIRST TIME I BOUT IT WAS ABOUT 4:30 IN
20 AFTERNOON ON JULY 10TH —- JUNE 10TH OF 1987, AND I OPENED UP AN
3 ENVELOPE THAT I HAD PICKED UP FROM CITY = OFF 10
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41 ay |
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BEpOSITIoN On RUSSELL PARKER THATS BEEN REFERRED |
LD BE PETITIONER”S 3, I BELIEVE. |
DLIRT: IT WILL BE ADMITTED. |
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|
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» ED In ULERK'S OFFICE
1 R
ha, BIE 1 BY i
S WRC Stina Re
:
> or
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA LUTHz
ATLANTA DIVISION By: 4 HOMAS, cio,
/ Deputy Clerk
BERNARD DEPREE,
Petitioner,
CIVIL ACTION
vs.
No. 1:85=-cv-3733-RLV
LANSON NEWSOME,
00
0
0
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90
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Respondent .
ORDER
Bernard Depree was indicted in the Superior Court of Fulton
County, Georgia, on June 13, 1978, along with David Burney, Jr.,
Warren McCleskey, and Ben Wright for two counts of armed robbery
and the murder of police officer Frank Schlatt. Warren McCleskey
was tried separately from the other co-defendants and received a
death sentence. DePree was tried jointly with Burney and was
found guilty of murder and two counts of armed robbery. On
November 20, 1978, Depree was sentenced to life imprisonment on
each count to be served consecutively.
DePree's convictions and sentences were affirmed by the
Supreme Court of Georgia, Depree Vv. State, 246 Ga. 240 (1980).
His petition for a writ of habeas corpus was denied by the
Superior Court of Tattnall County, Georgia, and on May 1, 1985,
the Supreme Court of Georgia denied Depree's application for a
certificate of probable cause.
DePree filed a petition for a writ of habeas corpus in this
court, which was denied; DePree then filed a notice of appeal to
CASE NO. =X -366T
Respondent's Exhibit No. S) A —————
i
the Eleventh Circuit. Subsequently, because of developmehts in
Warren McCleskey's habeas corpus proceedings, DePree filed a
motion with the Court of Appeals asking for a conditional
dismissal of the appeal and a mandate to the district court to
reopen the proceedings to allow the taking of additional
evidence. On August 10, 1987, the Eleventh Circuit entered an
order remaining the case to it so that this court could pass on
DePree's Massiah claim. Massiah v. United States, 377 U.S. 201
(1964). The Court of Appeals subsequently expanded the scope of
its remand order by allowing the petitioner to present a Giglio
claim also. Giglio Vv. United States, 405 U.S. 150 (1971).
This court initially delayed in acting on the Eleventh
Circuit's remand order, awaiting the outcome McCleskey's habeas
proceeding. However, because Judge Forrester had made certain
credibility choices with respect to the testimony offered in
McCleskey's habeas corpus proceedings, this court determined that
it was necessary for it also to conduct an evidentiary hearing in
which it could weigh the credibility of the witnesses and make
its own determinations with respect to such credibility.
Therefore, this court heard evidence on September 5 and 6, 1989,
and allowed DePree and the State to submit post hearing briefs.
The matter is now ripe for a determination of the issues which
this court has before it as a result of the remand from the
Eleventh Circuit.
In Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199
(1964), the Supreme Court held that the Sixth Amendment right-to-
x.
counsel provision precluded the use of a defendant's
incriminating statements obtained through a police informant
after the defendant had obtained counsel. In arguing that
Massiah requires that his conviction and sentence be set azide,
DePree contends that Offie Gene Evans and Howard Smith were
acting as police informants when they overheard or elicited
incriminating statements from him.
Offie Evans was arrested on July 3, 1978, and taken to the
Fulton County Jail. On July 12, 1978, Evans met with Russell
Parker, the assistant district attorney prosecuting the Frank
Schlatt murder case, and two detectives from the Atlanta Police
Department at the Fulton County Jail. At this time Evans
recounted various incriminating statements made by both McCleskey
and DePree with respect to the murder of Officer Schlatt. Evans
later signed a written statement on August 1, 1978. Mr. Parker
testified that Evans did not tell him anything different on
August 1 than he had on July 12.
Mr. Parker, Detective Welcome Harris, Officer Sidney Dorsey,
and Deputy Sheriff Carter Hamilton all denied that they ever
requested that Evans be placed in a cell next to Warren McCleskey
or that he attempt to obtain any incriminating statements from
McCleskey or DePree. Evans himself testified upon being arrested
and taken to the Fulton County Jail he was immediately placed in
Cell 1 North 14 (i.e., Cell No. 14 on the first floor of the
North wing); McCleskey was in the adjoining cell, 1 North 15, and
Depree was in the cell immediately over DePree, 2 North 14.
$ »
LY
Evans further testified that he was never moved from his original
cell during the time that he was incarcerated at the Fulton
County Jail.
Evans testified that a deputy sheriff, whose name he could
not recall, had apparently overheard conversations going on in
the cell block and suggested to Evans that he might have obtained
information that the police would be interested in; Evans
testified that when the deputy sheriff asked if he would be
willing to talk to the police about those conversations, Evans
agreed to do so. Carter Hamilton testified, however, that Evans
approached him, stating that he had information regarding Officer
Schaltt's murder although Evans gave no specifics at that time;
Hamilton informed Evans that he would put him in touch with the
police and that within a day or two of that conversation Deputy
Hamilton arranged for Mr. Parker and two detectives to come to
the jail.
The only testimony supporting DePree's allegation of a
Massiah violation comes from Ulysses Worthy, who was captain of
the day watch in charge of the jail in 1978. Captain Worthy
testified twice during the McCleskey hearings, on July 9, 1987,
and again on August 10, 1987. On July 9, Captain Worthy
testified that he recalled a meeting between Evans, Detective
Dorsey, and, possibly, another person. Captain Worthy testified
that, although he was not a participant in this meeting, he was
present part of the time. When asked if he recalled whether
Detective Dorsey asked Evans to listen to what he heard at the
jail from those who may have been near him, Captain Worthy
replied, "No, sir, I don't recall that." In response to further
questions, however, Captain Worthy seemed to equivocate.
Q Do you recall whether he asked him to
engage in conversations with somebody
who might have been in a nearby cell?
A Seems I recall something being said to
that effect to Mr. Evans.
Okay.
A But I'm not sure that it came from Mr.--
from Detective Dorsey or who.
Q In other words, somebody present in that
conversation said that but you're not
certain whether it was Mr. Dorsey or
perhaps his partner or somebody else
there?
A I'm really not sure.
Q Okay. Did Mr. Evans, to your
recollection, agree that he would do
that?
A I'm not sure.
(Tr. 148-49).
On July 9, Captain Worthy also testified he had been requested to
move Evans to a cell near McCleskey:
Q Mr. Worthy, let me see if I understand
this. Are you saying that someone asked
you to specifically place Offie Evans in
a specific location in the Fulton County
Jail so he could overhear conversations
with Warren McCleskey?
A Yes, ma'am.
When was that request made and by whom?
A I don't know exactly who made the--who
asked for the request but during this
particular time there was several
5
interviews of Mr. Evans by various
officers.
All right. And--
And the exact one that asked that
request be made, I really can't say now.
I really don't know.
All right. Now, so you're saying they
did--they wanted Mr. Evans to go in and
serve as a listening post? Is that what
they asked you to do?
Well, they asked that he be placed near
Mr. McCleskey.
Was that when Mr. Evans first came into
the jail?
A I'm not sure whether that was when he
first came in or not. I'm not sure.
(Tr. 153-55).
On August 10, 1987, during the McCleskey habeas proceeding
Captain Worthy testified that the first instance in 1978 in which
Evans was brought to his attention was when Carter Hamilton
brought him down to his office and stated that Evans wanted to
call either the district attorney's office or the police
department because he had some information he wanted to pass on
to them. (Tr. 14). Captain Worthy then testified as follows:
Q To your knowledge, when was the first
time that Evans was interviewed at the
Fulton County Jail by the investigators
on the Schlatt murder?
The exact time or date I don't recall
that.
All right. Why don't we do this: In
relation to the meeting that you had in
your office with Carter Hamilton and
Offie Evans when Hamilton asked you for
o - * []
permission to call the investigators,
. 6
oc
»
OO
YP
approximately how long thereafter did
the investigators come out to the jail
and talk to Offie Evans?
To my knowledge, it was a matter of a
few days.
All right. Now, to your knowledge, when
"they came out in a matter of a few days,
to your knowledge, was this the first
time that the investigators ever came
out to talk to Offie Evans about the
Schlatt murder?
To my knowledge, yes.
All right. Now, where did this meeting
take place?
In my office.
All right. Did you go over and join
them?
Join them?
Yeah, did you join them?
Not really, no.
Okay. Did any of them ever make--did
any of them make a request of you at
that time? Did they ask you to do
anything, the officers?
Not that I can recall.
All right. Were you ever asked to
move Offie Evans from one cell to
another?
Yes, sir, I was.
Who asked you to make this move?
I'm not sure, but it would have to be--
to have been one of the officers, either
Carter Hamilton or it might have been
Offie Evans. I'm really not sure at
this point.
A It was, oh yeah, I believe it was Carter
Hamilton. I believe it was Carter
Hamilton that asked.
Q All right. So Carter Hamilton asked you
to move Offie Evans?
A Right.
Q Now, what did you do in response to
Carter Hamilton's request to move Offie
Evans?
A Well, after he explained why he wanted
him moved, I gave him permission to do
SO.
Q Okay. Now, when did he ask you to move
Offie Evans in relation to the interview
with the investigators?
A The same day of the interview.
Ld * LJ LJ
Q Now, this request by Carter Hamilton,
was this the only time you were asked to
move Offie Evans?
A Yes, sir.
(Tr. 16-19).
On September 5, 1989, at the evidentiary hearing conducted
in the instant case Captain Worthy testified as follows:
Q Had it ever come to your attention [that
Evans] knew anything in particular about
the Schlatt murder case and the
furniture store robbery before Mr.
Hamilton brought it to your attention?
A No, I never discussed anything like that
with him.
Q The first time you knew of that would be
on July. 11, 1978?
If that is when Mr. Hamilton brought it
to my attention.
And in the meeting, then there was a
meeting at the prison; is that correct,
shortly thereafter in which Mr. Parker
and other people came and talked to Mr.
Evans?
There was a meeting at the jail.
Do you recall how 1long after Mr.
Hamilton talked to you that that
occurred?
I really don't know. I don't know
exactly how long it was afterwards.
If there was some indication someone
came to the jail on July 12, 1978, would
you disagree with that date?
No, I couldn't disagree.
Now, 1s it correct that no one asked you
to move Mr. Evans until after that
meeting took place at the jail?
It was after the meeting that they
asked.
To clarify for the moment, the meeting I
am talking about is when Mr. Parker came
out to the jail and two other detectives
came out after Mr. Hamilton had talked
to you, that's the meeting I'm talking
about. Ha[d] anybody asked you to move
Mr. Evans before that meeting took
place?
No, not to my knowledge.
Now, except for that particular meeting,
were you ever present in the room when
anyone talked to Mr. Evans about the
murder of Frank Schlatt in that
furniture store robbery?
No.
Mr. Worthy, you did not ever actually
see Offie Evans moved from one cell to
another?
A No, I did not see him moved from one
cell to another.
Q Now Mr. Worthy, to your knowledge, isn't
it true that Mr. Evans was not moved
from the time he was brought in the
Fulton County Jail in the early part of
July until the day he had that meeting
with Mr. Parker and the detectives?
A To my knowledge, Offie Evans was moved
after the meeting.
Q You don't know for a fact that he was
moved? You said you didn't see him
moved; is that correct?
A I did not see him moved but the request
came to me from one of the officers at
the jail asking that he be moved.
Q When did that take place?
A After the meeting with the detectives.
Q Now, did you ever hear anyone tell Mr.
Evans to listen to conversations of
Bernard DePree or Warren McCleskey?
A No, I didn't.
(Tr. 1-57 through 1-60).
This court finds Captain Worthy's testimony to be inherently
"contradictory and not credible. It is uncontradicted that Evans
was already in the cell next to Warren McCleskey prior to the
July 12 meeting with Mr. Parker and two detectives; otherwise, it
would have been impossible for Evans to have relayed the content
of any conversations he had had with McCleskey to Mr. Parker at
10
that meeting. Nevertheless, Captain Worthy has testified on
numerous occasions that the purported request to move Evans did
not take place until after that meeting. This court does not
impute any sinister motive to Captain Worthy; the court simply
notes that the events to which Captain Worthy testified occurred
approximately ten years ago and that Captain Worthy had no notes
or other documents to refresh his recollection of the events
which occurred in July 1978. The court does note that there was
testimony that prisoners who were considered an escape risk were
housed in the north wing of the Fulton County Jail. Since Offie
Evans was arrested as an escapee from a federal halfway house, it
would have been standard procedure for him to have been housed in
a single cell in the north wing of the jail. Captain Worthy's
memory of a request to move Evans may simply have been the result
of Evans' being described as an escape risk and a request that he
be housed in the north wing. This court chooses to believe the
testimony of Evans, Mr. Parker, and all other persons (except
Captain Worthy) who unequivocally testified that Evans was
originally placed in Cell 1 North 14, was never moved to another
cell which he was incarcerated at the Fulton County Jail,
overheard conversations between McCleskey and DePree and reported
the substance of those conversations to the police and the
district attorney's office, and was not acting at the behest of
the police which he engaged McCleskey and DePree in conversation
and reported the substance of such conversations to the police.
DePree also relies upon the testimony of Howard Smith to
support his claim of a Massiah violation. Smith is a seasoned
felon who in August 1978 was incarcerated in the Fulton County
Jail, charged with escape and auto theft. While in the Fulton
County Jail, Smith was housed in a cell with DePree and one other
inmate.
Smith had his sister contact the Atlanta Police to tell them
that he had information regarding Officer Schlatt's murder. His
sister apparently called the police because a detective came to
the jail and interviewed Smith. Smith was interviewed on at
least two other occasions and gave written statements. The only
part of Smith's testimony even hinting at a Massiah violation is
as follows:
Q What were you trying to--why were you
asking those questions [to DePree]?
A Well, the reason I was asking him the
questions, because I was told to find
out more information from him about what
happened.
Q And who told you to find out more
information about what happened?
A Mr. Harris.
(Tr. 1-17).
This court does not view this statement by Detective Harris, even
if accurately recalled by Smith, as sufficient to convert Smith's
status to that of "police informant" so as to invoke Massiah.
Since Smith had initiated the contact with the police and had
already relayed the substance of the information he had gathered
from DePree, it is obvious that the statement by Detective Harris
12
is little more than to the effect, "If you learn any more
information, please let us know." This court holds that such
encouragement given to an inmate is insufficient to invoke
Massiah. |
For the foregoing reasons, this court holds that DePree's
Sixth Amendment right to counsel, as enunciated in Massiah, was
not violated when Evans and Smith testified against him at his
trial.
In Giglio v. United States, 405 U.S. 150, 92 8S, Ct. 763
(1972), the Supreme Court held that evidence which reflects on
the credibility of witnesses must be disclosed to a defendant.
In the instant case, DePree argues that promises were made both
to Offie Evans and Howard Smith and that these promises were not
disclosed to defense counsel.
Although Evans undoubtedly hoped to gain something by
revealing to the police the statements he had overheard by
McCleskey and DePree (this court doubts that many felons "snitch"
on other felons merely out of any sense of civic obligation),
there is no credible evidence in the record to suggest that any
promises were made to Evans to elicit his testimony. Indeed,
even if one of the police officers or the assistant district
attorney had promised to "speak a word" in Evans' behalf in his
own case, this court holds that in the instant case such a
statement did not have to be disclosed pursuant to Giglio.
Indeed, in McCleskey's case, the Court of Appeals assumed that
such a statement had, been made and stated, "The detective's
13
» »
statement offers such a marginal benefit, as indicated by Evans.
that it is doubtful it would motivate a reluctant witness, or
that disclosure of the statement would have had any effect on his
credibility. The State's non-disclosure therefore failed to
infringe McCleskey's due process rights." McCleskey v. Kemp,
753 F.2d 877, 884 (11th Cir. 1985) (en banc). This court holds
that DePree has failed to present sufficient evidence to show a
Giglio violation with respect to Evans.
Howard Smith testified before this court that Detective
Harris and Russell Parker both told him not to worry and that
they would take care of him. He stated that no other promises
were made other than that he would be taken care of. Both
Detective Harris and Mr. Parker testified that they could not
recollect having made any promises whatsoever to Smith.
Again, this court does not believe that Smith testified
against DePree out of a sense of civic obligation. As a
seasoned felon, Smith undoubtedly hoped that his cooperation
would result in more favorable treatment. However, this court
holds that the marginal statements purportedly made by Detective
Harris and Mr. Parker were not of such a nature that, under the
circumstances of this case, they had to be disclosed to defense
counsel at DePree's trial. (Indeed, Mr. Parker testified that
thers could have been no deals made with Smith regarding his
testimony in DePree's case because the term of court at which
Smith had been sentenced had already passed at the time he
14
]
.“ rl
testified at DePree's trial, and under state law, a sentence
cannot be changed once the term of court has passed.)
For the foregoing reasons, this court holds that no promises
were made to Smith that were required to be disclosed to DePree
under Giglio.
DePree also asserts that his Fifth and Fourteenth Amendment
rights were violated when the state failed to correct perjured
testimony at the trial. This allegation is based upon Evans’
testimony at DePree's trial that DePree "hoped that Ben [Wright]
was going to get caught before they go to court, because he might
would tell them how that thing went down, and he said that he
hoped that nine out of ten in the case of Ben they were going to
kill him anyway." (Trial transcript 966-67). DePree argues
Evans had previously claimed that this statement was made by
McCleskey not DePree. However, Evans' trial testimony is
consistent with the statement he signed on August 1, 1978, in
which he said:
DuPreee [sic] and McClesky [sic] started
talking again saying "[sic] that they hoped
that enough heat was on Ben, so that they
would [sic] Ben when they ran down on it, and
if they dokill [sic] him, it would be better
in their favor because he know that Ben was
mad about them pointing the killing at him,
because they know that Ben would go and tell
the truth to keep from getting tied up in
that murder. DuPree [sic] told McClesky
[sic] 9 times out of 10 they are going to
kill him anyway because Ben wasn't as smart
as he thought he was. . . .
The only thing in the record even remotely hinting the DePree has
changed his testimony, is a copy of Mr. Parker's notes which he
15
» 4
prepared as an aid in his closing argument. On those notes his
comment that DePree had told McCleskey that nine times out of ten
they were going to kill Ben anyway has been stricken through and
a notation has been made by the assistant district attorney
assisting Mr. Parker to the effect that Evans now says McCleskey
made the statement. This handwritten notation shows nothing more
than that Mr. Parker's assistant recalled Evans' trial testimony
differently than what actually occurred. Other than this
notation, there is no evidence in the record that Evans ever
testified that the statement was made by McCleskey rather than
DePree. The court finds this argument to be totally without
merit.
For the foregoing reasons, this court finds that DePree has
stated no grounds which would entitle him to a writ of habeas
corpus. The clerk is directed to transmit to the Court of
Appeals a copy of this order together with the record that has
been compiled since the order of remand from the Eleventh
Circuit.
SO ORDERED, this 10th day of July, 1990.
Rey Le
ENTERED OM DICKET re ae
JuL 11 1330
LDT. CLERK
DEPUTY CLERK
BY
Ld
IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
CIVIL ACTION NO.
91-V-3669
WARREN MCCLESKEY,
Petitioner,
HABEAS CORPUS
V.
WALTER D. ZANT, WARDEN,
%
%
XX
X
XX
XX
X%
%
Respondent.
MOTION TO DISMISS AND BRIEF IN SUPPORT
COMES NOW Walter Zant, Warden, Respondent-in the
above-styled action, by counsel, Michael J. Bowers, Attorney
General for the State of Georgia, and submits the instant
motion to dismiss the petition for writ of habeas corpus filed
on behalf of Warren McCleskey. Respondent urges this Court to
dismiss the petition because the petition fails to state a
claim upon which relief can be granted as the petition is
successive within the meaning of O0.C.G.A. § 9-14-51 as it
raises only one issue which has been the subject of two prior
state habeas corpus proceedings filed in this Court. As will
L ch subsequently, “u de th z= oles
judicata, this Court should decline to review this issue.
STATEMENT OF THE CASE
Petitioner, Warren McCleskey, along with David Burney,
Bernard Depree, and Ben Wright, Jr., were indicted on June 13,
1978, for murder and two counts of armed robbery. The
Petitioner was tried separately beginning on October 9, 1978,
was found guilty on all three counts, and was sentenced to the
death penalty and two consecutive life sentences. Petitioner's
convictions and sentences were affirmed on direct appeal.
McCleskey v. State, 245 Ga. 108, 263 S.E.2d4 146, cert denied,
449 U.S. 891 (1980).
In the first state habeas corpus petition filed by Robert
Stroup on January 5, 1981, the Petitioner included a challenge
to the alleged failure to disclose an "arrangement" with "a
police agent or informer" (Offie Evans) and the alleged
deliberate withholding by the broBeew Linn of the statement made
by the Petitioner to Evans. Petitioner subsequently filed an
amendment to that state petition in which Petitioner challenged
the introduction into evidence at trial of his statements to
than ing rr" 8nd 3 : ally asserted thet t g seen!
were taken in violation of the Sixth Amendment.
On December 30, 1981, the Petitioner filed a petition for
habeas corpus relief in the United States District Court for
the Northern District of Georgia. Among other allegations the
Petitioner challenged the failure to disclose an
"understanding" with witness Evans; however, Petitioner did not
assert a Sixth Amendment violation in relation to the use at
trial of the testimony of Offie Evans. After extensive
evidentiary hearings were held before the district court, on
February 1, 1984, the court granted habeas corpus relief based
on the allegation of an undisclosed deal with Offie Evans.
McCleskey v. Zant, 580 F. Supp. 338 (N.D.Ga. 1984).
On January 29, 1985, the Eleventh Circuit Court of Appeals
sitting en banc issued an opinion which affirmed all
convictions and sentences, particularly reversing the district
court on the Giglio claim as to the testimony of Offie Evans.
McCleskey v,. Kemp, 753 F.248 877 (llth Cir. 1985) (en banc).
The Petitioner then filed a petition for a writ of
certiorari in the United States Supreme Court. In that
petition, the Petitioner asserted that the death penalty was
discriminatorily applied, and that Enere was a violation of
Giglio v. United States, 405 U.S. 150 (1972), based upon the
testimony of Offie Evans. The Court subsequently granted the
petition for a writ of certiorari limited to the consideration
df €he application of cl i Lope enalty. On April 22, 1987,
the Court affirmed the denial of habeas corpus relief.
McCleskey v. Kemp, 481 U.S. 279 (1987). On or about May 16,
1987, Petitioner filed a petition for rehearing, reasserting
his claim relating to a violation of Giglio v. United States.
On June 8, 1987, the Court denied the petition for rehearing.
McCleskey v. Kemp, 482 U.S. 920, (1987).
On June 8, 1987, a successive state habeas corpus petition
was filed raising several claims including the state's alleged
failure to disclose impeaching evidence (the alldied "deal"
with Offie Evans) at trial. On June 22, 1987; petitioner filed
an amendment to the petition raising two allegations, that is,
that Offie Evans was acting as an agent for the state at the
time the Petitioner made statements to Evans and that the
prosecutor failed to correct alleged misleading testimony by
Evans. Relief was denied on July 1, 1987. The Supreme Court
of Georgia denied an application for a certificate of probable
cause to appeal on July 7, 1987.
On July 7, 1987, Petitioner filed a second federal habeas
corpus petition in the United States District Court for the
Northern District of Georgia. After hearings were held by the
district court on July 8, 1987, July 9, 1987, and August 10,
1987, the district court entered an oTARY on December 23, 1987,
granting habeas corpus relief only as to Petitioner's murder
conviction and sentence based upon the finding of a violation
of Massiah v. United States, 377 U.S. 201 (1964), based on the
mony of Offie Evans
On May 6, 1988, Respondent filed a motion for relief from
judgment under Fed. R. Civ. P. 60(b) in the district court.
Pursuant to the June 17, 1988, order of ‘the district court,
both parties conducted discovery including taking the
deposition of Offie Evans on July 13, 1988. On January 10,
1989, the district court denied the motion for relief from
judgment.
A panel of the Eleventh Circuit Court of Appeals entered an
opinion on November 22, 1989, amended on December 13, 1989,
specifically reversing the finding of the district court and
concluding that the district court abused its discretion by
failing to find an abuse of the writ and that the Petitioner
had abused the writ by deliberately abandoning the Sixth
Amendment Massiah claim at the time of the first federal
petition and that any error based on an alleged Massiah
violation was harmless. McCleskey v. Zant, 890 F.2d 342 (llth
Cir. 1989)... The circuit court did not rule on Respondent's
assertions that the district court's finding of a Massiah
violation was based on clearly erroneous factual findings and
that the district court erred in denying Respondent's motion
for relief from judgment. Rehearing and rehearing en banc were
denied on February 6, 1990.
Petitioner then filed a petition for a writ of certiorari
in which was granted on June 4, 1990, with a. question being
added by the Court. McCleskey v. Zant, U.S. tr +110 S.CL.
2585 (1990). On April 16, 1991, the Court entered an opinion
the petition toibe abuse of. .thé wri leskey v.
Zant, U.S. , 111 S.Ct. 1454 (1991). Rehearing was
denied on June 17, 1991. On June 13, 1991, Petitioner filed
his third state habeas corpus petition.
STATEMENT OF FACTS
(a) The Commission of the Crime.
The evidence presented at Petitioner's trial showed that on
May 13, 1978, he and three co-indictees committed an armed
robbery at the Dixie Furniture Store in Atlanta, Georgia. The
evidence showed that the Petitioner entered the front of the
store while his three co-indictees entered the back.
Petitioner was positively identified at trial-as one of the
participants in the robbery. '(T. 231-232, 242, 250)
While Depree, Burney and Wright, the co-indictees, held
several employees in the back of the store, the Petitioner was
in front. Employee Classie Barnwell had activated a silent
alarm, resulting in the arrival of Officer Frank Schlatt.
Shortly after Schlatt entered the £ront of the store, he was
shot. After hearing two shots, Wright observed the Petitioner
running out of the front of the store. Wright, Depree and
Burney ran out of the back. When they all arrived at the car,
Petitioner stated ti > had shot the police cc. fi CT.
658-9).
Petitioner testified in his own behalf at trial and stated
that he knew Ben Wright and the other co-indictees, but that he
had not participated in the robbery. Petitioner relied on an
alibi defense.
Petitioner was also identified at trial by two witnesses
who had observed him take part in a prior similar robbely. Mr.
Paul David Ross, manager of the Red Dot Grocery Store, also
testified that during the course of the Red Dot Robbery, his
nickle-plated .38 revolver was taken.
In its rebuttal case, the state presented the testimony of
Arthur Keissling, who identified the Petitioner as a
participant in the robbery of Dot's Produce on March 28, 1978.
(T. 887-889, 896). The state also presented the testimony of
Of fie Gene Evans in rebuttal. Mr. Evans had been incarcerated
in the Fulton County val 4a a cell located near the Petitioner
and Bernard Depree. Evans testified that the Petitioner had
talked about the robbery while incarcerated and had admitted
shooting Officer Schlatt. (T. 869-870). Evans also testified
that the Petitioner said he would have shot his way out even if
there had been a dozen policemen.
(b) The Availability of the Statement of Offie Evans.
The written tement 1 a vans was not obtaid 1
Petitioner until July, 1987. The record establishes counsel
should have been aware of the statement and that the state did
not "conceal" its existence.
The trial court conducted an in camera inspection of
certain specified material noting in its order, "The court
finds that although the documents might become materisl for
rebuttal at trial, they are not now subject to discovery.”
(T.R. 46). During cross-examination of the Petitioner at
trial, counsel for the Petitioner objected to cross-examination
by the assistant district attorney indicating that he had asked
for all statements by the Petitioner. The trial court stated,
"He has a statement which was furnished to the Court but it
doesn't. help your client." .(T. 830). —
At the first state habeas corpus hearing trial counsel,
John Turner, testified that the assistant district attorney,
Russell Parker, told him there were two items not included in
the file shown to Turner: the grand jury testimony of a
witness and a statement of an unnamed individual. (S.H.T. I at
77).
The deposition of the assistant district. attorney, Russell
Parker, was taken by Mr. Robert Stroup, counsel for the
Petitioner, on February 16, 1981. During that deposition, Mr.
vailable to (i
FP ter told Mr. Stroup at had aif;
all the defense counsel in this case." Id. (Emphasis added).
Thus, the file identified at the deposition and requested by
Mr. Stroup was the file "that was made available back at
pre=trial and trial." Id. at 5. (Emphasis added). At no time
is there any indication that this file included the matter
which was the subject of the in camera inspection. This was
the file given to habeas counsel subsequent to the deposition.
Additionally, during the deposition, Mr. Stroup, counsel
for Petitioner, referred to a "statement" from Offie Evans. In
response to a question concerning the statement, Mr. Parker
clarified stating, "When you refer to a statement, Offie Evans
gave his statement but it was not introduced at the trial. It
was part of that matter which was made in camera inspection
(sic) by the Judge prior to trial." .I1d. at 8.
Petitioner obtained a copy of the statement, apparently
from the Atlanta Police Department's file, pursuant to a
request made under the Georgia Open Records Act, O.C.G.A.
§ 50-18-70 et seq., for the first time in 1987.
SUCCESSIVE PETITIONS AND RES JUDICATA
Respondent specifically urges the Court to dismiss the
instant petition as being successive under Georgia law and as
being barred by principles of res judicata. Under O.C.G.A.
9-14-51, all claims for relief must be raised in the first
state habeas corpus petition unless they could not have
reasonably been raised or unless they are constitutionally
non-waivable. Smith v. Zant, 250 Ga. 645, 301 S.E.2d 32
(1983). Additionally, principles of res judicata apply under
state law barring reconsideration of claims previously
considered and decided adversely to the Petitioner absent a
showing of a change in the facts or a change in the law.
Steyens'v., Kemp, 254 Ga, 228, 327 $.F.24 185 (1935).
Respondent submits that there has been no such change in the
law or the applicable facts which would justify reconsideration
of the claim raised herein.
ALLEGATION OF PETITION
As the sole allegation raised in the instant petition, the
Petitioner reasserts his claims of an alleged violation of
Massiah v. United States, 377 U.S.:201 (1964). It is
undisputed that Petitioner raised this claim in the amendment
to his first state habeas corpus petition (Respondent's Exhibit
No. 1) and in the amendment to his second state habeas corpus
petition (Respondent's Exhibit No. 2). This issue was not
raised in federal court until the second federal nabeas Corpus
petition. Respondent would note that this {dentidal issue has
been raised the case of Petitioner's co-indictee, Bernard
Depree, as Offie Evans also testified against Mr. Depree based
upon the same conversations 1Avo lve herein. As can be seen by
the order of the district court in that case, a district court
judge considering the same evidence as considered by Judge
Forrester in the Petitioner's case reached the opposite
conclusion. (Respondent's Exhibit No. 5).
Petitioner now seeks to have this Court relitigate his
allegation of a Sixth Amendment violation asserting apparently
newly discovered facts. There is no question as to any new law
on this issue. Petitioner has failed to establish exactly what
newly discovered facts would justify this Court's relitigation
of this issue and what facts he contends are newly discovered.
Clearly, Offie Evans' written statement is not newly discovered
as that was the precise basis for Petitioner's amendment to the
S 5 ate ; rpus proceeding in i : et 1tilone:
relies upon the extensive evidentiary hearings held in the
United States District Court on the second federal habeas
corpus proceeding. Petitioner ignores the fact that all of
those witnesses were readily available at any time to testify
including at the first or second state habeas corpus
-“10~
proceedings in this Court and Petitioner never sought to have
their testimony profferred to this Court. In fact, Russell
Parker did testify before this Court in the first state habeas
corpus petition and testified consistently with his testimony
in 1987, that is, that he knew of no arrangements for Mr.
Evans' testimony. Mr. Evans also testified before this Court
in 1981, but was not asked whether he had been moved or placed
in a jail cell as an agent for the State. Thus, Petitioner
simply failed to pursue that line of questioning. Mr. Evans
did mention in his testimony before this Court the names of
Detective Dorsey and Detective Harris. Petitioner did not seek
to present the testimony of either one of those witnesses to
this Court even in the first or second state habeas corpus
petition and has not even indicated that he talked with either
one of these individuals. Detective Harris freely mentioned
the name of Captain Ulysses Worthy when asked in the federal
district court proceeding. Petitioner has never indicated that
he attempted to contact Mr. Worthy or that he was prevented
from doing so in any fashion.
I C I P 3 : 1 :0 rely upon a dec: sic of
United States District Court which is no longer in effect as it
was specifically vacated. Although no court actually directly
reversed the factual findings, this was not necessary due to
the procedural holdings of the Eleventh Circuit Court of
Appeals and the United States Supreme Court. Respondent would
~11=
note for this Court, however, that the Eleventh Circuit Court
of Appeals did specifically find that any Massiah violation
would be harmless error.
Petitioner focuses on the holding of the Supreme Court of
the United States in Petitioner's case in asserting that this
is simply a procedural ruling under federal law. Petitioner
ignores the numerous comments by the Court relating to the
allegations raised, including the necessity for "a prompt
investigation and the full pursuit of habeas claims in the
first petition. At the time of the first federal petition,
written logs and records with the prison staff names and
assignments existed. By the time of the second federal
petition officials had destroyed the records pursuant to normal
retention schedules. Worthy's inconsistent and confused
testimony in this case demonstrates the obvious proposition
that fact-finding processes are impaired when delayed.”
McCleskey v. Zant, 111 5.Ct. 1473-4. Thus, the Court noted
that if the Petitioner had pursued the claim in the first
federal habeas petition he could have identified the relevant
byfficers and cell aseigr ent 85 oFieT] : lso something
Petitioner could have done at the time of the first state
habeas corpus petition or the second state habeas corpus
petition but did not.
The Court went on to focus upon the twenty-one page
statement of Offie Evans which Petitioner continually asserts
the state withheld from him. The United States Supreme Court
noted the following:
~12-
McCleskey v. Zant, 111 S.Ct. at 1474.
This argument need not detain us long. When
all is said and done, the issue is not
presented in this case, despite all the
emphasis upon it in McCleskey's bier and
.oral argument. The Atlanta police turned
over the 21 page document upon request in
3987. The District Court found no
misrepresentation or wrongful conduct by the
State in failing to hand over the document
earlier, and our discussion of the evidence
in the record concerning the existence of
the statement, see n., supra, as well as the_
fact that at- least four courts have
considered and rejected petitioner's Brady
claim, the belies McCleskey's
characterization of the case. And as we
have taken care to explain, the document is
not critical to McCleskey's notice of a
Massiah claim anyway.
emphasized that there had been no finding that the State had
concealed evidence. 14d.
=13<
The Court specifically
The Court went on to consider the question of a miscarriage
of justice under federal standards. Although that holding is
not binding on this Court, the analysis by the Supreme Court of
the United States sheds light on the miscarriage of justice
inquiry by this Court.
The Massiah violation, if it be one,
resulted in the admission at trial of
truthful in culpatory evidence which did not
affect the reliability of the guilt —
determination. The very statement McCleskey
now seeks to embrace confirms his guilt.
McCleskey cannot demonstrate that the
alleged Massiah violation caused the
conviction of an innocent person.
The Court did not reverse the finding of the Eleventh
Circuit Court of Appeals that even had the merits of the
allegation b hed, and had there leer a | 5 Lal
violation, it would have been harmless error.
In reviewing the issues presented herein, it is clear that
Petitioner has failed to establish any basis for this Court's
relitigating an issue raised in this Court twice previously
when Petitioner had a full opportunity to present evidence on
wd -
this claim in 1981 and had the full opportunity to proffer
evidence on this claim in 1987 and simply failed to do so.
Petitioner's only excuse is that he sifply waited uatil he got
to federal court in 1987 to conduct his fishing expedition
which developed the sole testimony of Ulysses Worthy. None of
the other witnesses in that proceeding corroborated
Petitioners allegation of an agency relationship or a Sixth
Amendment violation and, in fact, all others specifically
denied any such relationship. Signifcantly, the two district
courts considering all of this evidence have reached contrary
views on the factual question of whether there was such an
agency relationship. Petitioner has not established that the
testimony presented in 1987 in the United States District Court
was not available only a matter of days earlier at the
proceeding in this Court.
Under the Georgia rules established in Stevens, Petitioner
must establish essentially that he had new facts which he could
not have discovered in 1981 or in 1987 and Petitioner has
simply failed to do so. Contrary to Petitioner's assertion,
there has never bHeen an; £3 ng OF a coverupsor polic
misconduct regarding any statement of Offie Evans.
Furthermore, certain factual findings by the district court are
obviously clearly erroneous, that is, that Mr. Evans was given
information not known to the general public, as there has never
been any such evidence presented in any court. Furthermore,
~15-
there has been no showing that the testimony of Offie Evans was
unreliable or false and in fact by making the challenge herein,
Petitioner necessarily admits that he nad conversations with
Offie Evans in which he revealed inculpatory information.
Petitioner's final reliance on an alleged miscarriage of
justice is also meritless. The Supreme Court of Georgia at
this time has yet to specifically conclude that the miscarriage
of justice exception would apply to successive petitions under
O.C.G.A. § 9-14-51. Gunter v. Hickman, 256 Ga. 315, 348 S.r.28
644 (1986). In that case, the Court simply assumed without
deciding that "miscarriage of justice" would be a cognizable
consideration in a successive habeas petition. The Court
acknowledged its holding in Valenzuela v. Newsome, 253 Ga. 793,
325 S.E.24 370.(1985), that a miscarriage of justice "demands a
much greater substance, approaching perhaps the imprisonment of
one who, not only is not quilty of the specific offense for
which he is convicted, but, further, is not even culpable in
the circumstances under inquiry. . . ." Valernizuea, 253 Ga. at
796. Under the circumstances of this case, Petitioner's
allegation of a“lassiall vidlatic f < c-t of meeting
the miscarriage of justice exception as defined in Valenzuea,
even assuming that that exception would apply to a successive
petition.
S16~
Respondent submits from a review of all the above, it is
clear that the principles of res judicata barre consideration
of Petitioner's claim of a Sixth Amendment violations
Petitioner has failed to establish that he has new facts not
available to him at the time of his first or second petitions
in this Court and he has failed to show that there is any
miscarriage of justice that would result from the failure of
this Court to reconsider this claim at this time.
~17-
CONCLUSION
WHEREFORE, Respondent prays that the instant motion to
dismiss be granted and that this Court conclude that Petitioner
has presented a claim previously raised and which should not be
relitigated in these proceedings.
Please serve:
MARY BETH WESTMORELAND
132 State Judicial Building
40 Capitol Square
Atlanta, Georgia 30334
(404) 656-3349
Respectfully submitted,
MICHAEL J. BOWERS 071650
Attorney General
Nis »
Nid rl 1 1\ / NCC UA. 3 AL
SUSAN V. BOLEYN ” 065850
Senior Assistant Attorney General
Icon Yomec beac at
MahY gE: WESTMORELAND 750150
Seniar Assistant Attorney General
-18-
CERTIFICATE OF SERVICE
I do hereby certify that have this day served
the within and foregoing MOTION TO DISMISS AND BRIEF IN
SUPPORT, prior to filing the same, by depositing a copy
thereof, postage prepaid, in the United States Mail,
properly addressed upon:
Robert H. Stroup
141 Walton Street
Atlanta, Georgia - 30303
John Charles Boger
University of North Carolina
School of Law, CB #3380
Chapel Hill, North Carolina 27599
Mark E. Olive
Georgia Resource Center
920 Ponce de Leon Avenue, N.E.
Atlanta, Georgia 30306
Honorable Hal Craig, Chief Judge
Flint Judicial Circuit
Henry County Courthouse
2nd Floor
McDonough Georail a 30253
This\/\/) day of July, 1991.
§ heer” ’ 3 5% Wid - / pe
Va 17) VAL Lec las. L
MARY /BETH WESTMORELAND
Seni Assistant
Attorney General
~19-
IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
WARREN McCLESKEY,
CIVIL ACTION NO.
Petitioner, 91-v-3669
V.
WALTER D. ZANT, WARDEN,
. HABEAS CORPUS
¥
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Respondent.
RETURN AND ANSWER
COMES NOW Walter Zant, Warden, Respondent in the
above-styled action, and submits the instant Return and Answer
to this petition for a writ of habeas corpus, showing and
stating the following:
5
Respondent admits that Petitioner is presently incarcerated
pursuant to sentences imposed by the Superior Court of Fulton
County, Georgia on October 12, 1978, for the Stionses of murder
and armed robbery and that Petitioner is presently under
sencence of deatn.
2.
Respondent admits the procedural allegations set forth in
the form petition insofar as it sets forth a partial procedural
history of the case.
3.
In response to Part IV of the petition in which Petitioner
sets forth his previous counsel, Respondent would further aver
that in all post-conviction proceedings, Petitioner has also
been represented by John Charles Boger and that particularly
Mr. Boger has been actively representing the Petitioner in both
in the first and second federal habeas corpus petition and in
the second state habeas corpus petition as well as having his
name on the first state habeas corpus petition as counsel.
q.
Respondent admits Paragraphs 1 through 9 and 11 through 18
of the typewritten petition insofar as they set forth the
procedural history of the case. In response to Paragraph 10
relating to the extraordinary motion for new trial, Respondent
further avers that the extraordinary motion for new trial was
expressly withdrawn by counsel for the Petitioner :in April of
1982. (See Respondent's Exhibit No. 3).
5
In response to heading II, A, Paragraphs 19 through 31,
Respondent specifically denies that Petitioner has established
any constitutional violation under Massiah v. United States,
377 U.S. 201 (1964), denies that Petitioner took reasonable
steps to substantiate his Massiah claim in the two prior state
habeas corpus applications, denies that any statement was
improperly withheld by the state, denies that the testimony
presented to the United States District Court in 1987 was
unavailable for inclusion in the 1987 state habeas corpus
application, denies that Petitioner has established any newly
discovered evidence in the instant proceeding not available at
the time of the filing of his first or second state habeas
corpus proceedings, denies that there has been any police
misconduct or any cover up and specifically denies- that
Petitioner has established any basis for considering this claim
on the merits.
6.
Respondent specifically denies Section II, Part B in which
Petitioner asserts that his Sixth Amendment rights were
violated by the use of the testimony of inmate Offie Evans.
Respondent additionally denies in general the factual
allegations set forth in Paragraphs 33 through 37 except
insofar as Petitioner states that Offie Evans t: ified against
the Petitioner at trial.
2.
Respondent also denies that there is any miscarriage of
justice by the failure to consider this claim on the merits
under state law as set forth in Paragraphs 38 through 40.
Se
8.
Respondent denies each and every allegation of fact and law
contained in the instant petition not herein admitted,
controverted or specifically denied.
As will be set forth more fully in a motion to dismiss,
Respondent specifically asserts that the instant petition is
successive under O0.C.G.A. § 9-14-51 and applicable case law and
presents no basis for this Court's considering the issue raised.
WHEREFORE, Respondent prays that the instant petition be
dismissed, that, assuming any execution date has been set by
the time of the hearing in this Court, any requested stay of
execution be denied and, in the alternative, that ‘the relief
requested in the petition be denied and that judgment be
entered in favor of the :Resnc
oo £3 em
Please serve:
MARY BETH WESTMORELAND
132 State Judicial Buildi
40 Capitol Square
Atlanta, Georgia 30334
(404) 656-3349
Respectfully submitted,
MICHAEL J. BOWERS 071650
Attorney General
A i / ]. Far / / n d
A» Z / \ JS 5 VY » {
4 A 4 pe’ Ad (AW 3 V2 2
é Y —-. antl Sy - Vg I
SUSAN V. BOLEYN // 065850
Senior Assistant Attorney General
~~ \ rd
YY) £
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MARY BETH WESTMORELAND 750150
Senigy Assistant Attorney General
J
Lng
CERTIFICATE OF SERVICE
the within and foregoing Return and Answer, prior to filing
the same, by depositing a copy thereof, postage prepaid, in
the United State
This
Ss Mail, properly addressed upon:
Robert H. Stroup
141 Walton Street
Atlanta, Georgia 30303
John Charles Boger
University of North Carolina
School of Law
CB. No. "3380
Chapel Hill, North Carolina 27599
Mark E. Olive
Georgia Resource Center
920 Ponce de Leon Avenue, N.E.
Atlanta, Georgia 30306
nr MOY
Pi
1 El
IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
WARREN McCLESKEY,
Petitioner,
HABEAS CORPUS VS.
WALTER D. ZANT, Warden, No.
Georgia Diagnostic and
Classification Center,
Respondent.
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ORDER
On application by Petitioner for leave to file a Petition
for Writ of Habeas Corpus without prepayment of fees or costs, and
to proceed in forma pauperis,
IT IS ORDERED THAT Petitioner's Motion for Leave To File a
Petition for Writ of Habeas Corpus without payment of fees or
costs is hereby GRANTED, and that Petitioner may proceed in this
matter in forma pauperis.
/
This the [2% con of June, 1991.
fio fe
JUDGE, BUTTS COUNT{K SUPERIOR COURT
}
IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
WARREN McCLESKEY,
Petitioner,
HABEAS CORPUS VSe
WALTER D. ZANT, Warden, No.
Georgia Diagnostic and
Classification Center,
Respondent.
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MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Petitioner, WARREN McCLESKEY, by his undersigned counsel,
asks for leave to file the Petition for Writ of Habeas Corpus
submitted herewith without prepayment of fees or costs, and to
proceed in forma pauperis.
Petitioner's Affidavit of Poverty is attached hereto as Ex-
hibit "an,
This the = day of June, 1991.
Respectfully submitted,
Mark E. Olive Robert H. Stroup
Georgia Resource Center 141 Walton Street, N.W.
920 Ponce de Leon, N.E. Atlanta, Georgia 30303
Atlanta, Georgia 30306 (404) 522-8500
(404) 898-2060
John Charles Boger
University of North Carolina
School of Law - CB # 3380
Chapel Hill, North Carolina 27599
(919) 962-8516
ATTORNEYS FOR PETITIONER
AOC-6
(7-1-
IN THE SUPERIOR COURT OF BUTTS
STATE OF GEORGIA
’
SSttISher, Civil Action Wo.
D-003935 ’:
Inmate Number Habeas Corpus
vs
WALTER ZANT » Warden
Georgia Glaipoglic & Classipication Center
Name © nstituvtion
Respondent.
Request to Proceed in Forma Pauperis
I, WARREN McCLESKEY » being first duly sworn, depose and
soy that I am the plaintiff in the above entitled case; that in
support of my motion to proceed without beipg required to prepay
fees, costs or give security therefor,I state that because of my
poverty-I am unable to pay the costs of said proceeding or to give
security therefor; that I believe I am entitled to redress.
I further swear that the responses which I have made to gques-
tions and instructions below are true.
l. Are you presently employed? Yes ( ) No ( )
a. If the answer is yes, state the amount of your
salary or wages per month, and give the name and
address of your employer.
85)
\
AOC-6
(7-1-85)
!
b. I1f the answer is no, state the date of last
employment and the amount of the salary and wages
per month which you received.
Have you received within the past twelve months any
money from any of the following sources:.
a. Business, profession or form of self-employment?
Yes ( ) “No dt.)
b. Pensions, annuities or life insurance payments?
Yes ( ) NO. ( )
Cc. Rent payments, interest or dividends?
Yes ( ) No ( )
d. Gifts or inheritances?
~
Yes ( ) No ( )
e. Any other sources?
Yes ( ) No ( )
If the answer to any of the above is yes, describe each
source of money and state the amount received from each
during the past twelve months.
Do you own any cash, or 40 you have money in a checking
or savings account? Yes ( ) No () (Include any
funds in prison accounts)
If the answer is yes, state the total value of the items
owned.
Do you own any real estate, stocks, bonds, notes, auto-
mobiles, or other valuable property (excluding ordinary
household furnishings and clothing)?
Yes ( ) No ( )
If the answer is yes, describe the property and state
its approximate value.
List the persons who are dependent upon you for finan-
cial support; state your relationship to those persons,
and indicate how you contribute toward their support.
— De
I understand that a false statement or answer to any ques-
tion in this affidavit will subject me to penalties for perjury
and that state law provides as follows:
(a)
(b)
A person to whom a lawful oath or affirmation
bas been administered commits the offense of
perjury when, in a judicial proceeding, he
knowingly and willfully makes a false state-
ment material to the {issue on point in question
A person convicted of the offense of perjury
shall be punished by a fine of not more than $1000
or by imprisonment for not less than one or more
than ten years, or both....0.C.G.A.§16-10-70
Signature of Petitioner
VERIPICATIOR
State of Georgia, County of BUTTS
Personally appeared before me, the undersigned officer authorized
by law to administer oaths, the undersigned affiant, who having
first been duly sworn, says under oath: Th>t he is the plaintiff
in this action and knows the content of the above Request to
Proceed in Forma Pauperis; that the answers he has given are true
of his own knowledge, except as to those matters that are stated
in it on his information and belief, and as to those matters he
believes them to be true. Affiant further says under oath that
‘he has read the perjury statute set out above and is aware of the
penalties for giving any false information on this form.
Signature of Affiant Petitioner
Subscribed and sworn to before me
this day of ' 19 .
(Notary Public or other person authorized
by law to administer oaths.)
L]
CERTIFICATION
I bereby certify that the Plaintiff herein has an average
monthly balance for the last twelve (12) months of §
on” account to his credit at the
institution where he is confined, I further certify that Plain-
tiff likewise has the following securities to his credit accord-
ing to the records of said
Institution:
If not confined for a full twelve (12) months, specify the number
of months confined. Then compute average monthly balance on that
number of months.
AOC-6
J 3
acthorized Offlcer of Institution Date
(Please attach copy of Balance Sheet if available)
-4-
ers
IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
WARREN MCCLESKEY CIVIL ACTION NO.
91-V-3669
Petitioner,
HABEAS CORPUS
v.
WALTER D. ZANT, WARDEN,
*
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Respondent.
RESPONDENT'S SECOND NOTICE OF FILING
COMES NOW Walter Zant, Warden, Respondent in the
above-styled action, and submits the instant additional
exhibits for this Court's consideration in relation to the
motion to dismiss:
(1) Respondent's Exhibit No. 6 - testimony of Offie Evans
from the state habeas corpus hearing held on January
30, 1981, consisting of pages 114 through 133 of the
transcript;
(2) Respondent's Exhibit No. 7 - deposition of Russell
Parker, taken in the prior habeas Corpus action, No.
4909.
CONCLUSION
WHEREFORE, Respondent prays that these documents be made a
part of the record in this case.
Respectfully submitted,
MICHAEL J. BOWERS 071650
Attorney General
ie { A . y,
Net Mod i TIT bp le i FO J gf v—"
SUSAN V. BOLEYN / 065850
Senior Assistant Attorney General
{ Td ” 7)
Flea flrs fry fr aang
NL hse DL A seit 2
MARY Pe WESTMORELAND 750150
Senio assistant Attorney General
Please serve:
MARY BETH WESTMORELAND
132 State Judicial Building
40 Capitol Square
Atlanta, Georgia 30334
(404) 656-3349
CERTIFICATE OF SERVICE
1:40 hereby certify that I have this day served
the within and foregoing RESPONDENT'S SECOND NOTICE OF
FILING, prior to filing the same, by depositing a copy
thereof, postage prepaid, in the United States Mail,
properly addressed upon:
Robert H. Stroup
141 Walton Street
Atlanta, Georgia 30303
John Charles Boger
University of North Carolina
School of Law’
CB No. 3380
Chapel Hill, North Carolina 27599
Mark E. Olive
Georgia Resource Center
920 Ponce de Leon Avenue
Atlanta, Georgia 30306
Honorable Hal Craig
Chief Judge
Plint Judicial Circuit
Henry County Courthouse
2nd Floor
McDonough, Georgia 30253
This [HA aay of September, 1991.
/
Whee Cth (2 Se Ltr ro foal
MARY PETH ras /
Senior) Assistant
Attorney General
WARREN McCLESKEY BUTTS SUPERIOR COURT
x
Petitioner 3
VS CASE NUMBER: 4909
WALTER ZANT, WARDEN PETITION FOR WRIT OP
HABEAS CORPUS
Respondent
ALEX CRUMBLEY
LIOR COURTS
-
- m + vt ££ 33 o Transcript of proceedings
3 : Sai, a 2
held in Butts Superior Court
Tartiyz ve +n 20) +) 1 QAR
Ch January gne 'sbth, 1961
before Judge R. Alex Crumbley.
For the Petitioner MR. ROBERT H. STROUP
Attorney 3% l.aw
1515 Healey Bullding
57 Porsyth Street, N.W.
Atlanta, Georgl
For the Respondent: HOLAS G. DUMICH
t Attorney General
Atlanta, fieorpiia 30334
91 -V-3669
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to have one of the Atlanta Police Officers rel
corie out and talk to you?
I did that.
County Deputy
Okay. Did you have any conv
Warren McCleskey's trial?
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A Yeah.
5 Q --. What sentence are you serving right now? WHE a
A I Broke probation on that. : 3
Q Okay. Did Mr. Parker ever come up to you and ask
You to testify during the Wilbert Anderson trial and if you
would testify, he would try to get you a lesser sentence?
Did he ever try to make that kind of deal with you?
A No. The reason I got a light sentence on that
Clarence Brantley, was because Clarence Brantley told--he didn't
want me, he wanted the “man who really robbed him. He told me
that if I would give him that fellow's name and help catch
‘him, that he would tell the Judge--try and get the Judge to ]
drop my sentence but he wouldn't drop it. He went ahead and
give me the five years anyway. That was between me and the
man that got robbed.
Q That was the name of the Co-Defendant, if you
would give them his name?
A Yeah. He was the cne I made a deal with.
Q Okay.
THE COURT: He said he made the deal with the
Co-Defendant, not with the Prosecutor or the police.
Isn't that right, ir. Evans
THE aidonras Yes, sir:
BY IMR. DUNMICH:
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IN me SUPERIOR COURT OF BUTTS COUNTY
Bare OF GEORGIA
Tr mew
WARREN MCCLESKEY, Bei
C Ro
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0 04
WALTER | ey anioa .
- Petitioner, ”
tut Fg ch 4509
TEM wise rl od by 3 ‘ ROT Lying Oy 8
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Classification Center,
4i7. Habeas Corpus
Georgia Diagnostic and Lae
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Respondent.
i t { ! L ! I ! i 1 ! i t
4
! ! ! i | ] t i ! i t “
The <eposttion of RUSSELL PARKER fovan before
Foster Corbin, Certified Court Reporter, all formalities,
excluding + the Feading and signing of the deposition,
being waived, cormencing at 3:15 Pp. me February 16,
F
i
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ie
s
1981 at the Fulton County District Attorney 8 Sitios, i
WR a 5 rend
gy RTL Er
atten County Courthouse,’ ET Fulton Cott,
Georgia,
CORBIN & LIEBERMAN
CERTIFIED COURT REPORTERS _
. SUITE 828, 1293 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30309
(404) 892-3699 .. “+
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APPEARANCE OF COUNSEL
For the Petitioner:
ROBERT H. STROUP, Esquire
1515 Fealey Building
57 Forsyth Street, N.W.
‘Atlanta, Georgia 30303
‘For the Responderit :
NICHOLAS CG. DUMICE, Esquire
132 state Judicial Building
40 Capitol Square, 8.¥.
Atlanta, Georgia 30234
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‘Police Officer Frank Schlatt?
PP RC CEEDINGS
2 MR. STROUP: ‘This ig the deposition of Russell
Parker then by the petitioner for all purposes Peghittey undp
law and i to order of the court. Would you swear the
» ’
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Wherevpon, = ;
RUSSFLL PARKER
was called as a witness and, having been first duty bi
BwOorn, was oxandned and testified as follows:
i CROSS EXAMINATION
BY MR. ld | 4
24 H
a. ould you for the record state vour fall name, pleage?
3 Russell J, Parker, P-A-R-K-E-R. |
| Q Where are you currently emploved?
A Fulton County District Attorney's office, : :
0 =e How long have you baen ith the Fulton County Distro
tornay’ 8 office?
RS inen July, 1973.
: QO Were you the assistant district attorney assigned ©
» handle the cages arising out of the shooting of Atlanta i
A I handled the case, yes.
That dnclidsd the trial of Warren MoCIsskey? L
AW ae ah
NEE wis :
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Q | It also tnvolved the trial of two of ee other |
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Govdafarla ig: ‘1s that correct?
a Yes, sir. ~
Q Do you rasAL) when the trial of Warren McCleskey
to all the en wi he acts ry
a "Prior to trial and during trial,
no 5 AY) eight, Let me direct your attention to the fron
cover. Let me ask you, do you have that file with you here +
today?
A Yes, I do.
Wine All right. You have reviewed that #110 prior to tht
was? |
| A can 3 look at my notes and refrosh my memory?
iin Bye TE. was October, Pg is that when we are talking i
about? | "
A
EE tog approximately, ves.
a ‘The ¢ co-defendants ware tried in the next month
separately? : | :
AT That tony recollection, ves, str. ;
E 0 Prior to the trial of Warren MeCleskey did you Bade):
a file which you wir available to Sotonse counsel Yeprasenting
| warren MeCleskey? " i
B. I had a file I made available to all the dofense “il
counsel in this case. Ey
Sail Bi} right. Thers was one file hat yas ;made available
ind Opts
{ Fag Sto
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; Hah
I ‘ Feo date to deternine, as best as you can daternine, it's the same mre
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representation of Warren McCleskey, vour hest~—-
cover of that file ane ask you whit thoge quotations are that
that's a fairly accurate 309,
| BY MR, STROUP:
file that vas made available tack ‘dn pretrial and goial perio?
A Yes, sir.
@ All right. That specifically as it relates to
A Warren McCleskey and the other defendants.
hE RRR
And, gil EL It's she same fils ogi an it was tn i
gceober of 19787
A ‘2s far as he can determine.
Ha Okay. Let me direct vour attention just to the
are written on the cover?
A Wall, ¥ tried to make notes by day and time as to.
when defense attorneys looked at the file. Usually, I ik
those notes at the time they locked at it. Y would say the
notes are fairly accurate. IFT Addn: put it down initially,
then there may be some discrepancy. But IY wonla say generally
i All right. Can we go off tin record PULL a second?
(Discussion off the record.)
0 Let's go back on the record, We have agreed that--
coungel for the parties have agreed that we will copy
an attach to the deposition the antive file including the i
cover sheet. The cover sheet that has your handwriting on de
“Vhat is your boat iow as 0 how accurately it details the
a ! » $3 AEE 2 Ay bo Gea AR Ax ARCHIE PSUR EAD
Eis GN pleas
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24
| the file on September 27, 1978 for approximately and hour and
‘the attorneys who ‘were representing each of the defendants? i:
name of Joa Cailey came into the piasure somewhere faring
inspection of the file by defense counsel?
EAT I see only one entry that doesn't appear to ke my
handwriting and that is, the entry that Donnie Stein viewed
a half, I'm sure I gave this file to defense attorneys and
asked then to make notations as to how long they had it;
whether o or ny they ‘gave me go the otarions which I then is
would have put on ‘the cover sheet, I don't know-- I don’ t
know whose handwriting that is. Maybe it's Stein's, Nimsolz,
a CL Thattly the 9- 27-78 entry?
i Uh-huh, (Affirmative. )
0° So the record is olenr; could you just identify
| > | Vell, Ponnie Stein represented Ben Wright: the
public defender initially represented Burney and continued
to represent him throughout: the trial. An attorney by the
$b i pny represented Fron. Dupree was reprosented |
by Mike Nashington, George Lawson and Charles Hudson. All 3°
»f them came py. at various times. John Turner represented a
McCleskey. oh |
0 With respect to John Turner's reviewing the file,
do you have ry recollection of his viewing the file other i
than the dates that's indicated on the Sores 3 sheet?
ELA I note that John Turner reviewed the file on october Ro go
# Fadl XB
wl tl YE BERLE i
8 i tn * Fhe Ea Fira
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5th, 1973 for LE hours and i ftaan inate, He apparently]
used the file from October 9 through October 13 and throughout
the trial. John Turner and XI had J2sgussel his client's 5
involvement on other times. Whether or not he reviewed the 3
file, I can't say.
-—
dds ALY, Tight. Was, it usual practice to record the dated
of otsn cs counsel's reviewing of the file and the tires? i
i A I tried to. I see there" 8 actually two entries I ps
aidan’ £ meke. Both of ‘them wate dated September 27, 1978. One
involved Stain who represented Ren Wright. Cne represents if
Hudson who was one of the three lngers representing Dupree.
: (40 Aga ALL A é (Les,
I didn't enter parts. belt 2 ew Ig
I'm sure there must have Yess other ngtances yg perhaps
‘0 an right, Let me just ask you, directing your
attention to the 3 or 4 different statements that are in
the file vas there present at the time, was there present
in the file at the tire that John Turner reviewed the file al
ARTES] BEST Later Jo bi fir SAG
IN SENT BRR LP BL
2 SbRtorart Sri Dan O1iver dated 5-13-78?
A Yes, sir. oa 4 eal, yt : di) Fo
0 All right. And was there similarly at the time of
John Turner's inspection of the file a statement by Ben Lester
Tyson of 5~- 13-782
A Yes, ix.
ba! ~f A The
IP d £4 fr 5
i La Vas, thera 2 statment ~ the file at the. tine ] oy
RACE i ag ies BL
* John ‘Turner revieved the file, a Btaterant von Jamas Grier, :
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28 at this point vhether Jowers ana Rarris went out to the Jai [er
Junior of 5-13-78?
A Yes, sir.
@ Fipally, was there present in the file at the time |
that John Turner reviewed it a statement by Fenry Nelloms of
maybe May 15, '78, as best as I can read it?
-
apsini ie ob Yes, IRIE ee CARTY
fr Okay. News. 2 want to direct your attention to af
statement from Offie Evans that was introduced at Warren
Mecleskey! 5 trial and ask you a few quastions about that -
statement. Fow was it that you came to learn that offie Eavns
might have sore testinony that you would want to Tose in the ik
Warren MoCleskay trial? an
FY Ckay. When you Yeferreld to a statement, offie
Evans gave his statement but it was not introduced at the |:
trial, it was part of that matter that was made in camera Al
inspection by the judge prior zo trial,
ie ALL right. Let me make Slear what ny question was,’
ghia wy Bod iy
on ottte Evans aia in fact eive testimony at the eta [1
let me rephrase 1t, When did you learn that Offie Evans had i
“estimony that you might want to use at trial?
ae believe I was first notified by Detective Jowers
or Betdative Harris, homicide detectives, who apparently had 1
been Sontacied by a Geputy, c. K. Hamilton, 1 don't recall
cA
to talk to offie and that involved me or whether tho called
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DOPED being involved at all?
over to the Atlanta Police Department and we talked to Ryans
there. I know I did talk to Evans and I did talk to him at
the BtYanka Police Department,
+} How about Detective Dorsey? Do vou recall Detective vs
A Doxsey was {nvolved in he inyeseigation, At vhsy 3 CHa 4k HI
ig 3 don’ i remember.
SREY REIN FY rd A Si
oh All right. How about specifically with respect to
Sectineny of Offie Evans? Do you recall Dorsey having any
role in developing the testimony of Evans?
A LAL this ‘point IY don't know if Dorsey had any role
in ie. The only thing I remember really is that Deputy
Hamilton, Detective Jovers and ee
SIR Dig you, yourself, have any prior dealings with.
Offie Evans prior to his becoming involved in the Frank Schlatt
case?
a No, siz, I adn: . now Offie Fvans prior to that i Ty
joo ak ‘Okay. Vere you aware at the time of ‘the trial’ of i lL
any understandings between Evans and any Atlanta police depart
rant detectives regarding favorable recommendation to be made
on his federal escape charge if he would cooperate with this|
matter?
|
A No, Bit
i Sgt] Let me ask ‘the question another way to make sure
“we are clear. ite you today avare of any understanding betweeh |
A LE Re ik WL dat ROT + pdr EY IN RIT Tr A Ti ae a LE SUP Fi hg Bex! HE FER y
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of a ‘pending escape charge? |
=
all He trials wero completed. And > believe it was in = a
on protection. |
10
any Atlanta police department detectives and 0ffie Evans? Ch
A No, sir, I'm not aware of any. I understood that 35
he was not prosecuted for the escape but I understand he was hE
placed back in the federal penitentiary,
Q - Ckay. pia vou, vourself, after the Warren HeCleskey|
trial, contest any FBT agents to discuss wich them phe > matter) 5
AEE OL EL EN 4 I
SA I have talked to several PRI agents about the ease.
TECTEERTT Ty wr LPR N ER EE —— ., SC —— ER SRR TT SVE
only one Tetne aia it involve Offie Evans. And that was after
OE SEIN AW HR EL Pe Sl haat ll ae EE a
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a ERR, YE
Do you now who the PBI agent was Who you spoke with
regarding offie Evans? | Lo
A 1 don't at this time. But I did write a letter to
abe warden in the federal pen. At least IX wrote, aratted te
for . Slayton.
or A right. Let me ask you your Ne on “the a
timing. Is it possible vou contacted an FBI agent regarding 1
Offie Evans’ 8 escape charge prior to the trial of the co- - a
defendants Burney and Dupree?
A I don't know, I've got a letter dated November 206m,
1978, when IX wrote to the Warden at the United States
Penitentiary in Atlanta. I believe that would be after all’ Ei
. SR LK, | eX
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‘trials had been completed. 1 ‘vecall aificulties having oreig
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don’ + recall now whether he Ni Bill in Pujton Lote Jail
rata were.
*, | transortpe--
11
Evans brought over to trial because he was 3 federal prigonen
I believe the first time we brought him over, he was still tn
the Fulton County Jail, as I recall. I may be wrong. We se111]
had to use U, 8, Marshals. ‘4 recall the second time he was
brought over, ve stil] have to use U. £. Marshals. And T
. Ratan. he was in Pr etocatl Pon. jo r FAR 3 aia a
a conversation with the U. S., Marshal's office and also with i
the FBI agents as to how to get him here, pon
Q A11 right. Pow about prior to the trial of the e com
defendants? Do you have any recollection of a conversation 5
bringing to the Pcie agent attention the fact that Evans 8 is
had testified i Warren MoCleskey! 5 trial? 5
A Specifically, no. I think, however, when I wl
this letter to the warden, I think I told the FBI agent who is i TA Wigton ret gh
gave me -that. name what Offie Evans had done, that is, that |
he had togutsted at both seins and iii ‘the ygsuite of those|
0 All right. Lot me just refresh your cy
it does~~ let mae show you a trial transcript. This is State §
of Georgia versus David Burney and Bernard Dupree, trial
commencing November 13, 1978 at Atlanta. I direct your
attentien to a Ataterant thas you Mase at page 37 of shay 2
a yt Okay.
oh
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charges, will be processed against Hr. Pvans.®
12
a That {ndicatas that prior to the trial of the |
co-defendants and after McCleskey' & arial, you did contact an
agent of the FBI?
HR I still don’ * know whether I contacted him or he nt:
contacted me. But evidently we had a conversation.
3 All right, Your Ata torent ps of the gia} of Permazt SONEE
BIER AR Kb Le bis
oso Hy David Burney was “that vou noes She agent; is
that not correct, to determine if he was aning to continue. to
press charges for escape?
- I say I have contacted. IX still don’ t know whether
thy I contacted the agent as to how to get offie Fans, to testify
or whether the agent called me.
0 ‘R11 right.
A There was some question in my I as to how to jel
get him over here the ‘second time. io
0 Your earlier Statement made to the court was, 1 have
contacted the agent with the Fed leral Jureay of Investigation
Iv Lar A Ro ho hades ho a RIVE my Sk IRS hr
to determine 1s he is acing to AA to rons Sharges of
escape; sn! %* thas correct?
A That's what the transcript gays, sir.
+} "I have not asked him to drop charges of escape but
MR PIINT RY IRR wey —_.. EE AE SE SO EE NZS SPR Tn AY
I believe he on going to act on that information 4 have: passe
“memo: ame SS eT SS TOC Y rT TI A I ER ESA RR LISS ACTED
to him, that re Mr. Evans atd testify once Yofore. And Y 4] Vr mam aa A aa SERRE pHi. PRR TY te as EF Sou CERES
vs don't believe the federal charges of escape, the latest fodorp
v ob ER Th FA ow
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45 >
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; FBI agent. was?
13
A Yes.
ag That is correct, that is a correct statement of what
you said earlier?
‘A I believe it is correct, sir.
°o FRY Eight, You don't recall at that tire who that
pi hd a le wl 2 on Fo ah y gi T di LE ep
A No. I'm sure it was the agent that would Have
investigated primarily his charge of escape.
Q You do not hava any records that would indicate
the name?
A - probaly have a yellow phone tab, [personal file, |
vith his name on dey,
0 Okay.
A But I believe iv'g about this letter I wrote to Welbmn
Hanberry rather than relating to this conversation that you are
asking about,
” ° All right. I think that's all that. I have otherthah
REE
that 1 do want the record 0 clanely reflect hat the partics|
have agreed that we will copy the entire investigative fils ks
that was made available to councgel~-
i All counsel,
All counsel including John Turnar-—-
a
Q
A | Right.
Q
’ 5 Prinz PV
" and it wi be. attached to the deposteton as Exntnit 5
pray
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BY MR. DUMICH:
22 offi Pyins's testimony at trial, Mr. McCleskey! 8 AT3al,
vas put back in the federal pen.
14
MR. DUMICH: That's fine. Are you through?
MR. STROUP: Yeah, that's all Y have.
BEDIRTCY EXAMINATI ou
8 I just have 2 few questions. Mr. Parker, in regards
was Shas. any deal I A rade with Mr. Evans in aR oe
for Bis testimony at the trial?
A I'm not avare cf any. I don't now of any deal.
Q What about at the Burney trial? Was have anything, rd
was there any indication given by you to Mr. Pvansg prior to |
his + testimony in the Burhey trial that you would do anything 1
for him or try to do, try £5 contact “people for him to try
and sea that his escape charge wasn't prosecuted or that he =
would get a reduction in sentence or anything along those
lines? SO {iol i
sik I Nav never asked anybody to yop a Shavgas. x don’
iy or 0££18 ever king anvholy to ery and ot the charges
droppad for him. x am not surprised that they are éropped. “il
Obviously the police officer was killed and the guy testified
twice for the state. It doesn't surprise me in the least that|
the charges have been dropped. But the fact that the charge
was dropped doesn’ t mean that he wasn't ‘punished because he
7 [\) Do you have any knowledge hac a Pvans was 6 working dr
SHEE RY TO
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3 i Pd his overhearing conversations at the Fulton councy Jail.
any plea negotiations with you during the course of the pretrial
1 don't think at any time did he ever indicate to me that
15
as an nformant for the Atlanta Police or any police authorities
when he was Plated in the Yulion County Jail and when he overheard
these coversations of Mr. McCleskev? |
A. I don't how of any instance that 0ffie Evans had 21
worked for the Atlanta Police Department as an informant prio
2
5
0 Do you recall whether Mr. Turner, Mr, John Turner, Si
who represented He. McCleskey at the trial, had aneusad in Ay
i
contacts with him prior to Mr. McCleskey's trial?
i Jobin Turner contacted me saveral times, both by
telephone and in person-- as to the disposition of the case,
McCleskey wantad to plead guilty. In fact, the morning of |
trial, an IX recall, John Thrtey asked for a short protrial--
and Jaane into the witness room. of course, he wanted to know
ras the ratters were at that time that tha Judge Bad made =
an Wi camera Cr anGs Sit of. of course, I told tar I couldn't 3
tell him; no sense in having an in camera inspection if I
was going to do that. At that time I believe he told me Wer
McCleskey Wantad a trial, was adamant, would not plead guilty,
Q Okay.
A We never discussed a plea,
0 | lat me ask you this: Are you aware of gen Ho 2k
A There wera « thes thirgs that went along with hat. | hd
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attorneys representing thei clients got copies of their |
elients® statements that are not PIPTN on the file cover. so
clerk's file, you'11 see Whers the state 2i1ed a motion to 3
gH Would you explain? 5
» McCleskey had given two statements, one in Marietta|
and Cobb County, ‘one at the Atlanta Police Department. According
to John Turner, a felt like he could stand on the one| |
in Atlanta, I mean the one in Cobb County, claimed that the one
EA
in Atlanta was coerced, rr sure those are Statevents that vere fin
af j gd Sd Pr y 3 : AE
‘given to John Turner are not listed on this file cover. fix
In other words, his client! s statementg-- I'm sure the other F
when 1 sey they reviewed the files, there are other instances
where they have gotten information perhaps, autopsy, I'm sure
they ol portions of the crime lab reports. I'm sure they got
copies of their clients! statements. And that's one reason I
pr
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was suggesting that if you are going to attach pny part of th
file, ‘you ought to attach the whole thing beacause even the 5a
get atts of hair of all the defendants. We were ‘trying NE a
ratch up hair sarples., So I'm sure they were aware of tab Cif
reports that had been prepared and why we were preparing the |
motion for hair samples, so when I gay this cover sheet to- |
I don't think really shows the whole picture of the information
that thoy had,
i
SR
24 Q Okay. Lot-me ask you, axe you avare of why ‘the’ jie A
decision was made to seek the seath penalty in this particular
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| pia that have any bearing on your decision to Beek the death
FOE, Mr, offie Evans An regards to not being prosecuted? You 2
hal iy i! FEF
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cape?
A Well, I'm not so sure I understand exactly What you
he wasn't guilsy, Y don’ t think John Turner ever said anything
other than that, Everything I had indicated that McCleskey
was the person that killed Qfticer Sohiathe il
decision to seek the death Ponatoy in this case?
a ; What about. the race of the victim, officer Schlate? :
penalty? CAE ki oi iH
§ WL fo; sir. E:
8 Earlier vhan you testified that you may have contacted
the FBI in regards to offie Evans's testimony in this case, |
was that in anv vay an attempt to cet favorable treatment
may have covered that earlier. I Tash wanted to rake aure ve
3
get that in the ‘record.
A ps don't think I ever asked him to do anything: in
fact, I'm sure I didn’t. Like y say, I'm not surprised that :
he wasn't prosecuted. pits
A 4 I'n not shocked, in other words, LE
° That 8 a1 5 ‘have. fo RA
are asking me. The client~~ John Turner said his elient claimed
Q pid Mr, McCleskey' 8 race have any influence on your
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not aware of any such offer.
18
| RECROSS EXAMINATION
BY MR. STROUP: |
Q I Just have a couple nore. Would it surprise you
that one of the Atlanta Police Department detectives who ‘had
Ldn dealing with offie Evans had made an noreement or coma |
if TO an jeRderstanding with him to make a Favorable recommendation wo
in exchange for his cooperation at the Morteskey and Burney-
Dupree trials? | 5 is | ns
A Bh don’ E Esarly sea how anyhody can promise anything]
X don’ know of any. I'm not aware of any such pegresTOnt. I'm
o “Would it surprise you to learn that that i
had been reached? oa or wel
A 2 don’ t know of any officer that would make that
promise but let re explain something else to you, There is a
generally an FBI agent that follovs the crimes in the Atlanta
area that is a contact point with the Atlanta Police Department.
I don't remember his name at ‘this point. Rut 1 think we first
learned fron him that Ben Wright had been arrested out at bf
Pine Bluff, Arvansas. 5d think he was pretty much in dally vir)
contact with the FBI agent out there as to, was this the hi
Ben wright we were looking for, was this the man we were looking
for, beacause obviously he was using another name. I have
0 } 1 A 8 uit
talked to the FBI agent. T nave talked to him several mos | 0
during the time ‘that the individual ‘that was arrested out there, -
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whether or not he was Ben Wright. But we? ve never discussed ,
; cooperated.
anybody has PY in any good word, put I'm not surprises that
GH orion oS Fi Ll EE, AL that 5 “been”
19
Roan |
offie Evans. . think 1t was probably common knowledge among
the homicide officers or Petectives that Offie Evans had
Q There was a close working relationship be tween the |
homicide detectives end the FBI?
WER
iy well, I don’ + know. What I'm Saying ty lt ve got
a contact man. There! 8 ‘probably one that hance around down’ |
there to furnish them information and get information in |
return, homicide, axed robberies, motor vehicle toatsa, ol
burglaries, con artists, I don’ * know of any agreement. |
4 alll | oy 8 fair to say ‘that there would certainly be an ag
opportunity for- Atlanta police officers to put in a good word
with ‘the FBI agent in Offie Evans’ 8 bahalf? EA
5 I'm sure. That! s why p! say, I don't Suspags that |
Offie Evans was not [prosecuted for his escape; You take an sl
SRE!
<i1led, somebody ends up testifying for the state or for Ad
he foderal government, putting his 11fe in danger, it doeantle
surprise re at all that that's the en] result, %
a Setar to trial, did you take any steps at all to
feterming whether or not any Atlanta Police detactives 1nvolvad
on ‘the case had ‘come to an understanding with Offic ‘regarding--
a g offie Bvans was interviewed by Jowers and Barris i he
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| questioned him. But I don't think he ever told us that he
| know fof any pronises or any requests thik Offie Evans ever
| at that point in the record. Does he not indicate that the
i investigative files that defense counsel were all able to dv
20
and myself at length one day. I don't know how many times we
ever expectdd anyening, He never asked for BEyaing. x don't
made.
-
re Let me also, just 80 we! re clear on this, let me
rafar vou again to this same transcript: this is State of
Georgia again versus David Burney, Junior and Bernard Dupree-}
again, let me at this time direct you to Offie Evans's ‘testimgny
at the bottom of 964 and 865, I think you were examining him |
homicide dntectives whe came out and talked to him were Harris
and Dorsay?
A (ods head Serirnacivalye)
0a You, yourself, were not involved in anv meatings
whare Dorsey was present, along with yourself and Of fie rvans?
5
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pal Yeah, I remember it was at the Atlanta Folice Department
with Harris and Jowers. Dorsey may very well have been in that
I don't remember Dorsey being there,
Qo Okay.
A 2s I Pematiior, it was Barris and Jowers.
Q Lat ma ask you one more Juastion, and that rolntos
to your discussion of the cover sheet entries on the
HATE
inspect. You were indteating that hath was Sore information
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|; pave, had to come and read the investigative file?
CFORGIA )
21
that defense counsel had gotten Without an inspection of the
file? : pe
2 Yoo sir.
PY Would dotense counsel, in order to review the
bulk of the witnesses' statements that are consaines in here
A Well, 1 they Watted to ord my file, CILanety
thay are going £0 have to core over and road $+, I didn! t,
give them copies of the statements except their clients!
statements. There was a preliminary hearing Szanscvipe Y
don't know whether they had a copy of that now or not. But =
I do remember there was a preliminary hearing transeript. And
Y don" . remember who all had copiés of ir,
MR. STROUP: All that, That's all I have.
MR. DUMICE : I don't have anything more.
(mezeupon, the deposition was concluded.)
CERT YIPICATE
RE Feat SARI i de REE TEE Ch
FULTON COUNTY ) > EEE 1
I, Foster Corbin, Cartified Court Reporter, certify :
that at the above-named deposition I dia duly swear the witnebs
and that pages 1 through 21, inclusive, are a true and
completa pesnscriyiton of my stancgraphio notes taken ah the
deposition and that ‘same was reduced to typawriting by me
personally. id ahi or Si ray Ee Ra
HE
W- LE TAP SE 3 pit LW RRB
; el BH piped an
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24
.
5 further certify that I am neither of kin nor
counsel to any of the parties nor interested in the matter
financizlly.
WITNESS my hand and official seal at Atlanta, Fulton
County, Georgia on this the 23rd dav of February,
-—
el 4
Fol 3 4. B
Jd ' g Ul
el {EIR 250) N dL, 3
¥
22
1981,
Tt Coli
FOSTER CORBIN
(SERL)
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Sworn to and before me on this the
1981.
My commission expires
23
RUSSELL PARKER
day of
DE Fran LIN
RT CE X30
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PENSE ey FLERE ie 4
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OR Re ah YET ER 4 A RT DA REIT ET CT ET MA en sR —
pr ———
Corrections to Russell Parker's deposition in Warren
il
McCleskey v. Valter Zant case, 2
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