Brief for Respondent-Appellant

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

  

NOS. 88-8085 
89-8085 

  

WARREN MCCLESKEY, 

| Yh Petitioner/Appellee, 
Cross-Appellant, 

Vv. 

WALTER ZANT, WARDEN, 

Respondent/Appellant, 
Cross-Appellee. 

  

ON APPEAL FROM 
THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 

  

BRIEF FOR RESPONDENT-APPELLANT 

  

HABEAS CORPUS 

  

MICHAEL J. BOWERS 

zg _ Attorney General 

H. PERRY MICHAEL 

Executive Assistant 
Attorney General 

WILLIAM B. HILL, JR. 
Deputy 
Attorney General 

SUSAN V. BOLEYN 

Please serve: Senior Assistant 

Attorney General 
MARY BETH WESTMORELAND 

132 State Judicial Bldg. MARY BETH WESTMORELAND 

40 Capitol Square, S.W. Senior Assistant 
Atlanta, Georgia 30334 Attorney General 
(404) 656-3349 

 



  

CERTIFICATE OF INTERESTED PERSONS 
  

The following persons have an interest in the outcome 

of this case as designated in the Rules of this Court: 

Warren McCleskey, Petitioner/Appellee; 

Honorable J. Owen Forrester, United 

States District Judge; 

Robert H. Stroup, Counsel for 

Petitioner/Appellee; 

John Charles Boger, Counsel for 

Petitioner/Appellee; 

Mary Beth Westmoreland, Senior 

Assistant Attorney General, Counsel for 

Respondent /Appellant; 

Frank Schlatt, Victim (deceased); 

Ronald Warren Dukes, Victim; 

George A. Malcolm, Victim. 

 



  

STATEMENT REGARDING ORAL ARGUMENT 

  
Respondent specifically requests oral argument in this 

case due to the nature of the issues raised and due to the 

fact that the death sentence was imposed and was 

subsequently reversed by the district court. 

P
a
 

id 

 



  

TABLE OF CONTENTS 
  

CERTIFICATE OF INTERESTED PERSONS. . voit sven 

STATEMENT REGARDING ORAL ARGUMENT... eet veeeeonn 

STATEMENT OF JURISDICTION. vite sets civ nnsiniais sine 

STATEMENT OF THE ISSUES. viol c svn vie st 8 snes nse vies 

STATEMENT OF THE CASE. cas r viefees tes nnn vnmnie soins 

(1) WCourse Of Proceedings. ..... ni oille.s 

(11) Statement OF PACTS «uuu vee eeniosss viii 

(1i1i1)Statement of the Standard of Review... 

SUMMARY ‘OF THE ARGUMENT . ove ce ee vv tins v tine sins ns se 

X. THE DISTRICT COURT ABUSED ITS 
DISCRETION IN FAILING TO DISMISS THE 
MASSIAH ALLEGATION AS AN ABUSE OF THE 
WRIT AS THE PETITIONER SPECIFICALLY 
ABANDONED THIS CLAIM PRIOR TO HIS FIRST 
FEDERAL HABEAS CORPUS PETITION........ 

II. THE DISTRICT COURT ERRED IN FINDING A 
VIOLATION OF MASSIAH V. UNITED STATES 
AND THE FINDING BY THE DISTRICT COURT 
TO THIS EFFECT IS CLEARLY ERRONEOUS IN 
LIGHT OF THE OVERWHELMING EVIDENCE TO 
THE CONTRARY. « venice doin sn noses sinliiniibenis 

  

III. ANY ALLEGED MASSIAH VIOLATION WAS 
CLEARLY HARMLESS BEYOND A REASONABLE 
DOUBT «aie s o's cin see vaisinie's vo sited a 5% sibs ain vine 

iV. «THE DISTRICT COURT ABUSED ITS 
DISCRETION IN DENYING RESPONDENT'S 
MOTION FOR RELIEF FROM 

GUDCMENT oo is seatns se vides od die Lilia 

vii] 

13 

15 

15 

37 

73 

79 

 



PAGE (S) 

    

CON CLI S ON ties ic 2 48s ais iniinios ns vinis vilbinivie s ste sors Sito 91 

 



TABLE OF AUTHORITIES 
  

CASES CITED:   

Adams v. Dugger, . 816 F.2d 1493 (11th Cir. 1987)...   

Amadeo v. Zant, Ss. 108 S.Ct. 

177) (1988) 
  

  

Anderson v. Bessemer City, U.S. 564 (1985).... 

Antone v. Dugger, 465 U.S. 200 (1984)   

Brown Vv. Dugger, 831 F.2d 1547 {11th Cir. 1987)...   

Darden v. Dugger, 825 P.28 287 {(1ith Cir. 1937)...   

Demps v. Dugger, F.2d ’ . 87-3767 

{11th Cir. March 28, 1989) 
  

Engle v. Isaac, 456 U.S. 107 (1982)   

Flemina:.v. Remp, 794 F.28 1478 {11th Cir. 1986)...   

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

Griffin y. Swim-Tech Corp., 722 ¥.24 677 
{llth Cir. :1984) 
  

Klapporott v. United States, 335 U.S. 601 (1949)...   

Kuhlmann v. Wilson, .S. 106 S.Ct. 2616 

(1986) 

  

Lighthourne v. Dugger, 829 F.24 1012 : 
{11th Cir. 1987) passim 
  

Liljeberg v. Health Services Acquisition Corp., 

U.s. 108 S.Ct. 2194 (1988) 89 wr Sistine 

      

Maine v. Moulton, .S. 106 .8.Ct. 477 
  

39 

Massiah v. United States, passim    



CASES CITED: PAGE (S)   

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

Mays v. Balkcom, 631 %.28 48 (5th Cir. 29830), ...54. 16 

McCleskey v, Georgia, 449 U.S. 891 (1980)......... 3 

McCleskey v. Kemp, 753 F.24 877 (11th Cir. 1985) 
(CN DANCY sr seis tte voir B Pe Hs sie neti Fans ites TE Sl $5, 74 

McCleskey v. Kemp, 481 U.S. . 07. 8.Ck. 17586, 
teh, den., 107 S.Ct. 3199 (987). vu. uihavin 5 5 

McCleskey v. State, 245.Ga. 108,263 S.T. 2d 146 
gent BOE DY Ne RE a ae le TY i 2, 25 

% McCleskey v. Zant, 580 F. Supp. 338 (M.D.Ga. 1984) 4 

Sanders v. United States, 373 U.8.:1 (1963)....... 13 

Scutierli v. Pajve, 8508 F.2d 785 (11th Cir.  1987).. 85, 86 

Shriner, In re, 735 F.2041236 (11th Cir. 1984)..%.. 17 

Smith v. Murray, U.S, , 106 B.Ct. 26561 
{LOB cle ee se tie sn ce se a is tan is a Lt 34,:35 

Stephens v. Kemp, 721 F.2d 1300 (llth Cir. 1983).. 17 

Tucker v. Komp, 818 7.234.749 (11th. Civ. '3987Y..... 17 

United States v. Bagley, 474 U.S. : 
105 5. Cte. 3375 (1985). otis blac drive 6, Jp 6 

United States v. Henry, 447 U.S. 264 £1980)... 0... 38 

United States v. Morrison, 449 U.S. 361 (1981).... 73 

United States v. Taylor, 800 F.2d 1012 
(10th Civ. 1087)... . haaniyo a® oo Te 41 

United States v. United States Gypsum CO., 
® 333 H.8., 306401047). ..0 ui hv deo hi 42 

Witt v, Wainwright, 755 ¥.2d ‘1396 (11th Cir. 1933) 17 

Woodard v. Hubtching, 464 U.S. 377 (3984).......... 16   

vi 

 



  

Statues Cited: PAGE (S) 
  

28. U.8.Cui8 2283. vs cv I Se ve a EE wi viii 

28 UH. 8.0, E2054... sth. a ii a ih viii 

0.CG.AIS AT=10=~300DY 02) ue denen dines, 2 

0,C.G.A, 8 17-10~3040YHBY vi. vs Ji tetas ds Soi Ls 4 

vii 

 



STATEMENT OF JURISDICTION 
  

The jurisdiction of this Court is invoked pursuant to 

28 U.8.C.. 8 2253 insofar ws ‘this is appeal from the 

granting of habeas corpus relief under 28 U.S.C. § 2254. 

 



  

STATEMENT OF THE ISSUES 
  

1. Did the district court err in failing to £ind that the 

Petitioner had deliberately abandoned his claim of a 

Massiah violation and had thus abused the writ? 

2. Did the district court: err in finding a Massiah 

violation and is .the district court's finding to this 

% effect clearly erroneous due to the overwhelming 

evidence presented that Offie Evans was not acting as 

an agent or informer of the state at the time the 

statements were made by the Petitioner? 

3. Is any alleged Massiah violation harmless beyond a 

reasonable doubt based upon the circumstances of this 

case? 

4. Did the district court abuse its discretion in denying 

the Respondent's motion for relief from judgment? 

 



  

STATEMENT OF THE CASE 
  

(1) Course of Proceedings. 

On. "June 13, 1978, the grand jury of Fulton County, 

Georgia, returned a three count indictment against the 

Petitioner, Warren McCleskey, and his three coindictees, 

David Burney, Bernard Depree and Ben Wright, Jr., charging 

said individuals with the offense of murder and with two 

counts of armed robbery. The Petitioner was tried 

separately beginning on October 9, 1978, and was found 

guilty on all three counts. The jury imposed the death 

penalty after a separate sentencing proceeding on the 

murder charge, finding that: (1) the offense of murder 

was committed while the Petitioner was engaged in the 

commission of another capital felony and (2) the offense 

of murder was committed against a peace officer, 

corrections employee or fireman while engaged in the 

performance of his official duties. See 0.C.G.A § 

17-10-30(b) (2) and (b)(8). Consecutive life sentences 

were imposed on the two counts of armed robbery. 

The Petitioner then appealed his convictions and 

sentences to the Supreme Court of Georgia. The Supreme 

Court of Georgia affirmed the convictions and sentences. 

McCleskey v. State, 245 Ca. 108, 263 S.E.24 146 (1930). 
  

The Petitioner subsequently filed a petition for a writ of 

 



  

certiorari to the Supreme Court of the United States 

asserting that the trial court improperly admitted 

evidence of other crimes, that the jury's discretion was 

not properly channelled and that there was a deliberate 

withholding of the confession to Offie Evans. Certiorari 

was denied by the Court. McCleskey v. Georgia, 449 U.S. 
  

891 (1980). 

On January 5, 1981, the Petitioner filed a petition 

for habeas corpus relief in the Superior Court of Butts 

County, Georgia as Case No. 4909. In the original 

petition the Petitioner raised numerous allegations 

including the alleged failure to disclose an "arrangement" 

with a police agent or informer (Offie Evans) and the 

alleged deliberate withholding of the statement made by 

the Petitioner to Evans. Petitioner subsequently filed an 

amendment to that petition in which he challenged the 

introduction into evidence of his statements to "an 

informer" and raised a challenge essentially to the 

sufficiency of the evidence. (Respondent's Exhibit No. 

3). A hearing was held by the court on January 30, 1980. 

By way of order dated April 8, 1981, the superior court 

denied habeas corpus relief. (Respondent's Exhibit No. 

4). The Supreme Court of Georgia denied the subsequent 

application for a certificate of probable cause to appeal 

on June 7, 1981. A subsequent petition for a writ of 

 



  

certiorari was denied by the Supreme Court of the United 

States on November 30, 1981. 

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 asserted the failure to 

disclose an "understanding" with witness Evans. 

Evidentiary hearings were held before the district 

court in August, 1983, and in October, 1983. An order was 

entered on February 1, 1984, in which the court rejected 

all the issues raised in the petition except for the 

alleged undisclosed deal with witness Evans. The court 

directed that habeas corpus relief be granted as to that 

issue and ordered that the conviction and sentence for 

malice murder be set aside, but affirmed the convictions 

and sentences for armed robbery. McCleskey v. Zant, 580 
  

F. Supp. 338 (M.D.Ga. 1984). 

Both parties appealed the decision of the district 

court to the United States Court of Appeals for the 

Eleventh Circuit. On March 28, 1984, the Eleventh Circuit 

Court of Appeals directed that the case be heard initially 

by the court sitting en banc. On January 29, 1985, the en 

banc court issued an opinion which affirmed all 

convictions and sentences and considered the following 

issues: (1) Giglio claim relating to the testimony of 

 



  

Offie Evans; (2) ineffective asistance of counsel; (3) 

burden-shifting jury charge; (4) discrimination in the 

application of the death penalty; and (5) 

prosecution-prone jury. McCleskey v. Kemp, 753 F.2d 877   

(llth Cir. 1985) (en banc). 

The Petitioner then filed a petition for a writ of 

certiorari in the Supreme Court of the United States. In 

that petition, the Petitioner asserted that the death 

penalty was discriminatorily applied, that there was a 

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

based upon the testimony of Offie Evans, that the charge 

on intent was impermissibly burden-shifting and that the 

jury was impermissibly qualified as to capital 

punishment. (Respondent's Exhibit E). The Supreme Court 

of the United States subsequently granted the petition for 

a writ of certiorari limited to the consideration of the 

application of the death penalty. On April 22, 1987, the 

Court issued an opinion concluding that the Petitioner had 

not shown discrimination in the imposition of the death 

penalty as to his case and affirmed the decision of the 

Eleventh Circuit Court of Appeals. McCleskey v. Kemp, 481   

U.S. r» 107 S.C... 1756, reh. den., ‘107 S.Ct. 3199   

(1987), On or about May 16, 1987, Petitioner filed a 

petition for rehearing by that Court. In that petition, 

Petitioner reasserted his claim of ineffective assistance 

 



  

of counsel at the sentencing phase, reasserted his claim 

related to the charge on intent and reasserted his claim 

relating to a violation of Giglio v. United States, 
  

asserting that the decision in United States v. Bagley,   

474 U.S. .. ,. 105 8.Ct. 3375 (1985), Justified the 

granting of the petition. (Respondent's Exhibit F). On 

June 8, 1987, that Court denied the petition for 

rehearing. 

On June 8, 1987, a successive state habeas corpus 

petition was filed in the Superior Court of Butts County, 

Georgia. That petition raised the following allegations: 

(1) the prosecutor discriminated in the use of peremptory 

strikes; (2) there was intentional discrimination in this 

case; (3) the state failed to disclose impeaching evidence 

(the alleged "deal" with Offie Evans); (4) the trial court 

erred in denying funds for a ballistics expert; and (5) 

the prosecutor improperly referred to appellate review in 

his argument at the sentencing phase. (Respondent's 

Exhibit G). On June 18, 1987, Respondent filed a motion 

to dismiss asserting that the petition was successive. 

(Respondent's Exhibit H). 

On June 22, 1987, Petitioner filed an amendment to 

case number 87-V-1028 in Butts County. In that petition 

the Petitioner raised 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. (Respondent's Exhibit I). 

A hearing was held before the Superior Court of Butts 

County, sitting in Henry County. (Respondent's Exhibit 

Q). On July 1, 1987, the state habeas corpus court 

entered an order granting Respondent's motion to dismiss 

finding that the issues were either barred from 

reconsideration under the principles of res judicata or 
  

could reasonably have been raised in the previous 

petition. (Respondent's Exhibit P). 

On July 2, 1987, Petitioner filed an application for a 

certificate of probable cause to appeal in the Supreme 

Court of Georgia. {Respondent's Exhibit Q). On July 7, 

1987, the Supreme Court of Georgia denied the application. 

On July 7, 1987, Petitioner filed the instant 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 95, 18387, 

and August 10, 1987, the district court entered an order 

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 
  

tates, 377 U.S. 201 (1964). 

 



  

On April 12, 1988, the Respondent filed a motion for 

remand in this Court based upon the availability of Offie 

Gene Evans. By order dated May 2, 1988, and received by 

counsel on May 5, 1988, Respondent filed a motion to stay 

the briefing schedule pending the filing of a Rule 60(b) 

motion in the district court. On May 6, 1988, Respondent 

filed the Rule 60(b) motion in the district court. On May 

9, 1988, the briefing scheduled in this Court was stayed. 

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. After 

additional pleadings were filed, the Court entered an 

order on January 10, 1989, denying the motion for relief 

from judgment. 

On February 23, 1989, this Court granted the 

Respondent's motion to consolidate the original appeal and 

the appeal from the denial of the motion for relief from 

judgment. 

(ii) Statement of Facts. 

The evidence presented at Petitioner's trial showed 

that on May 13, 1978, he and three coindictees committed a 

robbery at the Dixie Furniture Store in Atlanta, Georgia. 

During the course of the robbery, the Petitioner entered 

the front of the store while his three coindictees entered 

 



  

the back. Petitioner was positively identified at trial 

as one of the participants in the robbery. (T. 231.232, 

242 ,0250), 

Following the arrest of the Petitioner, he was taken 

to Atlanta, Georgia. On May 31, 1978, the Petitioner made 

a confession to the police in which he admitted his 

participation in the robbery, but denied that he shot 

Atlanta Police Officer Frank Schlatt. A Jackson v. Denno 
  

hearing was held at trial and the court determined that 

the confession was freely, intelligently and voluntarily 

made. {T. 426-505). 

Petitioner's coindictee, Ben Wright, testified at 

trial and related the details of the robbery and murder. 

Ben Wright testified that while he carried a sawed-off 

shotgun, the Petitioner carried a .38 caliber 

nickel-plated, white-handled pistol. (T. 654-656, 

648-649). Wright testified that coindictee Burney had a 

blue steel, snub-nosed .32 caliber pistol, while Depree 

had a blue steel .25 caliber pistol. {T. 649-651). 

While Depree, Burney and Wright held several employees 

in the back of the store, the Petitioner was in front. 

Employee Classie Burnwell had activated a silent alarm, 

resulting in the arrival of Officer Frank Schlatt. 

Shortly after Schlatt entered the front 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 that he had shot the 

police officer. (TT. 658-9). 

Mr. Everett New and his wife were stopped in their 

automobile at a red light near the Dixie Furniture Store. 

They observed Officer Schlatt arrive at the scene, saw him 

draw his pistol and enter the store. (T. 330). Mr. New 

stated that approximately thirty seconds later he heard 

two shots and shortly thereafter observed a black man 

running out of the front door carrying a white-handled 

pistol; however, he could not identify that individual. 

(T. 331-333). 

Petitioner testified in his own behalf at trial and 

stated that he knew Ben Wright and the other coindictees, 

but that he had not participated in the robbery. He 

relied on an alibi defense, stating that Wright had 

borrowed his car and that the Petitioner had spent the day 

at his mother's house and at some apartments in Marietta 

playing cards. Petitioner named several people who had 

been present at the apartments, but did not present any of 

those persons for his defense. {T. Bll). 

Petitioner denied that he made a statement to 

Lieutenant Perry that he had participated in the robbery 

and stated that he made a false statement to Detective 

~310~ 

 



  

Jowers because of the alleged evidence the police had 

against him (two witnesses who had identified him, the 

description of his car and a statement from David Burney), 

because of his prior convictions and because he did not 

have a good alibi. (T. 823-4). 

Petitioner was also identified at trial by two 

witnesses who had observed him take part in a prior 

similar robbery. Mr. Paul David Ross, manager of the Red 

Dot Grocery Store, had identified the Petitioner 

previously from a set of colored photographs. Ross also 

testified that during the course of the Red Dot Robbery, 

his nickle-plated .38 revolver was taken. 

Ms. Dorothy Umberger also observed the Petitioner 

during the April 1, 1978, robbery of the Red Dot Grocery 

Store. She testified that she was ninety percent certain 

that the Petitioner was one of the men who had robbed 

her. She based her identification on viewing him at the 

scene of that crime. Ms. Umberger had also identified the 

Petitioner from a photographic display. 

In rebuttal to the defense case, the State presented 

the testimony of Arthur Keissling. This witness testified 

that he had observed the Petitioner participating in the 

robbery of Dot's Produce on March 28, 1978... His 

identification of the Petitioner was positive. {T. 

887-889, 896). 

ng 5 

 



  

The State also presented the testimony of Offie Gene 

Evans in rebuttal. Mr. Evans had been incarcerated in 

Fulton County jail in a cell located near the Petitioner 

and Bernard Depree. Evans related that the Petitioner had 

talked about the robbery while in custody and had admitted 

shooting at Officer Schlatt. (TT. 869-870). 

Further facts will be developed as necessary to 

® examine the issues presented in the instant appeal. 

(131) Statement of the Standard of Review 

The issue concerning abuse of the writ is a question 

of abuse of discretion on the part of the district judge. 

The allegation of a Massiah violation is a mixed question 

of fact and law with the clearly erroneous standard to be 

applied to the factual findings by the district court and 

the remaining legal conclusions to be assessed 

independently by this Court. The issue of the denial of 

the motion for relief from judgment is a question of abuse 

of discretion by the district court, 

2 

 



  

SUMMARY OF THE ARGUMENT 
  

The district court incorrectly reached the merits of 

the allegation of a violation of Massiah v. United States, 
  

and abused its discretion in finding that this issue was 

not an abuse of the writ. Petitioner previously raised 

this issue in his first state habeas corpus pleading and 

deliberately abandoned the claim prior to the filing of 

his first federal habeas corpus petition. The simple 

assertion of new facts does not excuse a deliberate 

abandonment of a claim which had previously been asserted 

in the state court. Under these circumstances, the 

district court was incorrect in finding that there was no 

abuse Of the writ as to this issue and the petition should 

have been dismissed in its entirety. 

The district court was also clearly erroneous in its 

factual findings. The district court was clearly 

erroneous in crediting one sentence of one witness’ 

testimony and disregarding the testimony of all the other 

witnesses and all of the other evidence available from all 

of the other proceedings. A consideration of the evidence 

shows that there is overwhelming evidence that Offie Gene 

Evans was not an agent or informer of the shsbe and was 

not placed in the cell next to the Petitioner to overhear 

conversations. Further, the district court erred as a 

413= 

 



  

legal matter in finding that the basis for a Massiah 

violation had been shown under the facts of this case. 

Respondent submits that the district court was 

incorrect in finding that any alleged Massiah violation 

was not harmless. Given the facts of this case, any such 

error was harmless beyond a reasonable doubt as there was 

clearly overwhelming evidence of Respondent's guilt of the 

offense of murder. 

Finally, the district court abused its discretion in 

denying the motion for relief from judgment. It was shown 

that Offie Evans was unavailable, in the sense that he 

could not be located, at the time of the original hearings 

in the district court. 1t is also clear from the 

deposition of Mr. Evans that his testimony bears directly 

on the key issue of a purported Massiah violation and 

would definitely be material to a resolution of the merits 

of the issue. 

yds 

 



  

ARGUMENT AND CITATION OF AUTHORITY 
  

T. THE DISTRICT COURT ABUSED ITS 

DISCRETION IN FAILING TO DISMISS 

THE MASSIAH ALLEGATION AS AN ABUSE 

OF THE WRIT AS THE PETITIONER 

SPECIFICALLY ABANDONED THIS CLAIM 

PRIOR TO HIS FIRST FEDERAL HABEAS 

CORPUS PETITION, 

One allegation raised by the Petitioner in the 

district court was an assertion that the use at trial of 

Petitioner's statement made to Offie Gene Evans, an 

alleged jailhouse informant, violated his Sixth Amendment 

right to counsel as established in Massiah v. United   

States. Respondent submits that the district court abused 

its discretion in finding that this claim was not an abuse 

of the writ. 

The courts of this circuit and. the Supreme Court of 

the United States have long recognized that there are 

several bases for finding an abuse of the writ. If one 

"deliberately withholds . . . grounds for federal 

collateral relief at the time of filing his first 

application . . . he may be deemed to waive his rights to 

a hearing on the second application presenting the 

withheld ground." Sanders v. United States, 373 U.S. 1,   

wo )i5 

 



  

18 (1963). In addition, "The same may be true if 

the prisoner deliberately abandons one of his grounds at 

the first hearing.” Id. These two examples are part of 

the basis for the holding in Sanders that "Nothing in the 

tradition of habeas corpus requires the federal courts to 

tolerate needless piecemeal litigation, or to entertain 

collateral proceedings whose only purpose is to vex, 

harass, or delay.” 1d. The Supreme Court of the United 

States has reaffirmed this position noting, "Successive 

petitions for habeas corpus that raise claims deliberately 

withheld from prior petitions constitute an abuse of the 

writ.” Woodard v. Hutchins, 464 U.S. 377 (1984). See 
  

also Antone v. Dugger, 465 U.S. 200, 206 (1984) (noting,   

"As applicant had presented each of these claims to the 

state court before the first petition for habeas was filed 

applicant hardly can contend that these claims were 

unknown to him at that time"). 

The courts of this circuit have also emphasized the 

possibility of a finding of an abuse of the writ when a 

petitioner deliberately withholds or abandons a ground for 

relief. "Thus, a petitioner who fails to include a claim 

of which he was aware in his first petition runs the risk 

of a denial of such claim in a second petition on the 

ground that he has abused the writ of habeas corpus.” 

Mays v. Balkcom, 631 F.2d 48, 51 (5th Cir. 1980).   

~16- 

 



  

Further, the burden is on a petitioner when the State 

alleges abuse of the writ, as was done in this case, to 

rebut the State's contentions. Thus, the petitioner has 

the burden of proving by a preponderance of the evidence 

when a ground was not previously presented in a federal 

habeas corpus petition that "the failure to present the 

ground in the prior proceeding was neither the result of 

an intentional abandonment or withholding nor the product 

of inexcusable neglect." Witt v. Wainwright, 755 F.2d   

1396, 1397 £X¥1th Cir. 1985); Adams. v.. Dugger, 816 F.24   

1493, 1494 (11th Cir. 1987); Stephens v.. Kemp, 721 7.24   

1300, 1303 ‘(11th Cir. 1983); Tucker v. Kemp, 818 .F.24 749,   

750 n.1 (11th Cir, 1987); In re Shriner, 735 P.24 1236,   

1241.¢11th Cir. 1984). Demps.v. Dugger, F.2d Ng. 
  

87-3767: {11th Cir. March 28, 1989)... Xt. is clear from the 

holdings of the Eleventh Circuit Court of Appeals that the 

burden is upon the petitioner and the petitioner "must 

demonstrate the failure to present the ground in the prior 

proceeding was neither the result of an intentional   

abandonment or withholding nor the product of inexcusable     

neglect.” Fleming v. Kemp, 794 F.24.1478, 1482 (11th Cir. 
  

1986) (emphasis added). 

Recently, the Eleventh Circuit Court of Appeals has 

addressed a case under abuse of the writ principles and 

found that a claim in the first petition had been 

~17-~ 

 



  

withdrawn and abandoned. The court concluded that the 

burden was then upon the petitioner to rebut the assertion 

of abuse of the writ. This was founded upon the equitable 

nature of the proceedings for a writ of habeas corpus and 

noting that the court could dismiss a petition when it was 

found to be raising grounds which were available at the 

time of filing the prior petition but not relied upon. 

Darden v. Dugger, 825 FP.24 287, 293 {11th Cir. 1987).: In   

Darden, the petitioner had asserted that even if there had 

been abuse of the writ the court should consider the claim 

because it involved a claim of innocence. The Eleventh 

Circuit specifically disagreed finding that the issue was 

abandoned. "Intentional abandonment of a claim is 

precisely the context that application of the concept of 

abuse of the writ is intended to address." Id. at 294. 

The question raised in the instant case in relation to 

the Massiah violation is not one of inexcusable neglect 

but of deliberate abandonment of an issue. Thus, 

different considerations come into play than would be 

considered when faced with an allegation of inexcusable 

neglect. Inexcusable neglect necessarily involves 

questions of information known to a petitioner and whether 

he could have reasonably raised a claim. Deliberate 

abandonment, which is what is present in the instant case, 

involves simply a consideration of whether the issue was 

ly 

 



  

known and the petitioner or his counsel made a knowing 

choice not to pursue the claim after having raised it 

previously. 

A review of the testimony presented to the district 

court at the first hearing shows that there is no question 

but that the issue was abandoned. First of all, a 

reference to exhibits submitted to the district court by 

the Respondent reveals that the issue was raised in the 

first state habeas corpus petition and was also asserted 

in the amendment to the first state habeas corpus 

petition. See Respondent's Exhibit H and attachments 

thereto. It is also uncontroverted that Petitioner did 

not raise the claim in the first federal habeas corpus 

petition, ‘As noted by the district court at the first 

hearing, it was emminently clear that Evans was located in 

a jail cell near the Petitioner, which situation would 

always raise a possibility of a Massiah issue and there 

was also testimony at the trial that Evans relayed 

information to a deputy. The district court was concerned 

as to why there were no previous inquiries as to when 

Evans might have become an agent of the state, if he did 

at ‘all. (R4-5). .The district court further noted that 

knowing that Petitioner was located near Evans at the jail 

and that Evans had apparently cooperated with law 

enforcement officers should have put counsel on notice to 

~19~ 

 



  

inquire when the cooperation began. Id. at 19. Counsel 

for the Petitioner never asked either the assistant 

district attorney or any of the police officers when Mr. 

Evans began cooperating with them. 

Further, Mr. Robert Stroup testified before the 

district court that he became counsel in this case in 

April, 1980. He raised more than twenty issues in the 

state habeas corpus proceeding first filed in Butts County 

and it occurred to him that there might be a Massiah 

claim. He felt it was suggested just based on the facts. 

He made some minimal efforts to seek information, but 

those efforts fell short of any kind of in depth inguiry. 

(R4-31-3). He specifically recalled amending the habeas 

corpus petition which he viewed as raising a claim of a 

violation of Massiah. He also knew by the time of the 

state habeas corpus proceeding that Evans had testified in 

another case involving the same assistant district 

attorney. Mr. Stroup's only excuse for why he did not 

pursue the claim in the first federal habeas proceeding 

was that he felt that he did not have facts to support the 

Claim. This is despite the fact that Mr. Stroup at no 

time talked to Detectives Harris or Dorsey prior to or 

subsequent to the state habeas corpus proceeding and did 

not recall talking to Deputy Hamilton even though Hamilton 

testified at the trial. He did not seek to question 

i § 

 



  

Detective Dorsey even after Evans mentioned his name at 

the state habeas corpus hearing and did not subpoena any 

records regarding the informant claim. 

The district court originally specifically found that 

there was a deliberate withholding of the issue of an ab 

initio Massiah violation because it was clear that Mr.   

Stroup thought about the issue at the state habeas corpus 

stage and decided not to pursue it. (R.4-59). 

After all the hearings were conducted, the district 

court judge changed his mind and decided, "Petitioner 

cannot be said to have intentionally abandoned the 

claim.” (R3-22-24). The only basis for this decision by 

the district court was that court's conclusion that 

counsel was unaware of the written statement of Offie 

Evans and that, thus, the factual basis for the claim was 

not known. This clearly reflects an abuse of discretion 

on the part of the district court as this holding is 

totally contrary to the original ‘holding of district court 

in which that court had already found that there was 

sufficient information in the record to put counsel on 

notice of a possible Massiah violation even without a copy 

of a written statement of Offie Evans. 

The question presented to this Court then is whether 

the district court abused its discretion in simply 

changing its mind and whether that court should have 

S21. 

 



  

concluded that based upon counsel's conduct, there had 

been an abuse of the writ as to this issue. In this case 

it is clear that counsel knew of the existence of the 

possibility of raising the claim and simply chose as a 

matter of tactics not to present the claim in the first 

federal habeas corpus petition. The simple assertion that 

counsel did not think he had sufficient facts to prove the 

claim is insufficient to overcome the barrier of an 

intentional abandonment of an issue. Insofar as the 

district court concluded that counsel did not 

intentionally abandon this claim, this is certainly a 

clearly erroneous finding. The record is clear that 

counsel raised the claim in the state habeas corpus 

proceeding, failed to raise it in the first federal habeas 

corpus proceeding and testified as to the basis for his 

not raising the claim. Counsel obviously felt that he had 

enough information to raise the claim in the state habeas 

corpus proceeding in the first place and also raised other 

claims in the first federal habeas corpus petition which 

he had been unable to factually substantiate, including 

his claim of discrimination. If counsel felt that there 

was any possible merit to the claim, or was even 

suspicious, he certainly should have continued to pursue 

the claim in the district court to avoid possible 

piecemeal litigation. Counsel then could have sought 

in BD Pee 

 



  

discovery in the district court, as was done on other 

issues in the first federal habeas corpus proceeding, and 

the issue would have been litigated years earlier rather 

than at this late stage of the proceedings. Under these 

circumstances, Respondent submits that this is clearly the 

type of needless litigation that is contemplated by Rule 

9(b). The cases contemplate courts not considering issues 

that not only were known to counsel at the time of the 

filing of the first federal habeas corpus petition, but 

which counsel admits he evaluated and chose deliberately 

not to raise, even after having raised them in the state 

courts. 

Further, Respondent submits that counsel certainly had 

reason to know that there was a written statement of Offie 

Gene Evans and certainly should have made some effort to 

obtain that statement prior to this most recent series of 

collateral attacks. 

The trial court coffucted an in camera inspection of 

certain specified material noting in its order, "The court 

finds that although the documents might become material 

for rebuttal at trial, they are not now subject to 

discovery." {T.R. 46). Thus, at this point, counsel knew 

that there was material which was not disclosed to defense 

counsel but which was the subject of an in camera 

inspection. Clearly, trial counsel was free to.renew the 

23 

 



  

request at or during trial. Further, 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). Again, 

this points to the fact that there is some type of written 

statement which is part of the material included in the in 

camera inspection which was not disclosed by the trial 

court. Although this does not clearly indicate that it 

was in fact a statement of Evans, it certainly indicates 

that it was a statement made by the Petitioner himself to 

someone. The only possible conclusion is that it was a 

statement made to Offie Evans. The only way for the 

police to get any written information relating to this was 

to either obtain a written statement from Evans or make a 

written report concerning a statement given to them by 

Evans pertaining to the statement made to Evans by the 

Petitioner. Certainly, this puts counsel on notice that 

there is a written document which was not seen by defense 

counsel prior to trial pertaining to statements made by 

the Petitioner while in jail. 

i, 7 

 



  

Further, on direct appeal trial counsel raised an 

allegation relating to the failure to disclose statements 

of the Petitioner and the alleged withholding of 

impeaching evidence. In the brief counsel stated, "Offie 

Gene Evans' statement contains substantial impeachment 

value." (See Attachment to Respondent's Exhibit H). In 

the opinion on direct appeal, the court held, "The 

prosecutor showed the defense counsel his file, but did 

not furnish this witness' [Evans'] statement." McCleskey 
  

Y. Btate, 245 Ga. 108, 112, 263 S.E.24 146 (1980). This   

seems to be a clear indication that the Georgia Supreme 

Court at least assumed there was a statement by Evans 

which was part of the in camera inspection. Certainly, if 

the Supreme Court of Georgia can make that determination 

from the record then present counsel can also make such a 

determination. 

In addition to the above, a reading of the entire 

state habeas corpus proceeding shows that counsel most 

certainly should have been aware of the fact that there 

was some type of written statement as of the time of that 

proceeding. Counsel has asserted that he assumed he had 

the entire prosecutor's file. This is clearly not the 

case as the record makes it clear that what was given to 

counsel was the file given to defense counsel. It was 

clear from the trial transcript and the testimony of 

25 

 



  

defense counsel at the state habeas corpus hearing that 

there were certain matters not included in the information 

provided to defense counsel. Present counsel never asked 

the prosecutor for the documents which were part of the in 

camera inspection and never sought them in the state 

habeas corpus proceeding. 

A review of John Turner's testimony in the state 

habeas corpus court shows that counsel clearly should have 

been aware that there was a statement. 1 During the 

questioning of Mr. Turner, he was asked about the 

testimony of Offie Evans and whether that was a surprise 

to him. Mr. Turner responded as follows: 

Well, yes and no. And the reason I 

qualify that is because one of the 

first things I said to Mr. McCleskey 

when I interviewed him at the Atlanta 

Jail prior to the preliminary hearing 

was not to make any statements to 

anybody about the incident. In fact, 1 

went so far as to say to give him the 

  

1The state habeas corpus transcript was included as 
an Exhibit to the first federal habeas corpus case in the 
district court in Ro. C81-2434A. The district court 
stated it would take judicial notice of those records. 
The Respondent requests that this Court do the same. 

eye oe 

 



  

analogy that a fish can't get caught 

unless it opens its mouth to bite the 

hook. I had talked with him constantly 

about that in terms of have you said 

anything to anybody. The bottom line 

was when I got the witness list, I 

noticed that at some stage some 

Deputy's names were on there. The only 

thing I could conclude that something 

had been said or possibly had been 

said. And I asked Mr. McCleskey if he 

had discussed the factz with anyone 

there at the jail and his Co-Defendant 

ang he said, "No." 

(First state habeas corpus transcript at 76, hereinafter 

referred to as S,H.T.) The court then went on to. state, 

"Well, I think the question should be why they did not 

give you a copy of the statement he made if you made a 

motion for it" 14. It is clear from this that the state 

habeas corpus court felt thet there was a statement in 

writing referring to what Mr. McCleskey had told Offie 

Evans. Mr. Turner responded, "Well, I can't answer that 

question even up to this point in time. That was one of 

the issues I raised on appeal, the fact that I was never 

given any indication that the statement existed." Id. 

£07 

 



  

The court went on to inquire of Mr. Turner as to 

whether he and the prosecutor discussed the matter at 

(S.H.T.77). 

Turner responded the following: 

We went over the motions, all of the 

motions and the only thing he said to 

me about his file was that there were 

two things which were not included in 

the file. One was the Grand Jury 

testimony of a witness and his logic 

there was that that was not 

discoverable. And the other was just a 

statement he had and he didn't disclose 

what it was or who the person was in 

that context. 

They clearly understood and they knew 

that the motion had been filed. So my 

thinking on the matter was that I had 

everything, particularly relating to 

the statements of the Defendant. 

right of a defendant to obtain a copy of his own statement 

under state law. It was also reiterated that Mr. Turner 

20 

  

The court then inquired in detail as to the



  

did not contact Deputy Hamilton prior to trial even though 

his name was on the list due to the fact that "Mr. 

McCleskey was quite adamant to the fact that he hadn't 

said anything incriminating or even mentioned the case or 

discussed it with anyone.” 1d, at 79-80. 

During cross-examination Mr. Turner further testified 

that he went over the names on the witness list with the 

Petitioner, "Particularly with criminal records like Offie 

Evans. That was the one I can recall specifically asking 

him about.” 14. at 856, The Petitioner told Mr. Turner 

that he did not know who Offie Evans was. Id. 

From a review of all of the above at least from the 

time of the state habeas corpus hearing, it was the 

general understanding that there was a statement by the 

Petitioner which was not disclosed to trial counsel prior 

£0 trial. The only logical conclusion is that this is in 

reality a statement of Offie Evans relating a statement by 

the Petitioner or at least a report setting forth the 

information related by Offie Evans concerning what the 

Petitioner told him. This is further emphasized during 

the deposition of the assistant district attorney, Russell 

Parker. This deposition was taken by Mr. Stroup on 

February 16, 1981. During that deposition, Mr. Parker was 

asked, "Prior to the trial of Warren McCleskey did you 

have a file which you made available to defense counsel 

Wisi Ih 

 



  

representing Warren McCleskey?" (Parker deposition at 

  4). Mr. Parker responded, "I had a file I made available 

to all the defense counsel in this case." Id. (emphasis 

added) It was again reiterated this was a file made 

available to defense counsel prior to and during trial. 

Thus, the file identified at the deposition 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, but it was 

clearly stated that this was the matter given to defense 

counsel. 

Further during the deposition, Mr. Stroup refers to a 

"statement" from Offie Evans. In response to a question 

concerning the statement, Mr. Parker clarified so that 

counsel would be fully aware of the circumstances and 

stated, "When you refer to a statement, Offie Evans gave 

his statment 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." Id. at B. 

Petitioner has asserted previously that this simply was 

unresponsive to the question. This does not undermine the 

fact that Mr. Parker specifically told counsel for the 

Petitioner in his deposition taken in the first state 

habeas corpus proceeding that there was a statement given 

230- 

 



  

by Offie Evans, and it was the statement which was the 

subject of the in camera inspection by the trial judge and 

it was clearly not a part of the file being turned over to 

Mr. Stroup at that point in time. To not understand that 

this refers to a written statement of Offie Evans is 

inexcusable neglect because the only way not to understand 

that is to not listen to Mr. Parker in the deposition or 

not go back and read the deposition after it has been 

prepared. At the end of the deposition, it was reiterated 

that there would be a copy provided of "the entire 

investigative file that was made available to counsel." 
  

Id. at 13 (emphasis added). It should be noted that 

during this deposition the only question asked of Mr. 

Parker relating to any type of Massiah claim was asked by 

the assistant attorney general and Mr. Stroup simply 

failed to ask any questions whatsoever concerning this 

issue. In fact, the only testimony given by Mr. Parker on 

this point was, "1 don't know of any instance where Offie 

Evans worked for the Atlanta Police Department as an 

informant prior to his overhearing conversations at the 

Fulton County Jail." 1d. at 15. Mr. Stroup never.pursued 

this question except to ask Mr. Parker concerning a 

possible deal with one of the police officers. Mr. Parker 

related that he did not see how anything such as that 

could have occurred. Id. at 18. 

-31~ 

 



  

Counsel has asserted that all of the above specific 

references to written statements and to a written 

statement of Offie Evans was insufficient to put him on 

notice that there actually was a written statement. This 

is virtually incredible in light of the fact that the 

Georgia Supreme Court felt that there was some type of 

written statement and the fact that the state habeas 

corpus court in its order in the first state habeas corpus 

proceeding made the following specific factual findings: 

It is clear that defense counsel had 

access to the prosecution's discovery 

file which included statements from all 
  

witnesses (except Evans) and 
  

investigative reports. (H.T.38; Parker 

deposition, p. 4). 

First state habeas corpus order at 9. (emphasis added). 

2 This is a clear factual finding by the state court 

that there was actually a written statement from Offie 

Evans and this is a clear indication of the state habeas 

corpus court finding that all statements from all 

  

2This order is included as an attachment to Exhibit 
H submitted to the district court and as Respondent's 
Exhibit No. 4 in the second state habeas corpus proceeding. 

“32a 

 



  

witnesses except for that statement given by Offie Evans 

were given to John Turner. Thus, the state habeas corpus 

court itself also specifically realized that there was a 

written statement from Offie Evans. 

All of the above overwhelming indications of the 

existence a written statement by Evans and the clear 

statement by the Georgia Supreme Court that there was some 

type of written statement and the even clearer statement 

by Mr. Parker and the state habeas corpus court that there 

was a written statement, certainly belies any assertion 

that counsel had no basis for knowing of such a 

Statement. 

It is also clear that Petitioner had a legal basis for 

obtaining a copy of this statement in the first state 

habeas corpus proceeding or in the first federal habeas 

corpus proceeding. As was found in the second habeas 

corpus proceeding by that court "There is legal authority 

giving him the right to access to this document." Second 

state habeas corpus order at 13. That court found as 

fact, "There is no valid reason why Petitioner could not 

have obtained this statement earlier." Id. at 13. 

Certainly, Petitioner could have sought the statement 

earlier under the Georgia Open Records Act, could have 

subpoenaed the statement from Mr. Parker, could have asked 

for the state habeas corpus court to reopen the record so 

33 

 



  

that he could subpoena the statement to a hearing before 

that court, could have asked for discovery from the 

district court in order to obtain that statement or could 

have requested this Court to issue a subpoena for that 

statement. Petitioner simply failed to do anything to 

obtain the statement even though there are numerous legal 

avenues which he could have taken to obtain the statement 

at that time. 

Based upon the above, it is clear that this is an 

issue which has been abandoned by the Petitioner and the 

district court abused its discretion in reaching the 

Massiah allegation at all. As noted by the previous 

cases, an abandoned issue clearly falls within the context 

of the issues which would be deemed to be an abuse of the 

writ. In an analogous circumstance dealing with 

procedural default, the Supreme Court of the United States 

has ruled that "a deliberate, tactical decision not to 

pursue a particular claim is the very antithesis of the 

kind of circumstance that would warrant excusing the 

defendant's failure to adhere to a state's legitimate 

rules for the fair and orderly disposition of its criminal 

cases." Smith v. Murray, U.S. s 106 S.Ct. 2661,   

2666 (1988). In that case, counsel had objected to 

testimony at trial and then chose consciously not to 

pursue the claim before the state supreme court based on 

-34- 

 



  

counsel's perception that the claim had little chance of 

success. The Court ruled that even a state's subsequent 

acceptance of an argument which had been deliberately 

abandoned on direct appeal would not be relevant as to 

whether a default can be excused in federal habeas. The 

court ruled that this was the very point that "undergirds 

the established rule that 'perceived futility alone cannot 

  

constitute cause.'”. I1d., quoting Engle v. Isaac, 456 U.S. 

107, 130 (1982). Although Smith v. Murrav dealt with an 
  

issue in a procedural default context, certainly the same 

principles would apply to the abandonment of a claim in 

federal court. A deliberate tactical decision by counsel 

to abandon a claim even when counsel assumes that an issue 

cannot be proved is certainly a basis for finding abuse of 

the writ, and the district court in this case clearly 

abused its discretion in first finding an abuse of the 

writ and then changing its mind and finding that there was 

no abuse of the writ as to an abandoned claim. 

«354 

 



  

Based upon all of the above, Respondent submits that 

this Court should find that the district court abused its 

discretion in declining to find an abuse of the writ as to 

the Massiah issue and should conclude that the Petitioner 

deliberately abandoned the claim and should now be barred 

from litigating the issue. 3 

  

3Respondent further submits that there has been 

inexcusable neglect in not presenting this claim in the 
first federal habeas corpus petition, but does not rely 
exclusively on that principle due to the deliberate 
abandonment of the claim. 

~36- 

 



  

11. THE DISTRICY COURT ERRED IN 

FINDING A VIOLATION OF MASSIAH V.   

UNITED STATES AND THE FINDING BY 
  

THE DISTRICT COURT TO THIS EFFECT 

IS CLEARLY ERRONEOUS IN LIGHT OF 

THE OVERWHELMING EVIDENCE TO THE 

CONTRARY. 

Respondent specifically asserts that the district 

court's conclusion that there was a violation of Massiah   

v. United States, is incorrect and is based upon clearly 
  

erroneous findings of fact. In order to resolve this 

issue, it is first necessary to examine the legal 

principles applicable to Sixth Amendment violations in the 

context of this case. 

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

Court examined a situation of a federal agent obtaining 

incriminating statements from a defendant who had been 

lreed on bail after he had retained a lawyer. The means 

by which the agent obtained the statements were classified 

as being surreptitious. In that case, the coindictee and 

the petitioner had been released on bail. The coindictee 

decided to cooperate with government agents in conducting 

the investigation and a transmitter was installed under 

the seat of the car. The coindictee engaged in a lengthy 

=37< 

 



  

conversation with the petitioner in the car and an agent 

listened to those incriminatory statements. The Court 

held that the constitutional rights of the petitioner had 

been violated by the use at trial of evidence of his own 

incriminating statements which were deliberately elicted 

by agents after indictment absent counsel. This was true 

even though the petitioner was out on bail at the time. 

The Court reaffirmed this position in United States v.   

Henry, 447 U.S. 264 (1980). The question before the Court 

in Henry was whether the defendant's Sixth Amendment 

rights were violated by the admission of incriminatory 

statements made to a cellmate who was an undisclosed 

government agent. The statements were made after 

indictment and while in custody. Under the circumstances 

of that case, after counsel was appointed, government 

agents contacted an inmate by the name of Nichols who had 

previously been engaged as a paid informer. Nichols told 

the agents that he was in the same cell block with the 

defendant and Nichols was told to be alert to possible 

conversations but was told not to initiate any 

conversation or to question the defendant. After Nichols 

was released he contacted the agent and told the agent he 

had conversations with the defendant. Nichols was then 

paid by the agent. The jury was also not told that 

Nichols was a paid informant when he testified at trial. 

~38- 

 



  

The Court found that the question was whether a government 

agent deliberately elicted incriminatory statements. The 

Court found that three factors were important under the 

circumstances of that case, that is, Nichols was acting 

under instructions as a paid informant for the government, 

Nichols was ostensibly no more than a fellow inmate and 

the defendant was in custody and had been indicted. Id. 

at 270. The Court found ‘that the informant in Henry, as 

in Massiah, was charged with the task of obtaining 

information. The question was whether the government 

interfered with the Sixth Amendment right by deliberately 

eliciting incriminatory statements. The Court held that 

there was a constitutional violation under those 

circumstances. 

In Maine v. Moulton, U.s. 7-106 S.Ct. 477 
  

(1985), the Court examined the question of whether a 

defendant's Sixth Amendment right to counsel had been 

violated by the use at trial of the defendant's 

incriminatory statements which were made to a coindictee. 

Under the circumstances of that case, the coindictee was 

found to be a secret government informant and the 

conversations occurred after indictment and at a meeting 

of the coindictee and defendant to plan a defense strategy 

for the trial. The Court noted that the Sixth Amendment 

would not be violated whenever the statements were 

-39- 

 



  

obtained by luck or happenstance after the Sixth Amendment 

right had attached. 1d. at 487. The violation was the 

knowing exploitation of an opportunity to confront a 

defendant without the presence of counsel. Id. The Court 

noted that proof that the state must have known that the 

"informant” was likely to obtain information was 

sufficient. 1d. at n.l12. 

Most recently in Kuhlmann v. Wilson, 1.8. +106 
    

S.Ct. 2616 (1986), the Supreme Court found the primary 

concern of the Massiah line of cases was a secret 

interrogation by techniques which would be the equivalent 

of a direct interrogation by the police. A defendant must 

show that the police and the informant took some action 

beyond merely listening and must show that that action was 

designed to deliberately elicit incriminating statements. 

id. 

More recently, this Court has examined the allegation 

of a violation of Massiah v. United States and noted that 
  

all citizens have a duty to report criminal activities to 

the appropriate authorities. Lightbourne v. Dugger, 829   

F.24 1012 (31th Cir. 1987)... Further, "Courts should be 

slow to discourage disclosures or to make them useless." 

Id. In addressing the agency requirement of a Sixth 

Amendment violation, this Court acknowledged that "no 

"bright line test for determining whether an individual is 

40 

 



  

a Government agent for purpose of the Sixth Amendment' has 

emerged.” 14., quoting United States v. Tavlior, B00 F.24 
  

1012,31015 (10th Cir. 1987). In that case, the court 

found that there had been no history that the witness had 

been a paid informant, the officers did not initiate 

contact with the witness and there was no promise of 

compensation to the witness in exchange for obtaining 

statements. The witness was merely advised to listen. 

The court further reiterated that speculation about the 

motives of a particular individual for assisting the 

police should not be confused "for evidence that police 

promised [the witness] consideration for his help or, 

otherwise, bargained for his active assistance." 

Lightbourne at 1021. Motive alone does not make an 
  

individual an agent. 

From a review of the above authorities, it can be seen 

that in order to carry the burden of proof, the Petitioner 

had to establish that Offie Gene Evans was acting as an 

agent or informant of the police authorities and 

deliberately elicited statements from the Petitioner. 

Petitioner had to prove by a preponderance of the evidence 

that Evans was placed in a cell next to the Petitioner 

with the specific intent and direction that Evans obtain 

incriminating evidence from the Petitioner and that Evans 

was 80 instructed to conduct himself and that there was 

ll TL - 

 



  

actually some agreement between Evans and the authorites   

that this take place. The decision in Lightbourne 
  

actually implies that the agreement include some type of 

promise for consideration for this assistance. Respondent 

submits that under the circumstances of this case, 

Petitioner failed to carry his burden of proof and that 

the district court was clearly erroneous in concluding 

otherwise. 

Respondent recognizes that certain findings by the 

district court are questions of fact, but submits that 

certain facts found by the district court are clearly 

erroneous under Rule 52(a) of the Federal Rules of Civil 

Procedure. Clearly, this Court may reverse any such 

factual findings where they are deemed to be clearly 

erroneous. "A finding is 'clearly erroneous' when 

although there is evidence to support it, the reviewing 

court on the entire evidence is left with the definite and 

firm conviction that a mistake has been committed." 

United States v. United States Gvpsum Co., 333 U.S. 364, 
  

395 (1947). Respondent would further submit that the 

district courts view of the evidence is not plausible in 

light of the record viewed in its entirety." Amadeo v. 
  

Zant, U.S. , 108 .5.Ct. 1773, 1777 (1988), quoting 
  

Anderson v. Bessemer Lity, 470 U.S. 564, 573-4 (1985). 
  

-42~ 

 



  

The district court essentially resolved the agency 

question based upon the testimony of one witness, Ulysses 

Worthy, believing only a small portion of Mr. Worthy's 

testimony, concluding that the rest was obviously 

incorrect and disregarding the testimony of the remaining 

witnesses before the district court. Respondent submits 

that based upon the entire evidence, the district court 

was clearly erroneous in doing so. 

Carter Keith Hamilton testified at the trial of this 

case. According to Mr. Hamilton's testimony at trial, he 

was a floor deputy on the first floor of Fulton County 

jail. Mr. Hamilton was asked, "Do you know what cell he 

[Warren McCleskey] was in in July, the early part of July, 

1978 at the Fulton County Jail." «(T. 860). Mr. Hamilton 

responded, "Yes sir, he was in one north fifteen." (I4.) 

Mr. Hamilton did not respond that Petitioner was in that 

cell for a part of that time or for one day, but responded 

that in the early part of July, 1978, Mr. McCleskey was in 

that cell. Mr. Hamilton was then asked if he knew where 

Offie Gene Evans' cell was. Mr. Hamilton responded, "Yes, 

sir, he was in one north fourteen, right next door to 

Warren McCleskey." Id. at 861. Again, no indication was 

given by Mr. Hamilton that Mr. Evans had been in more than 

one cell or had been moved or had been in that cell for 

only a short period of time. Mr. Hamilton did not go into 

~43~ 

 



  

any conversations he had with Mr. Evans because an 

objection was made by trial counsel that any such 

information would be hearsay. Thus, Mr. Hamilton had no 

opportunity to testify whether he was approached by Evans 

or Evans approached him. 

Offie Gene Evans also testified at the trial of the 

case. Mr. Evans testified that the Petitioner was in the 

cell next to him at the Fulton County Jail. (T. 869). 

Mr. Evans was asked if he had carried on conversations 

with the Petitioner and Bernard Depree and Evans responded 

that he had. He also responded that Bernard Depree was 

upstairs in the cell above Evans. Mr. Evans then 

testified as to the statements made to him by the 

Petitioner.. During cross-examination of Evans, Evans 

stated that a deputy at the jail heard them talking about 

the crime. Evans testified that these conversations 

occurred around the 8th or 9th of July. He testified that 

he was placed in solitary "When I first came from the 

streets, they just put me in there straight from the 

street." (T. 873). Mr. Evans described solitary 

confinement as being single cells side by side. Mr. Evans 

was extensively cross-examined about the statements made 

to him by the Petitioner. He was also further asked about 

his conversations with Deputy Hamilton and he stated that 

Deputy Hamilton "said did I want him to call Homicide, 

wed 4 — 

 



  

would 1 tell them that, I said veah, so he called them." 

(T. 880). Finally, Offie Evans was asked when he got 

moved. Evans responded that he was moved on August 14th. 

(TT, 881). 

At the conclusion of the testimony of Mr. Fvans, the 

trial court instructed the jury that the evidence that had 

been presented since the defendant had rested, which 

included the testimony of Hamilton and Evans, was for the 

purposes of impeachment only and for no other purpose. 

{(T. 885), 

At the state habeas corpus hearing, trial counsel, 

John Turner, emphasized that the Petitioner told him that 

he made no statements to anyone at the prison and did not 

talk about the incident at all. (S.H.T. 76). He 

reiterated that he asked Petitioner about Evans and 

Petitioner stated that he did not even know who Offie 

Evans was. {3.H.T, 86). 

Offie Evans also testified before the state habeas 

corpus court. He stated that he was in the Fulton County 

Jail on July, 1978. He stated further that he was taken 

to Fulton County Jail and was placed in solitary 

confinement. (S.H.T., 116). Mr. Evans was in solitary 

confinement "a little bit better than a month.” Id. In 

response to the questions by Mr. Stroup, he responded that 

he was taken out to Fulton County Jail around the first of 

wl] 5 — 

 



  

July and the implication from the testimony is that he was 

placed in solitary confinement at that time where he 

remained until about August 14. Id. Mr. Evans stated he 

was not sure as to why he had been placed in solitary 

confinement. Mr. Stroup further asked, "While you were in 

solitary confinement, you were adjacent to the cell of 

Warren McCleskey, Is that correct?” «(S.H.T. 117). Mr. 

Evans responded affirmatively. 

Mr. Evans was then asked if he talked with any Atlanta 

police officers about the substance of his conversations 

with Warren McCleskey prior to the time of his testimony 

and he responded that he had talked with Officers Harris 

and Dorsey. Id. He stated that these conversations 

occurred while he was still in solitary confinement. At 

this time, Evans indicated that he had the deputy have one 

of the police officers come out and talk with him, which 

was contrary to his trial testimony in which he indicated 

the deputy suggested the police officers coming out. 

(S.H.T. 118). Evans also testified that he had 

conversations with Russell Parker prior to his testimony 

at trial. He said that he had the conversation with 

Parker in July or August. He stated that the detective 

knew he had escape charges and indicated that he talked 

with Detective Dorsey first before talking with Russell 

Parker. Id. at 119. He later indicated that Detective 

~46= 

 



  

Dorsey said he would speak a word for him. (T. 122), 

Evans was cross-examined concerning his testimony in other 

cases subsequent to Petitioner's case. 

Petitioner also testified at the state habeas corpus 

hearing. The Petitioner was asked if he was asserting 

that Offie Evans was not telling the truth and did not 

tell the truth at trial. The Petitioner responded, "That 

is correct. Well, now, 1 would like to clarify that when 

I said the statements had not been made. There were 

conversations that went on, you understand. But never 

nothing incriminating." (S.H.T. 155)... Petitioner further 

stated that he did not tell Mr. Evans what Evans testified 

to at trial. He stated, "There was a guy in there next to 

me that I used to talk to about the law and circumstances 

surrounding the case but never nothing incriminating.” 

(S.H.T. 156). Petitioner reiterated that he did not 

remember Evans being in the cell next to him. Id. 

Russell Parker also testified by way of deposition in 

the state habeas corpus proceeding. Counsel for the 

Petitioner did not ask any questions concerning Evans 

being an agent or an informant. Mr. Parker indicated that 

he: first found out about Evans' testimony from elther 

Detective Jowers or Harris who apparently had been 

contacted by Deputy Hamilton. Mr. Parker did not recall 

at that time whether he went to the jail and talked to 

7 

 



  

Evans or whether they talked to Evans at the Atlanta 

Police Department. He did know that he talked to Evans 

and did talk to him at the Atlanta Police Department at 

some time. (Parker deposition at 9). He further recalled 

Detective Dorsey being involved in the investigation but 

did not know at what point. The only thing he recalled in 

relation to Evans' statement was that Hamilton, Jowers and 

Harris were involved. Id. Mr. Parker testified that he 

did not know Evans prior to that time and was not aware of 

any understandings concerning any favorable 

recommendations between any detective and Evans. When 

asked specifically by the assistant attorney general 

whether he was aware if Evans was working as an informant 

when he was in the Fulton County Jail, Parker responded, 

"I don't know of any instance that Offie Evans had worked 

for the Atlanta Police Department as an informant prior to 

his overhearing conversations at the Fulton County Jail." 

Id. at 15. No other questions were asked by either 

counsel of Mr. Parker concerning a possibility of Evans 

being an informant or agent. 

In addition to this testimony, this Court has the 

statement of Offie Evans. At the very beginning of that 

statement Mr. Evans says, “"1'm in the Fulton County Jail 

cell #1 North 14 where I have been since July 3, 1978 for 

escape. Warren McCleskey was in cell #15, which was right 

dB 

 



  

next to my cell. Bernard Dupree was in cell #2 North 15 

which was right above my cell and McCleskey's." A clear 

reading of this statement indicates that at the time the 

statement was made, even though the statement was actually 

given at the police department, the Petitioner was 

incarcerated in the Fulton County Jail and was in cell #1 

North 14 and had been in cell #1 North 14 since he was 

incarcerated in the Fulton County Jail, which was since 

July 3,.1978. = The point of this statement is that Evans 

had been next to McCleskey from the time he was placed in 

the jail until the time of making the statement and was 

not moved until later in August. 

In addition to the above, the district court had the 

testimony given at two separate hearings. A summary of 

that testimony is essential for reviewing the issues 

presented before the district court. It is important to 

note that the district court at the beginning of the 

hearing found Mr. Evans to be a credible witness simply on 

the basis of the extensive statements given. In fact the 

district court noted that it found the testimony of Evans 

to be true and there was no doubt as to the guilt of the 

Petitioner. (R4-4). 

The testimony presented before the district court and 

the records is fairly clear that Offie Evans was arrested 

on. or. about July 3, 1978. Evans met with Russell Parker 

Le 

 



  

and two detectives from the Atlanta Police Department at 

the Fulton County Jail on July 12, 13978. Evans gave a 

written statement on August 1, 1978. The district court 

was initially concerned with whether an agency 

relationship arose on July 12, 1978 and, if so, what 

information the authorities received after that date. The 

testimony of Russell Parker clarifies this point. Mr. 

Parker had taken notes of his meeting with Evans on July 

12, 1978, which were introduced into evidence before the 

district court as Petitioner's Exhibit No. 9. Mr. Parker 

testified that his recollection was that Evans did not 

tell him anything different on August 1st than he did on 

July 12th. (R4-152). On the pages of Mr. Parker's notes, 

there were two separate references to Evans' making 

statements that if there had been a dozen police officers 

the Petitioner would have shot his way out. Id. Parker 

further testified that he did not know of any information 

that Evans obtained between July 12th and August lst and 

he did not tell Evans to keep his ears open and did not 

tell him to talk with Petitioner any further. (R4-167) 

Mr. Parker's notes reveal that on July 12, 1978, Evans 

told the authorities that he was in the cell next to 

McCleskey and that McCleskey relayed information 

concerning Bernard Dupree and specifically provided 

information in which the Petitioner said he shot the 

50 

 



  

Police officer. In fact, Evans relayed on that day that 

Petitioner said it was either going to be the police 

officer or the Petitioner and that he would have shot his 

way out if there had been a dozen policemen. No evidence 

has been introduced to contradict the above facts. 

The other question concerns whether Evans was actually 

placed in the cell next to Petitioner and whether Evans 

was 1n essence an agent or informant at the time of the 

original conversations with Petitioner. Respondent 

submits that a consideration of all of the testimony 

before the district court shows that the district court's 

finding to this effect is clearly erroneous. 

Russell Parker, the Assistant District Attorney, 

testified consistently that he had never known Evans prior 

to July 12, 1978. Mr. Parker further testified that he 

did go to the jail on July 12, 1978, to talk with Offie 

Evans, and he would have guessed originally that Detective 

Dorsey was not there. Mr. Parker assumed based on the 

indication on his notes that Dorsey did go. (R4-130-1). 

Mr. Parker received information on July 12, 1978, that 

there was an inmate at the jail that had information. He 

decided to go to the jail with Detective Harris. He again 

reiterated that he did not remember Dorsey being there 

and, if asked, would have said it was Detective Jowers. 

(R4-147). 

+51. 

 



  

Mr. Parker also came and testified on the next day at 

the hearing before the district court. During this time, 

the questioning focused on whether Mr. Parker investigated 

the possibility that Evans had been an informant for other 

agencies. He was also asked about Evans being placed in 

solitary confinement in Fulton County Jail. Mr. Parker 

responded that he did not know specifically but he just 

knew that Mr. Evans was an escaped federal prisoner. He 

was not aware specifically that the Petitioner was in 

solitary confinement, but just knew that the Evans and 

Petitioner were in cells next to each other. He further 

reiterated that to his understanding the first time that 

anyone knew the Petitioner had said anything to be 

overheard was on July 11, 1978, when Evans talked to 

Deputy Hamilton. (R5-77). Petitioner's Exhibit No. 10 

consists of further notes from Mr. Parker relating to 

calls he made concerning Offie Evans. These were calls 

during which Mr. Parker was trying to determine in his own 

mind whether to believe Evans. 

Mr. Parker finally testified before the district court 

at the hearing on August 10, 1988. Mr. Parker 

affirmatively stated that he had never asked anyone to 

move Offie Evans to overhear any conversations and never 

suggested to Evans that he overhear any conversations. 

(R6-11). In fact, Parker stated that he specifically did 

52. 

 



  

not ask Carter Hamilton or Ulysses Worthy to move Offie 

Evans and it never came to his attention that any such 

request was made and even as of the date of the hearing he 

had no knowledge of any such request being made. As to 

who was present at the July 12, 1978 meeting, he indicated 

the only information he had was his notes in which it was 

indicated that Detective Dorsey was there. Id. at 113. 

He reiterated that the first knowledge he had of Offie 

Evans was the morning of July 12, 1978. He specifically 

stated that he knew of no request to move Evans and 

nothing of that sort occurred in his presence. Id. at 

116. 

Officer W. K. Jowers testified before the district 

court for the first time on July 9, 1987. Officer Jowers 

testified that he was one of the investigators responsible 

for compiling information and conducting the 

investigation. He testified that he had absolutely no 

contact with Offie Evans. (R5-35). He specifically did 

not recall talking with Evans at any time, much less prior 

£0 July, 1978. 14. at 38. 

Officer Jowers also testified at the hearing on August 

10, 1978, and reiterated that he did not know Offie 

Evans. He further positively testified that he never 

asked that Offie Evans be moved and never heard of any 

such request. He never asked Worthy or Hamilton to move 

~83. 

 



  

Evans and there was no reference in any of his files 

indicating such a request was made. (R6-97). 

Detective Welcome Harris began his testimony on July 

8, 1987. He was involved in the investigation of the 

murder of Officer Frank Schlatt almost from the 

beginning. He testified that Officer Jowers was his 

partner at the time, but other officers, including 

Detective Dorsey did some work on the case. Detective 

Harris' first contact with Offie Evans was on July 12, 

1987. He received information from Deputy Hamilton that 

an inmate had some information about the case. He 

recalled going to the jail on July 12, 1978, with Russell 

Parker and he testified that he thought Detective Dorsey 

was there, but he was not sure. It was apparent that 

Detective Harris based his recollection on who was present 

primarily on the notes of Mr. Parker. Detective Harris 

testified that he thought the interview with Evans 

occurred in Captain Worthy's office, but he was sure 

Worthy was not there. (R4-196). Harris testified that he 

did not think he knew that Evans was in the cell next to 

the Petitioner until they got to the jail. 

Harris testified that the first time he had ever seen 

Evans was on July 12, 1978, when he went to interview 

Evans. He did not know that Evans had been an informant 

prior to that time. The only thing he knew was that his 

-54 

 



  

next encounter with Evans was on August 1, 1978. Further, 

to his knowledge no one was in contact with Evans between 

the two time periods. He corroborated Mr. Parker's 

testimony that the information they received on August 1, 

1978, was basically the same as that received on July 12, 

1978, (R4-212). 

Detective Harris resumed his testimony on July 9, 

1987. At that time he reiterated the fact that he had no 

previous dealings with Evans. (R5-12). He did think that 

he made some contact with the federal penitentiary 

relating to Evans' prior history. He stated that he did 

not hear anyone tell Evans to keep his eyes and ears open 

and he specifically did not tell Evans any such thing. He 

emphasized that he made no suggestions to Evans at all. 

(R5-24). 

Detective Harris testified finally before the district 

court on August 10, 1987. During that testimony, he again 

stated that his first contact with Evans was on. July 12, 

1978. He was emphatic that he never asked anyone to move 

Evans, never asked Evans to overhear any conversations and 

never suggested to Evans to overhear conversations. He 

specifically did not make any such request to Mr. Worthy. 

He also did not recall Worthy being in the room during the 

interview on July 12, 1978. (R6-103). He indicated that 

his testimony was still vague as to a recollection of 

wh 

 



  

Detective Dorsey being present at the interview on July 

12, 1978. When he was cross-examined concerning Mr. 

Evans' testimony at the state habeas corpus hearing, he 

was emphatic that Evans was simply inaccurate if there was 

any indication of a prior meeting with him. Detective 

Harris reiterated the fact that he had absolutely no 

meeting with Evans until July 12, 1978, and did not know 

of Evans until he received the phone call on that date. 

Carter Hamilton also testified consistently in this 

case... Mr. Hamilton was called to testify on July 8, 

1287. In 1978 Mr. Hamilton was a floor deputy at the 

Fulton County jail. He specifically recalled having 

conversations about this case with Evans on either July 

11th or July 12th. He recalled that Evans came in on an 

escape charge and would have been put in isolation as an 

escape risk. (R4-177). He testified that he would not 

have had any conversations with Evans regarding the 

Schlatt killing prior to July 11, 1978. ‘He also did not 

have any conversations with any detectives regarding that 

case prior to July 11, 1978. He knew of no one that 

implied to Evans that he should listen to Petitioner or 

talk to Petitioner. On July 11, 1978, Evans indicated to 

Hamilton that he overheard conversations between 

Petitioner and Depree. Hamilton asked Evans if he would 

talk to the officers. (R4-181). On the morning of the 

-506-— 

 



  

12th, Hamilton recalled that Detective Harris and Russell 

Parker came to the jail along with another officer. 1d. 

at 182. Hamilton took Evans to a room down front where 

they could sit and talk. Hamilton stayed in the room 

until the interview was over. He did not have a clear 

recollection as to who the other detective was that was 

present, although he indicated it could have been 

Detective Dorsey. (R4-183). He indicated that he had no 

other specific conversations about this case with Evans 

during July of 1978. He further testified that he had no 

prior dealings with Evans. (R4-189). 

On August 10, 1987, Carter Hamilton testified 

consistently with his prior testimony. He testified that 

the first time he knew Evans had any information regarding 

the Petitioner's case was on July 11th and to his 

knowledge the first time anyone came to the jail to talk 

to Evans about this case was on July 12, 1978, (R6-68). 

He had no knowledge of Evans being moved and he recalled 

Evans being in isolation when he first came in. He 

testified this would have been based on the outstanding 

escape charge. He further recalled the Petitioner being 

in isolation when he first came into the Fulton County 

Jail. "14. at 69, Hamilton testified positively that no 

one asked to have Evans moved to overhear conversations of 

the Petitioner and that he personally never asked Worthy 

57. 

 



  

to move Evans and he did not tell Worthy that anyone 

wanted Evans moved. Further, during the interview on July 

12, 1978, no one asked Evans to overhear conversations. 

Hamilton reiterated his testimony that he was the one who 

suggested to Evans that the detectives be called and that 

Evans did not mention the detectives and gave no 

indication he had talked to police officers previously. 

(R6-76-7). 

Detective Sidney Dorsey testified before the district 

court on July 9, 1987. He first became involved in the 

investigation of a homicide on the Monday after the 

crime. He did not recall specifically who was his partner 

but thought it might have been Harris. He thought that 

Detective Jowers was the lead investigator on the case. 

(R5-48). Dorsey did testify that he knew Evans prior to 

this case. His specific recollection was that he had been 

to the federal penitentiary and seen Evans and had also 

seen Evans at a halfway house with another detective. He 

did not know why he had been there in the first place but 

it was speCifically not to meet Offie Evans. Id. at 49. 

He saw Evans again at a woman's home and assumed Evans 

either called him there or they just happened to be there 

at the same time. He did not know why. He also had run 

into Evans at city court and spoke to Evans. He thought 

Evans might have called him another time or two but he was 

~58. 

 



  

not sure. He indicated that Evans had on occasion been 

cooperative, but he had never gotten any information from 

Evans where Evans ended up testifying. (R3-54). He was 

further not aware that Evans had served as an informant to 

anyone else. His recollection was that at the time of the 

Schlatt investigation, he did not think he knew Evans had 

escaped or that he was wanted for escape. He further did 

not recall going to see Evans at the Fulton County jail at 

the time of this case or at any other time. He did not 

recall attending a meeting with Parker and Harris and 

Evans. Id. at 57. He testified that it was possible he 

had met with Evans on occasions during the investigation 

of the case, but testified that if he had made any 

promises to Evans he would have a specific recollection of 

that fact. Id. at 65, He was asked specifically by the 

court if he did anything directly or indirectly to 

encourage Evans to obtain evidence from the Petitioner. 

Dorsey positively responded that he did not. He had 

absolutely no knowledge of anything of the sort and had 

never even heard of it occurring.  (R5-68). 

Officer Dorsey testified consistently with the above 

on August 10, 1987. He was again positive that he did not 

talk to Evans during the investigation of the Schlatt case 

and ask him to attempt to overhear conversations of the 

Petitioner. (R6-80). He was positive that he did not 

~50 

 



  

direct Evans to engage in conversations and never heard 

anyone else make such a request. He was positive that he 

made no request that Evans be moved and he did not ask 

Carter Hamilton to make such a reguest. 1d. at 8l. He 

stated he did not remember seeing Evans in the Fulton 

County jail and had no recollection of attending the 

meeting on July 12, 1978. He further reconfirmed his 

prior testimony on cross-examination that if he had made a 

promise to Evans he would have remembered it. The first 

time he heard any information concerning such an 

allegation was back in the 1980's. He remembered being 

asked by Mr. Parker at that time and remembered at that 

point in time that he had the feeling that Evans was 

lying. (R6-87). He was emphatic that if any such request 

to be moved had been made he would have remembered it. 

14. at 94, 

A review of the all of the above testimony shows that 

all of these witnesses testified consistently during both 

sets of hearings. All witnesses emphatically denied ever 

having made any request that Evans be moved, emphatically 

denied ever hearing anyone make such a request and denied 

ever having any knowledge that such a request had been 

made. All witnesses were further consistent in their 

testimony that they were unclear as to whether Detective 

Dorsey was present at the meeting on July 12, 1978. The 

60 

 



  

only reason any witness testified that Dorsey was there at 

all was based on the inclusion in the notes of Mr. Parker 

of Dorsey's name. Harris and Parker initially testified 

they did not recall Dorsey being present and Dorsey 

himself simply did not recall being there. Although 

Petitioner has attempted to focus heavily on Detective 

Dorsey's denial of being at the meeting, it appears that 

his recollection concerning his presence at the meeting 

was the same as the other officers, unclear due to the 

length of time that has passed. It is important to note 

that Detective Dorsey had never previously been asked to 

testify concerning the information received by Evans and 

had no reason to have his recollection refreshed at any 

time prior to the testimony before this Court. Contrary 

to this, Deputy Hamilton testified at trial both in this 

case and in the case of Bernard Depree. Detective Harris 

also has testified previously in this case and Mr. Parker 

tried both cases. Thus, they all had specific reasons to 

refresh their recollection, and even they were unclear as 

to Detective Dorsey's presence. 

The only witness who testified inconsistently, both 

with all other witnesses who have testified and with his 

own testimony in this case, is Ulysses Worthy, the witness 

on whose testimony the district court relied. Respondent 

submits that Mr. Worthy's testimony when considered as a 

—6)~ 

 



  

whole 1s simply so confusing and ambiguous that the 

district court could not have credited any of his 

testimony. Upon reflection, it is clear that Mr. Worthy 

was simply confused as to the events that occurred or was 

mistaken. Mr. Worthy was first called to testify before 

the district court on July 9, 1978. He had not even been 

employed with the Fulton County jail for quite a few years 

and had never had an occasion to testify in this matter or 

discuss the Evans situation with anyone prior to his 

testimony. In fact, Mr. Worthy had no reason to even know 

why he was being brought to court. Necessarily, his 

memory would have been vague at best. Mr. Worthy's 

original testimony was ambiguous and confusing. He 

testified that he recalled the wirder of Officer .Schlatt 

being brought up between Dorsey and Evans, but indicated 

he was not a participant in that conversation and 

testified he did not recall Dorsey asking Evans to listen 

for statements by the Petitioner. (R5-148). During 

examination by counsel for the Petitioner, Mr. Worthy was 

asked, "Do you recall whether Mr. Dorsey asked Mr. Evans 

to listen to what he heard in the jail from those who may 

have been near him?" (R5-148). Mr. Worthy responded 

positively, "no, sir, I don't recall that". Id. Mr. 

Worthy was then asked, "do you recall whether he asked him 

to engage in conversations with somebody who might have 

—0 2 

 



  

been in a nearby cell?” Mr. Worthy responded, "Seems I 

recall something being said to that effect to Mr. Evans 

but 1'm not sure that it came from Mr. -- from 

Detective Dorsey or who." Id. at 149. He then responded 

upon further questioning that he was not really sure and 

he also was not sure that Evans agreed to that 

arrangement. When asked further questions Mr. Worthy 

responded with such statements as "I believe so." Thus, 

from this it is clear that Mr. Worthy simply was unsure of 

what did transpire, was unsure if anyone actually asked 

Evans to listen, did not specify whose conversations Evans 

was asked to overhear and did not even know who made the 

request, 1f indeed such a request was made. 

Worthy then testified that the detectives were out at 

the jail several times. He did recall Russell Parker and 

Detective Harris coming out to interview Evans but was not 

certain as to whether Dorsey was present on that occasion 

or not. Contrary to the testimony of Hamilton and Harris, 

Mr. Worthy testified that he was in the office during part 

of that meeting. He was finally asked if he recalled a 

request being made in this case that "someone" be placed 

in a cell next to "someone else" so that he could overhear 

conversations. He responded that he did. {R5-~-153). He 

stated he did not really know who made the request and he 

thought Evans was placed in the cell next to the 

~63~ 

 



  

Petitioner. As he could recall, it was a request of some 

officer on the case. He further testified he did not 

recall when it was that he might have been asked to move 

Mr. Evans and he did not know of any conversations that 

Mr. Evans had overheard and he did not recall at that time 

who made the request. Id. at 156. 

A review of Mr. Worthy's testimony from the first 

hearing shows that it is extremely ambiguous, unclear and 

highly suspect. Mr. Worthy continually stated he was 

unsure, only believed that certain things occurred, did 

not recall when or who made requests and so forth. 

Respondent submits that this further corroborates 

Respondent's assertion that Mr. Worthy has simply been 

confused all along as to the occurrence of any request for 

a move. Mr. Worthy had time to reflect upon his testimony 

and think about what had occurred some nine years 

previously and testified again on August 10, 1978. After 

having had the opportunity to think about the case 

further, Mr. Worthy testified before the court on that 

date that the first time he recalled Evans ever being 

brought to his attention was on an occasion when one of 

the deputies informed him that Evans had information to 

pass on to the district attorney or police. Mr. Worthy 

was positive that it was deputy Hamilton who brought Evans 

to his attention. (R6-14). Mr. Worthy was certain that 

~64 

 



  

that was his first meeting with Offie Evans on that date. 

This obviously has to have been the July 11, 1978, date as 

this was the first time that Mr. Hamilton had any 

indication that Evans knew anything about this cose 

whatsoever. Mr. Worthy testified he gave Hamilton 

permission to call the deputies. Mr. Hamilton did not 

corroborate this testimony and did not mention ever 

talking to Mr. Worthy about this matter. Mr. Worthy 

recalled that the investigators came to talk to Evans 

within a few days. To his knowledge, that was the first 

time anyone had come to the jail to talk to Evans 

regarding the Schlatt murder. He recalled the meeting 

taking place in his office and being in and out. Id. at 

17. Worthy specifically testified that after the meeting 

none of the investigators asked him to do anything. 

(R6-18). 

When asked if someone asked him to move Evans, he was 

unclear at first and then remembered that it was actually 

Hamilton that allegedly asked him to move Evans. His 

uncertainty was as to whom he thought asked Hamilton to 

request that the move be made. Mr. Worthy emphasized that 

the first time he was ever asked to move Evans was on the 

day the officers came out to the jail with Mr. Parker to 

talk with Evans and that was the only time he was ever 

asked to make such a move. Contrary to the testimony of 

565. 

 



  

all other witnesses, Mr. Worthy stated that Carter 

Hamilton asked that Evans be placed in a cell near the 

Petitioner. Mr, Worthy further testified that he did not 

know for a fact that Evans was ever actually moved. He 

specifically testified he did not hear anyone ask Evans to 

listen to conversations. He testified positively that 

neither Harris, Dorsey, Jowers nor Parker asked him to 

move Evans so that he could overhear conversations. Id. 

at 24. He testified on this occasion that his 

recollection was that the meeting with Dorsey was at the 

same time the other officers were there. He was not sure 

who the request came from for Evans to overhear 

conversations. Id. at 32. Mr. Worthy then became even 

more confused and did not recall if Dorsey was present 

with Parker. Mr. Worthy was clear that he was not present 

at the meetings and that he simply understood the officers 

came back several times. It is clear Mr. Worthy had no 

knowledge of these facts, but was simply assuming that 

they occurred. He did reiterate that the first time Mr. 

Parker came to the jail was the first time he remembered 

seeing the detectives at the jail to interview Evans in 

relation to this case. Worthy had not had a meeting with 

Dorsey prior to the one in which Parker came to the jail 

and the only encounter he had was the one with the 

officers when they had been called to come out to talk to 

“h6~ 

 



  

Evans. Id. at 36. Worthy testified that he did not 

recall talking to Dorsey by himself but he believed Parker 

and Harris were there. Id. at 37. Mr. Worthy again 

reiterated that the only encounter he had in which he was 

asked that Evans be moved was after the interview occurred 

when Dorsey and several other officers were there. He 

stated that Hamilton was the first one to ask that Evans 

moved. He reiterated on redirect examination that there 

was no meeting prior to the time when Parker and the 

officers came to the jail when anyone had been there to 

talk to Evans about the Schlatt murder. After being 

reminded by the district court of the importance of this 

case, Mr. Worthy testified that there may have been other 

meetings when he was not present and did not recall being 

told of any other meetings. He reemphasized the fact that 

when he was asked to place Evans near the Petitioner was 

on the day when Mr. Parker was there. He testified he was 

first approached by Carter Hamilton and he did not know 

who asked Carter Hamilton to make the request. He 

testified that the officer on the case did not directly 

ask him to make any move. (R6-65-6). 

Respondent submits that what the above shows is that 

Mr. Worthy was confused at best during the first time he 

testified before the district court. He did not recall 

specific incidents and appeared to be easily led into 

ey 77 me 

 



  

agreeing to whatever he was asked. Upon thinking further, 

Mr. Worthy obviously recalled meeting Evans on the day 

that Parker and the detectives came out to talk to Evans 

and also recalled that this was the first time he met 

Evans. By this time Mr. Worthy had already committed 

himself to testifying that someone had asked that Evans be 

moved. As Mr. Worthy was certain that he had not met 

Evans prior to this occasion and only knew of Evans when 

Carter Hamilton brought him to his attention, the only way 

for Mi. Worthy to make his testimony consistent was to say 

that he had been asked to move Evans when the officers 

came out, at which time, Evans had already overheard the 

conversations of the Petitioner. 1It is important to note 

that the only name ever given by Mr. Worthy as the person 

asking that a move be made was that of Carter Hamilton. 

He did not know who allegedly asked Carter Hamilton to 

make the move. Carter Hamilton completely contradicts the 

testimony of Mr. Worthy saying he never made such a 

request. There is no reason to discredit the testimony of 

Mr. Hamilton. He has testified before regarding this 

incident and has had better reason to keep his memory 

refreshed than Mr. Worthy. Mr. Worthy was also not. sure 

who made any such request and, even though he was 

continually asked whether there was a prior dealing with 

Dorsey, Mr. Worthy seemed to resolve the confusion and 

~68~ 

 



  

decided he had not seen Dorsey and Evans together at the 

jail prior to the time that Mr. Parker came to the jail. 

The district court, rather than crediting the 

documentary evidence presented before the court and the 

testimony of all witnesses except for Mr. Worthy, took one 

statement of Mr. Worthy's which was consistent between 

both hearings, that is, that someone asked him to move 

Offie Evans, and credited this statement. (R3-23-21). 

The district court never specifically found that any of 

the other witnesses were lying or were mistaken, although 

the Court noted that Detective Dorsey had an interest in 

concealing such an arrangement. The district court did 

not state why it would conclude that Detective Dorsey 

would acknowledge having prior contact with Offie Evans, 

acknowledge having used Evans as an informant in the past, 

yet go to such purported great lengths to conceal any 

alleged arrangement in this case. The district court 

relied upon the one consistent statement of Mr. Worthy to 

essentially discredit the remaining witnesses and piece 

together a sequence of events which simply is not 

supported by any of the testimony in the record and 

particularly is not even supported by the testimony of Mr. 

Worthy himself and is thus clearly erroneous. Mr. Worthy 

was emphatic that the person making the request was Deputy 

Hamilton and was absolutely emphatic that Evans had never 

fy Os 

 



  

even come to his attention until the first time Hamilton 

mentioned Evans which had to have been on July 11th. 

Certainly, Worthy's assertion that the request to move 

Evans came after the time that Evans relayed statements 

about the Respondent does cause some confusion; however, 

other logical conclusions to be reached were that Mr. 

Worthy was simply mistaken as to any such request being 

made or that it could have actually been a request by Mr. 

Evans to be placed near the Respondent and it could have 

even occurred at a later time because the record is clear 

that Mr. Evans subsequently was moved so that he was not 

next to the Respondent. Mr. Worthy could even be 

confused to the extent that there could have been some 

request to move Evans away from the Respondent. 

Purthermore, the district court for the first time in 

its final order determined that Evans had information not 

known to the general public. There is absolutely no proof 

in the record that the facts set forth in Evans' statement 

were unknown to the general public or could not have been 

found out by Evans through conversations with other 

inmates at the jail. This is simply a conclusion by the 

district court which has absolutely no factual support in 

the record. 

Petitioner submits that a review of all of the above 

evidence shows that the factual finding by the district 

-7 0 

 



  

court in which the court finds that a request was made to 

move Offie Evans is clearly erroneous. The further 

conclusion by the district court based upon this one 

factual finding that Evans was an agent has absolutely no 

support in the record. The most Mr. Worthy recalls 

clearly is that someone asked him to move Offie Evans. He 

did not know if Evans was ever actually moved, he was 

unclear and uncertain as to whether someone told Evans to 

overhear conversations or told Evans to elicit 

conversations. Finally, there was absolutely no testimony 

which would support a finding of the agreement 

contemplated by this Court in Lightbourne v. Dugger, . 
  

Although there was some information in the record that Mr. 

Evans had acted as an informant for Detective Dorsey in 

the past, there was no testimony that he had ever acted as 

a paid informant; there was no testimony as to who had 

initiated contact with Evans in the first place, in fact 

all testimony seems to indicate that Evans initiated 

contact with the officers, and there is no evidence of any 

promise of compensation or consideration for his 

assistance. In short, there is no evidence of any bargain 

for the assistance of Mr. Evans and no evidence of an 

agreement. Therefore, the district court's conclusion to 

the contrary is incorrect legally as well as factually. 

Absent such an agreement, there can be no Massiah 

violation because there is no agency as required. 

pH 

 



  

Respondent submits that a review of all of the above 

shows that the district court was clearly erroneous in its 

factual finding regarding Mr. Evans and was also legally 

incorrect with regard to its final conclusion of a Massiah 

violation. The record clearly supports Petitioner's 

position that Mr. Evans was not acting as an agent or 

informant on behalf of the state and that no Massiah 

violation occurred by the utilization of Mr. Evans’ 

testimony at trial. Therefore, the finding by the 

district court to the contrary should be reversed. 

~72= 

 



  

III. ANY ALLEGED MASSIAH VIOLATION WAS 

CLEARLY HARMLESS BEYOND A 

REASONABLE DOUBT. 

Even if this Court were to find a Massiah violation in 

relation to Offie Evans, Respondent submits that the 

district court incorrectly found that this evidence would 

not be harmless. 

The Supreme Court of the United States has 

acknowledged that Sixth Amendment deprivations under 

certain circumstances may be subject to a harmless error 

analysis. United States v. Morrison, 449 U.S. 361 
  

(1981). * In fact, this Court in Lightbhourne v. Dugger, 
  

acknowledged in a footnote that any alleged Massiah 

violation could certainly be harmless error under the 

appropriate circumstances. Even the dissent in that case 

found the error was harmless as to guilt or innocence and 

only found harmful error as to sentencing. Id. at 1021 

n.9. In order to establish harmless error, it must be 

shown beyond a reasonable doubt that the evidence 

complained of did not contribute to the verdict. See 

Brown v. bugger, 831 F.2d 1547 (11th Cir. 1987).   

The district court erroneously found that any error 

was not harmless by finding that Evans' testimony about 

the Respondent's statement was critical to the state's 

=73< 

 



  

case. The district court noted that there were no 

witnesses to the shooting and focused on the allegation 

that "the evidence of Respondent's possession of the gun 

in question was conflicting and the testimony of Ben 

Wright was obviously impeachable." (R3-22-30). 

Respondent submits that this finding by the district 

court is legally incorrect as the finding of harmless 

error is certainly supported by the record. In fact, this 

Court sitting en banc in the original case specifically 

found harmless error as to Mr. Evans' testimony in 

  relation to an allegation of a violation of Giglio v. 

United States, 405 U.S. 150 (1972). McCleskev v. Kemp,   

  

753 B.24 877, 884 (11th Cir. 1985) (en banc). In so   

finding, this Court disagreed with the same district 

court's conclusion in that case that Evans' testimony was 

critical. In so finding, this Court held the following: 

Although we agree that his testimony 

added weight to the prosecutor's case, 

we.do not find that it could "in any 

reasonable likelihood have affected the 

judgment of the jury." (cite 

omitted). Evans, who was called only 

in rebuttal, testified that McCleskey 

had told him that he knew he had to 

7 4= 

 



  

shoot his way out, and that even if 

there had been twelve policemen he 

would have done the same thing. This 

statement, the prosecutor argued, 

showed malice. In his closing 

argument, however, the prosecutor 

presented the jury three reasons 

supporting a conviction for malice 

murder. First, he argued that the 

physical evidence showed malicious 

intent because it indicated that 

McCleskey shot the police officer once 

in the head and a second time in the 

chest as he lay dying on the floor. 

Second, the prosecutor asserted that 

McCleskey had a choice, either to 

surrender or to kill the officer... That 

he chose to kill indicated malice. 

Third, the prosecutor contended that 

McCleskey stated to Evans that he still 

would have shot his way out if there 

had been twelve police officers showed 

malice. This statement by McCleskey 

was not developed at length during 

Evans' testimony and was mentioned only 

75 

 



  

14. 

testimony was crucial in relation to the Respondent being 

in passing by the prosecutor in closing 

argument. 

Evans' testimony that McCleskey had 

made up his face corroborated the 

identification testimony of one of the 

eyewitnesses. Nevertheless, this 

evidence was not crucial to the State's 

case. That McCleskey was wearing 

makeup helped establish that he was the 

robber entering the furniture store 

through the front door. : This fact had 

already been directly testified to by 

McCleskey's accomplice and two 

eyewitnesses as well as corroborated by 

McCleskey's own confession. That 

Evans' testimony buttresses one of the 

eyewitnesses' identification is 

relatively unimportant. 

at 884-5. 

This Court also examined the question that Evans’ 

the triggerman. 

=76~ 

 



  

McCleskey claims that Evans' testimony 

was crucial because the only other 

testimony which indicated that he 

pulled the trigger came from his 

codefendant, Ben Wright. Ben Wright's 

testimony, McCleskey urges, would have 

been insufficient under Georgia law to 

convict him without the corroboration 

provided by Evans. In Georgia, an 

accomplice's testimony alone in felony 

cases 1s insufficient to establish a 

fact. O.C.G.A, § 24-48, Wright's 

testimony, however, was corroborated by 

McCleskey's own confession in which 

McCleskey admitted participation in the 

robbery. (cite omitted). 

Corroboration need not extend to every 

material detail. 

The above finding by the district court is totally in 

conflict with the finding of this Court 

The district court has once again found Mr. 

testimony to be critical to the outcome 

contrary to the en banc holding of this 
  

Wy or I 

set forth above. 

Evans' 

of the case, 

Court. Respondent 

 



  

submits that, as in the prior decision of this Court, the 

evidence presented by Offie Gene Evans was certainly not 

critical to the outcome of the case and any alleged 

Massiah violation would have been harmless beyond a 

reasonable doubt based upon the above holding of this 

Court in the en banc decision. Thus, Respondent submits 

that even had there been a Massiah violation, any such 

violation would have been harmless beyond a reasonable 

doubt and the district court's conclusion to the contrary 

is legally incorrect. 

Ay 

 



  

1V.. THE DISTRICT COURT ABUSED ITS 

DISCRETION IN DENYING RESPONDENT'S 

MOTION FOR RELIEF FROM JUDGMENT. 

If this Court concludes that the district court did 

not error .in failing to find an abuse of the writ and was 

not clearly erroneous as to its factual findings as set 

forth above, then Respondent submits that this court 

should conclude that the district court did abuse its 

discretion in denying the Respondent's motion for relief 

from judgment and remand the case to the district court 

for further proceedings based upon that motion. 

As has already been noted, the district court found an 

alleged violation of Massiah v. United States, based upon 
  

the utilization of the testimony of Offie Gene Evans. In 

making this determination, the district court had 

testimony of all pertinent parties except for Mr. Evans 

himself. Mr. Evans did testify at trial and at the state 

habeas corpus hearing in this case; however, on neither 

occasion were any questions asked of Mr. Evans concerning 

whether he had been an agent of the state at the time of 

any conversation or in particular whether he had been 

moved to a particular cell or placed in a particular cell 

with directions to overhear conversations of the 

Petitioner. Although references have been made by 

279 

 



  

Respondent to a deposition taken in the codefendant's 

case, again, at the time of that deposition, no 

allegations had been made that Mr. Evans had been actually 

been moved so that he was actually placed in the cell next 

to the Petitioner in order to overhear conversations. 

At the hearings held before the district court, 

extensive discussions were had on the record concerning 

the attempts to locate Mr. Evans. Although no direct 

attempts were made by counsel for the Respondent to locate 

Mr. Evans, this was not done due to the obvious futility 

of any such efforts based upon the representations by 

counsel for the Petitioner. It should be noted that the 

original hearings held before the district court were 

conducted pursuant to a pending execution date and were 

originally intended to be arguments on the issue of abuse 

Of the writ. During those hearings, the district court 

converted the hearings into hearings on the merits and, in 

fact, provided the Petitioner with all assistance possible 

in obtaining witnesses, including appointing the federal 

defenders’ office to assist, providing for service of 

subpoened by the federal marshal and allowing the taking 

Of the testimony of one particular witness by way of a 

"telephone deposition." With even all of this assistance 

provided by the district court, counsel for the Petitioner 

could not locate Mr. Evans; therefore, particularly in 

30 

 



  

light of the time constraints in which these hearings were 

held in two days, to even suggest that Respondent had some 

burden to make further obviously futile attempts to locate 

Mr. Evans 1s absurd. Furthermore, based upon the 

representations made to the district court by counsel for 

the Petitioner, it is assumed that there was no point in 

engaging in further futile efforts to locate Mr. Evans 

between the time of the first hearings and the second 

scheduled hearing before the district court. 

At the hearings held before the district court, 

discussions were had on the record concerning the attempts 

to locate Mr. Evans. On July 8, 1987, at the beginning of 

the hearing, the district court noted that the federal 

marshal had tried to serve Mr. Evans at this sister's 

house, but the sister had no idea of Mr. Evans’ 

whereabouts. (R4-3). At that same hearing, counsel for 

the Petitioner, Mr. Boger, noted that two assistants were 

frying to locate Mr. Evans. Id. at 17. Mr. Boger later 

announced that the subpoena for Mr. Evans had been 

returned unserved. Mr. Boger stated that he thought Evans 

was a critical witness and was even considering applying 

for a bench warrant and also observed that Mr. Evans was a 

fugitive from probation in Fulton County at the time. Id. 

at 22. The Fulton County Assistant District Attorney was 

asked if he had information concerning the whereabouts of 

~51- 

 



  

Mr. Evans and he stated that he thought Mr. Evans had just 

gotten out of jail and other than the fact that Mr. Evans’ 

ex-wife used to work for Dobbs House, he had no other 

information concerning Mr. Evans' whereabouts. Id. at 174. 

At the hearing the next day, Mr. Boger noted that he 

had a "modest" lead and was hoping to find Mr. Evans that 

day. (R5-3). On that same day, the district court noted 

that the only witness that was germane to the issue that 

had not been called to testify was Offie Evans. Other 

counsel for the Petitioner, Mr. Stroup, noted that a 

private investigator who was a former FBI agent had been 

unable to locate Mr. Evans and Mr. Stroup also noted that 

the Petitioner had not had the opportunity to 

cross-examine Mr. Evans with his prior statement. Id. at 

135. 

Thus, the Petitioner and the district court obviously 

considered Mr. Evans to be a critical witness at the time 

of the first proceedings in the district court. Once Mr. 

Evans became available to testify, however, the district 

court somehow determined that Mr. Evans' testimony was not 

essential and even repudiated its earlier statement that 

Mr. Evans was credible. 

As soon as counsel for the Respondent was advised that 

Mr. Evans had been taken into custody by the Fulton County 

authorities, which was on April 11, 1988, Respondent 

—82 

 



  

promptly filed a motion for remand in this Court on April 

12, 1988, setting forth the facts pertaining to the 

location of Mr. Evans and requesting this Court to take 

some appropriate action due to the fact that the briefing 

schedule was running. This Court denied the motion for a 

limited remand without prejudice to allow the Respondent 

to file a motion under Rule 60(b) of the Federal Rules of 

Civil Procedure. 

Respondent then promptly filed the appropriate motion 

with the district court on May 6, 1988. (Rl Supp.-31). 

After various pleadings were filed in the district court, 

the deposition was taken of Offie Evans and other 

documents were submitted to the district court, the 

district court entered an order denying the motion for 

relief from judgment finding that insufficient cause had 

been shown under Rule 60(b) to justify the granting of 

such relief. Respondent submits that this was an abuse of 

the discretion of the district court. 

In filing the motion with the district court, the 

Respondent recognized that the testimony of Mr. Evans did 

not fit within the traditional definition of newly 

discovered evidence as Mr. Evans was known to be a 

critical witness previously and there was some indication 

from the record that he would testify contrary to what had 

been presented at the district court hearing. The 

~83- 

 



  

question was simply that Mr. Evans was not available to 

testify before the district court and, under those 

circumstances, it should be deemed to be newly discovered 

under Rule 60(b)(2), or should have justified relief from 

judgment under Rule 60(b) (6) permitting judgment to be set 

aside for "any other reason justifying relief from the 

operation of a judgment." 

This Court has examined a motion filed under Rule 

60(b) (2), treating such motion as an extraordinary motion 

for new trial based on newly discovered evidence. This 

Court thus acknowledged a five-part test as follows: 

(1) the evidence must be newly 

discovered since the trial; (2) due 

diligence on the part of the movant to 

discover the new evidence must be 

shown; (3) the evidence must not be 

merely cumulative or impeaching; (4) 

the evidence must be material; (5) the 

evidence must be such that a new trial 

would probably produce a new result. 

=84 

 



  

Scutieri v. Pajge, 808 P.24 785, 793 (11th Cir. 1987). ‘In 
  

filing the motion with the district court, Respondent 

acknowledged that the testimony of Mr. Evans would not fit 

in the traditional definition of newly discovered evidence 

as he was not a newly discovered witness, nor were the 

contents of his testimony a surprise to the Respondent; 

rather, the location of Mr. Evans and his availability was 

different from the time it was at the time of the original 

hearings. Respondent suggested to the district court that 

this was sufficient to satisfy the first prong of the 

requirements set forth above. Furthermore, although 

Respondent did not make independent efforts to locate the 

whereabouts of Mr. Evans, the record is replete with 

efforts by counsel for the Respondent, including utilizing 

the Federal Defender Program, a private investigator, the 

federal marshal and whatever other resources the district 

court could provide, to obtain the presence of Mr. Evans 

at the hearings. When these efforts by the Respondent 

were unavailing, it seems absurd to conclude that the 

Respondent somehow could have obtained the testimony of 

Mr. Evans through further efforts and should have made 

other obviously futile efforts to locate his whereabouts. 

The district court's suggestion that somehow the 

Respondent had more resources 1s contradicted by review of 

85 

 



  

the record which shows the amount of assistance provided 

to the Petitioner by the district court as set forth 

previously. «The district court in fact did virtually 

everything it could to provide the Petitioner with the 

opportunity to present any and all witnesses and the 

opportunity to try to find Mr. Evans. 

As to the third requirement set forth in Scutieri,   

that the evidence not merely be cumulative or impeaching, 

a review of the deposition of Mr. Evans as tendered to the 

district court clearly establishes that the evidence was 

material, the district court even so found, and was simply 

cumulative or impeaching but related directly to the issue 

on point. Mr. Evans testified in his deposition that he 

was housed in cell number fourteen on the first floor in 

the north wing when he was initially placed in the Fulton 

County jail. (Evans' deposition at 13-14). Mr. Evans 

further testified that he began talking to Mr. McCleskey 

and Mr. Depree from the first day he was incarcerated. Id 

at 15. Evans stated that the did not talk to any officers 

before talking to the deputy at the jail and relaying to 

the deputy that the had information concerning Mr. 

McCleskey and Mr. Depree. 1d. at 17. Mr. Evans further 

said that he never talked to Ulysses Worthy about this 

particular case. 1d. at 19. 

856 

 



  

Mr. Evans emphatically stated that he was not moved 

£xrom one cell to another ‘in the Fulton County jail, that 

no one asked him go talk with the Petitioner or Depree and 

that he did not talk to them at the direction of anyone. 

14. at 24-23. Thus, just a short review of the testimony 

clearly establishes that Mr. Evans' testimony would have 

directly contradicted that of Mr. Worthy and would have 

corroborated the testimony of the other witnesses 

concerning the possible move and, rather than being 

cumulative or impeaching, it is the testimony of the 

witness in question as to what his actions were and the 

reasons for them. 

At the deposition of Mr. Evans, he gave testimony 

reflecting on the question of diligence and whether 

further efforts should have been made to obtain his 

testimony earlier. Mr. Evans testifed that the only way 

he heard about the McCleskey case was from being told 

there was an article in the newspaper. He testified that 

he was not even in Atlanta at the time. (Evans 

deposition at 25-27). He had been advised by certain 

members of his family that a man had been to his house on 

numerous occasions trying to locate him. Thus, it appears 

that any further attempts to locate Mr. Evans would very 

likely have been futile. 

-87% 

 



  

Finally, Respondent submits that contrary to the 

assertions of the district court, if the evidence was 

properly considered and proper credibility findings were 

made, the evidence is such that a new trial would probably 

produce a new result. The district court chose to ignore 

its own earlier statements that Evans' written statement 

to the authorities were credible and that Mr. Evans would 

be a credible witness and conclude that Mr. Evans would 

have some reason for lying due to the fact that he would 

not be want to be known as an informant. This conclusion 

is unwarranted as the mere fact that Mr. Evans testified 

in the trial of the Petitioner's case establishes the 

danger of which Mr. Evans was concerned. With Mr. Evans 

testifying directly contradictory to the only witness 

truly credited by the district court and when that one 

witness gave such an implausible version of events, and 

when Mr. Evans' testimony corroborate the testimony of 

other witnesses and provides a logical chain of events 

that occurred, then it seems quite likely with Mr. Evans’ 

live testimony were even given appropriate or if his 

deposition were appropriately considered, a different 

result should be produced. 

Under these circumstances, Respondent asserts that the 

requirements of Rule 60(b)(2) have clearly been met and 

the district court refused its discretion in not so 

finding. 

~88-~ 

 



  

Even if this Court finds that the district court 4id 

not abuse its discretion in concluding that the 

requirements of Rule 60(b) (2) had not been met, Respondent 

submits that this case then falls squarely within the 

parameter of Rule 60(b)(6), providing for the granting of 

such relief for "any other reason justifying relief from 

the operation of the judgment." Under the unusual 

circumstances of the instant case, the availability of Mr. 

Evans would justify the granting of relief from judgment. 

The United States Supreme Court has recently 

considered Rule 60(b)(6), noting, "the rule does not 

particularize the factors that justify relief, but we have 

previously noted that it provides courts with authority 

'adequate to enable them to vacate judgments whenever such 

actions are appropriate to accomplish justice,' (cite 

omitted), while also cautioning that it should only be 

  

applied in ‘extraordinary circumstances.' . (Cite 

omitted)." Liljeberg v. Health Services Acquisition 

Ccorp.., U.S. + 1108.8.Ct, 2194, 2204 (19838). This   

Court has also examined this particular rule noting, "Rule 

60(b) has vested the district courts with the power to 

vacate judgments whenever such action is appropriate to 

accomplish justice'.” Griffin v. Swim-Tech Corp., 722 
  

F.24 677, 680 (11th Cir. 1984), guoting Klavproti v. 
  

United States, 335 U.S. 601, 615 (1949). Respondent   

-89= 

 



  

submits that under the circumstances of this case, the 

granting of the relief under Rule 60(b) is appropriate. 

The district court seemed to conclude that the granting of 

such relief was not appropriate as there was no conclusion 

that the denial of the motion would result in an extreme 

hardship to the Respondent. This completely ignores the 

fact that the district court had granted habeas corpus 

relief in this action resulting in the necessity of a new 

trial by the state years after the original trial was 

completed, requiring extensive efforts to relocate 

evidence, witnesses, and prepare a case for trial when, 

with the granting of the motion, such extreme hardship 

might not result. 

Under the circumstances of this case, Respondent 

submits that justice virtually dictates the granting of 

the motion for relief from judgment in the instant case 

and, therefore, the district court's failure to do so is 

clearly an abuse of discretion. 

~90~ 

 



  

CONCLUSION   

For all of the above and foregoing reasons, 

Respondent-Appellant prays that the judgment and verdict 

of the district court insofar as it grants habeas corpus 

relief and finds a Massiah violation be reversed. 

Respondent-Appaellant further prays that should this Court 

not £ind that the district court erred as to abuse of the 

writ and the alleged Massiah violation, that this Court 

conclude that the district court abused its discretion in 

denying the motion for relief from judgment. Thus, 

Respondent-Appellant prays that this Court either conclude 

that relief should be denied in its entirety or remand the 

case to the district court for further consideration based 

on the Rule 60(b) motion. 

Respectfully submitted, 

MICHAEL J. BOWERS 071650 

Attorney General 

H. PERRY MICHAEL 504000 
Executive Assistant 
Attorney General 

A lihltirr.” SO, t tr Lhe 
  

WILLIAM B. HILL, JR. 7 B54723 
Deputy Attorney General 

=D l= 

 



  

Please serve: 

MARY BETH WESTMORELAND 

Ct poner Beli 
  

SUSAN V. BOLEYN 065850 
Senior Assistant Attorney General 

hese Ba dlhahnse fick 
  

Ea WESTMORELAND 750150 
Sen¥or Assistant Attorney General 

132 State Judicial Building 
40 Capitol Square 
Atlanta, Georgia 30334 
(404) 656-3349 

97. 

 



CERTIFICATE OF SERVICE 

I do hereby certify that I have this day served 

the within and foregoing BRIEF, 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 

99 Hudson Street 

16th Floor 

New York, New York 10013. 

This /0¢A day of May, 1989. 

p J 

ny BETH WESTMORELAND’ 
Sen¥O0r Assistant 

Attorney General