McCleskey v. Zant – Brief for the Respondent in Opposition

    Case Files: Mcl les y (03)1-013): Leo al Sc 6TVS, No. §)-6408 « Briek | Gespordiud 3m Oppusivion ET : 

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D(A 4 2 

   



  

NO. 81-5408 

IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1981 

  

WARREN McCLESKEY, 

Petitioner, 

Vv. 

WALTER ZANT, SUPERINTENDENT, 

GEORGIA DIAGNOSTIC AND 

CLASSIFICATION CENTER, 

Respondent. 

  

ON PETITION FOR WRIT OF CERTIORARI 
TO THE SUPERIOR COURT OF BUTTS COUNTY, 

STATE OF GEORGIA 

  

BRIEF FOR THE RESPONDENT IN OPPOSITION 

  

NICHOLAS G. DUMICH 

Assistant Attorney General 
Counsel of Record for the 

Please serve: Respondent 

NICHOLAS G. DUMICH MICHAEL J. BOWERS 

132 State Judicial Bldg. Attorney General 

40 Capitol Square, S. W. 

Atlanta, Georgia 30334 ROBERT S. STUBBS, II 

(404) 656-3499 Executive Assistant 

Attorney General 

MARION O. GORDON 
Senior Assistant 
Attorney General 

JOHN C. WALDEN 
Senior Assistant 
Attorney General 

 



  

1X. 

iil. 

QUESTIONS PRESENTED 
  

WHETHER OR NOT PETITIONER'S EIGHTH OR FOURTEENTH AMENDMENT 

RIGHTS WERE VIOLATED, AND HIS DEATH PENALTY UNCONSTITUTION- 

ALLY IMPOSED AS A RESULT OF THE INTRODUCTION INTO EVIDENCE 

OF HIS PRIOR CRIMINAL CONVICTIONS FOR ARMED ROBBERY, AND 

BY THE INTRODUCTION OF TESTIMONY PERTAINING TO PETITIONER'S 

PARTICIPATION IN OTHER ARMED ROBBERIES FOR WHICH HE HAD 

NOT BEEN CONVICTED WHEN SAID EVIDENCE AND TESTIMONY WAS 

PROPERLY ADMISSIBLE UNDER GEORGIA LAW, AND WHEN THE TRIAL 

COURT'S INSTRUCTIONS, TAKEN AS A WHOLE, LIMITED THE JURY'S 

CONSIDERATION OF SAME. 

WHETHER OR NOT PETITIONER'S DEATH PENALTY CAN BE SAID TO 

BE ARBITRARY OR CAPRICIOUS WHEN THERE WAS AMPLE EVIDENCE 

PRESENTED AT PETITIONER'S TRIAL TO SHOW THE EXISTENCE OF 

STATUTORY AGGRAVATING CIRCUMSTANCES UNDER GA. CODE ANN. 

§ 27-2534.1(b) BEYOND A REASONABLE DOUBT, AND WHEN THE 

GEORGIA SUPREME COURT HAS REVIEWED PETITIONER'S CASE, 

FINDING IT NEITHER TO BE INFLUENCED BY PASSION, PREJUDICE 

OR OTHER ARBITRARY FACTOR NOR DISPORTIONATE, CONSIDERING 

THE CRIME COMMITTED AND THE INDIVIDUAL DEFENDANT. 

WHETHER PETITIONER'S DUE PROCESS RIGHTS WERE VIOLATED WHEN 

PETITIONER HAS FAILED TO MAKE A SUFFICIENT SHOWING OF AN 

UNDISCLOSED PROMISE OF LENIENCY MADE BY POLICE DETECTIVE 

TO AN INFORMANT WHO TESTIFIED AT PETITIONER'S TRIAL, AND 

WHEN BOTH THE STATE PROSECUTOR AND THF WITNESS HAVE TESTI- 

FIED THAT THERE WERE NO PROMISES OR RECOMMENDATIONS MADE, 

AND WHEN IN LIGHT OF THE OVERWHELMING EVIDENCE AGAINST 

 



  

we 

IV. 

THE PETITIONER, ANY FAILURE TO DISCLOSE CONVERSATIONS 

BETWEEN THE WITNESS AND THE POLICE DETECTIVE PRIOR TO 

TRIAL WOULD NOT HAVE AFFECTED THE JURY'S VERDICT. 

WHETHER PETITIONER MAY NOW CLAIM HIS RIGHTS WERE VIOLATED 

BY THE TRIAL COURT'S FAILURE TO GRANT EXPENSES FOR A 

BALLISTICS EXPERT TO PROVIDE EXPERT TESTIMONY WITH RESPECT 

TO THE IDENTITY OF THE MURDER WEAPON, WHEN NO SUCH REQUEST 

FOR A BALLISTICS EXPERT WAS MADE AT TRIAL. 

WHETHER PETITIONER'S DUE PROCESS RIGHTS WERE VIOLATED BY 

THE TRIAL COURT'S REFUSAL TO GRANT PETITIONER'S MOTION FOR 

FUNDS TO EMPLOY AN INVESTIGATOR, WHEN DEFENSE COUNSEL 

ATTENDED THE PRELIMINARY HEARING AND WAS ABLE TO CROSS- 

EXAMINE AT LEAST THREE OF THE VICTIMS OF THE ARMED ROBBERY 

IN WHICH PETITIONER PARTICIPATED, AND TWO OF THE STATE'S 

INVESTIGATING OFFICERS WHO WERE CALLED AS WITNESSES AT 

TRIAL, AND WHEN DEFENSE COUNSEL CONSULTED WITH PETITIONER 

ON AT LEAST A DOZEN OCCASIONS PRIOR TO TRIAL, HAD NUMEROUS 

CONVERSATIONS WITH THE ASSISTANT DISTRICT ATTORNEY WHO 

WAS PROSECUTING THE CASE AND HAD AN OPPORTUNITY TO 

THOROUGHLY REVIEW THE DISTRICT ATTORNEY'S FILE, WHICH 

INCLUDED RESTATEMENTS FROM THE WITNESSES AND ALL LABORATORY 

REPORTS; AND WHEN PETITIONER'S TRIAL COUNSEL TESTIFIED AT 

THE STATE HABEAS CORPUS HEARING THAT HE FELT HE HAD ENOUGH 

TIME TO PREPARE FOR. THE CASE, 

ii 

 



  

VII. 

viii. 

IX. 

WHETHER OR NOT PETITIONER'S DUE PROCESS RIGHTS WERE 

VIOLATED BY THE TRIAL COURT'S INSTRUCTIONS TO THE JURY 

ON THE QUESTION OF INTENT; AND ASSUMING ARGUENDO AN 
  

ERRONEOUS INSTRUCTION IS FOUND, WHETHER OR NOT SAID 

ERROR WAS HARMLESS IN LIGHT OF THE OVERWHELMING EVI- 

DENCE AT PETITIONER'S TRIAL. 

WHETHER OR NOT PETITIONER'S DUE PROCESS RIGHTS WERE 

VIOLATED AS A RESULT OF THE PROSECUTOR'S ARGUMENTS DURING 

THE PENALTY PHASE OF PETITIONER'S TRIAL. 

WHETHER PETITIONER RECEIVED EFFECTIVE ASSISTANCE OF 

COUNSEL IN ACCORDANCE WITH HIS SIXTH AMENDMENT RIGHT UNDER 

THE UNITED STATES CONSTITUTION. 

WHETHER OR NOT ANY OF THE PETITIONER'S CONSTITUTIONAL RIGHTS 

WERE VIOLATED THROUGH THE TRIAL COURT'S EXCLUSION OF TWO 

PROSPECTIVE JURORS WHO VOICED UNYIELDING OPPOSITION TO 

CAPITAL PUNISHMENT. 

5 

 



  

TABLE OF CONTENTS 
  

QUESTIONS PRESENTED vi cin av sini aunt 3 wide i 

STATEMENT OF THE CASE Jibs vs ois vie 3's. Se. 1 

STATEMENT OF THE FACTS uf uv niie a wie mi win in a 

REASONS FOR NOT GRANTING THE WRIT 

I. NEITHER EVIDENCE OF PETITIONER'S 
PRIOR CRIMINAL ACTS WHICH WERE 
ADMITTED DURING HIS TRIAL, NOR THE 
TRIAL COURT'S INSTRUCTIONS TO THE 
JURY DURING THE SENTENCING PHASE 
OF PETITIONER'S TRIAL, VIOLATED 
ANY OF PETITIONER'S CONSTITUTIONAL 
BICHIS + « vo «ijn eps wis vialin o sn wi.» 5 

II. THE STATE HABEAS CORPUS COURT AND 
THE GEORGIA SUPREME COURT HAVE 
PROPERLY FOUND THAT PETITIONER'S 
DEATH PENALTY HAS NOT ARBITRARILY 
OR CAPRICIOUSLY BEEN IMPOSED ifeiie wie 13 

I1I. THE STATE DID NOT WITHHOLD FROM THE 

PETITIONER ANY MATERIAL, EXCULPATORY 

EVIDENCE RELATING TO THE TESTIMONY OF 

ANY WITNESSES ile o's sv » 5's siee ov + oo 17 

IV. THE DENIAL OF PETITIONER'S PRETRIAL 

MOTION FOR EXPERT WITNESSES DID NOT 

DEPRIVE HIM OF A FUNDAMENTALLY FAIR 

TRIAL OR DUE PROCESS NO a SMR 

V. THE TRIAL COURT'S INSTRUCTIONS TO THE 

JURY DID NOT OPERATE TO VIOLATE ANY 

OF PETITIONER'S CONSTITUTIONAL RIGHTS , . 22 

Vi. THE PROSECUTOR'S CLOSING ARGUMENTS TO 

THE JURY DID NOT DENY PETITIONER A 

FUNDAMENTALLY PAIR TRIAL . « 4» 4 4s ov o.sa +» 2B 

VII. PETITIONER RECEIVED EFFECTIVE ASSISTANCE 

OF COUNSEL" ti oy eine a sai a vinite vn: 2B 

VIII. THERE IS NO EVIDENCE IN THE RECORD 

THAT ANY JURORS WERE IMPROPERLY EXCLUDED 

BECAUSE OF THEIR OPPOSITION TO CAPITAL 

BORISHMENT Wve lv nel vir in wie te ie we 931 

CONCIUSTON tev 6 a vs ls alate vise ini sin wei 32 

CERTIFICATE OF SERVICE" 4. . . id win ve a ntteiis = 33 

iv 

 



  

TABLE OF AUTHORITIES 
  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

Cases cited: Page(s) 

Bouden v. Holman, 394 U.S. 262 11970) + « «4 + 31 

Brady v. Maryland, 373 U.S. 83 (1963) . . « « 18 

Branch v. Estelle, 631 7.24 1229, 1233 

[DE Clr. 1980) fav vw ain so so oo o nn ¢% vo '» 26 

Bryan v. Wainwright, :588 7.24 1108, 1111 
AENGCIY, LO7YY bo wv de air eee ee a 10 

Bumper v. North Carolina, 391 U.S. 543 

Bl de IR RM 31 

Chapman v. California, 386 U.S. 18 (1967) . . + . 25 

Clark v. Blackburn, 619 2.24 431 (5th Cir. 
1980) ee Tait ees oho Twigs ww lwwile eee 27 

County Court of Ulster County v. Allen, 
0.8. 7-00 SCL, 2213, 2225 (1970) oc tte 2 23, 24 

Cupp. v. Naughten, 414 U.8. 141, 147 (1973). . is 16, 23 

Davis v. Georgia, 429 U.S. 122 (1976) . +» « + v's 31 

Donnelly v. DeChristoforo, 416 U.S. 636, 643 
[IO AY or « +» » # + =» =" "iigiisige 5 ra inn eb 25 

Felts v. Georgia, 244 Ga. 503, 505, 260 S.E.2d 
BR RID 7/0) ea 0 viv wile eth ee ieee ea 10 

Freeman v. State of Georgia, 599 F.2d 65 
(Eh, Clie 1970) o to. + ov ‘ns sin He ov Te "a a so» 18 

French v. State, 237 Ga. 620, 229 S§.E.24 410 

dal nt CHEER CR SL CREE Me IE Pa : 9 

Giglio v. United States, 405 U.S. 150 (1972). . . 18 

Godfrey v. Georgia, U.S. 300. 8.0F, 1759 

CETBBE = «= + 2s » on 2 ¢ ov oie eo vinnie 16 

Gregg v. Georgia, 428 U.5. 153, 189 (i876). . . .. 10 

Henderson v. Kibbe, 431 U.S5. 145, 154 (1977). . . 23 

Hill v. Wainwright, 617 P.24.375 {5th Cir. 1980). 26 

Holback v. Alabama, 607 F.2d 680(1) (5th Cir. 
fr OR EE ES ie eR TR 19 

Houston v. Estelle, 622 7.24 124,:127 (5th Cir. 
1978) RRS TT Re OR Me IL CR eh 26 

In ReWinship, 397 U.8. 358, 364.41970) . » . .. 24 
  

 



  

Cases cited: 
  

Jackson v. Virginia, 443 U.S. 307 (1979) 
  

Jones v., Estelle, 622 F.24 124 (5th Cir. 1980) 
  

lee v, Hopper, 499 F.24 456 (5th Cir. 1974). 
  

Lisenba v, California, 314 u. 8. 219, 227-228 
Gel Tn LR DRE i ape BE TONERS oe Sige 
  

Little v. Streater, U.S. 7.101: 8.Ct.. 2202 
F108) ss yy oie vie ve Ce mined ih ee ae 
  

Lockett v. Ohio, 438 0.8. 856 (1978) . «. +» +4 
  

Lovett v. State of Florida, 627 F.24 706 
(Sth Clr. 1080) vv. wie asin winiiwmiin. ne 
  

Manning v. Rose, 507 ¥7.24 889, 892-895 
(OLh Clix, 1074). 2 ov sv aite o aie iin nin 
  

Maxwell vy, Bishop, 398 U.S. 262 (1970) . . ... 
  

McCleskevy v. Georgia, Case No. 79-6830 . . . 
  

  

McCleskey v. Georgia, 0.8. , 101 S.0F. 

2 I OBO) its Te ei ai «Te ee wwii wh 

McCormick, Evidence, 2nd Ed., p. 447-448 (1972) 
  

Mullanev vv, Wilbur, 421 U.S. 684 (1975). . . 
  

Neil v. Bigoers, 409 U.S, 118, 198-199 (1972). 
  

Nelson v. Estelle, 642 F.2d 903, 2906 (5th 
Cir. 1981) i. dy si ov atin in wiwlin sowie win 
  

Parrish v. Hopper, 238 Ga. 468, 233 S.E.2d4 lel 
£1977) FE CSN I PR I RP 

Patterson v. New York, 432 U.8. 197, 215 (1977) 
  

Pennsylvania v. Ashe, 302 0.8.:51, 55 (1937). . 
  

Powell v. State, 122 Ga. 571,.50. S.E. 361 

(1905) EW MAR VS Ne, CE NE ST SR 
  

Sandstrom v. Montana, 442 'U.8. 510 (1979). 
  

  

Schneider v. Estelle, 552 7.24 593 (5th Cir. 
1977) "pei Se Snail OL ORE RL AR Sa 

Shaw v. State, 102 Ga. 660, 29 8.E. 477 (19786) 
  

Smith v. Florida, 410 FP.24 1349 (5th Cir. 1969), 
  

Snvder v. Massachusetts, 291 U.S. 97, 105 (1934) 
  

Spencer v. Texas, 385 U.S. 554, 560-561 (1967) 
  

Spinkellink v. Wainwright, 578 P.24 582, 593-594 
(5th Cir. 1978}, cert, den., I.S. 7:99 S.Ct, 
  

  
1348.{1979), ovo oa wT 

vi 

Page(s) 

31 

 



  

Cases cited: Page(s) 
  

  

Timberlake v. State, 246 Ga. 488(6), 271 S5.E.z4 
702 OBO i By « oc sir vis bei ie alate aH a aia By 9 

Tyler v. Phelps, 643 F.24 1093 (5th Cir. 1981), . « . + 24, 23   

United States v. Caucci, 635 F.2d 441, 446-447 
Rie DL BRN Ne Se Cla PE RR ae 
  

United States v. Chiantese, 582 F.2d 947, 977 
{Sth Clr, X078) a aie ee see a EE ow wie 24 
  

United States v. Hughes, 635 F.2d 449, 453 
(SER Cir, 1081) vw 0 oh vie eS ee cia ee eee 30 
  

United States v. Johnson, 615 F.2d 1125 
(BIN CiTe LODO) « « + [ois & 2:0 ov 2s ws iis im iin. via 26 
  

United States v, Park, 421 U.S, 658, 674° (1975). . . 10 
  

  

United States v. Spiegel, 604 F.2d 961, 970 
(BE Cir. 1975) + os vie te vin va sire Be awe ee 24 

United States v. Sutton, 542 7.24 1239 (4th 
Cir. 1979) WILBER ee iE Re ay oS CT See, 18 
  

United States v. Wade, 388 U.S. 218 {1967). « oc ov + 30 
  

Viainwright vo Sykes, 433 U.8.:72 (1977) © 'v o ae ua 25 
  

Williams v. Brown, 609 7.28 216 (5th Cir. 1980) . . . 18 
  

Witherspoon v. Illinois, 331 U.S. 510 (1968). + . « a 31 
  

Statutes cited: 
  

Ga. Coda Ann. SS 3B=1802 + oe vo a oni oo ov lee wile 9 

Ga.:00de Ann. § 27-2503 . + ca sel c  wiin ieee Pie 11 

Ga. COB iANn. 8S 27=2538.1 , vi i in viv ate ois in wiivits 11, 12, 16 

vii 

 



  

PART ONE 
  

STATEMENT OF THE CASE 
  

On June 13, 1978, the Fulton County Grand Jury returned 

a three count indictment against the Petitioner, and his co- 

defendants David Burney, Bernard Dupree, and Ben Wright, Jr., 

charging said individuals with the offense of murder and two 

counts of armed robbery. (R. 1e3y.Y/ The Petitioner, Warren 

McCleskey, was tried separately on October 9-12, 1978, and was 

found guilty on all three counts. (7, 110, R. 55). The jury 

imposed the death penalty on the murder count, 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. (rT. 1031, R. 56). Consecutive life 

sentences were imposed on the two counts of armed robbery. (R. 56). 

Petitioner's convictions were affirmed by the Georgia 

Supreme Court on direct appeal, and his petition for certiorari 

was denied. McCleskey v. State, 245 Ga. 108 (1980), cert. den., 
  

  

U.S. r 100: 8.Ct. 253 (19860). 

Following the denial of certiorari, Petitioner filed a 

state habeas corpus petition in the Superior Court of Butts 

County, Georgia. Following an evidentiary hearing, the Butts 

County Superior Court denied Petitioner's request for relief in 

an order dated April 8, 1981. The Georgia Supreme Court denied 

his application for a certificate of probable cause to appeal 

on June 17, 1981, and thereafter, Petitioner filed his second 

petition for certiorari in this Court. 

  

1/ References in this Brief to'the pagination of the Record in 

Fulton County shall be designated as (R. ) . References to 

the pagination of the official trial transcript shall be 

designated as (T. 

 



  

PART TWO 
  

STATEMENT OF THE FACTS 
  

The evidence which was presented at Petitioner's trial 

showed that on May 13, 1978 he and his three co-defendants 

executed the robbery of the Dixie Furniture Store in Atlanta, 

Georgia. During the course of this robbery, the Petitioner 

entered the front of the store while his three co-defendants 

entered the back. Petitioner was positively identified at 

trial, as one of the participants in the robbery. {T. 231, 

242, 250). 

Following the Petitioner's arrest he was taken to 

Atlanta and on May 31, 1978 he made a confession to the 

police admitting his participation in the robbery, but denying 

that he shot Atlanta Police Officer Frank Schlatt. The trial 

court held a Jackson v. Denno hearing and determined that 
  

Petitioner's signed confession was freely, intelligently 

and voluntarily entered. (T. 426-505). The Georgia Supreme 

Court affirmed this ruling on appeal. McCleskey v. State, 
  

supra, at p.. 112), 

Petitioner's co-defendant, Ben Wright, also testified 

at the trial and related the details of the robbery and 

murder. He testified that while he carried a sawed-off shotgun, 

the Petitioner carried a .38 caliber nickle-plated, white- 

handled pistol. (T. 654-656, 648-649). Co-defendant Burney 

had a blue steel, snub-nosed .38 caliber pistol while Dupree 

had a Dlue steel .235 caliber pistol. (TT. 649). 

While Dupree, Burney and Wright held several employees 

in the back of the store, Petitioner was in the front. (T. 656). 

Unbeknownst to Petitioner and his cohorts, employee Classie 

Barnwell had activated a silent alarm, which resulted in the 

arrival of Officer Frank Schlatt. (T. 213-«214). shortly 

after Schlatt entered the front of the store he was ambushed 

 



  

and gunned down. Ater hearing two shots Wright observed 

U Petitioner running out the front of the store. (T. 657-707). 

Wright, Dupree and Burney ran out the back, and when they 

all arrived at the car, Petitioner stated that he had shot 

the police officer. (T. 658-659). 

Mr. Everett New and his wife were stopped in their auto- 

mobile 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. Unfortunately, he could not 

identify that individual. (T, 331-333). 

The state also introduced the testimony of Mr. Offie 

Evans who had been incarcerated in the Fulton County Jail in 

a cell which was located near the Petitioner and his co-defendant 

Bernard Dupree. (T. 860-861, 869). Evans related that the 

Petitioner had talked about the robbery and had admitted 

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

Petitioner testified in his own behalf at trial, and 

stated that he knew Ben Wright and the other co-defendants, 

but that he had not participated in the robbery. (T. 806-808, 

826). He relied on an alibi defense, stating that Wright had 

borrowed his car, and that he had spent the day at his mother's 

house and at the Ponderosa Apartments in Marietta, playing 

cards. (T. 809-811). Petitioner named several people who 

had been present at the apartments; however, he was unable 

to produce any for his defense. 

Petitioner denied that he had made a statement to Lieutenant 

Perry that he had participated in the robbery, (T. 822-823), 

 



  

and stated that he had made a false statement to Atlanta 

Detective Jowers, because of the alleged evidence the police 

had against him (two witnesses who would identify 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. (TT. 823-824). He also stated that he expected 

some immunity for his testimony. (T. 820). 

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 color 

photographs. {(T. 735, 737). Ross also testified that during 

the course of the Red Dot robbery his nickle-plated .38 caliber 

revolver was taken. {T. 725). 

Ross' testimony was buttressed by that of Ms. Dorothy 

Umberger who also viewed the Petitioner during the April 1, 1978 

robbery of the Red Dot Grocery Store. Ms. Umberger testified 

that she was ninety percent sure that the Petitioner was one of 

the men who had robbed her, and she based her identification 

upon him from her viewing him at the scene. (T. 746-747, 753- 

754). At the time the Petitioner was holding a gun to her head. 

(7. 747). In addition to observing him at trial, Ms. Umberger 

had identified the Petitioner from a photographic display. 

{T.. 745}, 

Arthur Kiessling testified on rebuttal and for impeachment 

purposes 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. (Tt. 887-889, 

896). 

Additional facts will be recited when necessary to augment 

the following Argument and Citation of Authority. 

 



  

PART THREE 
  

REASONS FOR NOT GRANTING THE WRIT 
  

I. NEITHER EVIDENCE OF PETITIONER'S PRIOR 

CRIMINAL ACTS WHICH WERE ADMITTED DURING 

HIS TRIAL, NOR THE TRIAL COURT'S INSTRUC- 

TIONS TO THE JURY DURING THE SENTENCING 

PHASE OF PETITIONER'S TRIAL, VIOLATED 

ANY OF PETITIONER'S CONSTITUTIONAL 

RIGHTS. 

Under Petitioner's first argument he contends that 

certiorari should be granted to review whether the introduction 

into evidence of the Petitioner's participation in other armed 

robberies, and the trial court's instructions or absence of 

instructions on same, operated to deprive Petitioner of a 

fair trial in violation of his Eighth and Fourteenth Amendment 

rights. Initially, this Court should note that these same 

issues were raised on Petitioner's first petition for certiorari 

which was brought to this Court following the affirmance of 

Petitioner's convictions and sentences by the Georgia Supreme 

Court on direct appeal. See, McCleskey v. Georgia, Case No. 79-6830. 
  

In denying certiorari, McCleskey v. Georgia, U.S. yr. 101 
  

8.Ct. 253 (1980), this Court implicitly found that there was no 

error in the introduction into evidence of Petitioner's prior 

criminal activity, nor was there error in the trial court's 

instructions to the jury during the sentencing phase of Petitioner's 

trial. In petitioning for certiorari from the denial of relief 

in Petitioner's state habeas corpus action in the Superior Court 

of Butts County, and from the denial of a certificate of probable 

cause to appeal by the Georgia Supreme Court, Petitioner has 

not shown any additional reasons as to why certiorari should now 

! 

 



  

be granted at this time, in view of this Court's previous 

refusal to grant certiorari following direct appeal. 

The Georgia Supreme Court has reviewed the introduction 

into evidence of the objected to testimony pertaining to 

Petitioner's participation in other robberies, and which 

Petitioner claims has prejudiced him. McCleskey v. State, 
  

supra at p. 114. Evidence of Petitioner's prior criminal 

acts was properly admitted into evidence during the State's 

case in chief at Petitioner's trial, not to show that the 

Petitioner was predisposed toward the commission of criminal 

acts, but rather to establish identity, common plan or scheme, 

state of mind, motive and intent. {T. 5665-666, 723-727, 

738-752). After Petitioner had taken the witness stand, and 

had put his character into issue, certified copies of Petitioner's 

prior convictions for armed robberies in Cobb, Fulton and Douglas 

Counties (T. 843-844, 854-855) were clearly admissible for 

impeachment purposes. Timberlake v. State, 246 Ga. 488(6), 271 
  

S.E.24 792 (1980). No limiting instructions for these 

convictions were requested. Evidence concerning Petitioner's 

participation in the robbery of Dot's Produce was submitted 

by the state on rebuttal (T. 885-897), and only after the 

Petitioner had previously taken the witness stand and specifically 

denied his participation in the robbery. (T. 837). Once again, 

there were sufficient similarities in the Dot's Produce robbery 

and the instant case to show identity, course of conduct, 

intent and bent of mind. Petitioner was identified as a par- 

ticipant in both the Dot's Produce robbery, and the robbery 

of the Red Dot Grocery Store. 

Moreover, the trial court gave limiting instructions 

to the jury relating to both the Red Dot and Dot's Produce 

robberies. (T. 673-674; 885). Additionally, prior to the 
i 

 



  

=) 1 

jury's deliberations during the guilt/innocence phase of the 

trial, the court specifically instructed the jury relating 

to its use of the prior criminal acts. (T. 992-993). 

In Spencer v. Texas, 385 U.S. 554, 560-561 (1977),   

this Court summarized its view relating to the regulation 

of state evidentiary rules pertaining to evidence of prior 

offenses. This Court noted that: 

"Because such evidence is generally 

recognized to have potentiality for 

prejudice, it is usually excluded 

except when it is particularly probative 

in showing such things as intent, . . . 

an element in the crime . . . identity, 

ive «Malice, . +. Wokive, o «. . 

a system of criminal ‘activity, « . . 

or when the defendant has raised the 

issue of his character, . . « Or when 

the defendant has testified and the 

state seeks to impeach his credibility." 

(Cases omitted). 

Thus, in order to protect a criminal defendant from 

unfair prejudice, evidence of other criminal acts is 

generally inadmissible to show that a defendant is likely 

to have acted in accordance with his criminal character, 

but "[t]lhere are some numerous other purposes for which 

evidence of other criminal acts may be offered, and when 

so offered the rule of exclusion is simply inapplicable.” 

McCormick, Evidence, 2nd Ed., p. 447-448 (1972). 
  

 



  

This Court recognized in Soencer, Yat states must 

be given discretion in determining the other purposes for 

which they will allow evidence of prior criminal acts. This 

deference to state decision making reflects this Court's 

practical realization that, "[t]o say that the United States 

Constitution is infringed simply because this type of evidence 

may be prejudicial and limiting instructions inadequate to 

vitiate prejudicial effects, would make inroads into [the] 

entire complex code of state criminal evidentiary law, and 

would threaten other large areas of trial jurisprudence.” 

Spencer v. Texas, 385 U.S. 562 (1977). A state may regulate 
  

the procedure of its courts in accordance with the its 

own conception of policy and fairness, unless in so doing 

it offends some principle of justice so rooted in the traditions 

and conscience of our people as to be rated as fundamental. 

Snyder v. Massachusetts, 291 U.S. 97, 165 (1934). It is clear 
  

that the admission into evidence of prior criminal acts to 

prove relevant factors other than a defendant's criminal 

propensity violates no such fundamental principles, and therefore 

is not in violation of the Constitution. See, Lisenba v. California, 
  

314 U.S. 219, 227-228 (1941); Manning v. Rose, 507 P.24 889, 
  

892-895 (6th Cir. 1974). 

Accordingly, evidence of Petitioner's participation 

in the prior robberies at the Red Dot Grocery and Dot's 

Produce, were properly admitted to establish identity, common 

plan or scheme, state of mind, motive and intent. Such 

evidence falls within a recognized Georgia exception to the 

general rule against the admissibility of other criminal 

activity, and since Petitioner was positively identified 

as the perpetrator of the Red Dot robbery (T. 666, 727, 747, 

753), and since there were sufficient similarity or connection 

between the Red Dot robbery and 'the present case, so that proof 

 



  

of the former tended to prove the latter, such evidence was 

properly admitted. McCleskey v. State, supra, 245 Ga, at p. 1ll4; 
de 

  

sea, French v. State, 237 Ga. 820, 229 S.E.24 410 £1076). It 
    

should also be noted that the jury was carefully instructed to 

consider the evidence only for the limited purposes for which 

it had been admitted. (T. 673-674, 992-993). 

In addition to being a similar crime, evidence relating 

to the robbery of Dot's Produce was also properly admitted 

since, "A witness may be impeached by disproving the facts 

testified to by him.” Ga. Code Ann. § 38-1802, Once 

Petitioner took the witness stand and testified that he 

was not involved in the Dot's Produce robbery, and that, he 

in fact did not know anything about it, evidence showing 

his involvement in said robbery was properly admitted for 

the purposes of impeaching his credibility. In addition, 

the jury was instructed by the trial court to consider the 

evidence for impeachment purposes only. (T. 885, 990-992). 

As was noted previously, it is well settled under Georgia 

law that a witness' conviction for a crime involving moral 

turpitude may be considered in determining his credibility. 

Shaw v. State, 102 Ga. 660, 29 8.B. 477 (1897); Powell Vv. 
  

  

State, 122 Ga. 571, 50 S.BE. 361 (1805); Timberlake v. State, 
  

supra. On his direct testimony, Petitioner even admitted 

that he had been convicted of numerous robbery counts in 

1970. {T. 805-806). 

Since, in the instant case all of the evidence of Petitioner's 

prior criminal acts was admitted in conformance with Georgia 

evidentiary law, and since Petitioner's rights were sufficiently 

protected by limiting instructions to the jury, which insured 

that the evidence of the other crimes was considered only for 

legitimate purposes, the state's evidentiary rulings have 

 



  

not violated Petitioner's constitutional rights. 

Moreover, the sentencing instructions given by the trial 

court did not give the jury unlimited discretion in considering 

Petitioner's prior criminal activities, when deciding whether 

or not to impose the death penalty in this case. Since the 

trial court's instructions were not so defective so as to 

render Petitioner's trial fundamentally unfair, the state 

habeas court was justified in refusing Petitioner's request 

for relief. Bryan v. Wainwright, 588 F.24 1103, 1111 (5th Cir. 
  

1979); Parrish v. Hopper, 238 Ga. 468, 233 S.E.2d 161 (1977). 
  

Of course, it was necessary to consider the instructions as 

a whole and in the context of the overall trial. United States 
  

v. Park, 421 U.S. 658, 674 (1975); Cupp v,. Naughten, 414 U.S, 
  

121, 147 (1973); Pelis v. Georgia, 244 Ga. 503, 505, 260 S.E.2d4   

887 (1979). 

In Gregg v. Georgia, 42% U.8. 153, 189" (1976), quoting 
  

Pennsylvania v. Ashe, 302 U.S. 51, 55 (1937), this Court 
  

recognized that, "[f]or the determination of sentences, 

justice generally requires . . . that there be taken into 

account the circumstances of the offense together with the 

character and propensities of the offender." Accordingly, 

Ga. Code Ann. § 27-2503 provides for a presentence hearing in 

Georgia's bifurcated death penalty procedures which presents 

a defendant's history to the jury so that it may make the 

proper decision as to punishment. Gates v. State, 244 Ga. 587, 
  

595, 261 S.E.2d 349 (1979). Evidence presented by both sides 

during the guilt/innocence phase of the trial may be considered, 

as well as such additional evidence in aggravation as the State 

has made known to the accused prior to trial. In the present 

case, Petitioner was given notice of the prior convictions 

which the State tendered in aggravation of Petitioner's punishment. 

(R. 47). It is clear that such evidence constitutionally may be 

“10 

 



  

offered as a basis for imposition of an enhanced sentence. 

J Spencer Vv. Texas, 385 U.S. 554, 560 (1967). 
ee 
  

Ga. Code Ann. § 27-2503 further provides that, "[ulpon 

the conclusion of evidence and arguments, the judge shall give 

the jury appropriate instructions, and the jury shall retire 

to determine whether any mitigating or aggravating circumstances 

as defined in Section 27-2534.1 exists and whether to recommend 

mercy for the defendant." In order to guide the jury's deliberations 

Ga. Code Ann. § 27-2534.1(b) enumerates ten statutory aggravating 

circumstances which might justify imposition of the death penalty. 

The jury is permitted to consider any other appropriate aggravating 

and mitigating factors, but is not required to find any specific 

mitigating circumstances in order to make a recommendation of 

mercy and life imprisonment. It is incumbent upon the jury 

to find the existence of at least one statutory aggravating 

circumstance beyond a reasonable doubtbefore it may impose 

the death penalty. Ga. Code Ann. § 27-2534.1(h). 

During the sentencing phase of Petitioner's trial, the 

jury was instructed to consider all of the evidence received 

in court, presented by the State and the defendant throughout 

the trial. (T. 1028). As noted previously, this instruction 

should not be considered in isolation, but should be considered 

along with the others given by the trial court. The jury was 

permitted to consider all of the evidence relating to Petitioner's 

background, past record, character and the circumstances of 

the case. This is in accordance with the concept of individualized 

sentencing as set out in Lockett v. Ohio, 438 U.S. 586 (1978). 
  

Here, under Ga. Code Ann. § 27-2534.1(b) and § 27-2503, the 

evidence of Petitioner's prior convictions for armed robbery, 

which he admitted on his direct testimony, and on cross-examination 

were proper for the jury's consideration in determining his sentence. 

el Ve 

 



  

Furthermore, evidence of the additional two robberies at the 

Red Dot Grocery Store and at Dot's Produce, in which Petitioner 

had participated, but for which he had not been convicted, 

certainly could not have harmed him to any greater degree than 

the prior six robberies for which he had been convicted. (T. 805- 

806, 843-847). MOESOVer, as noted previously, the trial court 

had instructed the jury to consider evidence of the Red Dot 

robbery only for purposes of showing motive, identity, common 

plan or scheme; and had instructed that the evidence of the 

Dot's Produce Robbery was to be utilized only for impeachment 

purposes. (T. 673-674; 885). 

Contrary to what appears to be Petitioner's assertions, 

it was not improper under Georgia law for the jury to consider 

Petitioner's prior convictions and criminal behavior in 

determining his sentence, so long as the jury was properly 

instructed that before the death penalty could be imposed, 

it was necessary for them to find at least one or more of 

the statutory aggravating circumstances beyond a reasonable 

doubt. In the present case, the jury was carefully instructed 

on the proper consideration of aggravating and mitigating 

circumstances in accordance with Georgia law. (T. 1027-1029). 

For example, the jury was instructed that before it would be 

authorized to impose the death penalty in this case it would 

have to find beyond a reasonable doubt that either the murder 

was committed while the Petitioner was engaged in the commission 

of an armed robbery or that the murder was committed against 

a peace officer while he was engaged in the performance of his 

official duties. [Ga. Code Ann. § 27-2534.1(b) (2) and (b)(8)]. 

The jury was instructed on the definition of mitigating clrcum- 

stances and was told that it was not mandatory that a death 

penalty be imposed even if one of the aggravating circumstances 

existed. (TT. 1023-1029). The jury had previously been instructed 

a 

 



  

that it could consider evidence of Petitioner's participation 

in crimes for which he had not been convicted, evidence of which 

was 1lntroduced during the guilt and innocence phase of Petitioner's 

trial, only for the purposes of showing intent, common plan 

or scheme, or motive, or for impeachment purposes. {T. 673-674, 

992-993; 885, 990-992). In light of the instructions which 

were given, it cannot be said that Petitioner was deprived 

of a fundamentally fair trial. 

For all of the aforesaid reasons, this Court should refuse 

to grant certiorari to review Petitioner's first issue. 

ITI. THE STATE HABEAS CORPUS COURT AND 

THE GEORGIA SUPREME COURT HAVE 

PROPERLY FOUND THAT PETITIONER'S 

DEATH PENALTY HAS NOT ARBITRARILY 

OR CAPRICIOUSLY BEEN IMPOSED. 

Under Petitioner's second argument, he asserts that 

certiorari should be granted to determine whether the 

death penalty in Georgia is being applied arbitrarily and 

capriciously. In regards to this particular case, Petitioner 

cites to this Court his first exhibit at the state habeas 

hearing which allegedly shows a discriminatory pattern of 

prosecution against those black males who have killed white 

police officers. 

An examination of the basis for Petitioner's claims, 

shows that his showing in the state habeas court had been 

totally insufficient. For example, Petitioner's Exhibit 1, 

attached as Appendix A to this Brief in Opposition, was a 

compilation prepared by a detective for the Atlanta Bureau 

of Police Services, and consisted of a summary of the Police 

-13- 

 



  

Bureau records pertaining to cases from 1260 to the time of 

the habeas hearing, reflecting situations where police officers 

in Atlanta had been killed on duty. A review of this summary 

shows only sixteen such cases. In five of these cases the 

perpetrator was either unknown, or the petitioner failed to 

show disposition of the case. In three of the cases the 

perpetrator was killed, and in one of the cases the perpetrator 

was found not guilty. Of the remaining seven cases, five 

involved situations where a total of six black males had 

killed five white male police officers. Of these, three 

of the defendants allegedly received the death penalty and 

three received life sentences. In the remaining two cases 

involving the deaths of black male police officers, each 

involved situations where two black male perpetrators had 

been defendants. In regard to these four invididuals, a 

review of the entire record shows that the disposition on 

one of the defendants, Kenneth Smith, is actually unknown, 

the disposition of James Carter appears to be that he was 

convicted of voluntary manslaughter and received a ten year 

sentence, the disposition of Nathanial Ways' case appears 

to be that he pled guilty and received a life sentence, and 

finally it appears that the murder charge against Frank Lee 

was dismissed. (Petitioner's Habeas Corpus Exhibit 3, HC. 

217-219). 

Thus, Respondent submits that the evidence cited by 

Petitioner is simply insufficient to support his conclusion 

of a pattern or practice of arbitrary, capricious infliction 

of the death penalty against black males who have killed 

white police officers in Atlanta. Moreover, Petitioner's 

evidence fails to make any showing as to the evidence which 

was actually produced at any of the trials of the aforesaid 

defendants, fails to show the backgrounds of those individuals 

-lgw- 

 



  

accused of murdering the police officers, and fails to take 

into consideration any of the aggravating or mitigating 

factors which the jury may have considered. 

Petitioner also asserts under his second argument that 

the review process of the Georgia Supreme Court is insufficient 

to insure the nonarbitrary penalty. He bases his arguments 

on the cases cited by the Georgia Supreme Court in their 

appendix to Petitioner's case. However, a review of this 

case shows that Petitioner's crimes fell well within the 

perimeters authorizing the infliction of the death penalty 

under Georgia law. Here, the state showed that Petitioner 

was a prime mover in the robberies and murder. His automobile 

was utilized in the incident (7. 514, 531-532, 647-648), and 

Petitioner admitted in his two confessions to the police 

that he had participated in the armed robbery. (T. 511-530, 

759-760). During the robbery and shooting the Petitioner was 

carrying a silver-plated, white-handled, .38 caliber pistol 

which was similar to that taken in a prior robbery in which 

he had participated, and which was similar to the pistol 

which had shot the victim, Office Schlatt. {T. 649,655, 

680, 725-727, 257, 412-415). Petitioner admitted to his accom- 

plices that he had shot the police officer. (T. 658-659, 661). 

He also admitted to a police informant that he had been the 

triggerman. (7, 870). 

Here, as previously noted, the death penalty was authorized 

by the jury's finding of two separate aggravating circumstances. 

The Georgia Supreme Court reviewed the case and applied this 

Court's standard of Jackson v. Virginia, 443 U.S. 307 (1979), 
  

and found the evidence sufficient to support the aggravating 

circumstances beyond a reasonable doubt. McCleskey v. State, supra 
  

at p« 115-116, 

=] 5 

 



  

Petitioner's reliance upon Godfrev v. Georgia, B.S.   

759 (1980) is misplaced. Godfrey was concerned f
d
 100 s.Ct. 

with whether the Georgia Supreme Court had given a too broad 

construction to Ga. Code Ann. § 27-2534.1(b) (7) under the 

facts of that case. I4d., at p. 1762. There, the jury had 

imposed the death penalty upon a finding that the murder was 

"outrageously or wantonly vile, horrible or inhuman." Since 

the Court found no evidence of torture, aggravated battery 

or a depraved mind, also necessary requirements under (b) (7), 

Godfrey's death penalty was reversed. 

Contrary to Godfrey, here there was more than sufficient 

evidence to support the aggravating circumstances found by 

the jury. The evidence showed an ambush-type murder upon a 

police officer while he was investigating an armed robbery. 

The evidence showed Petitioner to be the triggerman. Under 

such circumstances, it cannot be found that the death penalty 

has been arbitrarily or capriciously imposed. 

Thus, this Court should refuse to grant certiorari to 

review Petitioner's second argument. 

«lw 

r 

 



  

I1T. THE STATE DID NOT WITHHOLD FROM THE 

PETITIONER ANY MATERIAL, EXCULPATROY 

EVIDENCE RELATING TO THE TESTIMONY OF 

ANY WITNESSES. 

Under Petitioner's third argument, he contends that 

the state allegedly suppressed favorable, material evidence 

concerning an alleged promise made to witness Offie Evans 

by Atlanta Police Detective Sidney Dorsey. Contrary to 

Petitioner's assertions, the state habeas court did not 

make a finding that the Atlanta Police Detective had made 

a promise to Mr. Evans in exchange for his testimony at 

trial. In fact, the state habeas court specifically noted 

that at the habeas hearing, Mr. Evans denied that there 

were any promises made for his testimony. (HT. 122). 2/ 

However, the court did note that witness Evans testified 

that Dorsey had told him he would "speak a word for me." 

(HT. 122). Mr. Evans specifically stated that the state 

prosecutor, Russell Parker had made no promises or any kind 

of deal in exchange for his testimony. (HT. 129). Moreover, 

in the deposition of Assistant District Attorney, Russell 

Parker, which was considered by the state habeas court, 

Mr. Russell stated that he was not aware of any understandings 

between any Atlanta Police Department detective and witness 

Evans. {Parker Deposition, p. 10). Mr, Parker further stated 

that he was not aware of any deals made with Evans, and 

that he had never asked anybody to drop any charges for Evans. 

Based on the evidence which was presented, the state habeas 

court simply did not conclude that any agreement had existed 

pertaining to Mr. Evans' testimony. (See, Petitioner's Appendix 

A, A-7, A-8). 

  

2/ References to the transcript of Petitioner's state habeas 
corpus hearing shall be referred to as (HC. }. 

A 

 



  

Since there was no material, impeaching evidence withheld, 

Giglio v, United States, 405 U.S. 1530 (1372), and Brady v. 
  

  

Maryland, 373 U.S. 83 (1963) were not violated. Moreover, 
  

in light of the overall evidence presented in this case, there 

is no reasonable likelihood that any nondisclosure pertaining 

to statements made between Dorsey and Evans, would have affected 

the judgment of the jury. Giglio, 405 at p. 154. 

Finally, the decisions cited by Petitioner [Freeman v. State 
  

of Georgia, 599 F.2d 65 (5th Cir. 1979); Williams v. Brown, 60° 
  

  

P.2d 216 (5th Cir. 1980); Smith v, Florida, 410 F.24 1349 
  

(5th Cir. 1969); Schneider v. Estelle, 552 F.2d 593 (5th Cir. 
  

1977); and United States v. Sutton, 542 ¥.24 1239 (4th Cir. 
  

1979)] all involve cases where police officers or prosecutors 

intentionally and deliberately withheld material testimony 

or evidence, or in the case of United States v. Sutton, supra, 
  

engaged in action which was equivocated to an intentional 

withholding of information. In the instant case, there is 

absolutely no showing of any intentional or deliberate conceal- 

ment. 

For all of the aforesaid reasons, this Court should refuse 

to grant certiorari to review Petitioner's third argument. 

-1Q« 

 



  

IV. THE DENIAL OF PETITIONER'S PRETRIAL 

MOTION FOR EXPERT WITNESSES DID NOT 

DEPRIVE HIM OF A FUNDAMENTALLY FAIR 

TRIAL OR DUE PROCESS. 

Approximately one month before the commencement of 

Petitioner's trial, his defense attorney submitted a motion 

for funds to employ expert witnesses, wherein he requested 

that he be permitted to employ a criminal investigator and 

a trained psychologist or psychiatrist at the state's expense. 

The trial court did not grant the motion. 

It is clear that the defense had access to the prosecutor's 

file which included statements from all of the witnesses 

(except witness Offie Evans), and all of the reports from the 

Georgia State Crime Laboratory. There was no request in the 

motion for a ballistics expert, and even if an independent 

ballistics expert could have testified that another weapon, 

other than a Rossi, possibly may have fired the fatal bullets, 

this still would not have been sufficient in light to the 

totality of the evidence to create a reasonable doubt as 

to the Petitioner's participation in the robbery and his firing 

the murder weapon. See, Hoback v. Alabama, 607 F.2d 680(1) 
  

{5¢th Cir. 1979). 

The ballistics expert who testified at Petitioner's state 

habeas corpus hearing by way of deposition, testified that 

he had no objection to talking to a defense attorney, but 

could not have told him anything different from what was 

already in his ballistics report, and that was that the 

bullets were probably fired from a .38 caliber Rossi. This 

was the same testimony as was elicited at trial. 

1G 

 



  

Although the ballistics expert cestiied that some 

Taurus and Charter Arms pistols had similar ballistic 

characteristics to the .38 caliber Rossi; there was no 

evidence adduced at trial that any of Petitioner's co- 

defendants carried these other type weapons. 

Here, in light of the overwhelming evidence against 

Petitioner, it cannot be said that the trial court abused 

its discretion or that he was denied a fundamentally fair 

trial due to the court's refusal to grant him investigative 

funds. The case of Little v. Streater, U.S. ; 101 
  

5.Ct. 2202 (1981), cited by Petitioner is clearly distinguishable 

from this case, and does not lend support to Petitioner's 

arguments. In that case, this Court held unconstitutional a 

Connecticut statute which required costs of blood-grouping 

tests to be chargeable against a party making a motion for 

such tests. In that case, the Petitioner was an indigent 

defendant in a paternity suit, and the blood-grouping tests 

were of paramount importance in the case, because following 

the presentation of a prima facie case by the mother, the 

burden was upon the defendant father of showing his innocence 

by other than his own testimony. Thus, in Little v. Streater, 
  

the state statute operated to deprive the indigent defendant 

father of a fair opportunity to even present evidence in 

support of his case, and thus it violated due process. On 

the other hand, in Petitioner's case there was no obstacle 

to defense counsel's questioning the state ballistics expert 

pertaining to his findings. Defense counsel also had ample 

opportunity to review the report of the state ballistics 

expert. 

Again, even if an independent ballistics expert may 

have testified that another weapon other than a .38 caliber 

Rossi possibly could have been the murder weapon; nevertheless, 

~20~ 

 



  

there was overwhelming evidence that the Petitioner was the 

triggerman, and he utilized a .38 caliber nickle-plated, white- 

handled Rossi in the shooting. 

Witness Paul D. Ross testified that in another robbery 

which had occurred on April 1, 1978 at the Red Dot Grocery 

Store, Petitioner had stolen some money, and had stolen his 

nickle-plated, .38 caliber pistol. (T. 724-727, 730). Witness 

Mary Jenkins testified that she had seen the Petitioner carrying 

a .38 caliber silver pistol. (T. 607). Petitioner's co-defendant, 

Ben Wright testified that on the day of the robbery, Petitioner 

had been armed with a .38 caliber nickle-plated, white-handled 

pistol. (T. 648-649). Petitioner's co-defendant also testified 

that during the robbery, Petitioner was the only one at the 

front of the store. (T. 656). Mr. Everett New testified that 

immediately following the shooting he observed a black male 

running from the front of the store carrying a white-handled 

pistol. . (T. 331-333). Upon arriving at the getaway car, 

Petitioner admitted that he had shot Officer Schlatt. (T. 658- 

659). Later, while incarcerated at the Fulton County Jail, 

Petitioner again admitted that he had shot Officer Schlatt. 

(T. 869-870). 

The only statements that defense counsel did not review 

in the District Attorney's file pertained to those made by 

Offie Evans, who testified as to Petitioner's statements 

at the Fulton County Jail. Even if a privately employed 

investigator may have discovered Evans' potential testimony 

prior to trial; nevertheless, this still would not have 

effected Petitioner's case, or cast any doubt upon his being 

the triggerman. 

3). 

 



  

For all of the aforesaid reasons, this Court should decline 

Petitioner's request for a writ of certiorari to review Petitioner's 

fourth argument. 

V. THE TRIAL COURT'S INSTRUCTIONS TO THE 

JURY DID NOT OPERATE TO VIOLATE ANY 

OF PETITIONER'S CONSTITUTIONAL RIGHTS. 

Petitioner's fifth argument asserts that the trial court's 

charge to the jury during: the guilt/innocence phase of his 

trial operated to shift the burden of proof to the Petitioner 

on the question of malice and intent, thus relieving the state 

from having to prove said issues beyond a reasonable doubt. 

During the guilt/innocence phase of Petitioner's trial, the 

trial court charged as follows: 

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

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

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

I charge you, however, that a person will 
not be presumed to act with criminal intent, 

but the second code section says that the 
trier of facts may find such intention 
upon consideration of the words, conduct, 
demeanor, motive and all other circumstances 

connected with the act for which the 
accused is prosecuted." (T. 996-997). 

-D Ds 

 



  

In addition to the above, the ceial court also instructed 

on the presumption of innocence in the defendant's favor, 

and the burden is upon the state to prove all allegations of each 

count beyond a reasonable doubt. (T. 988). The trial court 

also gave a detailed charge on malice as an element of malice 

murder.  (T. 998-999, 1008). 

Before relief may be granted Sn a collateral attack, 

based upon an erroneous jury instruction, the trial court 

must find that the instruction so infected the Petitioner's 

entire trial, that the resulting conviction violated due 

process. Henderson v. Xibbe, 431 U.S. 145, 154 (1977); 
  

Cupp v. Naughten, 414 U.5. 141, 147 (1973). It is axiomatic 
  

that the trial court's charge must be considered as a whole, 

Cupp v. Naughten, supra, 414 U.S. at p. 147, and careful 
  

attention must be afforded to the words actually spoken to 

the jury, County Court of Ulster County v. Allen, US. ’ 
  

99 S.Ct. 2213, 2225 (1975). Whether a defendant has been 

accorded his constitutional rights depends upon the way 

in which a reasonable juror could have interpreted the instruction. 

Sandstrom v. Montana, 442 D.Se 510 (1979). 
  

It is clear that in a criminal case, it is incumbent 

upon the state to prove every element of the alleged offense 

beyond a reasonable doubt, and the state may not shift the 

burden of proof to the defendant on an essential element of 

the crime by presuming that ingredient upon the showing of 

other elements of the offense. Patterson v. New York, 432 U.S. 
  

197, 215.(1977); Mullaney v. Wilbur, 421 U.S, 684 (1975). 
  

Nevertheless, permissive inferences or presumptions which allow, 

but which do not require the trier of fact to infer an elemental 

fact from proof by the state of a basic fact, place no burden 

on the accused, and are not unconstitutional unless, under the 

facts of the case there is no rational way a trier of fact 

“3 

 



  

could have made the connection as permitted by the inference. 

Ulster County, supra, 99 S.Ct. at p. 2224. Ultimately, the 
  

test of a presumptions constitutional validity in any given 

case depends upon whether the evidentiary device undermines 

the fact finder's responsibility at trial, based upon the 

evidence produced by the state, to find the ultimate facts 

beyond a reasonable doubt. 1Id., citing In Re Winship, 397 
  

U.S. 358, 364 (1970), and Mullaney v. Wilbur, supra, 421 U.S. 
  

at 'p. 702-703, n. 31. 

As noted by Petitioner, recently the Fifth Circuit 

Court of Appeals in Tyler v. Phelps, 643 F.2d 1095 (5th Cir. 
  

1981), held that an instruction similar to that challenged in 

this case was unconstitutional; however, in reaching this 

conclusion, the Court considered other factors in addition 

to the precise words which had been spoken. The court noted 

that the primary issue was whether the Petitioner possessed 

a specific intent to kill or do great bodily harm to more 

than one person, and the court further noted that since 

the facts revealed that Tyler had fired a fully loaded 

pistol only once, the state relied heavily on the statutory 

presumption. Id., at p. 1099. The presumption was stressed 

by the prosecutor both in his opening and closing arguments, 

and the judge additionally stressed the presumption in his 

instructons to the jury. Such was not the case at Petitioner's 

trial. Recently in United States v. Caucci, 635 F.2d 441, 446- 
  

447 (5th Cir. 1981) the court stated that even a burden-shifting 

charge does not necessarily, automatically require reversal 

when there is evidence before the jury of objective conduct 

  

demonstrating criminal intent. 1Id., citing, United States v. 

Chiantese, 582 F.2d 947, 977 (5th Cir. 1978) and United States 
  

  

v.. Spiegel, 604 F.24 961, 970 (5th Cir. 1979). Here, there 
  

was overwhelming evidence of objective conduct demonstrating 

malice and criminal intent. Thus, even if this Court should 

-24- 

 



  

conclude the charge was erroneous, said error was harmless 

beyond a reasonable doubt. Chapman v. California, 386 U.S. 
  

18 (1967). 

Finally, the instant challenge to the jury instructions 

was not made on direct appeal to the Georgia Supreme Court, 

and was not raised at trial. At the state habeas proceeding, 

Petitioner's trial counsel was called as a witness, but there 

was no testimony establishing an absence of cause for the 

procedural default, and there was no showing of prejudice. 

Under such circumstances, the question of an improper jury challenge 

should not have been reviewed in habeas corpus. See, Wainwright 
  

v. Sykes, 433 U.8. 72 (1977); Tyler v, Phelps, supra at p. 1100~ 
    

1102 (5th Cir. (1981). 

For all of the aforesaid reasons, this Court should refuse 

to grant certiorari to review Petitioner's fifth argument. 

VI. THE PROSECUTOR'S CLOSING ARGUMENTS TO 

THE JURY DID NOT DENY PETITIONER A 

FUNDAMENTALLY FAIR TRIAL. 

Petitioner's sixth argument in his brief asserts that 

the prosecutor's closing arguments during the sentencing 

phase of Petitioner's trial made an impermissible reference 

to the appellate processes in Georgia, and the possibility 

that if sentenced to life, Petitioner could at some point, 

be released from imprisonment. 

In order to justify relief in a post-conviction, collateral 

attack in habeas corpus, the petitioner must show that the 

prosecutor's comments in this case had been so prejudicial that 

they rendered his trial fundamentally unfair. Donnelly v. 
  

DeChristoforo, 416 U.5. 636, 643 (1974); Jones v. Estelle, 
  

  

D5 

 



  

622 F.28 124, 127 (5th Cir. 1980). . The statements must be 

considered not in isolation, but in the context of the entire 

trial. “Branch v, Estelle, 631. 7.284 1229,:1233 {5th Cir. 1980) 
  

Houston v. Estelle, 622 T.24 124, 127 (5th Cir. 1978). 
  

Here, the district attorney was simply arguing that 

the protection of the community justified the need for the 

death penalty in this case, Petitioner had an extensive, 

past history of violent crime, had an opportunity to change 

his life and to set commendable goals. However, he maintained 

his old ways, thus causing the death of an innocent Atlanta 

police officer. 

The Assistant District Attorney's arguments that the 

Petitioner had an opportunity to change, but did not do so, 

did not deprive Petitioner of any of his constitutional rights. 

VII. PETITIONER RECEIVED EFFECTIVE ASSISTANCE 

OF COUNSEL. 

Under Ground Six, Petitioner asserts that he was denied 

effective assistance of counsel prior to trial, during the 

the guilt/innocence phase of his trial and during the 

sentencing phase. The standard for effective assistance 

under the Sixth Amendment to the United States Constitution 

is now well established. A criminal defendant is entitled 

to representation by an attorney reasonably likely to render 

and rendering reasonably effective assistance. Nelson v. Estelle, 
  

642 F.2d 903, 906 (5th Cir. 1981); Jones v. Estelle, 622 F.2d 124 
  

(5th Cir. 1980); Hill v, Wainwright, 617 ¥.24 375 {5th Cir, 
  

1980). 

Of course, the standard does not require errorless counsel, 

nor counsel judged ineffective by hindsight. United States v. 
  

Johnson, 615 r.24 1125 (5th Cir. 1980); Clark v. Blackburn, 
  

Wi A 

 



  

619 7.28 431 (5th Cir. 1980). The totality of the circumstances 

surrounding the trial, and the entire record must be considered 

in examining the performance of counsel. See, e.g., Lovett 

Vv. State of Florida, 627 ¥P.24 706 (5th Cir. 1980); Lee v, Hopper, 
  

  

499 7.248 456 “(5th Cir. 1974). "it is within this framework 

of totality of circumstances that we judge the 'fundamental 

fairness' of the trial and untimately a counsel's ineffectiveness." 

Nelson v. Estelle, supra, at p. 906. 
  

Here, a review of the entire record and Attorney Turner's 

testimony at the habeas hearing, amply demonstrates that 

Petitioner received effective assistance of counsel in 

accordance with federal standards. 

Petitioner asserts that Attorney John Turner's failure to 

interview certain witnesses prior to trial resulted in his 

inability to develop a defense to the state's theory that 

the Petitioner was the actual triggerman who killed Officer 

Schlatt. At the habeas evidentiary hearing, Attorney Turner 

testified that he had been retained by the Petitioner prior 

to the preliminary hearing in Fulton County. At that preliminary 

hearing Turner had an opportunity to cross-examine at least 

three of the employees of the Dixie Furniture Company and two 

of the state's investigating officers who were later called 

as witnesses at the trial. Turner also consulted with the 

Petitioner on at least a dozen occasions prior to the trial, 

and had numerous conversations with the Assistant District 

Attorney who was prosecuting the case. Additionally, Turner 

testified that he had an opportunity to thoroughly review 

the District Attorney's file, which included reading the 

statements of the various witnesses. Petitioner's contention 

that Mr. Turner's failure to personally interview four witnesses 

hr 

 



  

whose testimony would have cast substantial doubt on the state's 

evidence that McCleskey was the triggerman, is purely speculative. 

For example, as noted previously, defense counsel's failure to 

interview the state's ballistic expert, Kelly Fite, would not 

necessarily have been any more productive than Turner's cross- 

examination of him at trial. Fite testified that State's 

Exhibit No. 23, a bullet removed from a counch near the body 

of the victim, Schlatt, (TT, 410), and State's Exhibit No. 5, 

bullet fragments removed from Schlatt's body (T. 257), were 

probably fired from the same Rossi .38 caliber special revolver. 

(T. 413-415). On cross-examination Turner specifically inquired 

of Fite, why he had stated that the weapon was "probably" 

a Rossi. (T. 419). This was the same question which was asked 

of Fite at the deposition which was put into evidence at 

Petitioner's state habeas hearing. At trial, Fite answered, 

"Well, I haven't examined every weapon ever made, but I have 

my file and the F.B.I.'s file which we have on a computer, 

that is the only weapon that it kicked out.” (7, 419). On 

direct examination, Fite stated that the Rossi was the only 

weapon that produced the type of characteristics found on the 

examinied bullet. (T. 413-414). 

The fact that Mr. Fite, now two years after trial, has 

stated that it is within the realm of possibility that a weapon 

other than a Rossi was the murder weapon, does not materially 

cast doubt on the jury's verdict, especially since none of 

the weapons were ever recovered and when the totality of the 

evidence showed overwhelmingly that during the robbery and 

shooting the Petitioner was carrying a silver-plated, white- 

handled .38 pistol which was similar to the pistol taken in 

a prior armed robbery in which the Petitioner had participated, 

and which was similar to the pistol which shot Officer Schlatt. 

(T. 649, 665, 680, 725-727, 757) 412-415). The failure to 

-28~ 

 



  

speak to Mr. Fite prior to trial, should also be considered in 

light of Petitioner's own inculpatory statements, wherein 

he admitted that he had shot the police officer. (T. 658, 

659, 869-870). 

Pertaining to the testimony of the state's rebuttal witness, 

Offie Evans,who testified regarding an alleged admission of 

guilt by the Petitioner, it is inconceivable that the defense 

would have benefited to any great degree even if defense counsel 

had known that witness Evans had overheard the Petitioner make 

an inculpatory statement while at the Fulton County Jail. The 

state had made no secret of Evans' past criminal record, and 

the outstanding escape charges pending against him at the time 

of his testimony. (T. 865-866). Turner did cross-examine 

Evans about his pending criminal escape charge, and Evans 

indicated that his cooperation was not related to that charge. (T.882). 

Turner also had no reason to believe that the Petitioner had 

made any statements while incarcerated, because McCleskey had 

told him that he had not spoken to anyone at the jail relating 

to the incident, and Turner additionally instructed him not 

to do 80. 

Petitioner's contentions that his attorney was ineffective 

during the actual trial are also unmeritorious. First, although 

Petitioner had an opportunity to elicit from defense counsel 

why he did not object to the trial court's instructions, or 

the District Attorney's arguments, he did not pursue such 

questioning at the state habeas hearing. In any case, since 

the trial court's instructions and the District Attorney's 

arguments were not erroneous or at the most were harmless error, 

any absence of objections would not have deprived Petitioner 

of a fair trial. Since there was no alleged deal or agreement 

Wig LP 

 



  

with witness Offie Evans, in exchange for his testimony, counsel 

was not remiss in failing to chase down that blind alley. Since 

it is clear that the eyewitness identification of the Petitioner 

was based upon witness identifications of him at the scenes of 

the various crimes, even if counsel could possibly have shown 

a suggestive identification display, reversible error was 

not present. United States v. Wade, 388 U.S. 218 (1967); 
  

Neil v. Biggers, 409 U.S. 118, 198-199 (1972). Petitioner has 
  

shown absolutely nothing which would indicate that any motion 

to suppress may have been successful. 

Finally, in regards to the sentencing phase of Petitioner's 

trial, Attorney Turner testified at the habeas hearing that 

he fully advised Petitioner of his right to tender any mitigating 

evidence during said sentencing phase. Turner testified that 

neither Petitioner nor members of his family had given him the 

names of any persons who would have testified during the 

sentencing phase of Petitioner's trial. In fact, Petitioner's 

own mother and sister rejected Turner's requests that they 

be witnesses on behalf of Petitioner. 

In conclusion, claims of effective assistance require 

an inquiry into the actual performance of counsel, and a 

determination as to whether reasonably effective assistance 

was rendered based upon the totality of the circumstances. 

Lovett v. Florida, 627 F.24 706 (5th Cir. 1980). Although 
  

counsel may have done more, he is not required to pursue 

every path until be bears fruit or all hope withers. 1d., at 

p. 708; United States v. Hughes, 635 F.2d 449, 453 (5th Cir. 
  

1981). Here, Petitioner has failed to show that under the 

totality of the circumstances existing at his trial he received 

ineffective assistance of counsel, and thus, this Court should 

decline Petitioner's request that certiorari be granted to 

review his seventh argument. 

- 3 

 



  

VIII. THERE IS NO EVIDENCE IN THE RECORD 

THAT ANY JURORS WERE IMPROPERLY EXCLUDED 

BECAUSE OF THEIR OPPOSITION TO CAPITAL 

PUNISHMENT. 

Petitioner contends under his eighth argument that the 

death penalty in this case should be vacated, because of the 

improper exclusion of two jurors who voiced opposition to 

capital punishment. These jurors who were excused were Ms. 

Barbara Weston and Ms. Emma T. Cason (T. 96-99, 128-130). 

There is no evidence in the record which supports the 

allegation that these potential jurors had been improperly 

excluded. Both jurors expressed that they could not impose 

the death penalty, regardless of the facts or circumstances 

which might emerge in the course of the proceedings. Therefore, 

they were properly excluded under Witherspoon v. Illinois, 
  

391 U.S. 510 (1968) and its progeny, Boulden v. Holman, 394 
  

U.S. 478 (1969); Maxwell v. Bishop, 398 U.S. 262 (1970); 
  

Davis v. Georgia, 429 U.S. 122 (1976). 
  

Petitioner's assertions that the exclusion of the jurors 

deprived him of a representative cross-section of the community 

or that the exclusions created a prosecution-prone jury have 

previously been rejected by the federal courts. See, Spinkellink 
    

v. Wainwright, 578 7.24 582, 3393-594 (5th Cir. 1978), cert. den., 
  

  

v.58. , 99 8.0, 1548 (1979); Bumper v, North Carolina, 391 

0.8. 543 (1968). 

  

For all of the aforesaid reasons, this Court should reject 

Petitioner's eighth argument which requests that the petition 

for writ of certiorari be granted. 

31 

 



  

CONCLUSION 
  

For all of the aforesaid reasons, Petitioner's request 

for a writ of certiorari should be DENIED. 

Respectfully submitted, 

Lettbao &. omy 
NICHOLAS G. DUMICH 

Assistant Attorney General 
Attorney of Record for the Respondent 

  

MICHAEL J. BOWERS 
Attorney General 

ROBERT S. STUBBS, II 
Executive Assistant 
BI General 

C™N AN 1 NN 

Nt A 

ANAREENY Tire, 
mh O. GORDON wo 
Senior Pesisuame iw General 

a “WALDEN 
Senior Assistant Attorney General 

  

  

  

Please serve: 

NICHOLAS G. DUMICH 

132 State Judicial Bldg. 
40 Capitol Square, S. W. 
Atlanta, Georgia 30334 
(404) 656-3499 

i 

 



  

CERTIFICATE OF SERVICE 
  

I, Nicholas G. Dumich, Attorney of Record for the Respondent, 

and a member of the Bar of the Supreme Court of the United 

States, hereby certify that in accordance with the rules of 

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

a true and correct copy of this Brief in Opposition for the 

Respondent, upon counsel for Petitioner, by depositing a copy 

of same in the United States mail, with sufficient postage 

affixed thereon, and addressed to: 

Mr. Robert H. Stroup 
1515 Healey Building 
57 Forsyth Street, N. W. 
Atlanta, Georgia 30303 

Mr. Jack Greenburg 
Mr. John Charles Boger 
Attorneys at Law 
10 Columbus Circle 
New York, New York 10019 

x Cu Pray 

! day of Sony , 1981, 

  

  

NICHOLAS G. DUMICH 
  

-33- 

 



  

  

  

  

  

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